EXHIBIT 10.4
EXHIBIT A
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ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT is made as of this ____ day of January, 1998
(this "Agreement"), by and among AMERICAN TOWER SYSTEMS (DELAWARE), INC., a
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Delaware corporation (formerly known as American Tower Systems, Inc.) ("American
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Tower"), AMERICAN TOWER SYSTEMS, L.P., a Delaware limited partnership ("Newco"),
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the FINANCIAL INSTITUTIONS SIGNATORIES HERETO, TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent (the "Administrative Agent") and AMERICAN TOWER SYSTEMS
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CORPORATION (formerly known as American Tower Systems Holding Corporation), a
Delaware corporation (the "Parent").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, American Tower, the Administrative Agent and the Banks are parties
to that certain Amended and Restated Loan Agreement dated as of October 15, 1997
(as heretofore and hereafter amended, modified, supplemented or restated from
time to time, the "Loan Agreement"), whereby the Banks agreed to extend loans to
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American Tower; and
WHEREAS, the Parent has heretofore executed and delivered to the
Administrative Agent and the Banks that certain Amended and Restated Parent
Pledge Agreement dated as of October 15, 1997 (the "Parent Pledge Agreement");
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and
WHEREAS, American Tower has requested that the Banks consent to an
assumption by Newco of all of the Obligations and all of the other obligations
under the Loan Agreement, the Notes (as defined in the Loan Agreement) and the
other Loan Documents (as defined in the Loan Agreement) and the creation of a
co-borrower arrangement with Newco and American Tower as borrowers under the
Loan Agreement; and
WHEREAS, the Administrative Agent and the Banks have agreed to such
assumption only on the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing premises, and the
mutual agreements and covenants herein contained, the parties hereto agree that
capitalized terms used herein shall, unless otherwise defined herein, have the
meaning ascribed thereto in the Loan Agreement and further agree as follows:
1. Consent and Release. Subject to satisfaction of the conditions
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precedent set forth in Section 3 hereof, the Banks and the Administrative Agent
hereby consent to the assumption by Newco of all of the Obligations of American
Tower under the Loan Agreement, the Notes and the other Loan Documents pursuant
to Section 2 of this Agreement. Upon receipt of notice from the Administrative
Agent that the conditions precedent set forth in Section 4 hereof have been
satisfied, American Tower shall become a co-borrower under the Loan Agreement
and American Tower hereby agrees that it shall at all times after the
effectiveness hereof be jointly and severally liable for any and all of
Obligations under the Loan Agreement, the Notes and all other Loan Documents.
Each Bank hereby agrees that promptly following (a) its receipt of its
Replacement Note (as defined below) and (b) satisfaction of the conditions
precedent set forth in Section 3 hereof, such Bank shall return to American
Tower the Note issued to such Bank by American Tower. Each of American Tower and
Newco hereby agree that effective immediately upon the effectiveness of this
Agreement, they shall be jointly and severally liable for all of the
Obligations.
2. Assumption. Newco hereby assumes and agrees to pay and perform all of
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the Obligations of American Tower under the Loan Agreement (including, without
limitation, indemnity obligations under Sections 2.10, 2.12, 5.12, 10.3 and 11.2
of the Loan Agreement, whether arising prior to the date hereof or thereafter
and whether resulting from the actions of American Tower or Newco), the Notes
and the other Loan Documents, in accordance with the terms thereof, at the times
and in the manner and amounts therein set forth. Without in any way limiting
the foregoing, Newco hereby acknowledges and agrees that all covenants,
agreements and obligations (including, without limitation, the Obligations) of
the Borrower set forth in the Loan Agreement, the Notes and the other Loan
Documents shall at all times be the covenants,
agreements and obligations of Newco, except to the extent modified or amended
herein. American Tower hereby agrees that, notwithstanding the foregoing
assumption, it shall remain liable for the Obligations on a joint and several
basis under the Loan Agreement as modified by the terms and provisions hereof.
3. Amendments to Loan Agreement. The parties hereto hereby agree that
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effective upon satisfaction of the conditions set forth in Section 4 hereof, the
Loan Agreement shall be amended as follows:
a Amendment to Article 1.
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i Article 1 of the Loan Agreement, Definitions, is hereby amended
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by deleting the definitions of "Acquisition," "Acquisition
Operating Cash Flow," "Applicable Margin Ration," "Borrower,"
"Change of Control," "Excess Cash Flow," "Interest Expense,"
"known to the Borrower," "Leverage Ratio," "Licenses," "Loans,"
"Materially Adverse Effect," "Necessary Authorizations," "Net
Income," "Net Proceeds," "Obligations," "Operating Cash Flow,"
"Operating Cash Flow (Towers)," "Operating Cash Flow (Other
Business)," "Other Operations," "Permitted Liens," "Pro Forma
Debt Service," "Request for Advance," "Restricted Payment,"
"Restricted Subsidiary," "Total Debt," "Tower Operation
Business," "Unrestricted Subsidiary" and "Unrestricted Subsidiary
Distributions" in their entirety and by substituting in lieu
thereof each of the definitions set forth on Schedule 1 attached
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hereto.
i Article 1 of the Loan Agreement, Definitions, is hereby further
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amended by inserting the following definitions into such Article
in appropriate alphabetical order:
"'Co-Borrower' shall mean American Tower Systems (Delaware),
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Inc., a Delaware corporation."
"'ATSC Operating' shall mean ATSC Operating Inc., a Delaware
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corporation."
"'ATSC LP' shall mean ATSC LP Inc., a Delaware corporation."
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"'ATSC Holding' shall mean ATSC Holding Inc., a Delaware
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corporation."
"'ATSC GP' shall mean ATSC GP Inc., a Delaware corporation."
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"'Subordination Agreement' shall mean, collectively, that
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certain Subordination Agreement dated as of January ____, 1998
among ATSC Operating, ATSC LP and the Administrative Agent and
that certain Subordination Agreement dated as of January ____,
1998 among ATSC Holding, ATSC GP and the Administrative Agent.
a Amendment to Article 2.
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i Article 2 of the Loan Agreement, Loans, is hereby amended by
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deleting Section 2.1 thereof in its entirety and by substituting
in lieu thereof the following:
"Section 2.1 The Loans.
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a Loans to the Borrower. The Banks agree, severally, in
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accordance with their respective Commitment Ratios and not
jointly, upon the terms and subject to the conditions of
this Agreement and provided there exists no Default or Event
of Default hereunder, to lend to the Borrower, prior to the
Maturity Date, an amount not at any one time outstanding to
exceed, in the aggregate, the Available Commitment. Subject
to the terms and conditions hereof and provided there exists
no Default or Event of Default hereunder, Advances hereunder
may be repaid
and reborrowed from time to time on a revolving basis.
a Loans to the Co-Borrower. The Banks agree, severally, in
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accordance with their respective Commitment Ratios and not
jointly, upon the terms and subject to the conditions of
this Agreement and provided there exists no Default or Event
of Default hereunder, to lend to the Co-Borrower, prior to
the Maturity Date, an amount not at any one time outstanding
to exceed (without the consent of the Majority Banks), in
the aggregate, the lesser of (A) the Available Commitment
and (B) $45,000,000. Subject to the terms and conditions
hereof and provided there exists no Default or Event of
Default hereunder, Advances hereunder may be repaid and
reborrowed from time to time on a revolving basis."
i Article 2 of the Loan Agreement, Loans, is hereby further amended
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by modifying each of the provisions set forth therein so that
every place in which the term "Borrower" is used it shall be
deemed to include the "Co-Borrower" on a joint and several basis
with the Borrower.
a Amendment to Article 4. Article 4 of the Loan Agreement,
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Representations and Warranties, is hereby amended by modifying each of
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the provisions set forth therein so that every place in which the term
"Borrower" is used it shall be deemed to include the "Co-Borrower" and
so that every place where the representations therein refer to the
Borrower and its Restricted Subsidiaries on a consolidated basis it
shall be deemed to refer to the Co-Borrower, the Borrower and their
Restricted Subsidiaries on a consolidated basis.
a Amendment to Article 5. Article 5 of the Loan Agreement, General
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Covenants, is hereby amended by modifying each of the provisions set
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forth therein
so that every place in which the term "Borrower" is used it shall be
deemed to include the "Co-Borrower" and so that every place where the
covenants contained therein refer to the Borrower and its Restricted
Subsidiaries on a consolidated basis it shall be deemed to refer to
the Co-Borrower, the Borrower and their Restricted Subsidiaries on a
consolidated basis.
a Amendments to Article 6. Article 6 of the Loan Agreement, Information
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Covenants, is hereby amended by modifying each of the provisions set
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forth therein so that every place in which there is a requirement for
information to be reported with respect to the Borrower, there shall
be a similar requirement for substantially similar information with
respect to the Co-Borrower and its Restricted Subsidiaries. This
amendment shall include the requirements in Sections 6.1 and 6.2 that
the Borrower provide consolidating financial statements (which need
not be audited) with respect to the Borrower and the Co-Borrower and
their Restricted Subsidiaries.
a Amendments to Article 7. Article 7 of the Loan Agreement, Negative
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Covenants, is hereby amended by modifying each of the provisions set
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forth therein so that every place in which the term "Borrower" is used
it shall be deemed to include the "Co-Borrower" and so that every
place where the covenants contained therein refer to the Borrower and
its Restricted Subsidiaries on a consolidated basis it shall be deemed
to refer to the Co-Borrower, the Borrower and their Restricted
Subsidiaries on a consolidated basis. Notwithstanding the foregoing,
any dollar limitations contained in any of the covenants in Article 7
and any restrictions based upon Operating Cash Flow shall be
determined in the aggregate for the Borrower and the Co-Borrower. In
addition, the Borrower may, subject to the conditions of the
Subordination Agreement, make distributions to GP Inc. and LP Inc. for
the purpose of paying current interest on the Subordinated
Indebtedness described therein.
Amendments to Article 8. Article 8 of the Loan Agreement, Default, is
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hereby amended as follows:
(i) Section 8.1, Events of Default, is hereby amended so that each
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reference to the Borrower and the Borrower and its Restricted
Subsidiaries in subsections (b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), (l) or (o) thereof shall be deemed to include the Co-
Borrower and the Co-Borrower and its Restricted Subsidiaries, as
applicable.
(ii) Section 8.1, Events of Default, is hereby further amended to add
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a new subsection (q) as follows:
"(q) Any of ATSC Operating, ATSC LP, ATSC Holding and ATSC GP
shall incur and suffer to exist any Indebtedness for Money
Borrowed, other than Indebtedness for Money Borrowed which is
subordinated to the Obligations and assigned to the Banks as
additional Collateral, in each case on terms and conditions
satisfactory to the Majority Banks."
a Amendments to Article 10. Article 10 of the Loan Agreement, Changes in
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Circumstances Affecting LIBOR Advances, is hereby amended by modifying
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each of the provisions therein such that they apply equally to the
Borrower and the Co-Borrower and further to provide that to the extent
that any of the provisions therein create a payment obligation on
behalf of the Borrower, that such provisions shall hereafter refer to
the Borrower and the Co-Borrower on a joint and several basis.
a Amendments to Articles 11 and 12. Article 11 of the Loan Agreement,
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Miscellaneous, and Article 12 of the Loan Agreement, Waiver of Jury
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Trial, are hereby amended to the extent necessary to make the
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provisions thereof applicable equally to the Borrower and the Co-
Borrower, and each of them hereby confirm and acknowledge each of the
waivers set forth
therein. The Borrower and Co-Borrower hereby further agree that any
notices under the Loan Documents shall be sent to the Borrower and the
Co-Borrower at the address set forth for the Borrower in Section 11.1
of the Loan Agreement in the manner set forth therein.
4. Conditions Precedent to Effectiveness of Consent. The effectiveness of
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this Agreement is subject to the prior or contemporaneous fulfillment of
each of the following conditions:
a. the truth and accuracy in all material respects on the effective
date hereof of the representations and warranties set forth in Article
4 of the Loan Agreement, which, pursuant to Section 4.2 of the Loan
Agreement, are made as of the time of each Advance, in each case,
before and after giving effect to Sections 1 and 2 of this Agreement,
except to the extent previously modified or waived in accordance with
the terms of the Loan Agreement and to the extent relating
specifically to the Agreement Date or some other date;
b. the non-existence on the effective date hereof of any Default or
Event of Default both before and after giving effect to Sections 1 and
2 of this Agreement;
c. receipt by the Administrative Agent of a duly executed promissory
note in favor of each Bank representing such Bank's portion of the
Commitment and the Loans of such Bank assumed by Newco, which Notes
shall be in substantially the form of Exhibit A attached hereto
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(collectively, for all Banks, the "Replacement Notes");
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d. receipt by the Administrative Agent of a Borrower Security
Agreement, substantially in the form of Exhibit B attached hereto,
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together with appropriate UCC financing statements, each duly executed
by Newco;
d. receipt by the Administrative Agent of copies of insurance
binders or certificates covering the assets of Newco and the
Restricted Subsidiaries, and otherwise
meeting the requirements of Section 5.5 of the Loan Agreement;
e. legal opinion of Xxxxxxxx & Worcester LLP, counsel to Newco and
addressed to each Bank and the Administrative Agent, and dated as of
the Agreement Date substantially in the form of Exhibit C attached
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hereto;
f. any required consents to the closing of this Agreement or to the
execution, delivery and performance by Newco of this Agreement, the
Replacement Notes and the other Loan Documents, together with evidence
satisfactory to the Administrative Agent that all assets of American
Tower have been transferred to Newco, each of which shall be in form
and substance reasonably satisfactory to the Administrative Agent and
the Majority Banks;
g. the loan certificate of Newco dated as of the effective date of
this Agreement, in substantially the form of Exhibit D attached
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hereto;
h. the loan certificate of ATSC Operating dated as of the effective
date of this Agreement, in substantially the form of Exhibit E
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attached hereto;
i. the loan certificate of ATSC LP dated as of the effective date of
this Agreement, in substantially the form of Exhibit F attached
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hereto;
j. the loan certificate of ATSC Holding dated as of the effective date
of this Agreement, in substantially the form of Exhibit G attached
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hereto;
k. the loan certificate of ATSC GP dated as of the effective date of
this Agreement, in substantially the form of Exhibit H attached
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hereto;
l. execution and delivery of this Agreement by Newco, American Tower,
the Parent, the Administrative Agent and the Banks;
m. execution and delivery of a Stock Pledge Agreement by American
Tower pursuant to which American Tower pledges
its interest in the stock of Newco to the Administrative Agent (on
behalf of the Banks), in substantially the form of Exhibit I attached
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hereto;
n. execution and delivery of an Assignment of Intercompany
Indebtedness by American Tower pursuant to which American Tower grants
to the Administrative Agent (on behalf of the Banks) a security
interest in all Indebtedness for Money Borrowed owed to American Tower
by Newco, in substantially the form of Exhibit J attached hereto; and
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o. subordination of all intercompany Indebtedness for Money Borrowed
owed by Newco to American Tower on terms and conditions satisfactory
to the Majority Banks.
5. Representations and Warranties. Newco hereby represents and warrants
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in favor of the Administrative Agent and each Bank that:
a. Organization; Ownership; Power; Qualification. As of the
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effective date of this Agreement, Newco is a partnership duly
organized, validly existing and in good standing under the laws of the
State of Delaware. Newco has the partnership power and authority to
own its properties and to carry on the business of the Restricted
Subsidiaries as now being and as proposed hereafter to be conducted.
Newco and the Restricted Subsidiaries will be within thirty (30) days
duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of their respective properties or
the nature of their respective businesses requires such qualification
or authorization except where failure to so qualify and be qualified
could not reasonably be expected to have a Materially Adverse Effect.
b. Authorization; Enforceability. Newco has the partnership power
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and ATSC GP has taken all necessary corporate action to authorize
Newco to assume the Obligations as set forth hereunder, to execute,
deliver and perform this Agreement and each of the other Loan
Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly executed
and delivered by Newco and is, and each of the other Loan Documents to
which Newco is party is, a legal, valid and binding obligation of
Newco enforceable against Newco in accordance with its terms, subject,
as to enforcement of remedies, to the following qualifications: (i) an
order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are
considered an adequate remedy at law, and (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the
bankruptcy, insolvency or similar event of Newco).
c. Restricted Subsidiaries: Authorization; Enforceability. The
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Borrower, the Co-Borrower and their Restricted Subsidiaries and the
direct and indirect ownership thereof by the Parent as of the
effective date of this Agreement are as set forth on Schedule 1
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attached hereto, and to the extent such Restricted Subsidiaries are
corporations, the Parent has the unrestricted right to vote the issued
and outstanding shares or ownership interests of the Restricted
Subsidiaries shown thereon and such shares of such Restricted
Subsidiaries have been duly authorized and issued and are fully paid
and nonassessable. Each Restricted Subsidiary has the corporate or
partnership power and has taken all necessary corporate or partnership
action to authorize it to execute, deliver and perform this Agreement
and to consummate the transactions contemplated by this Agreement. The
Parent's ownership interest in each of the Restricted Subsidiaries
represents a direct or indirect controlling interest of such
Restricted Subsidiary for purposes of directing or causing the
direction of the management and policies of each Restricted
Subsidiary.
d. Compliance with Other Loan Documents and Contemplated
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Transactions. The execution, delivery and performance, in accordance
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with their respective terms, by Newco of this Agreement, the Loan
Agreement, the Replacement Notes and the other Loan Documents, and the
consummation of the transactions contemplated hereby and thereby, do
not and
will not (i) require any consent or approval, governmental or
otherwise, not already obtained other than consents and approvals that
may be required from the issuers of Licenses in connection with the
exercise by the Administrative Agent or the Banks of certain of their
remedies under the Loan Documents, (ii) violate any Applicable Law
respecting Newco or any Restricted Subsidiary, (iii) conflict with,
result in a breach of, or constitute a default under the certificate
or articles of incorporation or by-laws or partnership agreements, as
the case may be, as amended, of Newco or of any Restricted Subsidiary,
or under any material indenture, agreement, or other instrument or
(iv) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by
Newco or any of the Restricted Subsidiaries, except for Permitted
Liens.
6. Ratification. Newco hereby (a) ratifies and confirms the terms and
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conditions of the Loan Agreement and the Replacement Notes; (b)
acknowledges that the Loan Agreement and all other Loan Documents are in
full force and effect including, without limitation Section 12.1 of the
Loan Agreement; and (c) covenants that as of the date hereof Newco has no
defenses or offsets with respect to the Obligations herein assumed by
Newco, and no counterclaims against the Banks whether based upon the
transactions evidenced by the Loan Agreement, the Loan Documents or
otherwise.
7. Parent's Acknowledgement. The Parent acknowledges and agrees that the
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Obligations (as defined in the Parent Pledge Agreement) include, without
limitation, all of the Obligations of Newco under the Loan Agreement, the
Replacement Notes and the other Loan Documents. The Parent hereby (a)
consents to the assumption of the Obligations by Newco and (b) covenants
that as of the date hereof the Parent has no defenses or offsets with
respect to the Obligations defined in the Parent Pledge Agreement, and no
counterclaims against the Administrative Agent or any of the Banks whether
based upon the transactions evidenced by this Agreement, the Loan Documents
or otherwise.
8. No Waiver. Notwithstanding the agreement of the Banks and the
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Administrative Agent to the terms and provisions of this Agreement, each of
American Tower and Newco acknowledges and expressly agrees that the consent
of the Administrative Agent and the Banks to the assumption of American
Tower's Obligations under the Loan Agreement by Newco does not constitute a
waiver of the Banks' right to declare the Obligations immediately due and
payable after the occurrence and during the continuance of an Event of
Default under the Loan Agreement and, further, shall not constitute a
modification of the Loan Agreement or any other Loan Document, except to
the extent expressly provided herein or therein, or constitute a course of
dealing at variance with the terms of the Loan Agreement or any other Loan
Document such as to require further notice of their intent to require
strict adherence to the terms of the Loan Agreement or any other Loan
Document in the future.
9. Administrative Agent as Attorney-in-Fact. Newco hereby names,
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constitutes, and appoints the Administrative Agent as its agent and
attorney-in-fact to exercise, at such times and in such manner as set forth
therein, all powers granted to the Administrative Agent or the Banks, or
any of them, under the Loan Agreement and all other Loan Documents.
10. Counterparts. This Agreement 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.
11. Governing Law. THIS AGREEMENT AND THE REPLACEMENT NOTES SHALL BE
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CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the undersigned have caused this Agreement to be executed as
of the day and year first above written.
AMERICAN TOWER: AMERICAN TOWER SYSTEMS (DELAWARE),
INC., a Delaware corporation
By:_______________________________
Its:_
NEWCO: AMERICAN TOWER SYSTEMS, L.P., a
__________ limited partnership
By its General Partner,
ATSC GP INC., a Delaware corporation
By:_______________________________
Its:_
PARENT: AMERICAN TOWER SYSTEMS CORPORATION
(formerly known as American Tower
Systems Holding Corporation), a
Delaware corporation
By:_______________________________
Its:_
ADMINISTRATIVE AGENT
AND BANKS: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and as a Bank
By:_______________________________
Its:_
BANQUE PARIBAS, as a Bank
By:_______________________________
Its:_
By:_______________________________
Its:_
BARCLAYS BANK PLC, as a Bank
By:_______________________________
Its:_
BANK OF MONTREAL, CHICAGO BRANCH
By:_______________________________
Its:_
THE CHASE MANHATTAN BANK, as a Bank
By:_______________________________
Its:_
FLEET NATIONAL BANK, as a Bank
By:_______________________________
Its:_
GENERAL ELECTRIC CAPITAL CORPORATION (formerly known as GE
Capital Corporation), as a Bank
By:_______________________________
Its:_
THE BANK OF NEW YORK, as a Bank
By:_______________________________
Its:_
CREDIT SUISSE FIRST BOSTON, as a Bank
By:_______________________________
Its:_
By:_______________________________
Its:_
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as a
Bank
By:_______________________________
Its:_
UNION BANK OF CALIFORNIA, N.A., as a Bank
By:_______________________________
Its:_
THE BANK OF NOVA SCOTIA, as a Bank
By:_______________________________
Its:_
CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
By:_______________________________
Its:_
THE SUMITOMO BANK, LIMITED, acting through its Chicago Branch,
as a Bank
By:_______________________________
Its:_
By:_______________________________
Its:_
BANK OF SCOTLAND, as a Bank
By:_______________________________
Its:_
XXXXXX COMMERCIAL PAPER INC., as a Bank
By:_______________________________
Its:_
KEY CORPORATE CAPITAL INC., as a Bank
By:_______________________________
Its:_
SCHEDULE 1
to Assumption Agreement
"Acquisition" shall mean (whether by purchase, lease, exchange, issuance of
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stock or other equity or debt securities, merger, reorganization or any other
method) (i) any acquisition by the Borrower, the Co-Borrower or any of their
Restricted Subsidiaries of any other Person, which Person shall then become
consolidated with the Borrower, the Co-Borrower or any such Restricted
Subsidiary in accordance with GAAP; (ii) any acquisition by the Borrower,the
Co-Borrower or any of their Restricted Subsidiaries of all or any substantial
part of the assets of any other Person; or (iii) any acquisition by the
Borrower, the Co-Borrower or any of their Restricted Subsidiaries of any
communications tower facilities, communications tower management businesses or
related contracts, other than any such Acquisition which shall be made by, or
of, any Person which shall have been designated and approved as an Unrestricted
Subsidiary.
"Acquisition Operating Cash Flow" shall mean in the case of an Acquisition
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permitted hereunder, Operating Cash Flow of the Borrower, the Co-Borrower and
their Restricted Subsidiaries for the period during which such Acquisition
occurs, adjusted (A) to give effect to such Acquisition, as if such Acquisition
had occurred on the first day of such period, by excluding the Operating Cash
Flow of such Acquisition during such period prior to the date of such
Acquisition and adding to the Operating Cash Flow of the Borrower and the Co-
Borrower, if positive, or subtracting from such Operating Cash Flow, if
negative, the product of (i) the actual Operating Cash Flow of such Acquisition
for that portion of such period from the date of such Acquisition to the last
day of such period, multiplied by (ii) a fraction the numerator of which is the
number of calendar days in such period and the denominator of which is the
number of days in such period from and including the date of such Acquisition
through the last day of such period.
"Applicable Margin Ratio" shall mean, as of any date, the ratio of (a) the
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Total Debt on such date to (b) the product of
(i) Operating Cash Flow for the most recently completed fiscal quarter times
(ii) four (4).
"Borrower" shall mean American Tower Systems, L.P.
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"Change of Control" shall mean (a) any change in the ownership of, or lien
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upon, the partnership interests of the Borrower or the stock of the Co-Borrower
that results in less than fifty-one percent (51%) of all voting rights with
respect to the ownership interests of the Borrower and the Co-Borrower
(including, without limitation, warrants, options, conversion rights, voting
rights and calls or claims of any character with respect thereto, to the extent
exercisable prior to repayment in full of the Obligations) being owned, directly
or indirectly, by the Parent, the senior management of American Radio Systems,
or Affiliates of American Radio Systems, the Parent or the Borrower or (b) after
any acquisition of all or substantially all of the assets or voting control of
the Capital Stock of American Radio Systems (whether by merger or other business
combination), any event that results in Xxxxxx X. Xxxxx ceasing to have one of
the following: (i) ownership, directly or indirectly, of a material amount of
the voting ownership interests of the Borrower and the Co-Borrower, (ii)
ownership, directly or indirectly, of a material amount of the economic
ownership interests of the Borrower and the Co-Borrower or (iii) the position of
Chairman of the Board of Directors and Chief Executive Officer of the General
Partner of the Borrower and the Co-Borrower.
"Excess Cash Flow" shall mean, as of the end of any fiscal year of the
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Borrower based on the audited financial statements provided under Section 6.2
hereof for such fiscal year, the excess, if any, of (a) Operating Cash Flow for
such fiscal year, minus (b) the sum of the following: (i) payments made with
respect to Capital Expenditures incurred by the Borrower, the Co-Borrower and
their Restricted Subsidiaries during such fiscal year; (ii) repayments of the
Loans resulting from reductions of the Commitment (which shall include any
reductions set forth in Section 2.5(a) hereof); (iii) cash taxes paid by the
Borrower, the Co-Borrower and their Restricted Subsidiaries (including any paid
to American Radio Systems pursuant to the Tax Sharing Agreement) during such
fiscal year; (iv) Interest Expense during such fiscal year;
and (v) principal payments made in respect of Indebtedness for Money Borrowed
(other than with respect to the Loans) paid by the Borrower, the Co-Borrower and
their Restricted Subsidiaries during such fiscal year.
"Interest Expense" shall mean, for any period, all cash interest expense
----------------
(including imputed interest with respect to Capitalized Lease Obligations) with
respect to any Indebtedness for Money Borrowed of the Borrower, the Co-Borrower
and their Restricted Subsidiaries on a consolidated basis during such period
pursuant to the terms of such Indebtedness for Money Borrowed, together with all
fees payable in respect thereof, all as calculated in accordance with GAAP.
"known to the Borrower" or "to the knowledge of the Borrower" shall mean
--------------------- --------------------------------
known by or reasonably should have been known by the executive officers of the
Borrower or the Co-Borrower (which shall include, without limitation, the chief
executive officer, the chief operating officer, if any, the chief financial
officer and the general counsel, or any vice president of the Borrower or Co-
Borrower).
"Leverage Ratio" shall mean, as of any date, the ratio of (a)(i) the Total
--------------
Debt on such date minus (ii) the then outstanding principal amount of all
-----
Investor Notes (not to exceed $60,000,000), to (b) Annualized Operating Cash
Flow.
"Licenses" shall mean any telephone, microwave, radio transmissions,
--------
personal communications or other license, authorization, certificate of
compliance, franchise, approval or permit, whether for the construction, the
ownership or the operation of any communications tower facilities, granted or
issued by the FCC and held by the Borrower, the Co-Borrower or any of their
Restricted Subsidiaries, all of which as of the Agreement Date are listed on
Schedule 1 attached hereto.
"Loans" shall mean, collectively, the amounts advanced by the Banks to the
-----
Borrower and the Co-Borrower under the Commitment, and evidenced by the Notes."
"Materially Adverse Effect" shall mean (a) any material adverse effect upon
-------------------------
the business, assets, business prospects,
liabilities, financial condition, results of operations or properties of the
Borrower, the Co-Borrower and their Restricted Subsidiaries on a consolidated
basis, taken as a whole, or (b) a material adverse effect upon the binding
nature, validity, or enforceability of this Agreement and the Notes, or upon the
ability of the Borrower, the Co-Borrower and their Restricted Subsidiaries to
perform the payment obligations or other material obligations under this
Agreement or any other Loan Document, or upon the value of the Collateral or
upon the rights, benefits or interests of the Banks in and to the Loans or the
rights of the Administrative Agent and the Banks in the Collateral; in either
case, whether resulting from any single act, omission, situation, status, event
or undertaking, or taken together with other such acts, omissions, situations,
statuses, events or undertakings.
"Necessary Authorizations" shall mean all approvals and licenses from, and
------------------------
all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Licenses and all
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower, the Co-Borrower and their Restricted
Subsidiaries to own, construct, maintain, and operate communications tower
facilities and to invest in other Persons who own, construct, maintain, manage
and operate communications tower facilities.
"Net Income" shall mean, for the Borrower, the Co-Borrower and their
----------
Restricted Subsidiaries on a consolidated basis, for any period, net income
determined in accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, lease, transfer or
------------
other disposition of assets by the Borrower, the Co-Borrower or any of their
Restricted Subsidiaries, the aggregate amount of cash received for such assets
(including, without limitation, any payments received for noncompetition
covenants, consulting or management fees in connection with such sale, and any
portion of the amount received evidenced by a promissory note or other evidence
of Indebtedness issued by the purchaser), net of (i) amounts reserved, if any,
for taxes payable with respect to any such sale (after application (assuming
application first to such reserves) of any available losses, credits or other
offsets),
(ii) reasonable and customary transaction costs properly attributable to such
transaction and payable by the Borrower, the Co-Borrower or any of their
Restricted Subsidiaries (other than to an Affiliate) in connection with such
sale, lease, transfer or other disposition of assets, including, without
limitation, commissions, and (iii) until actually received by the Borrower, the
Co-Borrower or any of their Restricted Subsidiaries, any portion of the amount
received held in escrow or evidenced by a promissory note or other evidence of
Indebtedness issued by a purchaser or non-compete, consulting or management
agreement or covenant or otherwise for which compensation is paid over time.
Upon receipt by the Borrower, the Co-Borrower or any of their Restricted
Subsidiaries of (A) amounts referred to in item (iii) of the preceding sentence,
or (B) if there shall occur any reduction in the tax reserves referred to in
item (i) of the preceding sentence resulting in a payment to the Borrower, the
Co-Borrower or any of their Restricted Subsidiaries, such amounts shall then be
deemed to be "Net Proceeds."
"Obligations" shall mean all payment and performance obligations of every
-----------
kind, nature and description of the Borrower, the Co-Borrower, their Restricted
Subsidiaries, and any other obligors to the Banks, or the Administrative Agent,
or any of them, under this Agreement and the other Loan Documents (including any
interest, fees and other charges on the Loans or otherwise under the Loan
Documents that would accrue but for the filing of a bankruptcy action with
respect to the Borrower or the Co-Borrower, whether or not such claim is allowed
in such bankruptcy action and including Obligations to the Banks pursuant to
Section 5.13 hereof) as they may be amended from time to time, or as a result of
making the Loans, whether such obligations are direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, now existing or hereafter arising.
"Operating Cash Flow" shall mean, with respect to the Borrower, the Co-
-------------------
Borrower and their Restricted Subsidiaries on a consolidated basis as of the end
of any period, (a) the sum of (i) operating revenues of the Borrower, the Co-
Borrower and their Restricted Subsidiaries plus (ii) Unrestricted Subsidiary
Distributions during such period less (b) the sum
of (i) operating expenses for such period plus (ii) corporate overhead
(exclusive of amortization and depreciation) for such period. In the case of
determining Operating Cash Flow under Sections 2.3, 7.8, 7.9 and 7.10 hereof
following an Acquisition permitted hereunder, Operating Cash Flow of the
Borrower, the Co-Borrower and their Restricted Subsidiaries shall include the
Acquisition Operating Cash Flow. For purposes of calculating Operating Cash Flow
in connection with any Advance for an Acquisition, Operating Cash Flow for the
Borrower, the Co-Borrower and their Restricted Subsidiaries as of the last day
of the immediately preceding calendar quarter and/or calendar month end, as the
case may be, shall include "operating cash flow" for the Acquisition for the
same period after giving effect to pro forma adjustments reasonably satisfactory
to the Administrative Agent.
"Operating Cash Flow (Towers)" shall mean, with respect to the Borrower,
---------------------------
the Co-Borrower and their Restricted Subsidiaries on a consolidated basis as of
the end of any period, (a) the sum of (i) operating revenues of the Borrower,
the Co-Borrower and their Restricted Subsidiaries in connection with the Tower
Operation Business of the Borrower, the Co-Borrower and their Restricted
Subsidiaries plus (ii) Unrestricted Subsidiary Distributions with respect to the
Tower Operation Business during such period less (b) the sum of (i) operating
expenses attributable to such Tower Operation Business for such period plus (ii)
corporate overhead (exclusive of amortization and depreciation) attributable to
such Tower Operation Business for such period. In the case of determining
Operating Cash Flow under Sections 2.3, 7.8, 7.9 and 7.10 hereof following an
Acquisition permitted hereunder, Operating Cash Flow of the Borrower, the Co-
Borrower and their Restricted Subsidiaries shall include the Acquisition
Operating Cash Flow. For purposes of calculating Operating Cash Flow in
connection with any Advance for an Acquisition, Operating Cash Flow for the
Borrower, the Co-Borrower and their Restricted Subsidiaries as of the last day
of the immediately preceding calendar month end shall include "operating cash
flow" for the Acquisition for the same period after giving effect to adjustments
reasonably satisfactory to the Administrative Agent.
"Operating Cash Flow (Other Business)" shall mean, with respect to the
------------------------------------
Borrower, the Co-Borrower and their Restricted Subsidiaries on a consolidated
basis as of the end of any period, (a) the sum of (i) operating revenues of the
Borrower, the Co-Borrower and their Restricted Subsidiaries in connection with
the Other Operations of the Borrower, the Co-Borrower and their Restricted
Subsidiaries plus (ii) Unrestricted Subsidiary Distributions with respect to
the Other Operations during such period less (b) the sum of (i) operating
expenses attributable to such Other Operations for such period plus (ii)
corporate overhead (exclusive of amortization and depreciation) attributable to
such Other Operations for such period. In the case of determining Operating
Cash Flow under Sections 2.3, 7.8, 7.9 and 7.10 hereof following an Acquisition
permitted hereunder, Operating Cash Flow of the Borrower, the Co-Borrower and
their Restricted Subsidiaries shall include the Acquisition Operating Cash
Flow. For purposes of calculating Operating Cash Flow in connection with any
Advance for an Acquisition, Operating Cash Flow for the Borrower, the Co-
Borrower and their Restricted Subsidiaries as of the last day of the
immediately preceding calendar month end shall include "operating cash flow"
for the Acquisition for the same period after giving effect to adjustments
reasonably satisfactory to the Administrative Agent.
"Other Operations" shall mean all businesses of the Borrower, the Co-
----------------
Borrower and their Restricted Subsidiaries (other than the Tower Operations
Business), including, without limitation, the video and data transmission and
the site acquisition business.
"Permitted Liens" shall mean, as applied to any Person:
---------------
(a) any Lien in favor of the Administrative Agent given to secure the
Obligations;
(b) (i) Liens on real estate or other property for taxes, assessments,
governmental charges or levies not yet delinquent and (ii) Liens for taxes,
assessments, judgments, governmental charges or levies or claims the non-payment
of which is being diligently contested in good faith by appropriate proceedings
and for which adequate reserves have been set aside on such Person's books, but
only so long as no foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, vendors, (solely to
the extent arising by operation of law) laborers and materialmen incurred in the
ordinary course of business for sums not yet due or being diligently contested
in good faith, if reserves or appropriate provisions shall have been made
therefor;
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation and unemployment insurance, social security
obligations, assessments or government charges which are not overdue for more
than sixty (60) days;
(e) restrictions on the transfer of the Licenses or assets of the
Borrower, the Co-Borrower or their Restricted Subsidiaries imposed by any of the
Licenses as presently in effect or by the Communications Act and any regulations
thereunder;
(f) easements, rights-of-way, zoning restrictions, licenses,
reservations or restrictions on use and other similar encumbrances on the use of
real property which do not materially interfere with the ordinary conduct of the
business of such Person or the use of such property;
(g) liens arising by operation of law in favor of purchasers in
connection with any asset sale permitted hereunder; provided that such lien only
encumbers the property being sold.
(h) Liens reflected by Uniform Commercial Code financing statements
filed in respect of Capitalized Lease Obligations permitted pursuant to Section
7.1 hereof and true leases of the Borrower, the Co-Borrower or any of their
Subsidiaries;
(i) Liens to secure performance of statutory obligations, surety or
appeal bonds, performance bonds, bids,
tenders or escrow deposits in connection with permitted Acquisitions;
(j) judgment Liens which do not result in an Event of Default under
Section 8.1 (h) hereof;
(k) Liens in connection with escrow deposits made in connection with
Acquisitions permitted hereunder; and
"Pro Forma Debt Service" shall mean with respect to the Borrower, the Co-
----------------------
Borrower and their Restricted Subsidiaries, on a consolidated basis, with
respect to the next succeeding complete twelve (12) month period following the
calculation date, and after giving effect to any Interest Hedge Agreements and
LIBOR Advances, the sum of the amount of all (i) scheduled payments of principal
on Indebtedness for Money Borrowed (determined with respect to the Loans only,
as the difference between the outstanding principal amount of the Loans on the
calculation date and the amount the Commitment will be after the reductions
thereof set forth in Section 2.5 hereof for such four calendar quarter period
have taken effect) for such period, (ii) Interest Expense for such period, (iii)
fees payable under this Agreement for such period, and (iv) other payments
payable by such Persons during such period in respect of Indebtedness for Money
Borrowed (other than voluntary repayments under Section 2.7 hereof). For
purposes of this definition, where interest payments for the twelve (12) month
period immediately succeeding the calculation date are not fixed by way of
Interest Hedge Agreements, LIBOR Advances, or otherwise for the entire period,
interest shall be calculated on such Indebtedness for Money Borrowed for periods
for which interest payments are not so fixed at the lesser of (a) the LIBOR
Basis (based on the then current adjustment under Section 2.3(f) hereof) for a
LIBOR Advance having an Interest Period of six (6) months as determined on the
date of calculation and (b) the Base Rate Basis as in effect on the date of
calculation; provided, however, that if such LIBOR Basis cannot be determined in
-------- -------
the reasonable opinion of the Administrative Agent, such interest shall be
calculated using the Base Rate Basis as then in effect.
"Request for Advance" shall mean a certificate designated as a "Request for
-------------------
Advance," signed by an Authorized Signatory
of the Borrower or the Co-Borrower requesting an Advance hereunder, which shall
be in substantially the form of Exhibit G attached hereto, and shall, among
---------
other things, (i) specify the date of the Advance, which shall be a Business
Day, the amount of the Advance, the type of Advance (Eurodollar or Base Rate),
and, with respect to LIBOR Advances, the Interest Period selected by the
Borrower or the Co-Borrower, (ii) state that there shall not exist, on the date
of the requested Advance and after giving effect thereto, a Default, as of the
date of such Advance and after giving effect thereto, and (iii) the Applicable
Margin then in effect.
"Restricted Payment" shall mean any direct or indirect distribution,
------------------
dividend or other payment to any Person (other than to the Borrower, the Co-
Borrower or any of their Restricted Subsidiaries) on account of any general or
limited partnership interest in, or shares of Capital Stock or other securities
of, the Borrower, the Co-Borrower or any of their Restricted Subsidiaries (other
than dividends payable solely in stock of such Person and stock splits),
including, without limitation, any direct or indirect distribution, dividend or
other payment to any Person (other than to the Borrower, the Co-Borrower or any
Restricted Subsidiary of the Borrower or the Co-Borrower) on account of any
warrants or other rights or options to acquire shares of Capital Stock of the
Borrower or any of its Restricted Subsidiaries.
"Restricted Subsidiary" shall mean (a) with respect to the Borrower, any
---------------------
Subsidiary of the Borrower other than an Unrestricted Subsidiary, (b) with
respect to the Co-Borrower, any Subsidiary of the Co-Borrower other than an
Unrestricted Subsidiary.
"Total Debt" shall mean, for the Borrower, the Co-Borrower and their
----------
Restricted Subsidiaries on a consolidated basis as of any date, the sum (without
duplication) of (i) the outstanding principal amount of the Loans, (ii) the
aggregate amount of Capitalized Lease Obligations and Indebtedness for Money
Borrowed, and (iii) the aggregate amount of all Guarantees.
"Tower Operation Business" shall mean the ownership, leasing and tower
------------------------
management businesses of the Borrower, the Co-Borrower and their Restricted
Subsidiaries.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower or the
-----------------------
Co-Borrower or any joint venture (which may represent a minority interest)
between the Borrower, the Co-Borrower and/or any their Subsidiaries and any
other Person, in each case, which the Borrower or the Co-Borrower has heretofore
designated or hereafter designates as an Unrestricted Subsidiary by written
notice to the Administrative Agent and the Banks prior to the formation or
acquisition of such Subsidiary or joint venture. Notwithstanding the foregoing,
no Restricted Subsidiary may be re-designated as an Unrestricted Subsidiary
without the prior consent of the Majority Banks. The Unrestricted Subsidiaries
as of the Agreement Date are as set forth on Schedule 2 attached hereto.
"Unrestricted Subsidiary Distributions" shall mean the amount of cash
-------------------------------------
distributions received during such period by the Borrower, the Co-Borrower and
their Restricted Subsidiaries from any Unrestricted Subsidiary (other than in
connection with the repayment of intercompany Indebtedness).
