EXHIBIT 10.5
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FIFTH AMENDMENT TO FACILITY B LOAN AGREEMENT
AND CONSENT
THIS FIFTH AMENDMENT TO FACILITY B LOAN AGREEMENT AND CONSENT (this "Amendment
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and Consent"), dated as of the 29th day of September, 1999 (the "Amendment
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Date"), by and among AMERICAN TOWER, L.P., a Delaware limited partnership, and
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AMERICAN TOWERS, INC., a Delaware corporation (collectively, the "Borrower"),
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the FINANCIAL INSTITUTIONS SIGNATORY HERETO and TORONTO DOMINION (TEXAS), INC.,
as administrative agent (the "Administrative Agent") for the Banks (as defined
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in 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, that certain Third Amendment to ATS
Facility B Loan Agreement dated as of May 27, 1999 and that certain Fourth
Amendment to ATS Facility B Loan Agreement dated as of July 9, 1999 (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 Banks have agreed, on the terms
and subject to the conditions set forth herein, to permit the Parent (as defined
in the Loan Agreement) to incur certain indebtedness and to prepay the principal
amount of Indebtedness outstanding under the Parent Loan Agreement (as defined
in the Loan Agreement) and to make certain other amendments to the Loan
Agreement, in each case, 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. Amendment to Article 1. Article 1 of the Loan Agreement,
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Definitions, is hereby amended by adding the following definition of
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"Convertible Notes," thereto in appropriate alphabetical order:
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"Convertible Notes" shall mean convertible notes issued by the Parent
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having the following terms: (a) such Convertible Notes shall be overfunded by
an amount equal to all interest payable with respect thereto for the period
commencing on the
date of issuance thereof through the second anniversary of the date of
issuance, (b) no principal payments (other than in common stock of the Parent)
on the Convertible Notes may be required until six (6) months after the
Maturity Date, (c) the proceeds (other than any amount required to pay
interest during any applicable overfunding period) of such Convertible Notes
shall be contributed as equity to the Co-Borrowers to be applied to the Loans
in accordance with the provisions of this Agreement with any remaining
proceeds used to pay in full all outstanding amounts under the Parent Loan
Agreement in accordance with that certain Fifth Amendment to Facility B Loan
Agreement and Consent dated as of September 29, 1999, (d) not guaranteed by
Subsidiaries of the Parent and (e) such Convertible Notes shall be unsecured
and have such other terms and conditions substantially as set forth in the
Offering Memorandum with respect thereto."
2. Amendment to Article 8. Section 8.1 of the Loan Agreement, Events of
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Default, is hereby amended by deleting subsection (q) thereof in its entirety
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and by substituting the following in lieu thereof:
"(q) The Parent shall incur or permit to remain outstanding any
Indebtedness for Money Borrowed other than the Convertible Notes (or any
refinancing of the foregoing which does not exceed the principal amount
outstanding on the date of such refinancing); or"
3. Consent to Prepayment under Parent Loan Agreement. This
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Amendment and Consent, when executed by the Majority Banks and accepted by the
Borrower, will, subject to the terms and conditions hereof, reflect the Banks'
consent to the prepayment by the Parent in full of all amounts outstanding under
the Parent Loan Agreement solely with a portion the proceeds of the Convertible
Notes remaining after application of such proceeds as required by Article 2 of
the Loan Agreement; provided, however, that prior to such prepayment, the Co-
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Borrowers apply the proceeds of the Convertible Notes (other than any amount
required to pay interest during any applicable overfunding period) as required
by Article 2 of the Loan Agreement.
4. No Other Amendment or Consent. Except for the amendments and consent
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set forth above, the text of the Loan Agreement and all other Loan Documents
shall remain unchanged and in full force and effect. No waiver or consent 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 amendments and consent 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
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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.
5. Loan Documents. This Amendment and Consent shall be deemed to be a
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Loan Document for all purposes under the Loan Agreement and the other Loan
Documents.
6. Counterparts. This Amendment and Consent may be executed in any number
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of 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.
7. Governing Law. This Amendment and Consent shall be construed in
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accordance with and governed by the laws of the State of New York.
8. Severability. Any provision of this Amendment and Consent 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment and
Consent 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/ Xxxxxx X. Xxxx
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Title: Chief Financial Officer
AMERICAN TOWERS, INC.
By: /s/ Xxxxxx X. Xxxx
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Title: Chief Financial Officer
ADMINISTRATIVE AGENT
AND BANKS: TORONTO DOMINION (TEXAS), INC., as Administrative Agent
for itself and the Banks and as a Bank
/s/ Xxxxxxx X. Xxxxx
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Title: Vice President
BANK OF AMERICA, N.A. (formerly known as Bank of
America National Trust and Savings Association), as a
Bank
By: /s/ Xxxx Xxxxxxx
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Title: Senior Vice President
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BANK OF MONTREAL, as a Bank
By: /s/ Xxxxx Xxx
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Title: Director
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THE BANK OF NEW YORK, as a Bank
By: /s/ Xxxxxxxx X. Xxxxxx
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Title: Vice President
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THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ Xxxx X. Xxxxxxxxxxxxx
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Title: Authorized Signatory
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BANK OF SCOTLAND, as a Bank
By: /s/ Xxxxx Xxxxx
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Title: Senior Vice President
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BANKBOSTON, N.A., as a Bank
By: /s/ Xxxxx Xxxxx
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Title: Director
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BANKERS TRUST COMPANY, as a Bank
By: /s/ Xxxxxxx Xxxxxxx
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Title: Principal
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BARCLAYS BANK, PLC, as a Bank
By: /s/ Xxxxx X. Xxxxx
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Title: Director
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THE CHASE MANHATTAN BANK, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
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THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Bank
By: /s/ Xxxxxx X. X. Xxxxxxx
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Title: Assistant Vice President
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CITY NATIONAL BANK, as a Bank
By: /s/ Xxx Xxxxxxx
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Title: Vice President
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COBANK, ACB, as a Bank
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Assistant Corporate Secretary
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CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
By: /s/ Xxxx Xxxxxxxxxx
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Title: First Vice President
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CREDIT SUISSE FIRST BOSTON, as a Bank
By: /s/ Xxxx X. Xxxxxx
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Title: Director
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By: /s/ Xxxxxxx Xxxxx
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Title: Associate
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CRESTAR BANK, as a Bank
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Title: Executive Vice President
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DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Bank
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Title: Assistant Vice President
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By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
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ALLFIRST BANK, as a Bank
By: /s/ W. Xxxxx Xxxxxxx
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Title: Vice President
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FLEET NATIONAL BANK, as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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THE FUJI BANK, LIMITED, as a Bank
By: Xxxxxxxx Xxxxxxxxx
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Title: Senior Vice President and Group Head
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GENERAL ELECTRIC CAPITAL CORPORATION, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Title: Manager of Operations
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THE XXXXXX BANK, N.A., as a Bank
By: /s/ Xxxxxxx X. Xxxxx
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Title: Senior Vice President
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KEY CORPORATE CAPITAL INC., as a Bank
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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MELLON BANK, N.A., as a Bank
By: /s/ Xxxxx Xxxxxxx
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Title: Assistant Vice President
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MERCANTILE BANK NATIONAL ASSOCIATION, as a Bank
By: Xxxx X. Xxxxxxxx
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Title: Vice President
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THE MITSUBISHI TRUST AND BANKING CORPORATION, as a Bank
By: /s/ Xxxxxxxxx Xxxxxxx
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Title: Senior Vice President
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NATIONAL BANK OF CANADA, as a Bank
By: /s/ Xxxxxxx Xxxxx
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Title: Vice President
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By: /s/ Xxxxxxx Xxxx
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Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
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STATE STREET BANK AND TRUST COMPANY, as a Bank
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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UNION BANK OF CALIFORNIA, N.A., as a Bank
By: /s/ Xxxxxx X. Xxxxxx
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Title: Assistant Vice President
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US TRUST, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXXX BANK, as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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