Exhibit 10.21
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AMERICAN TOWER CORPORATION
$1,000,000,000
9 3/8% Notes Due 2009
PURCHASE AGREEMENT
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January 24, 2001
XXXXXXXXX, XXXXXX, XXXXXXXX SECURITIES CORPORATION
(an affiliate Credit Suisse First Boston Corporation),
XXXXXXX XXXXX XXXXXX INC.,
BNY CAPITAL MARKETS, INC.,
DEUTSCHE BANC ALEX. XXXXX,
GOLDMAN, SACHS & CO.,
XXXXXX BROTHERS INC.,
CHASE SECURITIES INC.,
RBC DOMINION SECURITIES CORPORATION,
SCOTIA CAPITAL (USA) INC.,
TD SECURITIES (USA) INC.
c/o Donaldson, Lufkin, Xxxxxxxx Securities Corporation,
Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. American Tower Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers") $1,000,000,000 aggregate principal amount (the "Offered
Securities") of its 9 3/8% Notes Due 2009 (the "Notes"). The Notes are to be
issued under an indenture (the
"Indenture") between the Company and The Bank of New York, as Trustee on a
private placement basis pursuant to exemptions under Section 4(2) and Regulation
S of the United States Securities Act of 1933 (the "Securities Act").
Subsidiaries of the Company have entered into a Credit Agreement, dated as
of January 6, 2000, among Verestar, Inc., American Towers, Inc. and American
Tower L.P., respectively, and Toronto Dominion (Texas) Inc. as Administrative
Agent, and the other lenders under such agreement (as heretofore amended, the
"Credit Agreement"). The Company is seeking to enter into the Credit Agreement
Amendment (as hereinafter defined) to permit the issuance of the Offered
Securities.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Purchasers that:
(1) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Purchasers have been
prepared by the Company. Such preliminary offering circular and offering
circular, as supplemented as of the date of this Agreement, including the
documents incorporated by reference therein and any other document approved
by the Company for use in connection with the contemplated resale of the
Offered Securities, are hereinafter collectively referred to as the
"Offering Document". On the date of this Agreement, the Offering Document
does not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Offering Document based upon written information furnished to the Company
by any Purchaser through Donaldson, Lufkin, Xxxxxxxx Securities Corporation
("DLJ") and Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB") specifically for use therein,
it being understood and agreed that the only such information is that
described as such in Section 7(b). On the date filed with the Commission,
the Company's Annual Report on Form 10-K most recently filed with the
Commission and all subsequent reports (collectively, the "Exchange Act
Reports") that have been filed by the Company with the Commission or sent
to stockholders pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") do not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
(2) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(3) Each subsidiary of the Company has been duly incorporated (or
formed, as the case may be) and is an existing corporation (or limited
partnership or limited liability company, as the case may be) in good
standing under the laws of the jurisdiction of its incorporation (or
formation), with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document;
and each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where failure so to qualify and be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole; all of
the issued and outstanding capital stock (or partnership or other equity
interests) of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and (except for any general partnership
interest) nonassessable; and, except for the pledge pursuant to the Credit
Agreement, the capital stock (or partnership or other equity interests) of
each subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(4) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of
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the transactions contemplated by this Agreement and the Registration Rights
Agreement dated the date hereof, between the Company and the Purchasers
(the "Registration Rights Agreement") in connection with the issuance and
sale of the Offered Securities by the Company, except for the order of the
Commission declaring the Exchange Offer Registration or the Shelf
Registration Statement (each as defined in the Registration Rights
Agreement) effective, except as may be required by the Blue Sky laws of the
several states of the United States or, in the case of the Registration
Rights Agreement, the Securities Act.
(5) All outstanding shares of capital stock of the Company have been
duly authorized are validly issued, fully paid and nonassessable; and there
are no restrictions on transfers of the Offered Securities except as
required by (A) Rule 144A under the Securities Act, Regulation S under the
Securities Act or otherwise described under "Transfer Restrictions" in the
Offering Document and (B) the Indenture, all as described in the Offering
Document under "The Offering", "Description of the Notes -- Form,
Denomination, Transfer, Exchange and Book-Entry Procedures", "Plan of
Distribution" and "Transfer Restrictions".
(6) The Registration Rights Agreement has been duly authorized and,
when executed and delivered by the Company and the other parties thereto,
will constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; the Registration Rights Agreement will
conform in all material respects with the description thereof contained in
the Offering Document.
(7) The Indenture has been duly authorized by the Company; the Offered
Securities have been duly authorized; when the Offered Securities are
delivered and paid for in accordance with this Agreement on the Closing
Date (as hereinafter defined), the Indenture will have been duly executed
and delivered by the Company, the Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
descriptions thereof contained in the Offering Document and the Indenture,
and the Offered Securities will constitute valid and legally binding
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obligations of the Company, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(8) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any Purchaser
for a brokerage commission, finder's fee or other like payment in
connection with the offering of the Offered Securities.
(9) Except as disclosed in the Offering Document, the execution,
delivery and performance by the Company of the Indenture, this Agreement
and the Registration Rights Agreement, the issuance and sale of the Offered
Securities and compliance with the respective terms and provisions thereof
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, the Credit Agreement, any other agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(10) This Agreement has been duly authorized, executed and delivered
by the Company.
(11) Except as disclosed in the Offering Document or as would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Offering Document, the Company and its
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subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(12) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(13) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(14) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole; and the Company is not
aware of any pending investigation which might lead to such a claim.
(15) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company, any
of its subsidiaries or any of their respective properties
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that would reasonably be expected to individually or in the aggregate have
a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, or would reasonably be expected to materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, the Registration Rights Agreement or this Agreement,
or which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened or, to
the Company's knowledge, contemplated.
(16) The financial statements included in the Offering Document
present fairly the consolidated financial position of the Company and its
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis; and the assumptions used
in preparing the pro forma financial information included in the Offering
Document provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(17) Except as disclosed in the Offering Document, and except as
disclosed in the Current Report on Form 8-K, dated January 17, 2001, since
the date of the latest audited financial statements included in the
Offering Document (i) there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and (ii)
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(18) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company
Act of 1940 (the "Investment Company Act"), nor is it a closed-end
investment company required to be registered, but not registered,
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thereunder; and the Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will not be an "investment
company" as defined in the Investment Company Act.
(19) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(20) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof; and
it is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939 (the "Trust
Indenture Act") until the filing of the Exchange Offer Registration
Statement or the Shelf Registration Statement, as such terms are defined in
the Registration Rights Agreement.
(21) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any US person
(as such terms are defined in Regulation S under the Securities Act) the
Offered Securities or any security of the same class or series as any of
the foregoing, any instruments representing interests therein or any
depositary shares representing the right to receive any such securities or
(ii) has offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or
(B) with respect to any securities sold in reliance on Rule 903 of
Regulation S by means of any directed selling efforts within the meaning of
Rule 902(c) of Regulation S. The Company has not entered and will not enter
into any contractual arrangement with respect to the distribution of the
Offered Securities except for this Agreement.
(22) The Company is subject to Section 13 or 15(d) of the Exchange
Act.
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3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97% of the principal amount plus
accrued interest, if any, from January 31, 2001 the respective principal amounts
of Offered Securities set forth opposite the names of the several Purchasers in
Schedule A hereto; provided, however that, not withstanding anything to the
contrary herein, the obligations of the several Purchasers to purchase and pay
for the Offered Securities, and the obligations of the Company to sell to the
Purchasers the Offered Securities pursuant to this Agreement shall be subject to
American Tower L.P., American Towers Inc. and Verestar, Inc. (collectively, the
"Borrowers") having entered into an amendment to the Credit Agreement (the
"Credit Agreement Amendment") which Credit Agreement Amendment shall permit the
issuance of the Offered Securities without violating the terms of the Credit
Agreement.
The Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in definitive
form (the "Offered Global Securities") deposited with The Bank of New York as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated to
each of DLJ and SSB by the Company at a bank acceptable to each of DLJ and SSB
drawn to the order of the Company at the office of Xxxx and Xxxx XXX, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx xx 9:30 A.M. (Eastern Standard Time) on January
31, 2001, or at such other time not later than seven full business days
thereafter as DLJ, SSB and the Company determine, such time being herein
referred to as the "Closing Date", against delivery to The Bank of New York as
custodian for DTC of the Offered Global Securities representing all of the
Offered Securities. The Offered Global Securities will be made available for
checking at the New York office of The Bank of New York at least 24 hours prior
to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(1) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(2) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold except pursuant to an exemption from the registration requirements of
the Securities Act or as contemplated in the Registration Rights Agreement.
Each Purchaser severally represents to and agrees with the Company and the
other Purchasers that it has offered and sold the
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Offered Securities, and will offer and sell the Offered Securities only in
accordance with Rule 144A or Rule 903 under the Securities Act or as
contemplated in the Registration Rights Agreement. Accordingly, neither
such Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and
all persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Each Purchaser
severally agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such Purchaser will
have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Offered Securities
from it during the restricted period a confirmation or notice to
substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to, or for the account or benefit
of U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them
by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(3) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers, or with the prior written consent of the Company.
(4) Each Purchaser severally agrees with the Company and the other
Purchasers that it and each of its affiliates will not offer or sell the
Offered Securities by means of any form of general solicitation or general
advertising, within the meaning of Rule
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502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
or (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales by it of Offered Securities purchased from
the Company made in reliance on Rule 144A, other than through the National
Association of Securities Dealers, Private Offerings, Resale and Trading
through Automated Linkages ("PORTAL") market, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such resale
a notice to the effect that the resale of such Offered Securities has been
made in reliance upon the exemption from the registration requirements of
the Securities Act provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the several
Purchasers that:
(1) The Company will advise DLJ and SSB promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without each of DLJ's and SSB's consent. If,
at any time prior to the completion of the resale of the Offered Securities
by the Purchasers, any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, the Company promptly will notify DLJ and
SSB of such event and promptly will prepare, at its own expense, an
amendment or supplement which will correct such statement or omission.
Neither DLJ's nor SSB's consent to, nor the Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 6.
(2) The Company will furnish to each of DLJ and SSB copies of any
preliminary offering circular, the Offering Document and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as DLJ or SSB requests, and the Company will furnish to
each of DLJ and SSB on the date hereof two copies of the Offering Document
signed by a duly authorized officer of the
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Company, one of which will include the independent accountants' reports
therein manually signed by such independent accountants. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to DLJ (and, upon
request, to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to holders
and prospective purchasers of such securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by such holders
of such securities. The Company will pay the expenses of printing and
distributing to the Purchasers (and such holders and prospective
purchasers) all such documents.
(3) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and
Canada as DLJ or SSB designates and will continue such qualifications in
effect so long as required for the resale of the Offered Securities by the
Purchasers, provided that the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any such state or subject itself to taxation generally in any jurisdiction.
(4) During the period of five years hereafter, the Company will
furnish to each of DLJ and SSB and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to each of DLJ and SSB and, upon request, to each of the other
Purchasers (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders; and (ii) from time to time,
such other information concerning the Company as DLJ or SSB may reasonably
request.
(5) During the period of two years after the Closing Date, the Company
will, upon request, furnish to DLJ, SSB, each of the other Purchasers and
any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
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(6) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them.
(7) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act, and is not, and
will not be or become, a closed-end investment company required to be
registered, but not registered, under the Investment Company Act.
(8) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Indenture and the Registration
Rights Agreement, including (i) the fees and expenses of the Trustee and
its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the
Offered Securities, the preparation and printing of this Agreement, the
Offered Securities, the Indenture, the Registration Rights Agreement, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the Offered
Securities; (iii) the cost of qualifying the Offered Securities for trading
in the PORTAL market and any expenses incidental thereto; and (iv) the cost
of any advertising approved by the Company in connection with the issue of
the Offered Securities. The Company will also pay or reimburse the
Purchasers (to the extent incurred by them) for any expenses (including
fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions in the United States and Canada as DLJ or SSB designates and
the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities, for
any travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities and for expenses
incurred in distributing preliminary offering circulars and the Offering
Document (including any amendments and supplements thereto) to the
Purchasers.
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(9) In connection with the offering, until both DLJ and SSB shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons, bid
for or purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or any securities which would be
considered "reference securities" (as defined in Rule 100 of Regulation M
under the Exchange Act) or attempt to induce any person to purchase any
Offered Securities or "reference securities".
(10) For a period of 45 days after the date of the initial offering of
the Offered Securities by the Purchasers, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or (except as contemplated in the Registration Rights Agreement) file with
the Commission a registration statement under the Securities Act relating
to any indebtedness or any other debt securities issued or guaranteed by
the Company which, in either case, are substantially similar to any of the
Offered Securities or have a maturity of more than one year from the date
of issue, or (b) any other securities convertible into or exchangeable or
exercisable for substantially similar securities of the Company, or
publicly disclose the intention to make any such offer, sale, pledge or
disposal, without the prior written consent of each of DLJ and SSB, except
pursuant to the Registration Rights Agreement and except for any such
offer, sale, contract to sell, pledge or other disposition of any of the
Offered Securities, and except for the filing of any shelf registration
statement relating to the potential primary offering, among other
securities, of debt securities or warrants to purchase such securities on a
delayed basis pursuant to Rule 415 that does not disclose the terms of any
specific proposed sale thereof or the terms of any specific series of
securities so registered. The Company will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
any securities under circumstances where such offer, sale, pledge, contract
or disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offer and sale of the
Offered Securities to the Purchasers.
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6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of officers of
the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(1) The Purchasers shall have received a letter, dated the date of
this Agreement, of Deloitte & Touche LLP confirming that they are
independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable rules and regulations
thereunder adopted by the Securities and Exchange Commission, and to the
effect set forth in Schedule B hereto.
(2) The Purchasers shall have received letters, dated the date of this
Agreement, of KPMG LLP in Denver, Colorado and KPMG LLP in St. Petersburg
and Tampa, Florida confirming that they are independent public accountants
under rule 101 of the American Institute of Certified Public Accountants
Code of Professional Conduct, and its interpretation and rulings, and to
the effect set forth in Schedule C hereto.
(3) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of DLJ and SSB, is material and adverse
and makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange or on the Nasdaq
15
National Market, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of DLJ
and SSB, the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with completion
of the offering or sale of and payment for the Offered Securities.
(4) The Purchasers shall have received opinions, dated the Closing
Date, of Xxxxxxxx & Worcester LLP and Xxxx and Xxxx LLP, counsel for the
Company, to the effect set forth in Schedules D-1 and D-2 hereto,
respectively.
(5) The Purchasers shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities, the Offering Document, the exemption from registration
for the offer and sale of the Offered Securities by the Company to the
several Purchasers and the resales by the several Purchasers as
contemplated hereby and other related matters as DLJ or SSB may require,
and the Company shall have furnished to such counsel such documents as they
may request for the purpose of enabling them to pass upon such matters.
(6) The Purchasers shall have received a certificate, dated the
Closing Date, of the Chief Executive Officer of the Company and the Chief
Financial Officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state on behalf of
the Company that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and that, subsequent
to the date of the most recent financial statements in the Offering
Document there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and
16
its subsidiaries taken as a whole except as set forth in or contemplated by
the Offering Document or as described in such certificate.
(7) The Purchasers shall have received letters, dated the Closing
Date, of Deloitte & Touche LLP, KPMG LLP in Denver, Colorado and KPMG LLP
in St. Petersburg and Tampa, Florida which meets the requirements of
subsections (a) and (b) of this Section, respectively, except that the
specified date referred to in such subsections will be a date not more than
five days prior to the Closing Date for the purposes of this subsection.
(8) On the Closing Date, the Registration Rights Agreement, in form
and substance reasonably satisfactory to the Purchasers, shall have been
duly executed and delivered by the Company and in full force and effect.
(9) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxxx Xxxxxx, Esq., Vice President of the Company and Vice
President and General Counsel of Verestar Inc. to the effect set forth in
Schedule E hereto.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. DLJ and SSB jointly may in their sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
any related preliminary offering circular or the Exchange Act Reports, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such
17
expenses are incurred; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by any
Purchaser through DLJ and SSB specifically for use therein, it being understood
and agreed that the only such information consists of the information described
as such in subsection (b) below.
(1) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through DLJ and SSB specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Purchaser consists of the following
information in the Offering Document furnished on behalf of each Purchaser: the
third to last paragraph at the bottom of the cover page concerning the terms of
the offering by the Purchasers, the disclosure concerning market-making
appearing in the tenth paragraph under the caption "Plan of Distribution," the
disclosure concerning over-allotment, stabilizing, covering transactions and
penalty bids appearing in the eleventh paragraph under the caption "Plan of
Distribution," and the material relationship disclosure appearing in the twelfth
paragraph under the caption "Plan of Distribution".
(2) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in
18
respect thereof is to be made against the indemnifying party under subsection
(a) or (b) above, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes (i) an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault or failure to act by or on behalf of any indemnified party.
No indemnifying party shall be liable under subsections (a), (b) or (c) of this
Section for any settlement of any claim or action effected without its consent,
which consent will not be unreasonably withheld; provided, however, that such
-------- -------
indemnifying party has notified in writing the indemnified party of its refusal
to accept such settlement within 30 days of its receipt of a notice from the
indemnified party outlining the terms of such settlement.
(3) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the
19
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Purchasers on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Purchasers from the Company under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(4) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder on the Closing Date and the
aggregate
20
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities that the Purchasers are obligated to
purchase on the Closing Date, DLJ or SSB may make arrangements satisfactory to
the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase on the
Closing Date. If any Purchaser or Purchasers so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
that the Purchasers are obligated to purchase on the Closing Date and
arrangements satisfactory to DLJ, SSB and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Purchaser or the Company, except as provided in Section 9. As used in
this Agreement, the term "Purchaser" includes any person substituted for a
Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser
from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Purchasers is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8, the Company will reimburse
the Purchasers for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably
21
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers, will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 10010-3629, Attention: Transactions Advisory Group and c/o
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 10013,
Attention: General Counsel, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
XX 00000, Attention: Xxxxxx X. Xxxxx; provided, however, that any notice to a
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders and prospective purchasers of Offered
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Company as if such holders were parties hereto. In this Agreement, "DLJ" means
Xxxxxxxxx, Xxxxxx, Xxxxxxxx Securities Corporation until such time as Credit
Suisse First Boston Corporation succeeds to DLJ's business, whether by merger,
sale of assets or otherwise, at which time "DLJ" will mean Credit Suisse First
Boston Corporation, which shall be considered a successor of DLJ hereunder and
shall be treated as having assumed DLJ's obligations hereunder, including those
under Section 3.
12. Representation of Purchasers. DLJ and SSB will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by DLJ and SSB jointly, or severally when herein so authorized, will be
binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough
22
of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
15. Reallocations. The Company may elect, by written notice to DLJ and SSB
received by them by 5:00pm, New York time, on January 25, 2001, to reallocate
underwriting commitments for up to $50 million aggregate principal amount of
Offered Securities from DLJ and SSB to up to six Purchasers or other persons
reasonably satisfactory to DLJ and SSB (the "Reallocation Purchasers"). The
Company's notice must specify the names of the Reallocation Purchasers and the
respective principal amounts (the "Reallocation Amounts") of Offered Securities
to be reallocated to and underwritten by them. If (i) the Company makes such a
reallocation election and (ii) any Reallocation Purchasers that are not
Purchasers (x) are reasonably satisfactory to DLJ and SSB and (y) authorize DLJ
and SSB to act for them to commit to this Section and otherwise under this
Agreement, then the underwriting commitments of DLJ and SSB hereunder to
purchase Offered Securities shall be reduced by the aggregate Reallocation
Amounts (such reduction to be applied approximately evenly between DLJ and SSB,
or as they may agree) and the Reallocation Purchasers shall be obligated
severally to purchase their respective Reallocation Amounts of such Offered
Securities. As used in this Agreement, the term "Purchaser" includes any
Reallocation Purchaser under this Section.
23
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
AMERICAN TOWER CORPORATION
By
-------------------------
Xxxxxx X. Xxxx
Chief Financial Officer
The foregoing Purchase Agreement is hereby confirmed and accepted as of the
date first above written.
DONALDSON, LUFKIN, XXXXXXXX
SECURITIES CORPORATION,
XXXXXXX XXXXX XXXXXX INC.,
BNY CAPITAL MARKETS, INC.,
DEUTSCHE BANC ALEX. XXXXX,
GOLDMAN, SACHS & CO.,
XXXXXX BROTHERS INC.,
CHASE SECURITIES INC.,
RBC DOMINION SECURITIES CORPORATION,
SCOTIA CAPITAL (USA) INC.,
TD SECURITIES (USA) INC.
By XXXXXXXXX, LUFKIN, XXXXXXXX
SECURITIES CORPORATION
By
---------------------------------------------------
Name:
Title:
By XXXXXXX XXXXX XXXXXX INC.
By
---------------------------------------------------
Name:
Title:
For themselves and the other several Purchasers named in Schedule A to the
foregoing Agreement.
24
SCHEDULE A
Principal Amount
Purchasers Offered Securities
---------- ------------------
Xxxxxxxxx, Xxxxxx, Xxxxxxxx Securities Corporation.... $ 290,002,000
Xxxxxxx Xxxxx Xxxxxx Inc. ............................ 290,002,000
BNY Capital Markets, Inc.............................. 83,333,000
Deutsche Banc. Xxxx Xxxxx, Inc. ...................... 83,333,000
Xxxxxxx, Xxxxx & Co................................... 83,333,000
Xxxxxx Brothers Inc................................... 83,333,000
Chase Securities Inc.................................. 21,666,000
RBC Dominion Securities Corporation .................. 21,666,000
Scotia Capital (USA) Inc.............................. 21,666,000
----------------
TD Securities (USA) Inc............................... 21,666,000
----------------
Total........................................ $ 1 ,000,000,000
----------------
25
SCHEDULE B
Letter of Independent Public Accountants
Referred to in Section 6(a)
(i) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on the unaudited financial statements incorporated
by reference or included in the Offering Document and in the Exchange Act
Reports;
(ii) on the basis of the review referred to in clause (i) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements incorporated by reference
in the Offering Document or in the Exchange Act Reports do not comply
as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations thereunder or any material modifications should be made to
such unaudited financial statements for them to be in conformity with
generally accepted accounting principles; or
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than five
days prior to the date of this Agreement, there was any change in the
capital stock or any increase in short-term debt or long-term debt of
the Company and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, as compared
with amounts shown on the latest balance sheet incorporated by
reference in the Offering Document; and
26
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
or incorporated by reference in the Offering Document and the Exchange Act
Reports (in each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly from
such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
27
SCHEDULE C
Letter of Independent Public Accountants
Referred to in Section 6(b)
(i) in their opinion the financial statements and schedules examined
by them and incorporated by reference in the Offering Document comply in
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations thereunder;
(ii) on the basis of the review referred to in clause (i) above and to
the extent applicable, a reading of the latest available interim financial
statements of the company for which they performed the procedures specified
in this Schedule C (each an "Audited Company"), inquiries of officials of
the Audited Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their attention
that caused them to believe that:
(A) the unaudited financial statements incorporated by reference
in the Offering Document or in the Exchange Act Reports do not comply
as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations thereunder or any material modifications should be made to
such unaudited financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than five
days prior to the date of this Agreement, there was any change in the
capital stock or any increase in short-term debt or long-term debt of
the Audited Company and its consolidated subsidiaries or, at the date
of the latest available balance sheet read by such accountants, there
was any decrease in consolidated net current assets or net assets, as
compared with amounts shown on the latest balance sheet incorporated
by reference in the Offering Document; or
28
(C) for the period from the closing date of the latest income
statement included in the Offering Document to the closing date of the
latest available income statement read by such accountants there were
any decreases, as compared with the corresponding period of the
previous year and with the period of corresponding length ended the
date of the latest income statement incorporated by reference in the
Offering Document, in consolidated net revenues, operating income
(defined as net revenues less operating expenses, excluding
depreciation, amortization and corporate expenses) or in other income
and expense, net, or in the total amounts of consolidated income
(loss) before extraordinary items or net income (loss);
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Offering Document discloses have occurred
or may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
or incorporated by reference in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the entity
whose financial statements they have audited subject to the internal
controls of such entity's accounting system or are derived directly from
such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
29
SCHEDULE D-1
Opinion of Xxxxxxxx & Worcester, Counsel for the Company
Referred to in Section 6(d)
(i) Each of the Company and its subsidiaries listed on Annex I hereto
has been duly incorporated (or formed, as the case may be) and each of the
Company and its subsidiaries is an existing corporation (or limited
partnership or limited liability company, as the case may be) in good
standing under the laws of the jurisdiction of its incorporation, with
corporate, partnership or limited liability company power and authority to
own its properties and conduct its business as described in the Offering
Document; and is duly qualified to do business as a foreign corporation (or
other entity) in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
individually have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement, the
Indenture or the Registration Rights Agreement in connection with the
issuance or sale of the Offered Securities by the Company, except that such
counsel need not express any opinion as to (x) such as may be required by
the Communications Act, or the rules, regulations and orders of the FCC
promulgated thereunder, (y) such as may be required by the Blue Sky laws of
the several states of the United States and (z) in the case of the
Registration Rights Agreement, such as may be required under the Securities
Act;
(iv) The execution, delivery and performance by the Company of the
Indenture, the Registration Rights Agreement and this Agreement, the
issuance and sale of the Offered Securities and compliance with the
respective terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
30
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or, to
such counsel's knowledge, any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound including, but not limited to, the Credit Agreement, or
to which any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any such subsidiary,
except that such counsel need not express any opinion with respect to the
Communications Act, or the rules, regulations and orders of the FCC
promulgated thereunder, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement;
(v) Such counsel have no reason to believe that the Offering Document,
or any amendment or supplement thereto, or any Exchange Act Report as of
the date hereof and as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
the descriptions in the Offering Document and the Exchange Act Reports of
statutes, legal and governmental proceedings and contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown; it being understood that such counsel
need express no opinion as to the financial statements or schedules or
other financial data contained or incorporated by reference in the Offering
Document and the Exchange Act Reports;
31
SCHEDULE D-2
Opinion of Xxxx & Xxxx, Counsel for the Company
Referred to in Section 6(d)
(i) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles and conforms
in all material respects to the description thereof in the Offering
Document; except that such counsel need not express any opinion concerning
the validity or enforceability of Section 6 thereof;
(ii) The Indenture and the Offered Securities have been duly
authorized by the Company; the Indenture and the Offered Securities
constitute valid and legally binding obligations of the Company enforceable
in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture and the Offered
Securities conform to the descriptions thereof contained in the Offering
Document;
(iii) This Agreement has been duly authorized, executed and delivered
by the Company; and
(iv) It is not necessary in connection with (i) the offer, sale and
delivery of the Offered Securities by the Company to the several Purchasers
pursuant to this Agreement or (ii) the resales of the Offered Securities by
the several Purchasers in the manner contemplated by this Agreement to
register the Offered Securities under the Securities Act or to qualify an
indenture in respect of the Offered Securities under the Trust Indenture
Act.
32
SCHEDULE E
Opinion of Counsel of the Company
Referred to in Section 6(i)
(i) No consent, approval, authorization, order or waiver of, or filing
with, the Federal Communications Commission (the "FCC") under the
Communications Act of 1934, as amended (the "Communications Act"), and the
published policies, rules and regulations of the FCC is required to be
obtained or made for the consummation of the transactions contemplated by
this Agreement in connection with the sale of the Offered Securities where
the failure to obtain such consent, approval, authorization, order or
waiver or to make such filing would have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(ii) The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
breach or violation of any of the terms or provisions of, or constitute a
default under the Communications Act or any FCC regulation, rule, published
policy or order that would have a material adverse effect on the Company
and its subsidiaries taken as a whole; and
(iii) To the knowledge of such counsel, except as disclosed in the
Offering Circular, there are no administrative or judicial proceedings
pending before, or threatened by, the FCC with respect to the Company or
any subsidiary of the Company, or any towers owned or operated by the
Company or any subsidiary of the Company that, if determined adversely,
could reasonably be expected to have a material adverse effect upon the
Company and its subsidiaries taken as a whole.
33
ANNEX I
American Towers, Inc.
ATC Holding, Inc.
ATC Operating, Inc.
ATC GP Inc.
ATC LP, Inc.
American Tower, L.P.
Towersites Monitoring, Inc.
Verestar Inc.
ATC Realty, Inc.
ATI Merger Corporation
ATC Financing LLC
ATC Broadcast GP, Inc.
American Tower Delaware Corporation
34
ANNEX II
[Form of Amendment to Loan Agreement]
35
