EXHIBIT 10.4e
Amendment to Securities Purchase Agreement
This Amendment is made as of August 7, 1997, by and among American
Tower Systems, Inc, a Delaware corporation ("ATS"), Diablo Communications, Inc.,
a California corporation ("Diablo"), and Diablo Communications of Southern
California, Inc., a California corporation ("DCSC").
W I T N E S E T H:
WHEREAS, ATS and Diablo, and ATS and DCSC have, heretofore, entered
into separate Securities Purchase Agreements dated as of March 20, 1997 (the
"Securities Purchase Agreements") and separate Assets Purchase Agreements dated
as of July 8, 1997 ("Purchase Agreements"); and
WHEREAS, ATS, Diablo and DCSC are desirous of amending the terms and
conditions of the Securities Purchase Agreements;
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), and
other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledge, the parties hereto, intending to be legally bound,
do covenant and agree as follows:
1. Definitions. Terms not otherwise defined shall have the respective
meaning prescribed therefor in the Securities Purchase Agreements and
Purchase Agreements.
2. Referenced Documents. The Securities Purchase Agreements and Purchase
Agreements are incorporated herein by reference.
3. Advances to Date. Pursuant to the term of the Securities Purchase
Agreement between ATS and DCSC, the sum of $248,751.00 has been
advanced to DCSC by ATS as of the date of this amendment. No sums have
been advanced to date under the Securities Purchase Agreement between
ATS and Diablo.
4. Amendment of Securities Purchase Agreements. Notwithstanding anything
to the contrary in the Securities Purchase Agreements and/or the
Purchase Agreements, any and all advances made by ATS to Diablo or by
ATS to DCSC pursuant to the Securities Purchase Agreements, from and
after the date of this Amendment, shall be deemed advances of the
purchase price under the respective Purchase Agreement and shall be a
credit against the purchase price at close of the Purchase Agreement.
Any and all such advances made from and after the date of this
Amendment shall not be subject to additional compensation certificates
nor shall they accrue any interest, except as provided below. All
advances made from and after the date of this Amendment shall be
utilized by Diablo and/or DCSC for completion of construction projects
and site development projects and such expenditures shall be included
in the Interim Adjustment referred to in Section 2.3 of the Purchase
Agreements. The maximum amounts to be advanced by ATS to Diablo and
DCSC in the aggregate pursuant to this Amendment is the sum of three
hundred thousand dollars ($300,000).
5. Conversion to Loan. In the event that the Purchase Agreements do not
close, any and all advances made pursuant to this Amendment shall
automatically become loans made by ATS to Diablo and/or DCSC, as the
case may be. Such loans shall be in the principal amount of all
advances made under this Amendment to Diablo and or DCSC, respectively,
shall bear interest and be due and payable as provided in the
applicable Securities Purchase Agreement, but ATS shall not, except as
provided in the next sentence, be entitled to Additional Compensation
Certificates with respect thereto. Upon termination of the Purchase
Agreement or Agreements, Diablo and/or DCSC, as applicable, will issue
a note evidencing the loan or loans in a form, which, except for any
provisions in this Amendment to the contrary, will be the form of note
attached as Exhibit A to the Securities Purchase Agreements, except
that, if the reason for such termination was the default or breach of
Diablo and/or DCSC, such notes shall be dated as of the date of the
respective advances pursuant hereto and the provisions of this
Amendment shall not apply.
6. Prior Agreements. Except as specifically provided herein to the
contrary, the terms and conditions of the Securities Purchase
Agreements and the Purchase Agreements shall remain in full force and
effect.
IN WITNESS WHEREOF, ATS, Diablo and DCSC have caused this Amendment to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems, Inc.
By:______________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
Diablo Communications, Inc.
By:________________________
Name:_____________________
Title:______________________
Diablo Communications of Southern California, Inc.
By:_________________________
Name:_______________________
Title:________________________
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