EXHIBIT 2.1
Amendment, dated as of February 26, 1999, by and among American Tower
Corporation, a Delaware corporation ("ATC"), American Towers, Inc., a Delaware
corporation ("ATI"), ATC Merger Corporation, a Delaware corporation ("ATMC"),
and TeleCom Towers, L.L.C., a Delaware limited liability company ("TCT"), to the
Amended and Restated Agreement and Plan of Merger, dated as of December 18,
1998, as further amended by the Amendment, dated as of December 23, 1998 (as so
amended, the "Merger Agreement"), by and among ATC, ATI, ATMC and TCT.
W I T N E S S E T H:
WHEREAS, ATC, ATI and TCT are parties to the Merger Agreement,
providing for the merger of ATMC with and into TCT on the terms and conditions
set forth therein; and
WHEREAS, ATC, ATI, ATMC and TCT desire to amend the Merger Agreement in
certain respects; and
WHEREAS, the Boards of Directors of ATC, ATI and ATMC and the
Management Committee of TCT and the TCT Members have heretofore authorized the
officers of such companies to enter into amendments to the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained and other
valuable consideration, the receipt and adequacy whereof are hereby
acknowledged, the parties hereto hereby, intending to be legally bound,
represent, warrant, covenant and agree as follows:
1. DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in Appendix A to the Merger Agreement when used in this Amendment
without definition shall have the respective meanings set forth therein. Terms
defined in the singular shall have a comparable meaning when used in the plural,
and vice versa, and the reference to any gender shall be deemed to include all
genders. Unless otherwise defined or the context otherwise clearly requires,
terms for which meanings are provided in this Amendment or Appendix A to the
Merger Agreement shall have such meanings when used in each Collateral Document
executed or required to be executed pursuant hereto or thereto or otherwise
delivered, from time to time, pursuant hereto or thereto. References to
"hereof," "herein" or similar terms are intended to refer to this Amendment as a
whole and not a particular section, and references to "this Section" or "this
Article" are intended to refer to the entire section or article and not a
particular subsection thereof. The term "either party" shall, unless the context
otherwise requires, refer to ATC, ATI and ATMC, on the one hand, and TCT, on the
other hand.
2. THE AMENDMENTS
(a) Limitation of Liability. Section 9.3(a) of the Merger
Agreement shall be amended to read in its entirety as follows:
Notwithstanding the provisions of Section 9.2, after the
Closing, the ATC Indemnified Parties, on the one hand, and the
TCT Members, on the other hand, shall be entitled to recover
their Loss and Expense in respect of any Claim only (i) in the
event that the aggregate Loss and Expense for all Claims
exceed, in the aggregate, $500,000 (except to the extent any
such Claim relates to the Nonassigned TCT Assets, to which
such $500,000 threshold shall not apply), in which event the
indemnified party shall be entitled to recover all such Loss
and Expense including such $500,000; (ii) to the extent that
the aggregate Loss
and Expense for all Claims do not exceed $5,000,000; and (iii)
an additional $225,000 in cash shall be placed in a separate
escrow pursuant to Section 3 of the Indemnity Escrow Agreement
to satisfy any Claims related to the Mt. Potosi, Nevada
broadcast communications site (the "Mt. Potosi Escrow").
(b) Appendix A. Appendix A is amended to add the following
definitions in their appropriate alphabetical order:
"Nonassigned TCT Assets" shall mean any agreement,
arrangement, commitment, contract, indemnity, undertaking or other obligation or
liability to which "TeleCom Towers, Inc." or "Telecom Towers, Inc." is party, as
set forth in the TCT Disclosure Schedule, including without limitation those
related to the Mt. Potosi, Nevada broadcast communications site.
"Mt. Potosi Escrow" shall have the meaning given to it in Section
9.3(a).
3. GENERAL PROVISIONS
(a) No Other Changes in Merger Agreement. Except as
specifically amended by this Amendment, the Merger Agreement shall
remain in full force and effect and shall not otherwise be amended,
modified or changed by this Amendment.
(b) Incorporation by Reference. The provisions of Sections
10.1 through 10.13, both inclusive, of the Merger Agreement shall be
deemed incorporated herein by reference with the same force and effect
as though set forth hereat in their entirety, except that any reference
to the term "this Agreement" in any such incorporated provision shall
be deemed to refer to this Amendment.
(c) References. Any reference to the "Merger Agreement" in any
of the Collateral Documents, or in any certificate, agreement or
instrument delivered in connection with the consummation of the
transactions contemplated by the Merger Agreement shall be deemed to
refer to the Merger Agreement, as amended hereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Amendment or caused
this Amendment to be executed by their respective officers thereunto duly
authorized as of the date first written above.
American Tower Corporation
By: __________________________________________
Name: James S. Eisenstein
Title: Executive Vice President--Corporate
Development
ATC Merger Corporation
By: __________________________________________
Name: James S. Eisenstein
Title: Executive Vice President--Corporate
Development
American Towers, Inc.
By: __________________________________________
Name: James S. Eisenstein
Title: Executive Vice President--Corporate
Development
TeleCom Towers, L.L.C.
By:__________________________________________
Name: Randall N. Smith
Title: Chairman & CEO
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