Exhibit 10.8
SIXTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT, dated as of
the 26th day of October, 2001 (this "Amendment"), is made by and among AMERICAN
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TOWER, L.P., a Delaware limited partnership, AMERICAN TOWERS, INC., a Delaware
corporation, VERESTAR, INC. (f/k/a ATC TELEPORTS, INC.), a Delaware corporation,
and TOWERSITES MONITORING, INC., a Delaware corporation, (collectively, the
"Borrowers"), THE FINANCIAL INSTITUTIONS SIGNATORIES HERETO and TORONTO DOMINION
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(TEXAS), INC., as administrative agent (in such capacity, the "Administrative
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Agent").
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W I T N E S S E T H:
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WHEREAS, the Borrowers, the Lenders (as defined therein), the Issuing Bank
(as defined therein) and the Administrative Agent are all parties to that
certain Amended and Restated Loan Agreement dated as of January 6, 2000 (as
previously amended and as hereafter amended, modified, restated and supplemented
from time to time, the "Loan Agreement"); and
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WHEREAS, the Borrowers have requested amendments to certain provisions of
the Loan Agreement, and, subject to the terms and conditions set forth herein,
the Lenders and the Administrative Agent are willing to amend certain provisions
of the Loan Agreement as more specifically set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that all capitalized terms used
and not defined herein shall have the meanings ascribed to such terms in the
Loan Agreement, and further hereby agree as follows:
1. Amendments. The Loan Agreement is hereby amended as more
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fully set for the below:
(a) Amendments to Article 1.
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(i) Section 1.1 of the Loan Agreement,
Definitions, is hereby amended by deleting the definitions of
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"Annualized Operating Cash Flow", "ATC International" "Borrowers",
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"Change of Control" "Pro Forma Debt Service" and "Restricted
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Subsidiaries" in their entirety and by substituting the following
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definitions in lieu thereof:
" 'Annualized Operating Cash Flow' shall mean, as of
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any calculation date, in each case on a consolidated basis,
(a) the sum of (i) the product of (A) Operating Cash Flow
(Mature Towers) for the fiscal quarter-end being tested, or
the most recently completed fiscal quarter immediately
preceding such calculation date, as the case may be, times (B)
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four (4); and (ii) the product of (A) Operating Cash Flow
(Developing Towers) for the fiscal quarter-end being tested,
or the most recently completed fiscal quarter immediately
preceding such calculation date, as the case may be, times (B)
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four (4); and (iii) Operating Cash Flow (Other Business) for
the four fiscal quarter period end being tested or the most
recently completed four (4) fiscal quarter period immediately
preceding such calculation date, as the case may be; minus (b)
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corporate overhead (exclusive of amortization and
depreciation) of the Borrowers and the Restricted Subsidiaries
for the four (4) fiscal quarter period then ended or, the most
recently completed four (4) fiscal quarter period immediately
preceding the calculation date, as the case may be; provided,
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however, that for purposes of calculating the Leverage Ratio
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only, (I) item (a) above shall not include the amount by which
the product of (x) Operating Cash Flow (without deductions for
corporate overhead) attributable to Restricted Subsidiaries
located in or doing business in Brazil and Mexico (or such
other countries as the Majority Lenders approve) times (y)
four (4) exceeds ten percent (10%) of the total amount
determined by clause (a) of this definition (before giving
effect to the deduction set forth in clause (II) immediately
following), and (II) item (a)(iii) above shall be reduced by
twenty-five percent (25%)."
" 'ATC International' shall mean American Tower
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International, Inc., a Delaware corporation."
"'Borrowers' shall mean, collectively, AT L.P., AT Inc.,
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Verestar, Inc. (f/k/a ATC Teleports), Towersites Monitoring,
Inc., a Delaware corporation, and ATC International, and shall
include such other Persons as may be approved by the Majority
Lenders at such time as any such Person executes and delivers
to the Administrative Agent an assignment and assumption
agreement in form and substance satisfactory to the
Administrative Agent and each other Loan Document as executed
by the other Borrowers; and "Borrower" shall mean any one of
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the foregoing."
" 'Change of Control' shall mean (a) the failure of the
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Parent to own, directly or indirectly, one hundred percent
(100%) of the ownership interests of each of the Borrowers,
except for Verestar, of which the Parent must own ninety
percent (90%), provided that the remaining ten percent (10%)
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of Verestar is held by other Persons in connection with an
employee stock option plan, (b) the failure of AT Inc. to own,
directly or indirectly, one hundred percent (100%) of the
ownership interests of ATC Operating (unless ATC Operating is
merged with or into AT Inc.), (c) the sale, lease, transfer,
in one or a series of related transactions, of all or
substantially all of any of the Borrower's assets to any
Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) other than to the other Borrowers or any
wholly-owned direct or indirect Restricted Subsidiary of AT
Inc., (d) the adoption of a plan relating to the liquidation
or dissolution of the
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Parent, (e) the acquisition, directly or indirectly, by any
Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) of forty percent (40%) or more of the voting
power of the voting stock of the Parent by way of merger or
consolidation or otherwise and such Persons own more voting
power than the Principal Shareholders, or (f) the Continuing
Directors cease for any reason to constitute a majority of the
directors of the Parent then in office."
" 'Pro Forma Debt Service' shall mean with respect to the
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twelve (12) calendar month period following the calculation
date, and after giving effect to any Interest Hedge Agreements
and LIBOR Advances, the sum of the amount of all of the
following with respect to the Borrowers and the Restricted
Subsidiaries, on a consolidated basis: (a) scheduled payments
of principal on Indebtedness for Money Borrowed (determined,
with respect to the Revolving Loans only, as the difference
between the outstanding principal amount of the Revolving
Loans and Letter of Credit Obligations on the calculation date
and the amount the Revolving Loan Commitments will be on the
last day of such period) for such period; (b) Interest Expense
for such period; (c) fees payable under this Agreement for
such period; (d) other payments payable by such Persons during
such period in respect of Indebtedness for Money Borrowed
(other than voluntary repayments); and (e) after the Interest
Reserve, the 2001 Interest Reserve and/or the 2002 Interest
Reserve, as applicable, has been applied in full pursuant to
the terms hereof, all Restricted Payments to be made by the
Borrowers to the Parent which will be necessary to make
interest payments on the (i) Convertible Notes and/or (ii)
Senior Notes due 2009 during such period. For purposes of this
definition, where interest payments for the twelve (12) month
period immediately succeeding the calculation date are not
fixed by way of Interest Hedge Agreements, LIBOR Advances, or
otherwise for the entire period, interest shall be calculated
on such Indebtedness for Money Borrowed for periods for which
interest payments are not so fixed at the lesser of (i) the
LIBOR Basis (based on the then current adjustment under
Section 2.3(f) hereof) for a LIBOR Advance having an Interest
Period of six (6) months as determined on the date of
calculation and (ii) the Base Rate Basis as in effect on the
date of calculation; provided, however, that if such LIBOR
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Basis cannot be determined in the reasonable opinion of the
Administrative Agent, such interest shall be calculated using
the Base Rate Basis as then in effect."
" 'Restricted Subsidiary' shall mean any Subsidiary of
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any Borrower other than an Unrestricted Subsidiary which (a)
is organized under the laws of, or owns, operates, constructs,
or manages towers in the United States of America, Brazil or
Mexico, provided that such Subsidiary (i) is permitted to pay
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dividends, (ii) has no liens other than Permitted Liens and
(iii) that such Subsidiary becoming a Restricted Subsidiary
shall not cause a Default or Event of Default, or in such
other jurisdictions as the Majority Lenders may from time to
time approve by prior written consent; and (b) has complied
with the requirements of Section 5.13
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hereof (or delivered comparable documents to effect the
purpose of such Section 5.13). The Restricted Subsidiaries as
of the Agreement Date are as set forth on Schedule 2 attached
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hereto.
(ii) Section 1.1 of the Loan Agreement, Definitions,
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is hereby amended by inserting the new definitions of "2002 Interest
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Reserve" and "Term Loan C Loans" in the proper alphabetical order:
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" '2002 Interest Reserve' shall mean an escrow account
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pledged to the Lenders as collateral which is (a) maintained
by one of the Borrowers, (b) maintained with the
Administrative Agent on terms and conditions satisfactory to
the Administrative Agent, (c) established with cash proceeds
in an amount equal to $46,875,000.00 and (d) so long as no
Event of Default has occurred and is continuing, used to make
interest payments due in August 2002 on the Senior Notes due
2009."
" 'Term Loan C Loans' shall mean, collectively, the
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amounts advanced in connection with the Notice of Incremental
Facility Commitment for Term Loan C."
(b) Amendments to Article 2.
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(i) Section 2.7(b)(v) of the Loan Agreement, Sale of
Capital Stock and Debt Instruments, is hereby amended by deleting such
section in its entirety and substituting in lieu thereof the
following:
"(v) Sale of Capital Stock and Debt
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Instruments.
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(A) Capital Stock. At any time when there
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are Term Loan C Loans outstanding, on the Business Day
following the date of receipt by the Parent, any Borrower or
any Restricted Subsidiary of any net cash proceeds from the
sale of any Capital Stock by any of the Parent, any Borrower,
or any Restricted Subsidiary (other than (x) net proceeds in
an amount not to exceed $2,000,000.00 in the aggregate after
the Agreement Date from the sale or issuance of Capital Stock
in connection with any employee stock option plan of such
Person or (y) proceeds received from Capital Stock issued in
connection with an Acquisition permitted hereunder), the Term
Loan C Loans shall be repaid (or, if no Term Loan C Loans are
outstanding, the Term Loan C Loan commitment shall be
cancelled) by an amount equal to such net cash proceeds;
provided, however, that if such net cash proceeds are received
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on or prior to April 30, 2002 and no Term Loan C Loans are
then outstanding, the Term Loan C Loan commitment shall be
cancelled by an amount equal to such net cash proceeds in
excess of $200,000,000.00, as more fully set forth in the
Notice of Incremental Facility Commitment dated as of October
26, 2001;
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(B) Debt Instruments. On the Business Day
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following the date of receipt by the Parent, any Borrower or
any Restricted Subsidiary of (1) at any time when there are
Term Loan C Loans and/or Term Loan C Loan commitments
outstanding, any net cash proceeds from the issuance of any
public or private debt by any of the Borrowers, any of the
Restricted Subsidiaries or the Parent, the Term Loan C Loans
shall be repaid in an amount equal to such net cash proceeds
(or if no Term Loan C Loans are then outstanding, the Term
Loan C Loan commitment shall be reduced, as more fully set
forth in the Notice of Incremental Facility dated as of
October 26, 2001), and (2) at any time when there are no Term
Loan C Loans outstanding, any Capital Raise Proceeds, the
Loans shall be repaid in an amount equal to, in the aggregate,
the Capital Raise Proceeds (after deducting amounts applied to
Term Loan C Loans).
(C) Application of Proceeds. The amount of
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the Capital Raise Proceeds required to be repaid under Section
2.7(b)(v)(B)(2) shall be applied to the Loans then outstanding
on a pro rata basis. Accrued interest on the principal amount
of the Loans being prepaid pursuant to Section 2.7(b)(v) to
the date of such prepayment will be paid by the Borrowers
concurrently with such principal prepayment. All repayments
under this Section 2.7(b)(v) of each of the Term Loan A Loans
and the Term Loan B Loans shall be applied to the repayments
for such Loans in Section 2.7(b)(i) hereof in inverse order of
maturity. All repayments under this Section 2.7(b)(v) of the
Term Loan C Loans shall be applied to the repayments for such
Term Loan C Loans in inverse order of maturity.
Notwithstanding anything to the contrary in this Agreement, to
the extent that net cash proceeds from a sale of Capital Stock
and an issuance of public or private debt are received on the
same day, the net cash proceeds from the issuance of public or
private debt shall be applied to the Term Loan C Loans first,
up to 50% of the total amount of such issuance, including
amounts applied to the Term Loan C Loans, shall be deemed
Capital Raise Proceeds (unless specifically excluded in the
definition thereof), and any remaining Capital Raise Proceeds
shall then be used to repay the Loans (other than the Term
Loan C Loans) in accordance with Section 2.7(b)(v)(B). Any
amendments or waivers of this Section 2.7(b)(v) shall require
the approval of at least 50.1% of lenders holding Term Loan C
Loans and/or Term Loan C Loan commitments as well as the
approval of the Majority Lenders."
(ii) Section 2.15 of the Loan Agreement, Incremental
Facility Advances, is hereby amended by adding new section 2.15(f) as
set forth below:
"(f) Notwithstanding anything to the contrary
herein, (i) the Term Loan C Loans may be refinanced in whole
or in part with other Incremental Facility Loans (each, a
"Replacement Term Loan C Loan"), which Replacement Term Loan C
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Loan shall not reduce the amount of the then available
remaining
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Incremental Facility Commitment, and (ii) to the extent the
Term Loan C Loans are repaid (or the commitment for such Term
Loan C Loans is cancelled in whole or in part) as a result of
the receipt by the Borrowers, the Restricted Subsidiaries or
the Parent of the net cash proceeds from (A) the sale of any
Capital Stock or (B) the issuance of any non-pari passu public
or private debt otherwise permitted under this Agreement, the
then available Incremental Facility Commitment will be
increased by an amount equal to such repayment (or commitment
cancellation)."
(b) Amendments to Article 7.
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(i) Section 7.6 of the Loan Agreement, Investments
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and Acquisitions, is hereby amended by deleting subsection (b) thereof
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in its entirety and substituting in lieu thereof the following:
"(b) so long as no Default then exists or would
be caused thereby, establish Unrestricted Subsidiaries and
make Investments in (i) such Unrestricted Subsidiaries (in
addition to Investments permitted under Section 7.6(e), (f)
and (g) hereof), (ii) [reserved] and (iii) Persons primarily
engaged in domestic and foreign communications tower and tower
related businesses in an aggregate amount, directly or
indirectly, provided that, giving effect to such additional
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Investment, the aggregate Net Investment Amount made pursuant
to the provisions of this Section 7.6(b) shall not exceed,
from and after the effective date of the Sixth Amendment to
Amended and Restated Loan Agreement, $300,000,000.00 at any
time; provided further that, in the case of Investments made
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pursuant to clause (iii) of this Section 7.6(b), the Parent,
any Borrower or any of the Restricted Subsidiaries has
executed a binding acquisition, merger, lease/sublease or
management agreement with such Person;"
(ii) Section 7.6 of the Loan Agreement, Investments
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and Acquisitions, is hereby amended by deleting subsection (f) thereof
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in its entirety and substituting in lieu thereof the following:
"(f) [RESERVED]"
(iii) Section 7.7 of the Loan Agreement, Restricted
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Payments, is hereby amended by deleting such section in its entirety
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and substituting in lieu thereof the following:
"Section 7.7 Restricted Payments. The Borrowers shall
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not, and shall not permit any of the Restricted Subsidiaries
to, directly or indirectly declare or make any Restricted
Payment; provided, however, that so long as no Default or
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Event of Default hereunder then exists or would be caused
thereby, the Borrowers may make, (a) subject to Section
2.7(b)(iv) hereof, cash distributions in an
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aggregate amount for all Borrowers not to exceed fifty percent
(50%) of Excess Cash Flow for the immediately preceding
calendar year, on or after April 15th of each calendar year
commencing on April 15, 2004; and (b) distributions to the
Parent to make scheduled principal and interest payments on
the Convertible Notes and the Senior Notes due 2009; provided,
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however, that (x) all funds in the Interest Reserve shall have
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been used to make all interest payments on the Convertible
Notes due on or prior to October 15, 2001, (y) all funds in
the 2001 Interest Reserve shall have been used in full to make
all interest payments on the Senior Notes due 2009 due on or
prior to February 15, 2002 and (z) all funds in the 2002
Interest Reserve shall have been used to make all interest
payments on the Senior Notes due 2009 due in August 2002;
provided that any funds remaining in the 2001 Interest Reserve
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shall be used in full for such payments prior to using funds
in the 2002 Interest Reserve."
(iv) Section 7.8 of the Loan Agreement, Leverage
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Ratio, is hereby amended by deleting the table included in such
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section in its entirety and substituting in lieu thereof the following
new table:
"Period Ratio
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Borrowing Base Termination Date
through December 31, 2001 7.75 to 1.00
January 1, 2002 through
March 31, 2002 7.50 to 1.00
April 1, 2002 through
June 30, 2002 7.00 to 1.00
July 1, 2002 through
September 30, 2002 6.75 to 1.00
October 1, 2002 through
March 31, 2003 6.50 to 1.00
April 1, 2003 through
September 30, 2003 6.00 to 1.00
October 1, 2003 through
March 31, 2004 5.25 to 1.00
April 1, 2004 through
September 30, 2004 4.75 to 1.00
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October 1, 2004 through
March 31, 2005 4.25 to 1.00
April 1, 2005 and thereafter 4.00 to 1.00"
2. No Other Amendments. Except for the amendments set forth above, the
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text of the Loan Agreement and all other Loan Documents shall remain unchanged
and in full force and effect. No amendment, waiver or consent by the
Administrative Agent, the Issuing Bank or the Lenders under the Loan Agreement
or any other Loan Document is granted or intended except as expressly set forth
herein, and the Administrative Agent, the Issuing Bank and the Lenders 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 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, the Issuing Bank and the Lenders at variance with the Loan
Agreement or any of the other Loan Documents, such as to require further notice
by the Administrative Agent, the Issuing Bank, the Lenders or the Majority
Lenders to require strict compliance with the terms of the Loan Agreement and
the other Loan Documents in the future.
3. Conditions Precedent. The effectiveness of this Amendment is
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subject to:
(a) receipt by the Administrative Agent of the following:
(i) duly executed signature pages to this Amendment from the
Majority Lenders;
(ii) a duly executed Security Agreement from American Tower
International, Inc.;
(iii) a duly executed Pledge Agreement from American Tower
International, Inc., pledging its interests in ATC Mexico Holding
Corp., a Delaware corporation, and ATC South America Holding Corp.,
a Delaware corporation;
(iv) a duly executed Assumption Agreement, in form and
substance acceptable to the Administrative Agent, from American
Tower International, Inc.;
(v) a loan certificate of American Tower International, Inc.,
in substantially in the form of Exhibit V attached to the Loan
Agreement, with all exhibits thereto;
(vi) UCC-1 financing statements signed by American Tower
International, Inc. to be filed in the office of the Secretary of
State of the State of Delaware; and
(vii) evidence that the 2002 Interest Reserve has been
established;
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(b) payment from funds received from the Borrowers by the
Administrative Agent to each Lender approving this Amendment of an amendment fee
equal to three-sixteenths (3/16) of one percent of the amount of Term Loan A
Loans, Term Loan B Loans and Revolving Loan Commitments held by such Lender; and
(c) the representations and warranties contained in Article 4 of
the Loan Agreement and contained in the other Loan Documents remaining true and
correct as of the date hereof, both before and after giving effect to this
Agreement, except to the extent previously fulfilled in accordance with the
terms of the Loan Agreement or such other Loan Document, as applicable, or to
the extent relating specifically to the earlier date. No Default or Event of
Default now exists or will be caused hereby.
4. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
5. Governing Law. This Amendment shall be construed in accordance
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with and governed by the laws of the State of New York.
6. Severability. Any provision of this Amendment 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment 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., a Delaware limited
partnership
By ATC GP INC., its General Partner
By_____________________________________
Name: Joseph L. Winn
Title: Chief Financial Officer
AMERICAN TOWERS, INC., a Delaware
corporation
By:____________________________________
Name: Joseph L. Winn
Title: Chief Financial Officer
VERESTAR, INC., a Delaware corporation
By_____________________________________
Name: Joseph L. Winn
Title: Chief Financial Officer
TOWERSITES MONITORING, INC., a Delaware
corporation
By_____________________________________
Name: Joseph L. Winn
Title: Chief Financial Officer
Agreed to and Accepted by:
AMERICAN TOWER INTERNATIONAL, INC.,
a Delaware corporation, as a new borrower
By_______________________________
Name: Joseph L. Winn
Title: Chief Financial Officer