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EXHIBIT 10.4
Conformed Copy
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ATC TOWER CORP.
SECURITY AGREEMENT
Dated as of October 11, 1996
THE FIRST NATIONAL BANK OF BOSTON, as Managing Agent
XXXXX FARGO BANK (TEXAS) NATIONAL ASSOCIATION, as Collateral Agent
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TABLE OF CONTENTS
Page
1. Amendment and Restatement; Credit Agreement; Definitions; Certain Rules
of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Credit Security . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1.1. Tangible Personal Property . . . . . . . . . . . . . . 2
2.1.2. Rights to Payment of Money . . . . . . . . . . . . . . 3
2.1.3. Intangibles . . . . . . . . . . . . . . . . . . . . . 3
2.1.4. Pledged Stock . . . . . . . . . . . . . . . . . . . . 3
2.1.5. Pledged Rights . . . . . . . . . . . . . . . . . . . . 3
2.1.6. Pledged Indebtedness . . . . . . . . . . . . . . . . . 3
2.1.7. Chattel Paper, Instruments and Documents . . . . . . . 3
2.1.8. Leases . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1.9. Deposit Accounts . . . . . . . . . . . . . . . . . . . 4
2.1.10. Collateral . . . . . . . . . . . . . . . . . . . . . 4
2.1.11. Books and Records . . . . . . . . . . . . . . . . . . 4
2.1.12. Insurance . . . . . . . . . . . . . . . . . . . . . . 4
2.1.13. Designated Real Property. . . . . . . . . . . . . . . 4
2.1.14. All Other Property . . . . . . . . . . . . . . . . . 4
2.1.15. Proceeds and Products . . . . . . . . . . . . . . . . 4
2.1.16. Excluded Property . . . . . . . . . . . . . . . . . . 4
2.2. Additional Credit Security . . . . . . . . . . . . . . . . . . 5
2.3. Representations, Warranties and Covenants with Respect to Credit
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3.1. Pledged Stock . . . . . . . . . . . . . . . . . . . . 5
2.3.2. Accounts and Pledged Indebtedness . . . . . . . . . . 6
2.3.3. Government Contract Receivables . . . . . . . . . . . 6
2.3.4. No Liens or Restrictions on Transfer or Change of Control7
2.3.5. Location of Credit Security . . . . . . . . . . . . . 7
2.3.6. Trade Names. . . . . . . . . . . . . . . . . . . . . . 7
2.3.7. Insurance . . . . . . . . . . . . . . . . . . . . . . 7
2.3.8. Modifications to Credit Security . . . . . . . . . . . 8
2.3.9. Delivery of Documents. . . . . . . . . . . . . . . . . 8
2.4. Administration of Credit Security . . . . . . . . . . . . . . . 9
2.4.1. Use of Credit Security . . . . . . . . . . . . . . . . 9
2.4.2. Deposits; Accounts . . . . . . . . . . . . . . . . . . 9
3. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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EXHIBITS
2.3 - Restrictions on Change of Control; Restrictions on Creation of
Liens; Obligors; Office and Principal Place of Business;
Permitted Jurisdiction for Personal Tangible Property; Trade
Names; Depository Institutions
2.3.3 - Government Contract Collateral Assignment; Notice of Assignment
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ATC TOWER CORP.
SECURITY AGREEMENT
This Agreement, dated as of October 11, 1996, is among ATC Tower Corp.,
a Delaware corporation (the "Company"), the Subsidiaries (as defined below) of
the Company party hereto, The First National Bank of Boston, as managing agent
(the "Managing Agent") for itself and the other Lenders (as defined below)
under the Credit Agreement (as defined below), and Xxxxx Fargo Bank (Texas)
National Association, as collateral agent (the "Collateral Agent") for itself
and such other Lenders. The parties agree as follows:
1. Amendment and Restatement; Credit Agreement; Definitions; Certain Rules
of Construction. This Agreement amends and restates the Security Agreement
dated as of October 12, 1994, as amended and restated as of December 28, 1995,
as in effect on the date hereof immediately prior to giving effect to this
Agreement, among the Company (as successor to Xxxxx-Xxxxx Corp.), Xxxxx Fargo
Bank (Texas) National Association, (as successor to First Interstate Bank of
Texas, N.A.), as agent, and certain other lenders. Reference is made to the
Credit Agreement dated as of the date hereof, as from time to time in effect
(the "Credit Agreement"), among the Company, the Subsidiaries of the Company
from time to time party thereto, the Lenders and the Agents. As a condition to
providing loans to the Company under the Credit Agreement, the Lenders are
requiring the Obligors to grant a security interest in the Credit Security (as
defined below) to secure the payment of the Credit Obligations (as defined
below). Capitalized terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined. Certain other
capitalized terms are used in this Agreement as specifically defined below in
this Section 1. Except as the context otherwise explicitly requires, (a) the
capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section shall include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation", (e) terms
defined in the UCC and not otherwise defined herein have the meaning provided
under the UCC, (f) references to a particular statute or regulation include all
rules and regulations thereunder and any successor statute, regulation or
rules, in each case as from time to time in effect and (g) references to a
particular Person include such Person's successors and assigns to the extent
not prohibited by this Agreement and the other Credit Documents. References to
"the date hereof" mean the date first set forth above.
1.1. "Accounts" is defined in Section 2.1.2.
1.2. "Credit Security" is defined in Section 2.1.
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1.3. "FACA" means the Federal Assignment of Claims Act, which
is set forth in 31 U.S.C. Section 3727 and 41 U.S.C. Section 15.
1.4. "FCC License" means any license, authorization or permit
issued by the FCC to any Obligor.
1.5. "Government Receivables" means any Accounts as to which
the United States of America or any agency or department thereof is the
obligor.
1.6. "Pledged Indebtedness" is defined in Section 2.1.6.
1.7. "Pledged Rights" is defined in Section 2.1.5.
1.8. "Pledged Securities" means the Pledged Stock, the Pledged
Rights and the Pledged Indebtedness, collectively.
1.9. "Pledged Stock" is defined in Section 2.1.4.
1.10. "UCC" means the Uniform Commercial Code as in effect in
Massachusetts on the date hereof; provided, however, that with respect to the
perfection of the Managing Agent's Lien in the Credit Security and the effect
of nonperfection thereof, the term "UCC" means the Uniform Commercial Code as
in effect in any jurisdiction the laws of which are made applicable by section
9-103 of the Uniform Commercial Code as in effect in Massachusetts.
2. Security.
2.1. Credit Security. As security for the payment and
performance of the Credit Obligations, each Obligor mortgages, pledges and
collaterally grants and assigns to the Managing Agent for the benefit of the
Lenders and the holders from time to time of any Credit Obligation, and creates
a security interest in favor of the Managing Agent for the benefit of the
Lenders and such holders in, all of such Obligor's right, title and interest in
and to (but none of its obligations or liabilities with respect to) the items
and types of present and future property described in Sections 2.1.1 through
2.1.15 (subject, however, to Section 2.1.16), whether now owned or hereafter
acquired, all of which shall be included in the term "Credit Security":
2.1.1. Tangible Personal Property. All goods,
machinery, equipment, inventory and all other tangible
personal property of any nature whatsoever, wherever
located, including Towers, maintenance and repair
materials, raw materials, work in process, finished parts
and products, supplies, spare parts, replacement parts,
merchandise for resale, computers, tapes, disks and
computer equipment.
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2.1.2. Rights to Payment of Money. All rights
to receive the payment of money, including accounts and
receivables, rights to receive the payment of money under
contracts, franchises, licenses, permits, subscriptions or
other agreements (whether or not earned by performance),
and rights to receive payments from any other source. All
such rights (other than Financing Debt) are collectively
referred to as "Accounts".
2.1.3. Intangibles. All of the following (to
the extent not included in Section 2.1.2): (a) contracts,
franchises, licenses, permits, subscriptions and other
agreements and all other rights thereunder; (b) rights
granted by others which permit such Obligor to sell or
market items of personal property; (c) United States and
foreign common law and statutory copyrights and rights in
literary property and rights and licenses thereunder; (d)
trade names, United States and foreign trademarks, service
marks, any registrations thereof and any related good
will; (e) United States and foreign patents and patent
applications; (f) computer software, designs, models,
know-how, trade secrets, rights in proprietary
information, formulas, customer lists, backlog, orders,
subscriptions, royalties, catalogues, sales material,
documents, good will, inventions and processes; (g)
judgments, causes in action and claims, whether or not
inchoate; and (h) all other general intangibles and
intangible property and all rights thereunder.
2.1.4. Pledged Stock. (a) All shares of capital
stock or other evidence of beneficial interest in any
corporation, business trust or limited liability company,
(b) all limited partnership interests in any limited
partnership, (c) all general partnership interests in any
general partnership, (d) all joint venture interests in
any joint venture and (e) all options, warrants and
similar rights to acquire such capital stock or such
interests. All such capital stock, interests, options,
warrants and other rights are collectively referred to as
the "Pledged Stock".
2.1.5. Pledged Rights. All rights to receive
profits or surplus of, or other Distributions (including
income, return of capital and liquidating distributions)
from, any partnership, joint venture or limited liability
company, including any distributions by any such Person to
partners, joint venturers or members. All such rights are
collectively referred to as the "Pledged Rights".
2.1.6. Pledged Indebtedness. All Financing Debt
from time to time owing to such Obligor from any Person.
All such Financing Debt is referred to as the "Pledged
Indebtedness".
2.1.7. Chattel Paper, Instruments and Documents.
All chattel paper, non-negotiable instruments, negotiable
instruments and documents.
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2.1.8. Leases. All leases of personal property,
whether such Obligor is the lessor or the lessee
thereunder.
2.1.9. Deposit Accounts. All general or special
deposit accounts, including any demand, time, savings,
passbook or similar account maintained by such Obligor
with any bank, trust company, savings and loan
association, credit union or similar organization, and all
money, cash and cash equivalents of such Obligor, whether
or not deposited in any such deposit account.
2.1.10. Collateral. All collateral granted by
third parties to, or held by, such Obligor with respect to
the Accounts, Pledged Securities, chattel paper,
instruments, leases and other items of Credit Security.
2.1.11. Books and Records. All books and
records, including books of account and ledgers of every
kind and nature, all electronically recorded data
(including all computer programs, disks, tapes, electronic
data processing media and software used in connection with
maintaining such Obligor's books and records), all files
and correspondence and all containers for the foregoing.
2.1.12. Insurance. All insurance policies which
insure against any loss or damage to any other Credit
Security or which are otherwise owned by such Obligor.
2.1.13. Designated Real Property. All
Designated Real Property and immovable property and
fixtures thereon, leasehold interests constituting
Designated Real Property and related easements wherever
located, together with any and all estates and interests
of such Obligor therein, including lands, buildings,
stores, manufacturing facilities and other structures
erected on such property, fixed plant, fixed equipment and
all permits, rights, licenses, benefits and other
interests of any kind or nature whatsoever in respect of
such real and immovable property.
2.1.14. All Other Property. All other property,
assets and items of value of every kind and nature,
tangible or intangible, absolute or contingent, legal or
equitable.
2.1.15. Proceeds and Products. All proceeds,
including insurance proceeds, and products of the items of
Credit Security described or referred to in Sections 2.1.1
through 2.1.14 and, to the extent not included in the
foregoing, all Distributions with respect to the Pledged
Securities.
2.1.16. Excluded Property. Notwithstanding
Sections 2.1.1 through 2.1.15, the payment and performance
of the Credit Obligations shall not be secured by:
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(a) any rights arising under, and any property, tangible or
intangible, acquired under, any agreement which validly prohibits the
creation by such Obligor of a security interest in such rights or
property;
(b) any rights or property (including any FCC License) to the
extent that any valid and enforceable law or regulation applicable to
such rights or property prohibits the creation of a security interest
therein; provided, however, that, to the extent permitted by applicable
law, this Section 2.16(b) shall not apply to any rights incident or
appurtenant to any FCC License, including the right to receive all
proceeds derived or arising from or in connection with the assignment or
transfer of such FCC License);
(c) more than 66% of the outstanding stock or other equity in any
Subsidiary organized under the laws of, and operating solely in, a
country other than the United States of America;
(d) the items described in Section 2.2 (but only in the event and
to the extent the Managing Agent has not specified that such items be
included in the Credit Security pursuant thereto); or
(e) motor vehicles.
In addition, in the event any Obligor disposes of assets to third
parties in a transaction permitted by section 6.11 of the Credit Agreement,
such assets, but not the proceeds or products thereof, shall be released from
the Lien of the Credit Security.
2.2. Additional Credit Security. As additional Credit Security, each
Obligor covenants that it will mortgage, pledge and collaterally grant and
assign to the Managing Agent for the benefit of the Lenders and the holders
from time to time of any Credit Obligation, and will create a security interest
in favor of the Managing Agent for the benefit of the Lenders and such holders
in, all of its right, title and interest in and to (but none of its obligations
with respect to) present or future aircraft as the Managing Agent may from time
to time specify by notice to such Obligor, whether now owned or hereafter
acquired, and the proceeds and products thereof, except to the extent
consisting of rights or property of the types referred to in Section 2.1.16(a)
through (c), subject only to Liens permitted by Section 2.3.4, all of which
shall thereupon be included in the term "Credit Security".
2.3. Representations, Warranties and Covenants with Respect to Credit
Security. Each Obligor represents, warrants and covenants that:
2.3.1. Pledged Stock. All shares of capital stock, limited
partnership interests and similar securities included in the Pledged
Stock are and shall be at all times duly authorized, validly issued,
fully paid and (in the case of capital stock and limited partnership
interests) nonassessable. Each Obligor will deliver to the Managing
Agent
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certificates representing the Pledged Stock, registered,
if the Managing Agent so requests, in the name of the
Managing Agent or its nominee, as pledgee, or accompanied
by a stock transfer power executed in blank and, if the
Managing Agent so requests, with the signature guaranteed,
all in form and manner satisfactory to the Managing Agent.
Pledged Stock that is not evidenced by a certificate will
be registered in the Managing Agent's name as pledgee on
the issuer's records, all in form and substance
satisfactory to the Managing Agent. The Managing Agent
may at any time transfer into its name or the name of its
nominee, as pledgee, any Pledged Stock. In the event the
Pledged Stock includes any Margin Stock, the Obligors will
furnish to the Lenders Federal Reserve Form U-1 and take
such other action as the Managing Agent may request to
ensure compliance with applicable laws.
2.3.2. Accounts and Pledged Indebtedness. All
Accounts and Pledged Indebtedness owed by an Affiliate of
any Obligor shall be on open account and shall not be
evidenced by any note or other instrument; provided,
however, that all Pledged Indebtedness owed by an
Affiliate of any Obligor shall, if the Managing Agent
requests, be evidenced by a promissory note, which note
shall be delivered to the Managing Agent after having been
endorsed in blank. Each Obligor will, immediately upon
the receipt thereof, deliver to the Managing Agent any
promissory note or similar instrument representing any
Account or Pledged Indebtedness, after having endorsed
such promissory note or instrument in blank.
2.3.3. Government Contract Receivables. Any
Obligor's right, title and interest in any Government
Receivables shall constitute Accounts for all purposes
hereunder; provided, however, that nothing in this
Agreement shall obligate any Obligor to cause the grant of
security in Government Receivables hereunder to comply
with FACA except if requested by the Managing Agent after
an Event of Default shall have occurred or as set forth
below. If at any time all Government Receivables
constitute more than 15% of total Accounts, the Company
shall give prompt notice thereof to the Managing Agent
and, if requested by the Managing Agent, take such actions
required to comply with FACA as necessary to ensure that
not more than 15% of the total Accounts consist of
Government Receivables as to which there has been no
compliance with FACA. Such actions will include
furnishing to the Agent a list of all contracts resulting
in Government Receivables, providing the name and address
for each of the government agency, the contracting officer
or head of such officer's department or agency, any
sureties or bonds relating to such contract and any
disbursing officer designated in such contract and
executing and delivering to the Managing Agent a separate
collateral assignment in substantially the form of Exhibit
2.3.3 for each such contract. No contracts of any Obligor
with government contractors provide that payments to such
Obligor are contingent or dependent upon the government
contractor receiving payment from the federal government.
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2.3.4. No Liens or Restrictions on Transfer or
Change of Control. All Credit Security shall be free and
clear of any Liens and restrictions on the transfer
thereof, including contractual provisions which prohibit
the assignment of rights under contracts, except for Liens
permitted by section 6.8 of the Credit Agreement. Without
limiting the generality of the foregoing, each Obligor
will exclude from contracts to which it becomes a party
after the date hereof provisions that would prevent such
Obligor from creating a security interest in such contract
or any property acquired thereunder as contemplated
hereby. None of the Pledged Stock is subject to any
option to purchase or similar rights of any Person.
Except (a) as set forth on Exhibit 2.3 or (b) with the
written consent of the Managing Agent, no Obligor is, and
none of them will be, party to or bound by any agreement,
instrument, deed or lease that restricts the change of
control or ownership, or the creation of a security
interest in the ownership, of the Company or any of its
Subsidiaries.
2.3.5. Location of Credit Security. Each
Obligor shall at all times keep its records concerning the
Accounts at its chief executive office and principal place
of business, which office and place of business shall be
set forth in Exhibit 2.3 or, so long as such Obligor shall
have taken all steps reasonably necessary to perfect the
Lenders' security interest in the Credit Security with
respect to such new address, at such other address as such
Obligor may specify by notice actually received by the
Managing Agent not less than 10 Banking Days prior to such
change of address. No Obligor shall at any time keep
tangible personal property of the type referred to in
Section 2.1.1 in any jurisdiction other than the
jurisdictions specified in Exhibit 2.3 or, so long as such
Obligor shall have taken all steps reasonably necessary to
perfect the Lenders' security interest in the Credit
Security with respect to such other jurisdiction, other
jurisdictions as such Obligor may specify by notice
actually received by the Managing Agent not less than 10
days prior to moving such tangible personal property into
such other jurisdiction.
2.3.6. Trade Names. No Obligor will adopt or do
business under any name other than its name or names
designated in Exhibit 2.3 or any other name specified by
notice actually received by the Managing Agent not less
than 10 Banking Days prior to the conduct of business
under such additional name. Since its incorporation, no
Obligor has changed its corporate name or adopted or
conducted business under any trade name other than a name
specified on Exhibit 2.3.
2.3.7. Insurance. Each insurance policy
included in, or insuring against loss or damage to, the
Credit Security shall name the Managing Agent as
additional insured party or as loss payee. No such
insurance policy shall be cancelable or subject to
termination or reduction in amount or scope of coverage
until after at least 15 days' prior written notice from
the insurer to the Managing Agent. At least 10 days prior
to the expiration of any such insurance policy for any
reason, each Obligor shall furnish the Managing Agent with
a renewal or replacement policy and evidence of payment of
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the premiums therefor when due. Each Obligor grants to
the Managing Agent full power and authority as its
attorney-in-fact, effective upon notice to such Obligor
after the occurrence of an Event of Default, to obtain,
cancel, transfer, adjust and settle any such insurance
policy and to endorse any drafts thereon. Any amounts
that the Managing Agent receives under any such policy
(including return of unearned premiums) insuring against
loss or damage to the Credit Security prior to the
occurrence of an Event of Default shall be delivered to
the Obligors for the replacement, restoration and
maintenance of the Credit Security. Any such amounts that
the Managing Agent receives after the occurrence of an
Event of Default shall, at the Managing Agent's option, be
applied to payment of the Credit Obligations or to the
replacement, restoration and maintenance of the Credit
Security. If any Obligor fails to provide insurance as
required by this Agreement, the Managing Agent may, at its
option, purchase such insurance, and such Obligor will on
demand pay to the Managing Agent the amount of any
payments made by the Managing Agent or the Lenders for
such purpose, together with interest on the amounts so
disbursed from five Banking Days after the date demanded
until payment in full thereof at the Overdue Reimbursement
Rate.
2.3.8. Modifications to Credit Security. Except
with the prior written consent of the Managing Agent, no
Obligor shall amend or modify, or waive any of its rights
under or with respect to, any material Accounts, general
intangibles, Pledged Securities or leases if the effect of
such amendment, modification or waiver would be to reduce
the amount of any such items or to extend the time of
payment thereof, to waive any default by any other party
thereto, or to waive or impair any remedies of the
Obligors or the Lenders under or with respect to any such
Accounts, general intangibles, Pledged Securities or
leases, in each case other than consistent with past
practice in the ordinary course of business and on an
arm's-length basis. Each Obligor will promptly give the
Managing Agent written notice of any request by any Person
for any material credit or adjustment with respect to any
Account, general intangible, Pledged Securities or leases.
2.3.9. Delivery of Documents. Upon the Managing
Agent's request, each Obligor shall deliver to the
Managing Agent, promptly upon such Obligor's receipt
thereof, copies of any agreements, instruments, documents
or invoices comprising or relating to the Credit Security.
Pending such request, such Obligor shall keep such items
at its chief executive office and principal place of
business (as specified pursuant to Section 2.3.5).
2.3.10. Perfection of Credit Security. Upon the
Managing Agent's request from time to time, the Obligors
will execute and deliver, and file and record in the
proper filing and recording places, all such instruments,
including financing statements, collateral assignments of
copyrights, trademarks and patents, mortgages or deeds of
trust and notations on certificates of title, and will
take all such other action, as the
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Managing Agent deems advisable for confirming to it the
Credit Security or to carry out any other purpose of this
Agreement or any other Credit Document; provided, however,
that the Obligors will not be required to grant security
interests to the Managing Agent in any real property (or
leases thereof) other than Designated Real Property.
2.4. Administration of Credit Security. The Credit
Security shall be administered as follows, and if an Event of Default
shall have occurred, Section 2.5 shall also apply.
2.4.1. Use of Credit Security. Until the
Managing Agent provides written notice to the contrary,
each Obligor may use, commingle and dispose of any part of
the Credit Security in the ordinary course of its
business, all subject to section 6.11 of the Credit
Agreement.
2.4.2. Deposits; Accounts. Each Obligor shall
keep all its bank and deposit accounts only with the
Managing Agent, other Lenders or the financial
institutions listed on Exhibit 2.3. Upon the occurrence
of an Event of Default and to the extent specified by
prior written notice from the Managing Agent, all sums
collected or received and all property recovered or
possessed by any Obligor in connection with any Credit
Security shall be received and held by such Obligor in
trust for and on the Lenders' behalf, shall be segregated
from the assets and funds of such Obligor, and shall be
delivered to the Managing Agent for the benefit of the
Lenders. Without limiting the foregoing, upon the
occurrence of an Event of Default and to the extent
specified by written notice from the Managing Agent, each
Obligor shall institute depositary collateral accounts,
lock-box receipts and similar credit procedures, providing
for the direct receipt of payment on Accounts at a
separate address, the segregation of such proceeds for
direct payment to the Managing Agent and appropriate
notices to Account debtors. Upon the occurrence of an
Event of Default and to the extent specified by written
notice from the Managing Agent, each Obligor will cause
its accounting books and records to be marked with such
legends and segregated in such manner as the Managing
Agent may specify.
2.4.3. Distributions on Pledged Securities.
(a) Until an Event of Default shall occur, the
respective Obligors shall be entitled, to the extent
permitted by the Credit Documents, to receive all
Distributions on or with respect to the Pledged Securities
(other than Distributions constituting additional Pledged
Securities). All Distributions constituting additional
Pledged Securities will be retained by the Managing Agent
(or if received by any Obligor shall be held by such
Person in trust and shall be immediately delivered by such
Person to the Managing Agent in the original form
received, endorsed in blank) and held by the Managing
Agent as part of the Credit Security.
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(b) If an Event of Default shall have occurred,
all Distributions on or with respect to the Pledged
Securities shall be retained by the Managing Agent (or if
received by any Obligor shall be held by such Person in
trust and shall be immediately delivered by it to the
Managing Agent in the original form received, endorsed in
blank) and held by the Managing Agent as part of the
Credit Security or applied by the Managing Agent to the
payment of the Credit Obligations in accordance with
Section 2.5.6.
2.4.4. Voting Pledged Securities.
(a) Until an Event of Default shall occur, the
respective Obligors shall be entitled to vote or consent
with respect to the Pledged Securities in any manner not
inconsistent with the terms of any Credit Document, and
the Managing Agent will, if so requested, execute
appropriate revocable proxies therefor.
(b) If an Event of Default shall have occurred,
if and to the extent that the Managing Agent shall so
notify in writing the Obligor pledging the Pledged
Securities in question, only the Managing Agent shall be
entitled to vote or consent or take any other action with
respect to the Pledged Securities (and any Obligor will,
if so requested, execute appropriate proxies therefor).
2.5. Right to Realize upon Credit Security. Except to
the extent prohibited by applicable law that cannot be waived, this
Section 2.5 shall govern the Lender's and the Managing Agent's rights to
realize upon the Credit Security if any Event of Default shall have
occurred. The provisions of this Section 2.5 are in addition to any
rights and remedies available at law or in equity and in addition to the
provisions of any other Credit Document. In the case of a conflict
between this Section 2.5 and any other Credit Document, this Section 2.5
shall govern.
2.5.1. Assembly of Credit Security; Receiver.
Each Obligor shall, upon the Managing Agent's request,
assemble the Credit Security and otherwise make it
available to the Managing Agent. The Managing Agent may
have a receiver appointed for all or any portion of the
Obligors' assets or business which constitutes the Credit
Security in order to manage, protect, preserve, sell and
otherwise dispose of all or any portion of the Credit
Security in accordance with the terms of the Credit
Documents, to continue the operations of the Obligors and
to collect all revenues and profits therefrom to be
applied to the payment of the Credit Obligations,
including the compensation and expenses of such receiver.
2.5.2. General Authority. To the extent
specified in written notice from the Managing Agent to the
Obligor in question, each Obligor grants the Managing
Agent full and exclusive power and authority, subject to
the other terms hereof and applicable law, to take any of
the following actions (for the sole benefit of the
Managing Agent on
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behalf of the Lenders and the holders from time to time of
any Credit Obligations, but at such Obligor's expense):
(a) To ask for, demand, take, collect, xxx for
and receive all payments in respect of any Accounts,
general intangibles, Pledged Securities or leases which
such Obligor could otherwise ask for, demand, take,
collect, xxx for and receive for its own use.
(b) To extend the time of payment of any
Accounts, general intangibles, Pledged Securities or
leases and to make any allowance or other adjustment with
respect thereto.
(c) To settle, compromise, prosecute or defend
any action or proceeding with respect to any Accounts,
general intangibles, Pledged Securities or leases and to
enforce all rights and remedies thereunder which such
Obligor could otherwise enforce.
(d) To enforce the payment of any Accounts,
general intangibles, Pledged Securities or leases, either
in the name of such Obligor or in its own name, and to
endorse the name of such Obligor on all checks, drafts,
money orders and other instruments tendered to or received
in payment of any Credit Security.
(e) To notify the third party payor with respect
to any Accounts, general intangibles, Pledged Securities
or leases of the existence of the security interest
created hereby and to cause all payments in respect
thereof thereafter to be made directly to the Managing
Agent; provided, however, that whether or not the Managing
Agent shall have so notified such payor, such Obligor will
at its expense render all reasonable assistance to the
Managing Agent in collecting such items and in enforcing
claims thereon.
(f) To sell, transfer, assign or otherwise deal
in or with any Credit Security or the proceeds thereof, as
fully as such Obligor otherwise could do.
2.5.3. Marshaling, etc. Neither the Managing
Agent nor the Lenders shall be required to make any demand
upon, or pursue or exhaust any of their rights or remedies
against, any Obligor or any other guarantor, pledgor or
any other Person with respect to the payment of the Credit
Obligations or to pursue or exhaust any of their rights or
remedies with respect to any collateral therefor or any
direct or indirect guarantee thereof. Neither the
Managing Agent nor the Lenders shall be required to
marshal the Credit Security or any guarantee of the Credit
Obligations or to resort to the Credit Security or any
such guarantee in any particular order, and all of its and
their rights hereunder or under any other Credit Document
shall be cumulative. To the extent it may lawfully do so,
each Obligor absolutely and irrevocably waives and
relinquishes the benefit and advantage of, and covenants
not to assert against the
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Managing Agent or the Lenders, any valuation, stay,
appraisement, extension, redemption or similar laws now or
hereafter existing which, but for this provision, might be
applicable to the sale of any Credit Security made under
the judgment, order or decree of any court, or privately
under the power of sale conferred by this Agreement, or
otherwise. Without limiting the generality of the
foregoing, each Obligor (a) agrees that it will not invoke
or utilize any law which might prevent, cause a delay in
or otherwise impede the enforcement of the rights of the
Managing Agent or any Lender in the Credit Security, (b)
waives all such laws, and (c) agrees that it will not
invoke or raise as a defense to any enforcement by the
Managing Agent or any Lender of any rights and remedies
relating to the Credit Security or the Credit Obligations
any legal or contractual requirement with which the
Managing Agent or any Lender may have in good faith failed
to comply. In addition, each Obligor waives any right to
prior notice (except to the extent expressly required by
this Agreement) or judicial hearing in connection with
foreclosure on or disposition of any Credit Security,
including any such right which such Obligor would
otherwise have under the Constitution of the United States
of America, any state or territory thereof or any other
jurisdiction.
2.5.4. Sales of Credit Security. All or any
part of the Credit Security may be sold for cash or other
value in any number of lots at public or private sale,
without demand, advertisement or notice; provided,
however, that unless the Credit Security to be sold
threatens to decline speedily in value or is of a type
customarily sold on a recognized market, the Managing
Agent shall give the Obligor granting the security
interest in such Credit Security 10 days' prior written
notice of the time and place of any public sale, or the
time after which a private sale may be made, which notice
each of the Obligors and the Managing Agent agrees to be
reasonable. At any sale or sales of Credit Security, any
Lender or any of its respective officers acting on its
behalf, or such Lender's assigns, may bid for and purchase
all or any part of the property and rights so sold, may
use all or any portion of the Credit Obligations owed to
such Lender as payment for the property or rights so
purchased, and upon compliance with the terms of such sale
may hold and dispose of such property and rights without
further accountability to the respective Obligors, except
for the proceeds of such sale or sales pursuant to Section
2.5.6. The Obligors acknowledge that any such sale will
be made by the Managing Agent on an "as is" basis with
disclaimers of all warranties, whether express or implied.
The respective Obligors will execute and deliver or cause
to be executed and delivered such instruments, documents,
assignments, waivers, certificates and affidavits, will
supply or cause to be supplied such further information
and will take such further action, as the Managing Agent
shall request in connection with any such sale.
2.5.5. Sale without Registration. If, at any
time when the Managing Agent shall determine to exercise
its rights hereunder to sell all or part of the securities
included in the Credit Security, the securities in
question shall not be effectively
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registered under the Securities Act (or other applicable law), the
Managing Agent may, in its sole discretion, sell such securities by
private or other sale not requiring such registration in such manner and
in such circumstances as the Managing Agent may deem necessary or
advisable in order that such sale may be effected in accordance with
applicable securities laws without such registration and the related
delays, uncertainty and expense. Without limiting the generality of the
foregoing, in any event the Managing Agent may, in its sole discretion,
(a) approach and negotiate with a single purchaser or one or more
possible purchasers to effect such sale, (b) restrict such sale to one
or more purchasers each of whom will represent and agree that such
purchaser is purchasing for its own account, for investment and not with
a view to the distribution or sale of such securities and (c) cause to
be placed on certificates representing the securities in question a
legend to the effect that such securities have not been registered under
the Securities Act (or other applicable law) and may not be disposed of
in violation of the provisions thereof. Each Obligor agrees that such
manner of disposition is commercially reasonable, that it will upon the
Managing Agent's request give any such purchaser access to such
information regarding the issuer of the securities in question as the
Managing Agent may reasonably request and that the Managing Agent and
the Lenders shall not incur any responsibility for selling all or part
of the securities included in the Credit Security at any private or
other sale not requiring such registration, notwithstanding the
possibility that a substantially higher price might be realized if the
sale were deferred until after registration under the Securities Act (or
other applicable law) or until made in compliance with certain other
rules or exemptions from the registration provisions under the
Securities Act (or other applicable law). Each Obligor acknowledges
that no adequate remedy at law exists for breach by it of this Section
2.5.5 and that such breach would not be adequately compensable in
damages and therefore agrees that this Section 2.5.5 may be specifically
enforced.
2.5.6. Application of Proceeds. The proceeds of all sales and
collections in respect of any Credit Security or other assets of any
Obligor, all funds collected from the Obligors and any cash contained in
the Credit Security, the application of which is not otherwise
specifically provided for herein, shall be applied as follows:
First, to the payment of the costs and expenses of such sales and
collections, the reasonable expenses of the Managing Agent and the
reasonable fees and expenses of its special counsel;
Second, any surplus then remaining to the payment of the Credit
Obligations in such order and manner as the Managing Agent may in its
sole discretion determine; provided, however, that any such payment of
Credit Obligations owed to all Lenders shall be pro rata in accordance
with the respective Percentage Interests of the Lenders in such Credit
Obligations; and
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Third, any surplus then remaining shall be paid to the Obligors,
subject, however, to the rights of the holder of any then existing Lien
of which the Managing Agent has actual notice.
2.6. Custody of Credit Security. Except as provided by applicable
law that cannot be waived, the Managing Agent will have no duty as to the
custody and protection of the Credit Security, the collection of any part
thereof or of any income thereon or the preservation or exercise of any rights
pertaining thereto, including rights against prior parties, except for the use
of reasonable care in the custody and physical preservation of any Credit
Security in its possession. The Lenders will not be liable or responsible for
any loss or damage to any Credit Security, or for any diminution in the value
thereof, by reason of the act or omission of any Managing Agent selected by the
Managing Agent acting in good faith.
3. General. Addresses for notices, consent to jurisdiction, jury trial
waiver, defeasance and numerous other provisions applicable to this Agreement
are contained in the Credit Agreement. The invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
any other term or provision hereof. The headings in this Agreement are for
convenience of reference only and shall not limit, alter or otherwise affect
the meaning hereof. This Agreement and the other Credit Documents constitute
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior and current understandings and
agreements, whether written or oral. This Agreement is a Credit Document and
may be executed in any number of counterparts, which together shall constitute
one instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE
COMMONWEALTH OF MASSACHUSETTS, EXCEPT AS MAY BE REQUIRED BY THE UCC OF OTHER
JURISDICTIONS WITH RESPECT TO MATTERS INVOLVING THE PERFECTION OF THE MANAGING
AGENT'S LIEN ON THE CREDIT SECURITY LOCATED IN SUCH OTHER JURISDICTIONS.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first written above.
ATC TOWER CORP.
GRITZ TOWER MAINTENANCE COMPANY
WESTARK TOWERS, INCORPORATED
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
As Vice President of each of
the foregoing
corporations
ATC-PRIME I, L.L.C.
ATC-PRIME II, L.L.C.
By /s/ Xxxx X. Xxxxxx
-----------------------------
As President of each of the
foregoing
companies
THE FIRST NATIONAL BANK OF BOSTON,
as Managing Agent under the Credit
Agreement
By /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Title: Director
XXXXX FARGO BANK (TEXAS) NATIONAL
ASSOCIATION, as Collateral Agent
under the Credit Agreement
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------
Title: Vice President
