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EXHIBIT 10.5
Conformed Copy
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ATC TOWER CORP.
GUARANTEE AGREEMENT
Dated as of October 11, 1996
THE FIRST NATIONAL BANK OF BOSTON, as Managing Agent
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TABLE OF CONTENTS
Page
1. Reference to Credit Agreement; Definitions;
Certain Rules of Construction . . . . . . . . . . . . . . . . . . . . 1
2. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1. Guarantee of Credit Obligations . . . . . . . . . . . . . . . . 1
2.2. Continuing Obligation . . . . . . . . . . . . . . . . . . . . . 2
2.3. Waivers with Respect to Credit Obligations . . . . . . . . . . 2
2.4. Lenders' Power to Waive, etc . . . . . . . . . . . . . . . . . 4
2.5. Information Regarding the Company, etc. . . . . . . . . . . . . 4
2.6. Certain Guarantor Representations . . . . . . . . . . . . . . . 5
2.7. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.8. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.9. Future Subsidiaries: Further Assurances . . . . . . . . . . . 6
2.10. Contribution Among Guarantors . . . . . . . . . . . . . . . . 6
3. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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ATC TOWER CORP.
GUARANTEE AGREEMENT
This Agreement, dated as of October 11, 1996, is among ATC Tower Corp.,
a Delaware corporation (the "Company"), American Tower Corporation, a Delaware
corporation (the "Parent"), ATC Holdings Corp., a Delaware corporation ("ATC
Holdings"), the Subsidiaries (as defined below) of the Company party hereto and
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). The parties agree as follows:
1. Reference to Credit Agreement; Definitions; Certain Rules of
Construction. 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 Guarantors (as defined
below) to guarantee 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) references to a
particular Section shall include all subsections thereof, (c) the word
"including" shall be construed as "including without limitation", (d)
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 (e) references to a particular Person
include such Person's successors and assigns to the extent not prohibited by
this Agreement or the other Credit Documents. References to "the date hereof"
mean the date first set forth above.
2. Guarantee.
2.1. Guarantee of Credit Obligations. Each Guarantor
unconditionally guarantees that the Credit Obligations will be performed and
paid in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectability and being absolute and in no way conditional or
contingent. In the event any part of the Credit Obligations shall not have
been so paid in full when due and payable, each Guarantor will, immediately
upon notice by the Managing Agent or, without notice, immediately upon the
occurrence of a Bankruptcy Default, pay or cause to be paid to the Managing
Agent for the account of each Lender in accordance with the Lenders' respective
Percentage Interests therein the amount of such Credit Obligations which are
then due and payable and unpaid. The obligations of each Guarantor hereunder
shall not be affected by the invalidity, unenforceability or irrecoverability
of any of the Credit Obligations as against any other Obligor, any other
guarantor thereof or any other Person. For purposes
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hereof, the Credit Obligations shall be due and payable when and as the same
shall be due and payable under the terms of the Credit Agreement or any other
Credit Document notwithstanding the fact that the collection or enforcement
thereof may be stayed or enjoined under the Bankruptcy Code or other applicable
law.
2.2. Continuing Obligation. Each Guarantor acknowledges that
the Lenders have entered into the Credit Agreement (and, to the extent that the
Lenders or the Agents may enter into any future Credit Document, will have
entered into such agreement) in reliance on this Section 2 being a continuing
irrevocable agreement, and such Guarantor agrees that its guarantee may not be
revoked in whole or in part. The obligations of the Guarantors hereunder shall
terminate when the commitment of the Lenders to extend credit under the Credit
Agreement shall have terminated and all of the Credit Obligations have been
indefeasibly paid in full in cash and discharged; provided, however, that the
obligations of each Guarantor pursuant to this Agreement shall continue to be
effective or automatically be reinstated, as the case may be, if at any time
payment of any of the Credit Obligations is rescinded or otherwise must be
restored or returned by the Lenders upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Guarantor, the Company or any
other guarantor of the Credit Obligations or otherwise, all as though such
payment had not been made.
2.3. Waivers with Respect to Credit Obligations. Except to
the extent expressly required by the Credit Agreement or any other Credit
Document, each Guarantor waives, to the fullest extent permitted by the
provisions of applicable law, all of the following (including all defenses,
counterclaims and other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of
nonpayment of any of the Credit Obligations, and notice of
protest, dishonor or nonperformance;
(b) notice of acceptance of this guarantee and notice
that credit has been extended in reliance on such Guarantor's
guarantee of the Credit Obligations;
(c) notice of any Default or of any inability to
enforce performance of the obligations of the Company or any
other Person with respect to any Credit Document, or notice of
any acceleration of maturity of any Credit Obligations;
(d) demand for performance or observance of, and any
enforcement of any provision of the Credit Agreement, the Credit
Obligations or any other Credit Document or any pursuit or
exhaustion of rights or remedies with respect to any Credit
Security or against the Company or any other Person in respect of
the Credit Obligations or any requirement of diligence or
promptness on the part of the Agents or the Lenders in connection
with any of the foregoing;
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(e) any act or omission on the part of the Agents or
the Lenders which may impair or prejudice the rights of such
Guarantor, including rights to obtain subrogation, exoneration,
contribution, indemnification or any other reimbursement from the
Company or any other Person, or otherwise operate as a deemed
release or discharge;
(f) failure or delay to perfect or continue the
perfection of any security interest in any Credit Security or any
other action which xxxxx or impairs the value of, or any failure
to preserve or protect the value of, any Credit Security;
(g) any statute of limitations or any statute or rule
of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome
than the obligation of the principal;
(h) any "single action" or "anti-deficiency" law which
would otherwise prevent the Lenders from bringing any action,
including any claim for a deficiency, against such Guarantor
before or after the Agents' or the Lenders' commencement or
completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or any other law which
would otherwise require any election of remedies by the Agents or
the Lenders;
(i) all demands and notices of every kind with respect
to the foregoing; and
(j) to the extent not referred to above, all defenses
(other than payment) which the Company may now or hereafter have
to the payment of the Credit Obligations, together with all
suretyship defenses, which could otherwise be asserted by such
Guarantor.
Each Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be available to it with
respect to its obligations hereunder in the absence of the waivers contained in
this Section 2.3.
No delay or omission on the part of the Managing Agent or the
Lenders in exercising any right under this Agreement or any other Credit
Document or under any guarantee of the Credit Obligations or with respect to
the Credit Security shall operate as a waiver or relinquishment of such right.
No action which the Managing Agent or the Lenders or the Company may take or
refrain from taking with respect to the Credit Obligations, including any
amendments thereto or modifications thereof or waivers with respect thereto,
shall affect the provisions of this Agreement or the obligations of each
Guarantor hereunder. None of the Lenders' or the Managing Agent's rights shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of any Obligor, or by any noncompliance by the Company with the
terms, provisions and covenants of the Credit Agreement, regardless of any
knowledge thereof which the Managing Agent or the Lenders may have or otherwise
be charged with.
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2.4. Lenders' Power to Waive, etc. Each Guarantor grants to
the Managing Agent and the Lenders full power in their discretion, without
notice to or consent of such Guarantor, such notice and consent being expressly
waived to the fullest extent permitted by applicable law, and without in any
way affecting the liability of such Guarantor under its guarantee hereunder:
(a) to waive compliance with, and any Default under,
and to consent to any amendment to or modification or termination
of any terms or provisions of, or to give any waiver in respect
of, the Credit Agreement, any other Credit Document, the Credit
Security, the Credit Obligations or any guarantee thereof (each
as from time to time in effect);
(b) to grant any extensions of the Credit Obligations
(for any duration), and any other indulgence with respect
thereto, and to effect any total or partial release (by operation
of law or otherwise), discharge, compromise or settlement with
respect to the obligations of the Obligors or any other Person in
respect of the Credit Obligations, whether or not rights against
such Guarantor under this Agreement are reserved in connection
therewith;
(c) to take security in any form for the Credit
Obligations, and to consent to the addition to or the
substitution, exchange, release or other disposition of, or to
deal in any other manner with, any part of any property contained
in the Credit Security whether or not the property, if any,
received upon the exercise of such power shall be of a character
or value the same as or different from the character or value of
any property disposed of, and to obtain, modify or release any
present or future guarantees of the Credit Obligations and to
proceed against any of the Credit Security or such guarantees in
any order;
(d) to collect or liquidate or realize upon any of the
Credit Obligations or the Credit Security in any manner or to
refrain from collecting or liquidating or realizing upon any of
the Credit Obligations or the Credit Security; and
(e) to extend credit under the Credit Agreement, any
other Credit Document or otherwise in such amount as the Lenders
may determine, including increasing the amount of credit and the
interest rate and fees with respect thereto, even though the
condition of the Obligors (financial or otherwise, on an
individual or Consolidated basis) may have deteriorated since the
date hereof.
2.5. Information Regarding the Company, etc. Each Guarantor
has made such investigation as it deems desirable of the risks undertaken by it
in entering into this Agreement and is fully satisfied that it understands all
such risks. Each Guarantor waives any obligation which may now or hereafter
exist on the part of the Managing Agent or the Lenders to inform it of the
risks being undertaken by entering into this Agreement or of any changes in
such risks
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and, from and after the date hereof, each Guarantor undertakes to keep itself
informed of such risks and any changes therein. Each Guarantor expressly
waives any duty which may now or hereafter exist on the part of the Managing
Agent or the Lenders to disclose to such Guarantor any matter related to the
business, operations, character, collateral, credit, condition (financial or
otherwise), income or prospects of the Company or its Affiliates or their
properties or management, whether now or hereafter known by the Managing Agent
or the Lenders. Each Guarantor represents, warrants and agrees that it assumes
sole responsibility for obtaining from the Company all information concerning
the Credit Agreement and all other Credit Documents and all other information
as to the Company and its Affiliates or their properties or management as such
Guarantor deems necessary or desirable.
2.6. Certain Guarantor Representations. Each Guarantor
represents that:
(a) it is in its best interest and in pursuit of the
purposes for which it was organized as an integral part of the
business conducted and proposed to be conducted by the Company
and its Subsidiaries, and reasonably necessary and convenient in
connection with the conduct of the business conducted and
proposed to be conducted by them, to induce the Lenders to enter
into the Credit Agreement and to extend credit to the Company by
making the guarantee contemplated by this Section 2;
(b) the credit available hereunder will directly or
indirectly inure to its benefit;
(c) by virtue of the foregoing it is receiving at least
reasonably equivalent value from the Lenders for its guarantee;
(d) it will not be rendered insolvent as a result of
entering into this Agreement;
(e) after giving effect to the transactions
contemplated by this Agreement and the guarantees and grants of
collateral by the other Obligors to the Credit Obligations, it
will have assets having a fair saleable value in excess of the
amount required to pay its probable liability on its existing
debts as such debts become absolute and matured;
(f) it has, and will have, access to adequate capital
for the conduct of its business;
(g) it has the ability to pay its debts from time to
time incurred in connection therewith as such debts mature; and
(h) it has been advised by the Managing Agent that the
Lenders are unwilling to enter into the Credit Agreement unless
the guarantee contemplated by this Section 2 is given by it.
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2.7. Subrogation. Each Guarantor agrees that, until the
Credit Obligations are paid in full, it will not exercise any right of
reimbursement, subrogation, contribution, offset or other claims against the
other Obligors arising by contract or operation of law in connection with any
payment made or required to be made by such Guarantor under this Agreement.
After the payment in full of the Credit Obligations, each Guarantor shall be
entitled to exercise against the Company and the other Obligors all such rights
of reimbursement, subrogation, contribution and offset, and all such other
claims, to the fullest extent permitted by law.
2.8. Subordination. Each Guarantor covenants and agrees that,
after the occurrence of an Event of Default, all Indebtedness, claims and
liabilities then or thereafter owing by the Company or any other Obligor to
such Guarantor whether arising hereunder or otherwise are subordinated to the
prior payment in full of the Credit Obligations and are so subordinated as a
claim against such Obligor or any of its assets, whether such claim be in the
ordinary course of business or in the event of voluntary or involuntary
liquidation, dissolution, insolvency or bankruptcy, so that no payment with
respect to any such Indebtedness, claim or liability will be made or received
while any Event of Default exists.
2.9. Future Subsidiaries: Further Assurances. The Company
will from time to time cause (a) any present Wholly Owned Subsidiary that is
not a Guarantor within 30 days after notice from the Managing Agent or (b) any
future Wholly Owned Subsidiary within 30 days after any such Person becomes a
Wholly Owned Subsidiary, to join this Agreement as a Guarantor pursuant to a
joinder agreement in form and substance satisfactory to the Managing Agent;
provided, however, that in the event such a Wholly Owned Subsidiary is
prohibited by any valid law, statute, rule or regulation from guaranteeing the
Credit Obligations, or if such a guarantee by any foreign Subsidiary would
result in a repatriation of a material amount of foreign earnings under the
Code (including the "deemed dividend" provisions of section 956 of the Code),
(i) such guarantee will be limited to the extent necessary to comply with such
prohibition or to prevent such repatriation of foreign earnings or (ii) if such
limitation on the guaranteed amount is not sufficient to avoid such prohibition
or repatriation, the Company and its other Subsidiaries will pledge the stock
of such Wholly Owned Subsidiary (or as much of such stock as may be pledged
without resulting in such a repatriation) to the Managing Agent to secure the
Credit Obligations pursuant to a pledge agreement in form and substance
satisfactory to the Managing Agent. Each Guarantor will, promptly upon the
request of the Managing Agent from time to time, execute, acknowledge and
deliver, and file and record, all such instruments, and take all such action,
as the Managing Agent deems necessary or advisable to carry out the intent and
purpose of this Section 2.
2.10. Contribution Among Guarantors. The Guarantors agree
that, as among themselves in their capacity as guarantors of the Credit
Obligations, the ultimate responsibility for repayment of the Credit
Obligations, in the event that the Company fails to pay when due its Credit
Obligations, shall be equitably apportioned, to the extent consistent with the
credit Documents, among the respective Guarantors (a) in the proportion that
each, in its capacity as a guarantor, has benefited from the extensions of
credit to the Company by the Lenders under
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the Credit Agreement, or (b) if such equitable apportionment cannot reasonably
be determined or agreed upon among the affected Guarantors, in proportion to
their respective net worths determined on or about the date hereof (or such
later date as such Guarantor becomes party hereto). In the event that any
Guarantor, in its capacity as a guarantor, pays an amount with respect to the
Credit Obligations in excess of its proportionate share as set forth in this
Section 2.10, each other Guarantor shall, to the extent consistent with the
Credit Documents, make a contribution payment to such Guarantor in an amount
such that the aggregate amount paid by each Guarantor reflects its
proportionate share of the Credit Obligations. In the event of any default by
any Guarantor under this Section 2.10, each other Guarantor will bear, to the
extent consistent with the Credit Documents, its proportionate share of the
defaulting Guarantor's obligation under this Section 2.10. This Section 2.10
is intended to set forth only the rights and obligations of the Guarantors
among themselves and shall not in any way affect the obligations of any
Guarantor to the Lenders under the Credit Documents (which obligations shall at
all times constitute the joint and several obligations of all the Guarantors).
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, in the case of the Guarantors other than
the Parent Guarantors, and in the Parent Pledge Agreement in the case of the
Parent Guarantors. All covenants, agreements, representations and warranties
made in this Agreement or any other Credit Document or in certificates
delivered pursuant hereto or thereto shall be deemed to have been relied on by
each Lender, notwithstanding any investigation made by the Managing Agent on
its behalf, and shall survive the execution and delivery to the Lenders hereof
and thereof. 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.
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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.
AMERICAN TOWER CORPORATION
ATC HOLDINGS CORP.
ATC TOWER CORP.
GRITZ TOWER MAINTENANCE COMPANY
WESTARK TOWERS, INCORPORATED
By /s/ Xxxxx X. Xxxxxxxxx
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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
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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
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Title: Director
