Exhibit 10.30
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PLEDGE AGREEMENT
Pledge Agreement, made as of October 11, 2001, by and among J. Michael
Gearon, Jr., an individual residing at 2995 Paces Lake Court, Atlanta, Georgia
30339 (the "Pledgor"), and ATC Mexico Holding Corp., a Delaware corporation (the
"Pledgee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Pledgee, American Tower Corporation, a Delaware corporation
and an Affiliate of the Pledgee ("ATC"), American Tower International, Inc., a
Delaware corporation ("ATC International"), the Pledgor are parties to a
Stockholder Agreement, dated as of the date hereof (the "Stockholder
Agreement"), pursuant to which the Pledgee will issue and sell to the Pledgor an
aggregate of eight hundred sixty (860) shares (the "Shares") of Common Stock,
par value $.01 per share, of the Pledgee (the "ATC Mexico Common Stock");
WHEREAS, the Pledgor will make payment for the Shares in part by the
delivery of its promissory note (the "Pledgor Note") in the form attached to the
Stockholder Agreement; and
WHEREAS, the Pledgee is unwilling to accept payment for the Shares to be
issued and sold by it in the form of the Pledgor Note without the assurances
herein provided;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, of the Pledgee proceeding with the issue and sale
of the Shares, and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, covenant and agree as follows:
Section 1. Certain Definitions. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and the reference to
any gender shall be deemed to include all genders. References to "hereof,"
"herein" or similar terms are intended to refer to the Agreement as a whole and
not a particular section, and references to "this Section" or "this Article" are
intended to refer to the entire section or article and not a particular
subsection thereof. As used herein, unless the context otherwise requires, the
terms defined in this Section shall have the respective meanings set forth
herein and terms used in this Agreement without definition which are defined in
the Stockholder Agreement or in any agreement referred to therein shall have the
respective meanings set forth for such terms in the Stockholder Agreement or in
any such agreement.
(a) The term "Stock" as used herein means the following certificates
representing issued and outstanding shares of ATC Mexico Common Stock and
of ATC Common Stock:
Certificate No. Issuer Number of Shares
--------------- ------ -----------------
2 Pledgee 860
ATC 413,031
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(b) The term "Obligations" as used herein means all indebtedness,
obligations and liabilities of the Pledgor to the Pledgee, now existing or
hereafter arising, direct or indirect, absolute or contingent, due or to
become due, matured or unmatured, liquidated or unliquidated, arising under
this Agreement, the Stockholder Agreement, the Pledgor Note and the other
agreements, instruments or other documents executed or required to be
executed pursuant hereto or thereto, each as from time to time amended or
revised, or under any other agreement, instrument or other document, or by
operation of law or otherwise.
(c) The term "Collateral" as used herein means the Stock and any other
property at any time, whether now or hereafter, pledged with the Pledgee
hereunder (whether described herein or not) and all income therefrom,
increases therein and proceeds thereof, except to the extent otherwise
provided in Section 5.
(d) The term "Event of Default" shall mean an event of default
pursuant to the terms of any of the documents or instruments evidencing any
of the Obligations. The term "Default" shall mean an Event which with
notice, or passage of time, or both, would become an Event of Default.
Section 2. Security for Obligations. The Pledgor hereby grants a security
interest in and pledges, assigns and delivers the Stock to the Pledgee, as
security for the Obligations, to be held by the Pledgee subject to the terms and
conditions hereinafter set forth. All of the Stock, accompanied by stock powers
duly executed in blank by the Pledgor, has been delivered to the Pledgee by the
Pledgor. The Pledgor hereby acknowledges and agrees that the Pledgee may deliver
(or cause one or more of its subsidiaries to deliver) such certificates as
security to one or more banks or other financial institutions extending credit,
from time to time, to the Pledgee or one or more of its subsidiaries.
Section 3. Representations, Warranties and Covenants of the Pledgor. The
Pledgor represents and warrants (which representations and warranties shall
continue to be true and correct at all times during the term of this Agreement
with the same force and effect as though made on a continuing basis and not
merely as of the date hereof) that the representations and warranties made by it
in the Stockholder Agreement, all of which are incorporated herein by reference,
are true and correct and that (a) this Agreement constitutes, and each other
agreement, instrument or other document executed or required to be executed
pursuant hereto or thereto when executed and delivered by it will constitute,
valid and binding obligations of it, enforceable in accordance with their
respective terms, except as (i) the enforceability thereof may be limited by
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or
other laws of general applicability affecting the enforcement of creditors' or
secured parties' rights or debtors' obligations generally, and (ii) the
availability of specific performance or other equitable remedies may be limited
by equitable principles of general applicability (whether in a court of law or
in equity); provided, however, that such equitable principles will not prevent
the Pledgee from obtaining a practical realization of the economic benefits of
this Agreement; (b) it owns and has good, indefeasible and merchantable title to
the shares pledged by it hereunder, and will own any other Collateral pledged
from time to time hereunder, free and clear of all liens and encumbrances; and
(c) it is, and, after giving effect to the consummation of the transactions
contemplated by the Stockholder Agreement and this Agreement, will be, Solvent.
Section 4. Liquidation, Recapitalization, Etc. In case any distribution of
capital or stock dividend shall be made on or in respect of any of the Stock, or
any money or property shall be distributed upon or with respect to any of the
Stock, pursuant to recapitalization or reclassification of the capital of the
Pledgee or ATC, or pursuant to the consummation of any merger, consolidation,
reorganization or liquidation or dissolution of Pledgee or ATC, the money or
property so distributed shall be delivered to
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the Pledgee to be held by it as part of the Collateral and as security for the
Obligations. All sums of money and property, if any, paid or distributed in
respect of the Stock, upon such other merger, consolidation, liquidation,
dissolution, reorganization, recapitalization or reclassification, which are
received by the Pledgor shall, until paid or delivered to the Pledgee, be held
in trust for the Pledgee as part of the Collateral and as security for the
Obligations.
Section 5. Dividends, Voting, Etc., Prior to Maturity. Unless and until a
Default or an Event of Default shall have occurred, and until notice of such
Default or Event of Default has been given by the Pledgee, the Pledgor shall be
entitled to receive all regular cash dividends paid in respect of the Stock, to
vote the Stock and to give consents, waivers and ratifications in respect of the
Stock; provided, however, that no vote shall be cast, or consent, waiver or
ratification given or action taken which would be inconsistent with or violate
any provisions of any of this Agreement, the Stockholder Agreement, the Pledgor
Note or any agreement, instrument or other document executed or required to be
executed pursuant hereto or thereto. Until the occurrence of a Default or an
Event of Default, the Pledgee shall pay over to the Pledgor, forthwith upon
receipt, all regular cash dividends paid on the Stock, and shall execute and
deliver to the Pledgor such proxies or other documents in writing as may be
necessary to enable the Pledgor to exercise the foregoing rights. All such
rights of the Pledgor to receive regular cash dividends on the Stock, to vote
and give consents, waivers and ratifications shall cease forthwith in case a
Default or an Event of Default shall have occurred, without any notice (except
as provided in this Section) or demand by the Pledgee to the Pledgor.
Section 6. Remedies. If a Default or an Event of Default shall have
occurred, the Pledgee shall thereafter have the following rights and remedies
(to the maximum extent permitted by applicable law) in addition to the rights
and remedies of a secured party under the Uniform Commercial Code of The
Commonwealth of Massachusetts all such rights and remedies being cumulative, not
exclusive, and enforceable alternatively, successively or concurrently, at such
time or times as the Pledgee, in its sole and absolute discretion, deems
expedient:
(a) The Pledgee may vote any or all shares of the Stock (whether or
not the same shall have been transferred into its name or the name of its
nominee or nominees) and give all consents, waivers and ratifications in
respect of the Stock and otherwise act with respect thereto as though it
were the outright owner thereof (the Pledgor hereby irrevocably
constituting and appointing the Pledgee the proxy and attorney-in-fact of
the Pledgor, with full power of substitution, to do so);
(b) The Pledgee may demand, sue for, collect or make any compromise or
settlement the Pledgee deems suitable in respect of any Collateral held by
it hereunder;
(c) The Pledgee may sell, assign or otherwise Transfer any or all of
the Collateral, for cash and upon such terms, at such place or places and
at such time or times and to such Persons as the Pledgee, in its sole and
absolute discretion, deems expedient, all without demand for performance by
the Pledgor or any notice or advertisement whatsoever except such as may be
required by applicable law; and
(d) The Pledgee may cause all or any part of the Stock held by it to
be transferred into its name or the name of its nominee or nominees.
The Pledgee may buy any part or all of the Collateral at any public sale
and if any part or all of the Collateral is of a type customarily sold in a
recognized market or is of the type which is the subject of widely-distributed
standard price quotations, the Pledgee may, in its sole and absolute discretion,
buy at private sale and may make payments therefor by any means including,
without limitation, cancellation, in
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whole or in part, of any of the Obligations secured thereby. The Pledgee may, in
its sole and absolute discretion, apply the cash proceeds actually received from
any sale or other disposition to the reasonable expenses of retaking, holding,
preparing for sale, selling and the like, to reasonable attorneys fees, and all
legal expenses, travel and other expenses which may be incurred by the Pledgee
in attempting to collect the Obligations or to enforce this Agreement, the
Stockholder Agreement or any agreement, instrument or other document executed or
required to be executed pursuant hereto or thereto or any agreement, instrument
or other document evidencing the Obligations or in the prosecution or defense of
any legal action, litigation or other proceeding related to the subject matter
of this Agreement, the Stockholder Agreement or any agreement, instrument or
other document executed or required to be executed pursuant hereto or thereto or
any agreement, instrument or other document evidencing the Obligations, and then
to the Obligations with respect to principal or interest, or both, or other fees
and expenses, in such proportions as the Pledgee, in its sole and absolute
discretion, shall determine; and any surplus shall be paid to the Pledgor.
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of the Stock by reason of certain prohibitions contained in federal or
state securities laws or other applicable laws, or agreement, instrument or
other documents to which such Stock may be subject, but may be compelled to
resort to one or more private sales thereof to a restricted group of purchasers.
The Pledgor agrees that any such private sales may be at prices and other terms
less favorable to the seller than if sold at public sales and that such private
sales shall be deemed to have been made in a commercially reasonable manner. The
Pledgee shall be under no obligation to delay a sale of any of the Stock for the
period of time necessary to permit the issuer of such securities to register
such securities for public sale under federal and state securities laws or other
applicable law, even if the issuer would agree to do so.
Section 7. Marshalling. The Pledgee shall not be required to marshal any
present or future security for (including without limitation this Agreement and
the Collateral pledged hereunder), or guaranties of, the Obligations or any of
them, or to resort to such security or guaranties in any particular order; and
all of the rights hereunder and in respect of such security and guaranties shall
be cumulative and in addition to all other rights, however existing or arising.
To the maximum extent permitted by applicable law, the Pledgor hereby agrees
that it will not invoke any law relating to the marshalling of collateral which
might cause delay in or impede the enforcement of the Pledgee's rights under
this Agreement, the Stockholder Agreement or any agreement, instrument or other
document executed or required to be executed pursuant hereto or thereto or under
any other agreement, instrument or other document evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or guaranteed, and, to the maximum extent
permitted by applicable law, the Pledgor hereby irrevocably waives the benefits
of all such laws.
Section 8. Pledgor's Obligations Not Affected. The obligations of the
Pledgor hereunder shall remain in full force and effect without regard to, and
shall not be impaired by (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, dissolution, liquidation or other Act of
Bankruptcy (or legal action, litigation or other proceeding with respect to any
of the foregoing) of the Pledgor; (b) any exercise or non-exercise, or any
waiver, by the Pledgee of any right, remedy, power or privilege under or in
respect of any of the Obligations or any security therefor (including this
Agreement); or (c) the taking of additional security for, or any guaranty of,
any of the Obligations or the release or discharge or termination of any other
security or guaranty for any of the Obligations; whether or not the Pledgor
shall have notice or knowledge of any of the foregoing.
Section 9. Pledgee's Exoneration. Under no circumstances shall the Pledgee
be deemed to assume any responsibility for or obligation or duty with respect to
any part or all of the Collateral of any nature or kind, or any matter or legal
action, litigation or other proceeding arising out, of or relating thereto, but
the same shall be at the Pledgor's sole and exclusive risk at all times. The
Pledgee shall not
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be required to take or refrain from taking any action of any kind to collect,
preserve or protect its or the Pledgor's rights in the Collateral or against
other parties thereto. The Pledgee's prior recourse to any part or all of the
Collateral shall not constitute a condition of any demand or legal action,
litigation or other proceeding for payment or collection of the Obligations.
Section 10. Termination. Upon payment and performance in full of the
Obligations in accordance with their terms and the performance by the Pledgor of
all of its covenants and agreements hereunder, this Agreement shall terminate,
and the Pledgor shall be entitled to the return, at the Pledgor's expense, of
such of the Collateral in the possession or control of the Pledgee as has not
theretofore been disposed of pursuant to the provisions hereof, together with
any monies and other property at the time held by the Pledgee hereunder. If at
any time any payment made in respect of the Obligations shall be recovered or
rescinded by or on behalf of Pledgor or must be otherwise restored or returned,
whether upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Pledgor, or as a result of the appointment of a receiver,
conservator of or trustee or similar officer for Pledgor or any substantial part
of it property, any other Act of Bankruptcy, or otherwise, Pledgor's obligations
under this Agreement shall be reinstated and continue as though such payment had
not been made.
Section 11. Further Assurances. The Pledgor will do all such acts, and will
furnish to the Pledgee all such financing documents, financing statements,
certificates, legal opinions and other agreement, instrument or other documents
and will obtain all such governmental authorizations and other consents and
approvals and will do or cause to be done all such other things, including
without limitation the execution and delivery of further agreement, instrument
or other documents, as Pledgee may reasonably request from time to time in order
to give full force and effect to this Agreement and to secure Pledgee's rights
hereunder. Without limiting the generality of the foregoing, Pledgor agrees to
deliver to Pledgee, from time to time at the request of Pledgee, such financial
information relating to Pledgor as Pledgee may from time to time reasonably
request, including, without limitation, personal balance sheets of Pledgor,
certified by Pledgor to be true, correct and complete. Pledgor authorizes
Pledgee to file any financing statement deemed by Pledgee, in its sole and
absolute discretion, to be necessary or desirable to perfect the security
interest granted by Pledgor to Pledgee, and, as agent for Pledgor, to sign the
name of Pledgor thereto.
Section 12. Miscellaneous.
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(a) Termination. This Agreement may be terminated with the mutual consent
of the Pledgor and the Pledgee.
(b) Expenses. Whether or not the transactions contemplated hereby shall be
consummated, each party will pay all of its respective expenses in connection
with such transactions and in connection with any amendments or waivers (whether
or not the same become effective) under or in respect of this Agreement.
(c) Assignment; Successors and Assigns. This Agreement shall not be
assignable by any party and any such assignment shall be null and void, except
that it shall inure to the benefit of and be binding upon any successor to any
party by operation of Law, including by way of merger, consolidation or sale of
all or substantially all of its assets, and any of the parties may assign its
rights and remedies hereunder to any bank or other financial institution that
has loaned funds or otherwise extended credit to it or any of its Affiliates.
This Agreement shall be binding upon and inure solely to the benefit of the
parties and their permitted successors and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, except as otherwise provided in this Section.
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(d) Notices and Communications. All notices and other communications which
by any provision of this Agreement are required or permitted to be given shall
be given in writing and shall be effective (i) five (5) days after being mailed
by first-class, express mail, postage prepaid, (ii) the next day when sent by
overnight by a nationally recognized overnight mail courier service, (iii) upon
confirmation when sent by telex, telegram, telecopy or other similar form of
rapid transmission, confirmed by mailing (by first class or express mail,
postage prepaid, or nationally recognized overnight mail courier service)
written confirmation at substantially the same time as such rapid transmission,
or (iv) upon delivery personally delivered to an officer of the receiving party.
All such communications shall be mailed, set or delivered as set forth below or
at such other addresses as the party entitled thereto shall have designated by
notice as herein provided.
(i) if to the Pledgee, at 116 Huntington Avenue, Boston, Massachusetts
02116 Attention: Chief Executive Officer and Chief Financial Officer,
Telecopier No.: (617) 375-7575 with a copy (which shall not constitute
notice to the Pledgee) to Sullivan & Worcester LLP, One Post Office Square,
Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier
No.: (617) 338-2880); and
(ii) if to the Pledgor, at 3200 Cobb Galleria Parkway, Suite 205,
Atlanta, Georgia 30339 with a copy (which shall not constitute notice to
the Pledgor) to King & Spalding, 1185 Avenue of the Americas, New York, New
York 10036, Attention: John L. Graham, Esq., Telecopier No.: (212)
556-2222).
(e) Amendments and Waivers. Changes in or additions to this Agreement may
be made, or compliance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the consent in writing of the parties hereto. No delay on the part of
either party at any time or times in the exercise of any right or remedy shall
operate as a waiver thereof. Any consent may be given subject to satisfaction of
conditions stated therein. The failure to insist upon the strict provisions of
any covenant, term, condition or other provision of this Agreement or to
exercise any right or remedy thereunder shall not constitute a waiver of any
such covenant, term, condition or other provision thereof or default in
connection therewith. The waiver of any covenant, term, condition or other
provision thereof or default thereunder shall not affect or alter this Agreement
in any other respect, and each and every covenant, term, condition or other
provision of this Agreement shall, in such event, continue in full force and
effect, except as so waived, and shall be operative with respect to any other
then existing or subsequent default in connection therewith.
(f) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of the
State of Delaware applicable to contracts made and performed in such State and,
in any event, without giving effect to any choice or conflict of laws provision
or rule that would cause the application of domestic substantive laws of any
other jurisdiction.
(g) Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, arrangements, covenants, promises, conditions, understandings,
inducements, representations and negotiations, expressed or implied, oral or
written, between them as to such subject matter.
(h) Specific Performance; Other Rights and Remedies. Each party recognizes
and agrees that in the event the other party should refuse to perform any of its
obligations under this Agreement , the remedy at law would be inadequate and
agrees that for breach of such provisions, each party shall be entitled to
injunctive relief and to enforce its rights by an action for specific
performance to the extent
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permitted by Applicable Law. Each party hereby waives any requirement for
security or the posting of any bond or other surety in connection with any
temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting each party from
pursuing any other remedies available to it pursuant to the provisions of, and
subject to the limitations contained in, this Agreement for such breach or
threatened breach; provided, however, that none of the parties shall pursue, and
each party hereby waives, any punitive, indirect, special, incidental,
exemplary, consequential or similar damages arising out of this Agreement
(including without limitation damages for diminution in value and loss of
anticipated profits other than those, if any, resulting from a delay in the
Pledgor's ability to sell the ATC Common Stock because of a breach by the
Pledgee) and the multiplied portion of damages.
(i) Saturdays, Sundays, Holidays, etc. If the last or appointed day for
taking of any action required or permitted hereby shall be day other than a
Business Day, then such action may be taken on the next succeeding Business Day.
(j) Headings; Counterparts. The headings contained in this Agreement are
for reference purposes only and shall not limit or otherwise affect the meaning
of any provision of this Agreement. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument, binding upon all of the parties hereto. In
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
(k) Severability. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the conflict
of any provision with any constitution or statute or rule of public policy or
for any other reason, such circumstance shall not have the effect of rendering
the provision or provisions in question invalid, inoperative, illegal or
unenforceable in any other jurisdiction or in any other case or circumstance or
of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to affect materially and
adversely any party, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by Applicable Law in an acceptable
manner to the end that the transactions contemplated by this Agreement are
fulfilled and consummated to the maximum extent possible.
(l) Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such other
agreements, instruments and documents and other assurances, as any other party
or its counsel reasonably deems necessary or desirable in order to carry out the
terms and conditions of this Agreement and the transactions contemplated hereby
or to facilitate the enjoyment of any of the rights created hereby or to be
created hereunder.
(m) Mutual Drafting. This Agreement is the result of the joint efforts of
the parties, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof. Each of the parties is a sophisticated
legal entity or individual that was advised by
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experienced counsel and, to the extent it deemed necessary, other advisors in
connection with this Agreement.
IN WITNESS WHEREOF, each of the parties hereto had caused this Agreement to
be duly executed and delivered as of the day and year first above written.
ATC Mexico Holding Corp.
By: /s/ Joseph L. Winn
---------------------------------
Name:
Title: Chief Financial Officer
/s/ J. Michael Gearon, Jr.
---------------------------------
J. Michael Gearon, Jr.
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