Exhibit 10.1
------------
EXECUTION
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
dated February 28, 2006
between
THE BORROWERS SIGNATORY HERETO,
as Borrowers
and
TOWERS XXXXX III LLC,
as Lender
_________________________________
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..........................................................3
Section 1.1 Certain Defined Terms..................................3
Section 1.2 Accounting Terms......................................26
Section 1.3 Other Definitional Provisions.........................26
Section 1.4 Joint Administration Provisions.......................27
ARTICLE II TERMS OF THE LOAN..................................................27
Section 2.1 Loan..................................................27
Section 2.2 Interest..............................................28
Section 2.3 Reserved..............................................29
Section 2.4 Payments..............................................29
Section 2.5 Maturity..............................................30
Section 2.6 Prepayment............................................30
Section 2.7 Outstanding Balance...................................31
Section 2.8 Taxes.................................................31
Section 2.9 Reasonableness of Charges.............................32
Section 2.10 Servicing/Special Servicing...........................32
ARTICLE III CONDITIONS TO LOAN................................................32
Section 3.1 Conditions to Funding of the Loan on the Closing
Date..................................................32
ARTICLE IV REPRESENTATIONS AND WARRANTIES.....................................35
Section 4.1 Organization, Powers, Capitalization, Good Standing,
Business..............................................36
Section 4.2 Authorization of Borrowing, etc.......................36
Section 4.3 Financial Statements..................................37
Section 4.4 Indebtedness and Contingent Obligations...............37
Section 4.5 Title to the Properties...............................37
Section 4.6 Zoning; Compliance with Laws..........................38
Section 4.7 Leases; Agreements....................................38
Section 4.8 Condition of the Properties...........................39
Section 4.9 Litigation; Adverse Facts.............................39
Section 4.10 Payment of Taxes......................................39
Section 4.11 Adverse Contracts.....................................39
Section 4.12 Performance of Agreements.............................40
Section 4.13 Governmental Regulation...............................40
Section 4.14 Employee Benefit Plans................................40
Section 4.15 Broker's Fees.........................................40
Section 4.16 Solvency..............................................40
Section 4.17 Disclosure............................................40
Section 4.18 Use of Proceeds and Margin Security...................41
Section 4.19 Insurance.............................................41
Section 4.20 Investments...........................................41
Section 4.21 No Plan Assets........................................41
Section 4.22 Governmental Plan.....................................41
Section 4.23 Not Foreign Person....................................41
Section 4.24 No Collective Bargaining Agreements...................41
Section 4.25 Ground Leases.........................................42
Section 4.26 Easements.............................................47
Section 4.27 Principal Place of Business...........................47
Section 4.28 Environmental Compliance..............................47
Section 4.29 Separate Tax Lot......................................47
ARTICLE V COVENANTS OF BORROWER PARTIES.......................................47
Section 5.1 Financial Statements and Other Reports................48
Section 5.2 Existence; Qualification..............................51
Section 5.3 Payment of Impositions and Claims.....................51
Section 5.4 Maintenance of Insurance..............................52
Section 5.5 Operation and Maintenance of the Properties;
Casualty; Condemnation................................55
Section 5.6 Inspection............................................57
Section 5.7 Compliance with Laws and Contractual Obligations......58
Section 5.8 Further Assurances....................................58
Section 5.9 Performance of Agreements and Leases..................58
Section 5.10 Leases................................................59
Section 5.11 Management Agreement..................................59
Section 5.12 Reserved..............................................60
Section 5.13 Deposits; Application of Receipts.....................60
Section 5.14 Estoppel Certificates.................................60
Section 5.15 Indebtedness..........................................61
Section 5.16 No Liens..............................................61
Section 5.17 Contingent Obligations................................61
Section 5.18 Restriction on Fundamental Changes....................61
Section 5.19 Transactions with Related Persons.....................61
Section 5.20 Bankruptcy, Receivers, Similar Matters................62
Section 5.21 ERISA.................................................62
Section 5.22 Reserved..............................................63
Section 5.23 Ground Leases; Prime Ground Leases....................63
Section 5.24 Easements.............................................71
Section 5.25 Lender's Expenses.....................................73
ARTICLE VI RESERVES...........................................................73
Section 6.1 Security Interest in Reserves; Other Matters
Pertaining to Reserves................................73
Section 6.2 Funds Deposited with Lender...........................74
Section 6.3 Impositions and Insurance Reserve.....................74
Section 6.4 Advance Rents Reserve Sub-Account.....................75
Section 6.5 Cash Trap Reserve.....................................75
ARTICLE VII DEPOSIT ACCOUNT; LOCK BOX ACCOUNT; CASH MANAGEMENT................76
Section 7.1 Establishment of Deposit Account and Lock Box
Account...............................................76
Section 7.2 Application of Funds in Lock Box Account..............77
Section 7.3 Application of Funds After Event of Default...........78
ARTICLE VIII DEFAULT, RIGHTS AND REMEDIES.....................................78
Section 8.1 Event of Default......................................78
Section 8.2 Acceleration and Remedies.............................81
Section 8.3 Performance by Lender.................................83
Section 8.4 Evidence of Compliance................................83
ARTICLE IX SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS, WARRANTIES
AND COVENANTS......................................................84
Section 9.1 Applicable to Borrower Parties........................84
Section 9.2 Applicable to Borrowers, Guarantor and Manager........86
ARTICLE X PLEDGE OF OTHER COMPANY COLLATERAL..................................87
Section 10.1 Grant of Security Interest/UCC Collateral.............87
ARTICLE XI RESTRICTIONS ON LIENS, TRANSFERS; ASSUMABILITY; RELEASE OF
PROPERTIES.........................................................88
Section 11.1 Restrictions on Transfer and Encumbrance..............88
Section 11.2 Transfers of Beneficial Interests.....................88
Section 11.3 Defeasance............................................89
Section 11.4 Release of Properties.................................90
Section 11.5 Substitution of Property..............................92
Section 11.6 Substitution of Additional Pledged Properties.........95
ARTICLE XII RECOURSE; LIMITATIONS ON RECOURSE.................................97
Section 12.1 Limitations on Recourse...............................97
Section 12.2 Partial Recourse......................................97
Section 12.3 Miscellaneous.........................................97
ARTICLE XIII WAIVERS OF DEFENSES OF GUARANTORS AND SURETIES...................98
Section 13.1 Waivers...............................................98
ARTICLE XIV MISCELLANEOUS....................................................100
Section 14.1 Expenses and Attorneys' Fees.........................100
Section 14.2 Indemnity............................................100
Section 14.3 Amendments and Waivers...............................101
Section 14.4 Retention of the Borrowers' Documents................101
Section 14.5 Notices..............................................101
Section 14.6 Survival of Warranties and Certain Agreements........103
Section 14.7 Failure or Indulgence Not Waiver; Remedies
Cumulative...........................................103
Section 14.8 Marshaling; Payments Set Aside.......................103
Section 14.9 Severability.........................................103
Section 14.10 Headings.............................................103
Section 14.11 APPLICABLE LAW.......................................103
Section 14.12 Successors and Assigns...............................104
Section 14.13 Sophisticated Parties, Reasonable Terms, No
Fiduciary Relationship...............................104
Section 14.14 Reasonableness of Determinations.....................104
Section 14.15 Limitation of Liability..............................105
Section 14.16 No Duty..............................................105
Section 14.17 Entire Agreement.....................................105
Section 14.18 Construction; Supremacy of Loan Agreement; Sprint
Acquisition Documents................................105
Section 14.19 Consent to Jurisdiction..............................105
Section 14.20 Waiver of Jury Trial.................................106
Section 14.21 Counterparts; Effectiveness..........................107
Section 14.22 Servicer; Delivery of Borrower Funds.................107
Section 14.23 Obligations of Borrower Parties......................107
Section 14.24 Additional Inspections; Reports......................107
Section 14.25 Cross-Default; Cross-Collateralization; Waiver of
Marshalling of Assets................................107
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this "Loan
Agreement") is dated as of February 28, 2006, and entered into by and between
PINNACLE TOWERS LLC, a Delaware limited liability company, and its direct and
indirect subsidiaries party hereto (collectively, the "PT Mortgage Borrowers"),
GLOBAL SIGNAL ACQUISITIONS LLC, a Delaware limited liability company ("Global
Signal Acquisitions"), GLOBAL SIGNAL ACQUISITIONS II LLC, a Delaware limited
liability company ("Global Signal Acquisitions II", and together with the PT
Mortgage Borrowers and Global Signal Acquisitions, collectively, "Borrowers",
and individually, each a "Borrower"), and TOWERS XXXXX III LLC, a Delaware
limited liability company (together with its successors and assigns, "Lender").
RECITALS
WHEREAS, the PT Mortgage Borrowers are parties to that certain Amended and
Restated Loan and Security Agreement with Towers Xxxxx LLC, as lender (the "PT
Lender"), dated as of February 5, 2004 (as amended through the date hereof, the
"PT Credit Agreement") pursuant to the terms of which the PT Lender advanced
certain funds (the "Existing PT Indebtedness") to the PT Mortgage Borrowers;
WHEREAS, the PT Mortgage Borrowers have delivered mortgages, deeds of
trust, and/or deeds to secure debt as additional security for the obligations of
the PT Mortgage Borrowers under the PT Credit Agreement;
WHEREAS, Global Signal Acquisitions entered into that certain Acquisition
Credit Agreement with Xxxxxx Xxxxxxx Asset Funding Inc., as Administrative Agent
and Collateral Agent, and the lenders set forth therein (collectively, the
"Acquisitions I Lenders"), dated as of April 25, 2005 (as amended through the
date hereof, the "Acquisitions I Credit Agreement") pursuant to the terms of
which the Acquisitions I Lenders advanced certain funds (the "Existing
Acquisitions I Indebtedness") to Global Signal Acquisitions;
WHEREAS, Global Signal Acquisitions has delivered mortgages, deeds of
trust, and/or deeds to secure debt as additional security for the obligations of
Global Signal Acquisitions under the Acquisitions I Credit Agreement;
WHEREAS, Global Signal Acquisitions II entered into that certain Bridge
Loan and Override Agreement with Bank of America, N.A., as Co-Administrative
Agent and Calculation Agent, and Xxxxxx Xxxxxxx Asset Funding Inc., as
Co-Administrative Agent and Collateral Agent, and the lenders set forth therein
(collectively, the "Acquisitions II Lenders"), dated as of May 26, 2005 (as
amended through the date hereof, the "Acquisitions II Credit Agreement")
pursuant to the terms of which the Acquisitions II Lenders advanced certain
funds (the "Existing Acquisitions II Indebtedness") to Global Signal
Acquisitions II;
WHEREAS, Global Signal Acquisitions II has delivered mortgages, deeds of
trust, and/or deeds to secure debt as additional security for the obligations of
Global Signal Acquisitions II under the Acquisitions II Credit Agreement;
WHEREAS, Lender has (i) succeeded to the rights and obligations of the PT
Lender under the PT Credit Agreement and the security provided thereunder, (ii)
succeeded to the rights and obligations of the Acquisitions I Lenders under the
Acquisitions I Credit Agreement and the security provided thereunder, (iii)
succeeded to the rights and obligations of the Acquisitions II Lenders under the
Acquisitions II Credit Agreement and the security provided thereunder (the PT
Credit Agreement, the Acquisitions I Credit Agreement, and the Acquisitions II
Credit Agreement being collectively referred to herein as the "Existing Credit
Agreements"), (iv) has become the sole Administrative Agent, Collateral Agent,
and Calculation Agent and the sole lender thereunder, all pursuant to the terms
of the Existing Credit Agreements, and (v) now is the holder of the Existing PT
Indebtedness, the Existing Acquisitions I Indebtedness, and the Existing
Acquisitions II Indebtedness (collectively, the "Existing Indebtedness");
WHEREAS, Lender and the Borrowers intend that each of the GSA Mortgage
Loan, the GSA II Mortgage Loan, and the PT Mortgage Loan (hereinafter defined)
will be included in a single Securitization (hereinafter defined) and that the
GSA Mortgage Loan, the GSA II Mortgage Loan, and the PT Mortgage Loan will be
jointly administered pursuant to the terms of this Loan Agreement, however, each
of the GSA Mortgage Loan, the GSA II Mortgage Loan, and the PT Mortgage Loan
will remain separate and distinct loans evidenced and secured by separate Loan
Documents (hereinafter defined) given by each of the PT Mortgage Borrowers,
Global Signal Acquisitions, and Global Signal Acquisitions II with respect to
their respective Loans, except for this joint Loan Agreement and certain other
Loan Documents specified herein;
WHEREAS, the PT Mortgage Borrowers, Global Signal Acquisitions, and Global
Signal Acquisitions II, each independently and together with Lender have agreed
to (i) modify the terms and conditions of each of their respective Existing
Credit Agreements such that the terms hereof will govern each of the PT Credit
Agreement, the Acquisitions I Credit Agreement, and the Acquisitions II Credit
Agreement, and (ii) Global Signal Acquisitions II and Lender have agreed that
one additional advance will be made with respect to the Existing Acquisitions II
Indebtedness in an amount (the "Increased Indebtedness") such that the
outstanding principal amount of the Existing Acquisitions II Indebtedness will
be increased as of the Closing Date to $995,488,277.12;
WHEREAS, the Borrowers and Lender intend these recitals to be a
material part of this Agreement;
WHEREAS, all things necessary to make this Agreement the valid and legally
binding obligation of the Borrowers in accordance with its terms, for the uses
and purposes herein set forth, have been done and performed.
NOW THEREFORE, to evidence and secure the payment of the principal of,
Yield Maintenance (if any) and interest on the Existing Indebtedness under their
respective Existing Credit Agreements and all other obligations, liabilities or
sums due or to become due pursuant to their respective Loan Documents, each of
the Borrowers and Lender have executed and delivered this Agreement and each of
the Borrowers and Lender by these presents and by the execution and delivery
hereof do hereby irrevocably agree as follows:
The terms, covenants and provisions of the Existing Credit Agreements as
herein modified, amended and restated are hereby modified, ratified and
confirmed in all respects by the Borrowers and the terms, covenants and
provisions of each of the Existing Credit Agreements are hereby modified,
amended and restated so that henceforth, the terms, covenants and provisions of
this Loan Agreement shall supersede the terms, covenants and provisions of each
of the Existing Credit Agreements and the terms, covenants and provisions of
each of the Existing Credit Agreements shall read the same as the following
text:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Borrowers and Lender agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms. The terms defined below are used
in this Loan Agreement as so defined. Terms defined in the preamble and
recitals to this Loan Agreement are used in this Loan Agreement as so defined.
"Acceptable Manager" means Global Signal Services LLC or, upon receipt of
a Rating Confirmation, another reputable management company reasonably
acceptable to Lender with experience managing properties similar to the
Properties.
"Account Collateral" means, with respect to each Borrower's respective
Loan, all of such Borrower's right, title and interest in and to the Accounts,
the Reserves, all monies and amounts which may from time to time be on deposit
therein, all monies, checks, notes, instruments, documents, deposits, and
credits from time to time in the possession of Lender representing or evidencing
such Accounts and Reserves and all earnings and investments held therein and
proceeds thereof.
"Accounts" means, collectively, the Deposit Account, the Lock Box Account,
the Sub-Accounts thereof, and any other accounts pledged to Lender pursuant to
this Loan Agreement or any other Loan Document.
"Acquisitions I Credit Agreement" has the meaning set forth in the
Recitals.
"Acquisitions II Credit Agreement" has the meaning set forth in the
Recitals.
"Acquisitions I Lender" has the meaning set forth in the Recitals.
"Acquisitions II Lender" has the meaning set forth in the Recitals.
"Additional Pledged Properties" means initially, all the properties
(including land and Improvements) described in Exhibit A, and all related
facilities, owned by the applicable Borrower and pledged as additional
Collateral for its respective Obligations; provided that, following an
Additional Pledged Property Substitution, "Additional Pledged Properties" shall
include the Replacement Additional Pledged Property and shall exclude the
Substituted Additional Pledged Property.
"Additional Pledged Property Substitution" has the meaning set forth in
Section 11.6.
"Advance Rents Reserve Deposit" has the meaning set forth in the Cash
Management Agreement.
"Advance Rents Reserve Sub-Account" has the meaning set forth in Section
6.4.
"Affiliate" means in relation to any Person, any other Person: (i)
directly or indirectly controlling, controlled by, or under common control with,
the first Person; (ii) directly or indirectly owning or holding fifty percent
(50%) or more of the voting stock or other equity interest in the first Person;
or (iii) fifty percent (50%) or more of whose voting stock or other equity
interest is directly or indirectly owned or held by the first Person. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by" and "under common control with") means the
possession directly or indirectly of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise. Where expressions such as "[name of
party] or any Affiliate" are used, the same shall refer to the named party and
any Affiliate of the named party. Further, the Affiliates of any Person that is
an entity shall include all natural persons who are officers, agents, directors,
members, partners, or employees of the entity Person.
"Allocated Loan Amount" means with respect to a particular Property, the
amount designated on Exhibit A as the "Allocated Loan Amount" for such Property.
"Amended Deed of Trust" means an amendment to the Deed of Trust originally
encumbering the Mortgaged Property for which an Amended Easement, an Amended
Ground Lease or an Amended Prime Ground Lease has been executed, the effect of
which spreads the lien of the existing Deed of Trust to encumber the existing
Mortgaged Property and the additional property (including land and improvements)
subject to the Amended Easement, Amended Ground Lease or an Amended Prime Ground
Lease, as applicable.
"Amended Easement" has the meaning set forth in Section 5.24.
"Amended Ground Lease" has the meaning set forth in Section 5.23.
"Amended Prime Ground Lease" has the meaning set forth in Section 5.23
"Annual Advance Rents Reserve Deposit" has the meaning set forth in the
Cash Management Agreement.
"Annualized Run Rate Net Cash Flow" means for any Property at any point in
time the Annualized Run Rate Revenue for such Property, less the sum of (i)
annualized current insurance expenses, real estate and similar taxes (including
payments in lieu of taxes), ground lease payments (if any) with respect to such
Property, and amounts payable to any third-party owner under a Site Management
Agreement, if applicable, (ii) trailing twelve (12) month expenses in respect of
such Property for maintenance (including Maintenance Capital Expenditures),
utilities (excluding utilities paid directly by Sprint), licensing and
permitting (excluding portfolio support personnel), and (iii) a management fee
equal to seven and one-half percent (7 1/2%) (or, if Manager is no longer an
Affiliate to the Borrower Parties, ten percent (10%)) of the Annualized Run Rate
Revenue for such Property. For purposes of clause (ii) of this definition, the
calculation of the trailing twelve (12) month expenses shall be based on, at the
time of the Acquisition of such Property and through three (3) full months
thereafter, the Borrowers' annual budgeted expenses in respect of such Property
for maintenance (including Maintenance Capital Expenditures), utilities,
licensing and permitting (excluding portfolio support personnel), and following
the third (3rd) full calendar month following acquisition of such Property and
through the date that the Property is no longer an Unseasoned Property, actual
expenses in respect of such Property for maintenance (including Maintenance
Capital Expenditures), utilities, licensing and permitting (excluding portfolio
support personnel) annualized based upon the number of full calendar months of
ownership of such Property.
"Annualized Run Rate Revenue" means, at any point in time, the annualized
rent payable by tenants for occupancy of a Property at such time.
"Approved Accounting Firm" means any "Big Four" accounting firm,
consisting of Ernst & Young, PricewaterhouseCoopers, Deloitte & Touche or KPMG
LLP or any successor entity.
"Assignment of Management Agreement" means each Collateral Assignment of
Management Agreement of even date herewith executed by each of the Borrowers and
the Manager, constituting an Assignment of the Management Agreement as
Collateral for their respective Obligations, as same may be amended or modified
from time to time.
"Bankruptcy Code" means Title 11 of the United States Code, as amended
from time to time, and all rules and regulations promulgated thereunder.
"Borrowers" means, collectively, the PT Mortgage Borrowers, Global Signal
Acquisitions, and Global Signal Acquisitions II, and "Borrower" means the PT
Mortgage Borrowers, Global Signal Acquisitions, or Global Signal Acquisitions
II, as the context may require; provided that, following a Release, "Borrowers"
shall mean each of the Borrowers remaining as a party to the respective Loan
Documents, and whose Properties remain encumbered by the respective Loan
Documents as Collateral for their respective Loan and "Borrower" shall mean any
of such remaining parties.
"Borrower Party" and "Borrower Parties" means, individually or
collectively, the Borrowers and Guarantor.
"Borrower Party Secretary" has the meaning set forth in Section 3.1.
"Business Day" means any day excluding (i) Saturday, (ii) Sunday, (iii)
any day which is a legal holiday in the State of New York, the State of Florida,
the state where the primary servicing office of the Servicer is located, or the
state in which the corporate trust office of the trustee in connection with any
Securitization is located, and (iv) any day on which banking institutions
located in such state are generally not open for the conduct of regular
business.
"CapEx Budget" means the annual budget covering the planned Capital
Expenditures for the period covered by such budget. The CapEx Budget shall not
include Capital Expenditures consisting of discretionary expenditures made to
acquire fee or easement interests with respect to any Property, or non-recurring
expenditures made to enhance the Net Cash Flow of a Property.
"Capital Expenditures" means expenditures for capital improvements,
repairs or alterations, fixtures, equipment and other capital items (whether
paid in cash or property or accrued as liabilities) made by the Borrowers that,
in conformity with GAAP, would be included in the Borrowers' annual financial
statements as a capital expenditure of the Properties.
"Cash Management Agreement" means the Cash Management Agreement of even
date herewith among the Borrowers, Lender, Manager, and Lock Box Account Bank.
"Cash Trap DSCR" means 1.35:1.
"Cash Trap Event" has the meaning set forth in Section 6.5.
"Cash Trap Reserve" has the meaning set forth in Section 6.5.
"Claims" has the meaning set forth in Section 5.3.
"Closing" means the consummation of the transactions contemplated by this
Loan Agreement.
"Closing Date" means the date on which the Closing occurs.
"Collateral" means, with respect to each Borrower's respective Loan, the
rights, interests, and property of every kind, real and personal, tangible and
intangible, which is granted, pledged, liened, or encumbered as security for the
applicable Loan or any of the other Obligations of the applicable Borrower under
this Loan Agreement, the Deeds of Trust, the Cash Management Agreement, the
Guaranties, the Pledge Agreement, or the other Loan Documents to which such
Borrower is a party, including without limitation the Properties and the Account
Collateral owned by such Borrower.
"Compliance Certificate" has the meaning set forth in Section 5.1.
"Component", means, with respect to each Loan, each of the Component
A-1-FL, Component A-1-FX, Component A-2, and Components B through F.
"Component A-1-FL" means $34,271,590 for the GSA Mortgage Loan,
$224,787,675 for the GSA II Mortgage Loan, and $90,940,735 for the PT Mortgage
Loan, as applicable.
"Component A-1-FX" means $34,510,903 for the GSA Mortgage Loan,
$226,357,336 for the GSA II Mortgage Loan, and $91,575,761 for the PT Mortgage
Loan, as applicable.
"Component A-2" means $12,942,225 for the GSA Mortgage Loan, $84,888,176
for the GSA II Mortgage Loan, and $34,342,599 for the PT Mortgage Loan, as
applicable.
"Component B" means $17,205,219 for the GSA Mortgage Loan, $112,849,193
for the GSA II Mortgage Loan, and $45,654,588 for the PT Mortgage Loan, as
applicable.
"Component C" means $17,205,122 for the GSA Mortgage Loan, $112,848,551
for the GSA II Mortgage Loan, and $45,654,327 for the PT Mortgage Loan, as
applicable.
"Component D" means $17,205,219 for the GSA Mortgage Loan, $112,849,193
for the GSA II Mortgage Loan, and $45,654,588 for the PT Mortgage Loan, as
applicable.
"Component E" means $6,451,969 for the GSA Mortgage Loan, $42,318,528 for
the GSA II Mortgage Loan, and $17,120,503 for the PT Mortgage Loan, as
applicable.
"Component F" means $11,981,935 for the GSA Mortgage Loan, $78,589,625 for
the GSA II Mortgage Loan, and $31,794,440 for the PT Mortgage Loan, as
applicable.
"Component Class" means each Component of each Loan having the same
alphabetical and numerical, if applicable, designation as the corresponding
Components of the other Loans.
"Component Rate" means, for any Component, the rate per annum set forth
below in the appropriate column corresponding to such Component:
Component Component Rate
A-1-FL 5.3896%
A-1-FX 5.3826%
A-2 5.4716%
B 5.6096%
C 5.7286%
D 6.0736%
E 6.5166%
F 7.0576%
"Condemnation Proceeds" means, collectively, the proceeds of any
condemnation or taking pursuant to the exercise of the power of eminent domain
or purchase in lieu thereof, in all instances to the extent required to be paid,
and actually paid, to, or on behalf of, the Borrowers.
"Contingent Obligation", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person: (A) with respect to
any indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent of the Person incurring such liability, or the primary effect
thereof, is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such liability will be protected
(in whole or in part) against loss with respect thereto; (B) with respect to any
letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (C) under any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect against
fluctuations in interest rates; or (D) under any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect that Person against fluctuations in currency values. Contingent
Obligations shall include (i) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making (other than the Loan), discounting with recourse or sale with recourse
by such Person of the obligation of another, (ii) the obligation to make
take-or-pay or similar payments if required regardless of nonperformance by any
other party or parties to an agreement, and (iii) any liability of such Person
for the obligations of another through any agreement to purchase, repurchase or
otherwise acquire such obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet item or level of
income of another. The amount of any Contingent Obligation shall be equal to the
amount of the obligation so guaranteed or otherwise supported or, if not a fixed
and determined amount, the maximum amount so guaranteed.
"Contractual Obligation", as applied to any Person, means any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject, other than the Loan Documents.
"Cross Guaranty" means the Guaranty of even date herewith, made by the
Borrowers to Lender with respect to the Loans, as same may be amended from time
to time.
"Debt Service Coverage Ratio" or "DSCR" means, at any time of
determination, Net Cash Flow divided by the amount of interest that the
Borrowers will be required to pay over the succeeding twelve (12) months on the
Principal Amount of all Loans taken as a whole.
"Debt Service Sub-Account" has the meaning set forth in Section 7.1.
"Deeds of Trust" means, collectively, (i) the Deeds of Trust, Assignments,
Security Agreements and Financing Statements, (ii) the Mortgages, Assignments,
Security Agreements and Financing Statements, and (iii) the Deeds to Secure
Debt, Assignments, Security Agreements and Financing Statements from the
Borrowers, constituting Liens on their respective Mortgaged Properties as
Collateral for each Borrower's respective Obligations, as same have been, or may
be, assigned, modified or amended from time to time.
"Default" means any breach or default under any of the Loan Documents,
whether or not the same is an Event of Default, and also any condition or event
that, after notice or lapse of time or both, would constitute an Event of
Default if that condition or event were not cured or removed within any
applicable grace or cure period.
"Default Interest" means interest accruing at the Default Rate in excess
of the respective Component Rates.
"Default Rate" has the meaning set forth in Section 2.2.
"Deposit Account" has the meaning set forth in Section 7.1.
"Deposit Account Agreement" has the meaning set forth in Section 7.1.
"Deposit Bank" has the meaning set forth in Section 7.1.
"Distribution Date" shall mean the fifteenth (15th) day of each calendar
month or, if any such fifteenth (15th) day is not a Business Day, the next
succeeding Business Day, beginning in April 2006.
"Dollars" and the sign "$" mean the lawful money of the United States of
America.
"Easement" means, individually and collectively, the easement interests
granted to the respective Borrower by the owner of the applicable fee interest
in the Properties described as "Easement Properties" on Exhibit A attached
hereto, which such easement interests have been, or may be in the future,
subjected to a Deed of Trust as Collateral for its respective Obligations;
provided that, (i) following termination of an Easement pursuant to Section
5.24, "Easement" shall mean each of the Properties that remain subject to an
Easement, and (ii) following a Substitution with respect to a Property that will
be subject to an Easement, "Easement" shall include the Replacement Property and
shall exclude the Substituted Property.
"Easement Default" has the meaning set forth in Section 4.26.
"Eligible Account" means a separate and identifiable account from all
other funds held by the holding institution, which account is either (i) an
account maintained with an Eligible Bank or (ii) a segregated trust account
maintained by a corporate trust department of a federal depository institution
or a state chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations ss. 9.10(b), which, in either case, has corporate trust powers and
is acting in its fiduciary capacity or is otherwise acceptable to the Rating
Agencies.
"Eligible Bank" means a bank that satisfies the Rating Criteria.
"Employee Benefit Plan" means any employee benefit plan within the meaning
of Section 3(3) of ERISA (including any Multiemployer Plan) which is subject to
Title IV of ERISA or to Section 412 of the Code and (i) which is maintained for
employees of any of the Borrowers or any ERISA Affiliate, (ii) which has at any
time within the preceding six (6) years been maintained for the employees of any
of the Borrowers or any current or former ERISA Affiliate or (iii) for which any
of the Borrowers or any ERISA Affiliate has any liability, including contingent
liability.
"Environmental Indemnity" means the Environmental Indemnity of even date
herewith from each of the Borrowers to Lender in connection with their
respective Loan, as same may be amended or modified from time to time.
"Environmental Laws" means all present and future local, state, federal or
other governmental authority, statutes, ordinances, codes, orders, decrees,
laws, rules or regulations pertaining to or imposing liability or standards of
conduct concerning environmental regulation (including, without limitation,
regulations concerning health and safety), contamination or clean-up or the
handling, generation, release or storage of Hazardous Material affecting the
Properties including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act, as amended, the Emergency Planning and Community
Right-to-Know Act of 1986, as amended, the Hazardous Substances Transportation
Act, as amended, the Solid Waste Disposal Act, as amended, the Clean Water Act,
as amended, the Clean Air Act, as amended, the Toxic Substances Control Act, as
amended, the Safe Drinking Water Act, as amended, the Occupational Safety and
Health Act, as amended, any state superlien and environmental clean-up statutes
and all regulations adopted in respect of the foregoing laws whether now or
hereafter in effect, but excluding any local, state, federal, or other
governmental historic preservation or similar laws relating to historical
resources and historic preservation not related to (i) protection of health or
the environment or (iii) Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and all
rules and regulations promulgated thereunder.
"ERISA Affiliate" means, in relation to any Person, any other Person under
common control with the first Person, within the meaning of Section 4001(a)(14)
of ERISA.
"Estoppel" has the meaning set forth in Section 4.25(A).
"Event of Default" has the meaning set forth in Section 8.1.
"Excess Cash Flow" means all funds remaining in the Lock Box Account after
distributions and allocations of all amounts required to be allocated or
distributed pursuant to Section 3.3(a)(i) - (vi) of the Cash Management
Agreement.
"Excess Interest" has the meaning set forth in Section 2.2.
"Exculpated Parties" has the meaning set forth in Section 12.2.
"Existing Acquisition I Indebtedness" has the meaning set forth in the
Recitals.
"Existing Acquisition II Indebtedness" has the meaning set forth in the
Recitals.
"Existing Credit Agreements" has the meaning set forth in the Recitals.
"Existing Indebtedness" has the meaning set forth in the Recitals.
"Existing Lenders" has the meaning set forth in the Recitals.
"Existing PT Indebtedness" has the meaning set forth in the Recitals.
"Extraordinary Expenses" means Capital Expenditures and other Operating
Expenses not set forth in either the annual CapEx Budget or the Operating
Budget.
"Federal Obligations" means non-callable direct obligations of, or
obligations fully guaranteed as to payment of principal and interest by, the
United States of America or any agency or instrumentality thereof provided that
such obligations are backed by the full faith and credit of the United States of
America as chosen by the Borrowers, subject to the approval of Lender.
"Financial Statements" means statements of operations and retained
earnings, statements of cash flow and balance sheets.
"Financing Statements" means the Uniform Commercial Code Financing
Statements naming the applicable Borrower Parties as debtor, and Lender as
secured party, required under applicable state law to perfect the security
interests created hereunder or under the other Loan Documents.
"First Interest Accrual Period" means the period commencing on the Closing
Date and ending on the last day of March 2006.
"Fitch" means Fitch, Inc.
"Force Majeure" means acts of God, governmental restrictions, stays,
judgments, orders, decrees, enemy actions, civil commotion, terrorist acts,
fire, casualty, strikes or work stoppages which are industry-wide and not aimed
at the Borrowers or their Affiliates, or other causes beyond the reasonable
control of the Borrowers and/or their Affiliates, but the Borrowers' lack of
funds in and of itself shall not be deemed a cause beyond the control of the
Borrowers.
"GAAP" means generally accepted accounting principles as set forth in
Statement on Auditing Standards No. 69 entitled "The Meaning of Presenting
Fairly in Conformity with Generally Accepted Accounting Principles in the
Independent Auditor's Report" issued by the Auditing Standards Board of the
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board to the extent such principles are
applicable to the facts and circumstances as of the date of determination.
"Global Signal Acquisitions" means Global Signal Acquisitions LLC, a
Delaware limited liability company, together with its permitted successors or
assigns.
"Global Signal Acquisitions II" means Global Signal Acquisitions II LLC, a
Delaware limited liability company, together with its permitted successors or
assigns.
"Governmental Authority" means, with respect to any Person, any federal or
state government or other political subdivision thereof and any entity,
including any regulatory or administrative authority or court, exercising
executive, legislative, judicial, regulatory or administrative or
quasi-administrative functions of or pertaining to government, and any
arbitration board or tribunal in each case having jurisdiction over such
applicable Person or such Person's property, and any stock exchange on which
shares of capital stock of such Person are listed or admitted for trading.
"Governmental Leases" means Leases with any federal or state government or
other political subdivision thereof for space on a Tower located on a Property,
provided that such lease (by way of a lease, purchase order, request for
proposal, or similar requisition system) does not contain any provision that
would materially and adversely affect Lender's Collateral or the priority of any
Deed of Trust.
"Ground Lease Default" has the meaning set forth in Section 4.25
"Ground Leased Property" and "Ground Leased Properties" means,
collectively or individually, the Properties subject to the Ground Leases;
provided that, (i) following termination of a Ground Lease pursuant to Section
5.23, "Ground Leased Properties" shall mean each of the Properties that remain
subject to a Ground Lease, and (ii) following a Substitution with respect to a
Property that will be subject to a Ground Lease, "Ground Leased Properties"
shall include the Replacement Property and shall exclude the Substituted
Property.
"Ground Leases" means (i) each sublease with respect to the Sprint Master
Lease Sites, and (ii) each ground lease with respect to the Properties
identified as "Ground Leased" on Exhibit A attached hereto, together with any
future ground leases with respect to Replacement Properties; provided that
"Ground Leases" shall not refer to any ground lease where any of the Borrowers
is the landlord under such lease.
"Ground Lessors" means the landlords under the Ground Leases.
"GSA Mortgage Loan" means that certain loan in the principal amount of
$151,774,182, evidenced by that certain Amended and Restated Promissory Note
given by Global Signal Acquisitions to Lender pursuant to the terms hereof.
"GSA II Mortgage Loan" means that certain loan in the principal amount of
$995,488,277, evidenced by that certain Amended and Restated Promissory Note
given by Global Signal Acquisitions II to Lender pursuant to the terms hereof.
"GSA Note" means, collectively, those certain amended and restated
promissory notes dated as of the date hereof in the aggregate original principal
amount of $151,774,182, each evidencing the original principal balance of its
respective Component of the GSA Mortgage Loan, given by Global Signal
Acquisitions and payable to Lender, as amended, modified or restated, and any
replacement or substitute notes therefor, by means of multiple notes or
otherwise.
"GSA II Note" means, collectively, those certain amended and restated
promissory notes dated as of the date hereof in the aggregate original principal
amount of $995,488,277, each evidencing the original principal balance of its
respective Component of the GSA II Mortgage Loan, given by Global Signal
Acquisitions II and payable to Lender, as amended, modified or restated, and any
replacement or substitute notes therefor, by means of multiple notes or
otherwise.
"GSI" has the meaning set forth in Section 5.1.
"Guarantor" means, collectively, Parent, and with respect to each Loan,
each party to the Cross Guaranty.
"Guaranty" means collectively, the Environmental Indemnity, the Parent
Guaranty and the Cross Guaranty.
"Hazardous Material" means all or any of the following: (A) substances,
materials, compounds, wastes, products, emissions and vapors that are defined or
listed in, regulated by, or otherwise classified pursuant to, any applicable
Environmental Laws, including any so defined, listed, regulated or classified as
"hazardous substances", "hazardous materials", "hazardous wastes", "toxic
substances", "pollutants", "contaminants", or any other formulation intended to
regulate, define, list or classify substances by reason of deleterious, harmful
or dangerous properties; (B) waste oil, oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (C)
any flammable substances or explosives or any radioactive materials; (D)
asbestos in any form; (E) electrical or hydraulic equipment which contains any
oil or dielectric fluid containing polychlorinated biphenyls; (F) radon; (G)
mold; or (H) urea formaldehyde, provided, however, such definition shall not
include (i) cleaning materials and other substances commonly used in the
ordinary course of the Borrowers' business, which materials exist only in
reasonable quantities and are stored, contained, transported, used, released,
and disposed of in accordance with all applicable Environmental Laws, or (ii)
cleaning materials and other substances commonly used in the ordinary course of
the Borrowers' tenant's, or any of their respective agent's, business, which
materials exist only in reasonable quantities and are stored, contained,
transported, used, released, and disposed of in accordance with all applicable
Environmental Laws.
"Impositions" means (i) all real estate and personal property taxes, and
vault charges and all other taxes, levies, assessments and other similar
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of every kind and nature whatsoever (including any payments in lieu
of taxes), which at any time prior to, at or after the execution hereof may be
assessed, levied or imposed by, in each case, a governmental authority upon any
of the Properties or the rents relating thereto or upon the ownership, use,
occupancy or enjoyment thereof, and any interest, cost or penalties imposed by
such governmental authority with respect to any of the foregoing and (ii) all
rent and other amounts payable by the Borrowers under each of the Ground Leases.
Impositions shall not include (x) any sales or use taxes payable by the
Borrowers, (y) taxes payable by tenants or guests occupying any portions of the
Properties, or (z) taxes or other charges payable by any Manager unless such
taxes are being paid on behalf of the Borrowers.
"Impositions and Insurance Reserve" means the reserve established pursuant
to Section 6.3.
"Improvements" means all buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
of every kind and nature now or hereafter located on the Properties and owned by
the applicable Borrowers.
"Increased Indebtedness" has the meaning set forth in the Recitals.
"Indebtedness" or "indebtedness", means, for any Person, without
duplication: (i) all indebtedness of such Person for borrowed money, for amounts
drawn under a letter of credit, or for the deferred purchase price of property
for which such Person or its assets is liable, (ii) all unfunded amounts under a
loan agreement, letter of credit (unless secured in full by Dollars), or other
credit facility for which such Person would be liable if such amounts were
advanced thereunder, (iii) all amounts required to be paid by such Person as a
guaranteed payment to partners or a preferred or special dividend, including any
mandatory redemption of shares or interests but not any preferred return or
special dividend paid solely from, and to the extent of, excess cash flow after
the payment of all operating expenses, capital improvements and debt service on
all Indebtedness, (iv) all obligations under leases that constitute capital
leases for which such Person is liable, and (v) all obligations of such Person
under interest rate swaps, caps, floors, collars and other interest hedge
agreements, in each case whether such Person is liable contingently or
otherwise, as obligor, guarantor or otherwise, or in respect of which
obligations such Person otherwise assures a creditor against loss.
"Indemnified Liabilities" has the meaning set forth in Section 14.2.
"Indemnitees" has the meaning set forth in Section 14.2.
"Independent Director" means, with respect to any entity, an individual
who shall not have been at the time of such individual's appointment or at any
time while serving as a director of such entity, and shall not have been at any
time during the preceding five years (i) a stockholder, director (other than as
an independent director/member), officer, employee, partner, attorney or counsel
of such entity or any of its Affiliates (except that such individual may be an
independent director of any of its Affiliates) or a direct or indirect legal or
beneficial owner in such entity or any of its Affiliates, (ii) a customer,
creditor, manager, contractor, supplier or other Person who derives any of its
purchases or revenues from its activities with such entity or any of its
Affiliates (other than a company that provides professional independent
directors and which also may provide other ancillary corporate, partnership,
company or trust services to such entity or any of its Affiliates in the
ordinary course of their business), (iii) a Person or other entity controlling,
directly or indirectly, or under common control with such entity or any of its
Affiliates or stockholder, creditor, manager, contractor, partner, customer,
employee, officer, director, supplier or other such Person, or (iv) a member of
the immediate family of such entity or any of its Affiliates or stockholder,
director, officer, employee, partner, customer, creditor, manager, contractor,
supplier or other such Person. As used in this definition, the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management, policies or activities of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Insurance Policies" has the meaning set forth in Section 5.4.
"Insurance Premiums" means the annual insurance premiums for the insurance
policies required to be maintained by the Borrowers with respect to such
Borrower's Properties under Section 5.4.
"Insurance Proceeds" means all of the proceeds received by, or on behalf
of, the respective Borrowers under the Insurance Policies.
"Interest Accrual Period" means the First Interest Accrual Period and,
thereafter, each one (1) month period which shall be a calendar month.
"Involuntary Borrower Bankruptcy" has the meaning set forth in Section
5.20.
"IRC" means the Internal Revenue Code of 1986, and any rule or regulation
promulgated thereunder from time to time, in each case as amended from time to
time.
"IRS" means the Internal Revenue Service or any successor thereto.
"Knowledge" whenever in this Loan Agreement or any of the Loan Documents,
or in any document or certificate executed on behalf of any Borrower Party
pursuant to this Loan Agreement or any of the Loan Documents, reference is made
to the knowledge of the Borrowers or any other Borrower Party (whether by use of
the words "knowledge" or "known", or other words of similar meaning, and whether
or not the same are capitalized), such shall be deemed to refer to the knowledge
(without independent investigation unless otherwise specified) (i) of the
individuals who have significant responsibility for any policy making, major
decisions or financial affairs of the applicable entity; and (ii) also to the
knowledge of the person signing such document or certificate.
"Lease" means any lease, tenancy, license, assignment and/or other rental
or occupancy agreement or other agreement or arrangement (including, without
limitation, any and all guaranties of any of the foregoing) heretofore or
hereafter entered into affecting the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Properties or any portion thereof,
including any extensions, renewals, modifications or amendments thereof, and
including (i) any ground lease where any of the Borrowers is the landlord
thereunder, and (ii) the Sprint Master Lease Agreement with respect to the
Towers leased back to Sprint, including the rights and obligations with respect
thereto only.
"Lender" has the meaning set forth in the preamble.
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind, whether voluntary or involuntary, (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest).
"Loans" shall mean, collectively, the GSA Mortgage Loan, the GSA II
Mortgage Loan, and the PT Mortgage Loan, and "Loan" shall mean the GSA Mortgage
Loan, the GSA II Mortgage Loan, or the PT Mortgage Loan, as the context may
require.
"Loan Agreement" means this Loan and Security Agreement, as same may be
amended, modified or restated from time to time (including all schedules,
exhibits, annexes and appendices hereto).
"Loan Documents" means, with respect to a particular Loan, the following
documents given by the applicable Borrower and its related Borrower Parties (i)
this Loan Agreement, (ii) the Note, (iii) the Deeds of Trust, (iv) the
Assignment of Management Agreement, the (v) Guaranty, (vi) the Pledge Agreement,
(vii) the Financing Statements, (viii) the Cash Management Agreement, and (ix)
any and all other documents and agreements from any of the Borrowers, Guarantor
or Manager and accepted by Lender for the purposes of evidencing and/or securing
the respective Loans.
"Lock Box Account" and "Lock Box Account Bank" has the meaning set forth
in Section 7.1.
"Loss Proceeds" means, collectively, all Insurance Proceeds and all
Condemnation Proceeds.
"Loss Proceeds Reserve Sub-Account" has the meaning set forth in the Cash
Management Agreement.
"Maintenance Capital Expenditures" means Capital Expenditures made for the
purpose of maintaining the Properties or complying with applicable laws,
regulations, ordinances, statutes, codes, or rules applicable to the Properties,
but shall exclude discretionary expenditures made to acquire fee or easement
interests with respect to any Ground Leased Property and non-recurring
expenditures made to enhance the Net Cash Flow of a Property, but excluding
Capital Expenditures set forth in the CapEx Budget.
"Managed Properties" means the Properties identified as "Managed
Properties" on Exhibit A; provided that, (i) following termination of a Site
Management Agreement pursuant to Section 5.9, "Managed Properties" shall mean
each of the Properties that remain subject to a Site Management Agreement, and
(ii) following an Additional Pledged Property Substitution with respect to a
Property that will be subject to a Site Management Agreement, "Managed
Properties" shall include the Replacement Additional Pledged Property and shall
exclude the Substituted Additional Pledged Property.
"Management Agreement" means the Management Agreement between each
Borrower and Manager described therein dated as of the date hereof, and any
management agreement which may hereafter be entered into in accordance with the
terms and conditions hereof, pursuant to which any subsequent Manager may
hereafter manage one or more of the applicable Borrower's Properties.
"Management Fee" means the fees earned by the Manager pursuant to the
terms of the Management Agreement.
"Manager" means the manager described in the Management Agreement or an
Acceptable Manager as may hereafter be charged with management of one or more of
the Properties in accordance with the terms and conditions hereof.
"Material Adverse Effect" means, as determined by Lender in its reasonable
discretion, (A) a material adverse effect (which may include economic or
political events) upon the business, operations, or condition (financial or
otherwise) of the Borrowers and Guarantor (taken as a whole), or (B) the
material impairment of the ability of any of the Borrowers and Guarantor (taken
as a whole) to perform their obligations under the Loan Documents to which they
are a party (taken as a whole), or (C) the material impairment of the ability of
Lender to enforce or collect the Obligations from any Borrower as such
Obligations become due, or (D) a material adverse effect on the use, value or
operation of the Properties as Collateral for the Loans, provided, however that
if five percent (5%) or more of the Operating Revenues derived from the
Properties under all Loans taken as a whole are materially and adversely
affected, then a Material Adverse Effect shall be deemed to exist. In
determining whether any individual event would result in a Material Adverse
Effect, notwithstanding that such event does not of itself have such effect, a
Material Adverse Effect shall be deemed to have occurred if the cumulative
effect of such event and all other then occurring events and existing conditions
would result in a Material Adverse Effect.
"Material Agreement" means the Site Management Agreements, the Sprint
Acquisition Documents and any contract or agreement, or series of related
agreements, by any Borrower or Borrowers relating to the ownership, management,
development, use, operation, leasing, maintenance, repair or improvement of the
Properties under which there is an obligation of the Borrowers, in the
aggregate, to pay, or under which any of the Borrowers receives in compensation,
more than $500,000 per annum, excluding (i) the Management Agreement, and (ii)
any agreement which is terminable by the Borrowers on not more than sixty (60)
days' prior written notice without any fee or penalty.
"Material Lease" means any Lease, or series of related Leases, by any
Borrower or Borrowers of space at one or more of the Properties which (i)(a)
provides for annual rent or other payments in an amount equal to or greater than
$500,000, and (b) may not be cancelled by the applicable Borrower on thirty (30)
days' notice without payment of a termination fee, penalty or other cancellation
fee, (ii) obligates the Borrowers to make any improvements to the Properties
either directly or through cash allowances (including, without limitation, free
rent, tenant improvement allowances, or landlord's construction work) to the
applicable tenant in excess of $500,000, or (iii) is a ground lease where any of
the Borrowers is the landlord under such ground lease.
"Maturity Date" means the Payment Date occurring in February 2011, or such
other date on which the final payment of principal of the Note becomes due and
payable as herein provided, whether at such stated maturity date, by
acceleration, or otherwise.
"Maximum Rate" has the meaning set forth in Section 2.2.
"Member" means, individually or collectively, those parties identified on
Schedule 4.1(C) as "Members", and any other entity which is now or hereafter
becomes the managing member of any of the Borrowers under such Borrower's
limited liability company operating agreement (other than the sole member of any
single member limited liability company).
"Minimum DSCR" means 1.20:1.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgaged Properties" and "Mortgaged Property" means, collectively, or
individually, the properties (including land and Improvements, and all
leaseholds, sub-leaseholds, fee and easements) identified on Exhibit A as
"Mortgaged" and all related facilities, owned by the Borrowers and which shall
be encumbered by and will be more particularly described in the respective Deeds
of Trust given by the applicable Borrowers as Collateral for its respective
Obligations; provided that, (i) following a Release, "Mortgaged Properties"
shall mean each of the Mortgaged Properties that remain encumbered by the Deeds
of Trust as Collateral for the applicable Borrower's respective Obligations, and
(ii) following a Substitution, "Mortgaged Properties" shall include the
Replacement Property and shall exclude the Substituted Property.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
3(37) or Section 4001(a)(3) of ERISA to which any of the Borrowers or any
Affiliate is making, or is accruing an obligation to make, contributions or has
made, or been obligated to make, contributions within the preceding six (6)
years, or for which any of the Borrowers or any Affiliate has any liability,
including contingent liability.
"Net Cash Flow" means Net Operating Income for the trailing twelve (12)
calendar month period ended as of the most recently ending calendar month for
which monthly Financial Statements have been required to be delivered pursuant
to Section 5.1(A)(iv), less a management fee equal to seven and one-half percent
(7 1/2%) (or, if Manager is no longer an Affiliate of the Borrower Parties, ten
percent (10%)) of Operating Revenues for such period; provided that (x) for any
period prior to and during the first three (3) full calendar months following
acquisition of a Property, Net Cash Flow for such Property shall be equal to the
Annualized Run Rate Net Cash Flow of such Property, (y) following the third
(3rd) full calendar month of ownership of such Property and through the date
that the Property ceases to be an Unseasoned Property, Net Cash Flow for such
Property shall be equal to the Net Operating Income annualized based upon the
number of full calendar months of ownership of such Property, less a management
fee equal to seven and one-half percent (7 1/2%) (or, if Manager is no longer an
Affiliate of the Borrower Parties, ten percent (10%)) of the actual Operating
Revenues of such Property, annualized based upon such period of ownership, and
(z) in connection with calculating the DSCR in connection with a termination
permitted under Sections 5.9, 5.23(A), 5.24(A) and 11.4(B), Net Cash Flow for
such Property shall be equal to the Net Operating Income annualized based upon
the trailing three (3) calendar months ended as of the most recently ending
calendar month for which monthly Financial Statements have been required to be
delivered pursuant to Section 5.1(A)(iv) immediately prior to the proposed date
of termination, less a management fee equal to seven and one-half percent (7
1/2%) (or, if Manager is no longer an Affiliate of the Borrower Parties, ten
percent (10%)) of the actual Operating Revenues of such Property annualized
based upon such period of time.
"Net Operating Income" or "NOI" means, for any period, the amount by which
Operating Revenues exceed Operating Expenses (excluding Management Fees,
interest, income taxes, depreciation, accretion, amortization and other non-cash
asset write-down charges); provided that Net Operating Income (x) for any period
prior to and during the first three (3) full calendar months following
acquisition of any Unseasoned Property for such Property shall be equal to the
Annualized Run Rate Revenue of such Property less the sum of (i) annualized
current insurance expenses, real estate and similar taxes (including payments in
lieu of taxes), ground lease payments (if any), and amounts payable to any
third-party owner under a Site Management Agreement, if applicable, with respect
to such Property, and (ii) the Borrowers' annual budgeted expenses in respect of
such Property, including expenses for maintenance (including Maintenance Capital
Expenditures), utilities, licensing, permitting and site management (excluding
portfolio support personnel), and (y) from and after the third (3rd) full
calendar month following acquisition of any Unseasoned Property and through the
date that the Property ceases to be an Unseasoned Property, shall be equal to
the Net Operating Income annualized based upon the number of full calendar
months of ownership of such Property.
"Notes" shall mean collectively, the GSA Note, the GSA II Note, and the PT
Note, and each shall be individually referred to as a "Note".
"Obligations" means with respect to each Borrower's respective Loan, the
applicable Loan and all obligations, liabilities and indebtedness of every
nature to be paid or performed by the respective Borrowers under their
respective Loan Documents, including the Principal Amount of the respective
Loan, interest accrued thereon and all fees, costs and expenses, and other sums
now or hereafter owing, due or payable and whether before or after the filing of
a proceeding under the Bankruptcy Code by or against any of the Borrowers, and
the performance of all other terms, conditions and covenants under the Loan
Documents.
"Officer's Certificate" means a certificate delivered to Lender by the
Borrowers which is signed on behalf of the Borrowers by an authorized officer of
the Borrowers which states that the items set forth in such certificate are
true, accurate and complete in all material respects.
"Operating Budget" means, for any period, the Borrowers' budget setting
forth the Borrowers' best estimate, after due consideration, of all operating
expenses and any other expenses for the Properties for such period, as same may
be amended pursuant to Section 5.1(D) hereof.
"Operating Expenses" means, for any period, without duplication, (1) all
direct costs and expenses of operating and maintaining the Properties determined
in accordance with GAAP, including, without limitation, Impositions, Insurance
Premiums, repair and maintenance costs, (2) Management Fees, and (3) all
Maintenance Capital Expenditures related to the Properties. Operating Expenses
shall exclude, (1) principal and interest payments on the Loan, and fees and
expenses due and payable to or for the benefit of Lender under this Loan
Agreement or any of the other Loan Documents (including, without limitation, all
loan servicing fees and expenses), (2) any expense paid by a tenant that would
otherwise be an Operating Expense, utilities paid directly by Sprint, and
maintenance costs which are the obligation of a Person other than the Borrowers
or one or more of their subsidiaries, (3) capital expenditures (other than
Maintenance Capital Expenditures), tenant improvement allowances and leasing
commissions, if any, any payment or expense for which each Borrower was or is to
be reimbursed from proceeds of the Loan or insurance or by any third party, any
fees or expenses paid to any partner or member of the Borrowers for services
provided to any of the Borrowers, (4) any non-cash charges such as depreciation,
amortization, accretion and other asset write-down charges, (5) the cost of
portfolio support personnel provided by Manager to perform site visits, (6) the
impact on rent expense of accounting for ground and other site leases with fixed
escalators on a straight-line basis as required under SFAS 13, (7) federal,
state or local income taxes or legal and other professional fees unrelated to
the operation of the Properties, (8) discretionary expenditures made to acquire
fee or easement interests with respect to any Ground Leased Property, or
non-recurring expenditures made to enhance the Net Cash Flow of a Property.
"Operating Revenues" means, without duplication, all revenues of the
Borrowers from operation of the Properties (taken as a whole) or otherwise
arising in respect of the Properties which are properly allocable to the
Properties for the applicable period in accordance with GAAP, including, without
limitation, all revenues from the leasing, subleasing, licensing, concessions or
other grant of the right of the possession, use or occupancy of all or any
portion of the Properties or personalty located thereon, or rendering of service
by any of the Borrowers, proceeds from rental or business interruption insurance
relating to business interruption or loss of income for the period in question
and any other items of revenue which would be included in operating revenues
under GAAP; but excluding the impact on revenues of accounting for leases with
fixed escalators as required by SFAS 13, proceeds from abatements, reductions or
refunds of real estate or personal property taxes relating to the Properties,
dividends on insurance policies relating to the Properties, condemnation
proceeds arising from a temporary taking of all or a part of any Properties,
security and other deposits until they are forfeited by the depositor, advance
rentals until they are earned, proceeds from a sale, financing or other
disposition of the Properties or any part thereof or interest therein and other
non-recurring revenues as determined by Lender, insurance proceeds (other than
proceeds from rental or business interruption insurance), other condemnation
proceeds, capital contributions or loans to any of the Borrowers and
disbursements to any of the Borrowers from the Reserves.
"Other Company Collateral" has the meaning set forth in Section 10.1.
"Owned Property" and "Owned Properties" means, collectively or
individually all real estate owned in fee by the Borrowers, together with any
fixtures and appurtenances thereon.
"Ownership Interests" has the meaning set forth in Section 9.1.
"Parent" means Global Signal Holdings V LLC, a Delaware limited liability
company.
"Parent Guaranty" means the Parent Guaranty of even date herewith, from
Parent to Lender given in connection with the Loans, as same may be amended or
modified from time to time.
"Payment Date" means each day that is three (3) Business Days prior to any
Distribution Date.
"Permitted Encumbrances" means, collectively, with respect to each Loan,
(i) the Deeds of Trust and the other Liens of the applicable Loan Documents in
favor of Lender, (ii) the items shown in Schedule B to the Title Policies as of
the date such Property has been encumbered by a Deed of Trust (and liens for
which the Title Company has provided affirmative coverage); (iii) Liens for
Impositions not yet due and payable or Liens arising after the date hereof which
are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted in accordance with Section 5.3(B) hereof; (iv) in the
case of Liens arising after the date hereof, statutory Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens arising by
operation of law, which are incurred in the ordinary course of business and
discharged by the Borrowers by payment, bonding or otherwise within forty-five
(45) days after the filing thereof or which are being contested in good faith in
accordance with Section 5.3(B) hereof; (v) Liens arising from reasonable and
customary purchase money financing of personal property and equipment leasing to
the extent the same are created in the ordinary course of business in accordance
with Section 5.15(B) hereof; and (vi) all easements, rights-of-way, restrictions
and other similar charges or non-monetary encumbrances against real property
which do not have a Material Adverse Effect.
"Permitted Indebtedness" has the meaning set forth in Section 5.15.
"Permitted Investments" has the meaning set forth in the Cash Management
Agreement.
"Permitted Ownership Interest Transfers" has the meaning set forth in
Section 11.2.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof
and their respective permitted successors and assigns (or in the case of a
governmental Person, the successor functional equivalent of such Person).
"Pledge Agreement" means, collectively, those certain Pledge and Security
Agreements delivered by Parent for the benefit of Lender as security for each
Parent Guaranty, and, with respect to the PT Mortgage Loan only, that certain
Pledge and Security Agreement delivered by Pinnacle Towers LLC, dated as of the
date hereof and given for the benefit of Lender as security for the PT Mortgage
Loan.
"Pre-Existing Condition" has the meaning set forth in Section 5.5.
"Prime Ground Leased Property" means the estate subject to a Prime Ground
Lease.
"Prime Ground Leases" means the ground lease or similar agreement between
the owner of the superior fee or leasehold interest in each of the Sprint
Properties and the applicable Sub-Prime Ground Lessor; provided that "Prime
Ground Leases" shall not refer to any Sprint Master Lease Agreement.
"Prime Ground Lease Default" has the meaning set forth in Section
4.25(B)(iv).
"Prime Ground Lessors" means the landlords under the Prime Ground Leases.
"Principal Amount" means, with respect to each Loan, the principal amount
of all Components of such Loan, and with respect to any Component, the principal
amount of such Component, in each case as such amount may be reduced from time
to time pursuant to the terms of this Loan Agreement.
"Properties" means, collectively, the Mortgaged Properties and the
Additional Pledged Properties held by the respective Borrowers and given as
Collateral for their respective Loans.
"PT Credit Agreement" has the meaning set forth in the Recitals.
"PT Lender" has the meaning set forth in the Recitals.
"PT Mortgage Borrowers" means Pinnacle Towers LLC, a Delaware limited
liability company, Intracoastal City Towers LLC, a Delaware limited liability
company, Tower Systems LLC, a Delaware limited liability company, Radio Station
WGLD LLC, a Delaware limited liability company, High Point Management Co. LLC, a
Delaware limited liability company, ICB Towers, LLC, a Georgia limited liability
company, AirComm of Avon, L.L.C., a Connecticut limited liability company,
Interstate Tower Communications LLC, a Delaware limited liability company, Tower
Technology Company of Jacksonville LLC, a Delaware limited liability company,
Pinnacle Towers III LLC, a Delaware limited liability company, Coverage Plus
Antenna Systems LLC, a Delaware limited liability company, Pinnacle Towers V
Inc., a Florida corporation, Xxxxxxx & Associates Inc., an Illinois corporation,
and Sierra Towers, Inc., a Texas corporation, together with their respective
permitted successors or assigns.
"PT Mortgage Loan" means that certain loan in the principal amount of
$402,737,541, evidenced by that certain Amended and Restated Promissory Note
dated as of the date hereof given by the PT Mortgage Borrowers to Lender
pursuant to the terms hereof.
"PT Note" means, collectively, those certain amended and restated
promissory notes dated as of the date hereof in the aggregate original principal
amount of $402,737,541, each evidencing the original principal balance of its
respective Component of the PT Mortgage Loan, given by the PT Mortgage Borrowers
and payable to Lender, as amended, modified or restated, and any replacement or
substitute notes therefor, by means of multiple notes or otherwise.
"Quarterly Advance Rents Reserve Deposit" has the meaning set forth in the
Cash Management Agreement.
"Rating Agency" means S&P, Xxxxx'x and Fitch.
"Rating Confirmation" means, with respect to the transaction or matter in
question, each applicable Rating Agency shall have (i) confirmed in writing that
such transaction or matter shall not result in a downgrade, qualification, or
withdrawal of the then current rating for any certificate or other securities
issued in connection with a Securitization (or the placing of such certificate
or other security on negative credit watch or ratings outlook in contemplation
of any such action with respect thereto), or (ii) declined in writing (including
by e-mail) to review such transaction or matter in question.
"Rating Criteria" with respect to any Person, means that (i) the
short-term unsecured debt obligations of such Person are rated at least "A-1" by
S&P, "P-1" by Xxxxx'x and "F-1" by Fitch, if deposits are held by such Person
for a period of less than one month, or (ii) the long-term unsecured debt
obligations of such Person are rated at least "AA-" by S&P (or "A" if the
short-term unsecured debt obligations of such Person are rated at least "A-1"),
"Aa2" by Xxxxx'x and "A" by Fitch, if deposits are held by such Person for a
period of one month or more.
"Receipts" means, collectively, all revenues, receipts and other payments
to the Borrowers of every kind arising from ownership, operation or management
of the Properties, including without limitation, all warrants, stock options, or
equity interests in any tenant, licensee or other Person occupying space at, or
providing services related to or for the benefit of, the Properties received by
the Borrowers or any Related Person of the Borrowers in lieu of rent or other
payment, but excluding, (i) any amounts received by the Borrowers and required
to be paid to any Person that is not a Related Person as management fees,
brokerage fees, fees payable to the owner of a Managed Property or similar fees
or reimbursements, (ii) any other amounts received by the Borrowers or any
Related Person that constitute the property of a Person other than a Borrower
(including, without limitation, all revenues, receipts and other payments
arising from the ownership, operation or management of properties by Affiliates
of the Borrower), and (iii) security deposits received under a Lease, unless and
until such security deposits are applied to the payment of amounts due under
such Lease.
"Related Person" means any Person in which any of the Borrowers or the
Guarantor holds greater than a ten percent (10%) equity interest.
"Release" has the meaning set forth in Section 11.4.
"Released Property" has the meaning set forth in Section 11.4.
"Release Price" means an amount equal to the greater of (x) one hundred
twenty-five percent (125%) of the Allocated Loan Amount of the applicable
Property, and (y) such amount as shall be required to be paid such that the Debt
Service Coverage Ratio following the proposed Release is equal to or greater
than the Debt Service Coverage Ratio as in effect immediately prior to the
Release.
"Rent Roll" has the meaning set forth in Section 3.1.
"Rents" has the meaning set forth in the Deeds of Trust.
"Replacement Additional Pledged Property" and "Replacement Additional
Pledged Properties" have the meanings set forth in Section 11.6.
"Replacement Property" and "Replacement Properties" have the meanings set
forth in Section 11.5.
"Reserve Sub-Accounts" has the meaning set forth in Section 7.1.
"Reserves" means the reserves held by or on behalf of Lender pursuant to
this Loan Agreement or the other Loan Documents, including without limitation,
the reserves established pursuant to Article VI.
"Responsible Officer" means a chief executive officer, president or chief
financial officer (or other individual performing the functions of any of the
foregoing).
"Restoration" has the meaning set forth in Section 5.5.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Scheduled Defeasance Payments" means:
(a) with respect to a defeasance of a Loan in whole, payments on or prior
to, but as close as possible to (i) each scheduled Payment Date, after the date
of defeasance and through and including the first Payment Date that is three (3)
months prior to the Maturity Date, in amounts equal to the scheduled payments
due on such dates under the Loan Documents given in connection with the
applicable Loan including payment of any Workout Fees and (ii) the first Payment
Date that is three (3) months prior to the Maturity Date, in an amount equal to
the Principal Amount of such Loan and accrued interest thereon; or
(b) with respect to any defeasance of a Loan in part in connection with a
Release, payments on or prior to, but as close as possible to, (i) each Payment
Date after the date of defeasance through and including the first Payment Date
that is three (3) months prior to the Maturity Date, in amounts equal to a
proportionate share (based on the percentage of the outstanding Principal Amount
of the applicable Loan prior to the defeasance represented by the Release Price)
of the monthly installments of principal and interest due on such dates under
the Loan Documents given in connection with the applicable Loan including
payment of any Workout Fees and (ii) the first Payment Date that is three (3)
months prior to the Maturity Date, in an amount equal to the Release Price and
any accrued interest thereon.
"SEC" has the meaning set forth in Section 5.1.
"Securities" (whether or not capitalized) means any stock, shares, voting
trust certificates, bonds, debentures, options, warrants, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securitization" means a rated offering of securities representing direct
or indirect interests in the Loans or the right to receive income therefrom.
"Security Agreement" has the meaning set forth in Section 11.3.
"Servicer" means a servicer selected by Lender from time to time in its
sole discretion to service the Loans.
"Servicing Fees" has the meaning set forth in Section 2.10.
"SFAS 13" means Statement of Financial Accounting Standards 13 published
by the Financial Accounting Standards Board.
"Site Management Agreements" means those certain leases, management
agreements, or similar agreements pursuant to which any of the Borrowers are
authorized to sublease or otherwise broker space at the Managed Properties.
"SNDA" has the meaning set forth in Section 5.10.
"Sprint" means Sprint Nextel Corporation and the Sprint subsidiaries party
to the Sprint Acquisition Documents.
"Sprint Acquisition" means the transactions contemplated by the Sprint
Acquisition Documents.
"Sprint Acquisition Documents" means the Sprint Contribution Agreement and
the documents set forth on Exhibit B, as amended from time-to-time, and such
additional documents as are required to be executed and delivered pursuant to
the terms of such documents from time-to-time in connection with the Sprint
Acquisition, as same may be assigned or modified from time-to-time.
"Sprint Contribution Agreement" means that certain Agreement to Contribute
Lease and Sublease dated as of February 14, 2005 among Sprint Corporation, the
Sprint subsidiaries named therein and Global Signal Inc., as same may be
assigned or modified from time-to-time.
"Sprint Master Lease Agreement" means, collectively, each of the Master
Lease Agreements identified on Exhibit B.
"Sprint Master Lease Sites" has the meaning set forth in the Sprint Master
Lease Agreement.
"Sprint Master Lessor" means the applicable Sprint entity party to a
Sprint Master Lease Agreement, in its capacity as the landlord thereunder.
"Sprint Properties" has the meaning set forth in Section 4.5.
"Sub-Accounts" has the meaning set forth in Section 7.1.
"Sub-Prime Ground Lessor" means the applicable Sprint entity party to a
Sprint Master Lease Agreement, in its capacity as the tenant under the
applicable Prime Ground Lease.
"Substituted Additional Pledged Property" has the meaning set forth in
Section 11.6.
"Substituted Property" has the meaning set forth in Section 11.5.
"Substitution" has the meaning set forth in Section 11.5.
"Successor Borrowers" has the meaning set forth in Section 11.3.
"Supplemental Financial Information" means (i) commencing with the 2007
calendar year, a comparison of budgeted expenses and the actual expenses for the
prior calendar year or corresponding calendar quarter for such prior year, and
(ii) such other financial reports as the subject entity shall routinely and
regularly prepare as requested by Lender.
"Tax Liabilities" has the meaning set forth in Section 2.8.
"Title Company" means any of Chicago Title Insurance Company, Fidelity
National Title Insurance Company, First American Title, Land America, Xxxxxxx
Title Insurance Company or such other title company reasonably acceptable to
Lender.
"Title Policies" means the ALTA mortgagee policies (or marked, signed
commitments to issue such policies or validating endorsements related thereto)
of title insurance pertaining to the Deeds of Trust on the Mortgaged Properties
(other than the Mortgaged Properties identified on Exhibit E).
"Tower" and "Towers" means collectively, or individually, any wireless
communications towers owned, leased, operated or managed by the Borrowers,
including any rooftop or other sites owned, leased, operated or managed by the
Borrowers.
"Transfer" has the meaning set forth in Section 11.2.
"Trustee" means the trustee of the trust established to hold the Loans in
connection with the Securitization.
"UCC" means the Uniform Commercial Code in effect in each State in which
any of the Collateral or Other Company Collateral may be located from time to
time.
"Unseasoned Property" means any Property that has been owned by the
Borrowers, or any of them, for less than twelve (12) full calendar months.
"Waiving Party" has the meaning set forth in Section 13.1.
"Workout Fees" means any "Workout Fees" required to be paid under the
Trust and Servicing Agreement executed in connection with a Securitization.
"Yield Maintenance" has the meaning set forth in Section 2.6(B).
Section 1.2 Accounting Terms.
For purposes of this Loan Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to such terms in conformity with
GAAP.
Section 1.3 Other Definitional Provisions.
References to "Articles", "Sections", "Subsections", "Exhibits" and
"Schedules" shall be to Articles, Sections, Subsections, Exhibits and Schedules,
respectively, of this Loan Agreement unless otherwise specifically provided. Any
of the terms defined in Section 1.1 may, unless the context otherwise requires,
be used in the singular or the plural depending on the reference. In this Loan
Agreement, "hereof", "herein", "hereto", "hereunder" and the like mean and refer
to this Loan Agreement as a whole and not merely to the specific article,
section, subsection, paragraph or clause in which the respective word appears;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
tangible visible form; the words "including", "includes" and "include" shall be
deemed to be followed by the words "without limitation"; and any reference to
any statute or regulation may include any amendments of same and any successor
statutes and regulations. Further, (i) any reference to any agreement or other
document may include subsequent amendments, assignments, and other modifications
thereto, and (ii) any reference to any Person may include such Person's
respective permitted successors and assigns or, in the case of governmental
Persons, Persons succeeding to the relevant functions of such Persons.
Section 1.4 Joint Administration Provisions.
This Loan Agreement governs the administration of each of the Loans
independently unless otherwise specifically provided herein. It is the intention
of Lender and each of the respective Borrowers that (i) the calculation of
financial terms, (ii) the preparation of financial reporting under Section 5.1,
(iii) establishment and administration of Reserves under Article VI, (iv) the
establishment of Deposit Accounts, Lock Box Accounts, and administration of the
Cash Management Agreement, and (v) such other matters as may be specifically so
provided herein, shall be jointly administered on a consolidated basis as if
each of the Loans taken together constituted but one and the same loan. For all
other intents and purposes, including the making of representations and
warranties, performance of covenants, and the creation of security interests in
the Properties and Other Company Collateral as security for the performance of
each of the respective Borrower's Obligations, each of the PT Mortgage Loan (and
the PT Mortgage Borrowers in connection therewith), the GSA Mortgage Loan (and
Global Signal Acquisitions in connection therewith), and the GSA II Mortgage
Loan (and Global Signal Acquisitions II in connection therewith) shall be
treated as separate and distinct loans, the performance and compliance therewith
being solely the responsibility of the respective Borrowers with respect to
their respective Loan.
ARTICLE II
TERMS OF THE LOAN
Section 2.1 Loan.
(A) Amendment and Restatement; Loan. The Existing Credit Agreements are
each hereby amended and restated in their entirety in accordance with the terms
of this Loan Agreement. Subject to the terms and conditions of this Loan
Agreement and in reliance upon the representations and warranties of the
Borrowers contained herein, Lender and the applicable Borrowers agree that the
Existing Indebtedness outstanding as of the Closing Date is $151,774,182 on the
GSA Mortgage Loan, $850,000,000.00 on the GSA II Mortgage Loan, and
$402,737,541 on the PT Mortgage Loan. Global Signal Acquisitions II and Lender
hereby agree that the amount of the Increased Indebtedness shall be
$145,488,277 and that together the aggregate outstanding principal balance of
the GSA II Note as of the Closing Date is $995,488,277.
(B) Note. On the Closing Date, the Notes shall be delivered by the
respective Borrowers to Lender.
(C) Use of Proceeds. The proceeds of the respective Loans funded at
Closing shall be used by the respective Borrowers to (i) refinance existing
indebtedness; (ii) pay all recording fees and taxes, title insurance premiums,
the reasonable out-of-pocket costs and expenses incurred by Lender, including
reasonable legal fees and expenses of counsel to Lender, and other costs and
expenses approved by Lender (which approval will not be unreasonably withheld)
related to the respective Loans; (iii) establish the Reserves required
hereunder; and (iv) provide for general corporate purposes, including, without
limitation, payment of transaction costs and expenses incurred by the
Borrowers. The remaining proceeds of the respective Loans, if any, shall be
disbursed to or as otherwise directed by the respective Borrowers.
Section 2.2 Interest.
(A) Rate of Interest. The outstanding principal balance of each Component
of the Loans shall bear interest at a rate per annum equal to the lesser of (i)
the Component Rate for such Component and (ii) the Maximum Rate.
(B) Default Rate. Notwithstanding the foregoing, upon the occurrence and
during the continuance of an Event of Default under which the Loans have been
accelerated by Lender, and in any event from and after the Maturity Date of the
Loans and until the Loans and all other Obligations are satisfied in full, the
outstanding principal balance of each Component of each of the Loans and all
other Obligations shall bear interest until paid in full at a rate per annum
that is five percent (5.0%) in excess of the then applicable Component Rate for
each Component otherwise applicable under this Loan Agreement and the
respective Notes (the "Default Rate"). To the extent that Default Interest
accrues, it will not bear interest.
(C) Computation of Interest. Interest on the Loans and all other
Obligations owing to Lender shall be computed on the basis of a 360-day year
consisting of twelve (12) thirty (30) day months, and shall be charged for the
actual number of days elapsed during any partial month. Interest shall be
payable in arrears (except with respect to the number of days from the Payment
Date in any Interest Accrual Period to the last day of such Interest Accrual
Period as to which interest shall be payable in advance, if any).
(D) Interest Laws. Notwithstanding any provision to the contrary
contained in this Loan Agreement or the other Loan Documents, the Borrowers
shall not be required to pay, and Lender shall not be permitted to collect, any
amount of interest in excess of the maximum amount of interest permitted by law
("Excess Interest"). If any Excess Interest is provided for or determined by a
court of competent jurisdiction to have been provided for in this Loan
Agreement or in any of the other Loan Documents, then in such event: (1) the
provisions of this subsection shall govern and control; (2) the Borrowers shall
not be obligated to pay any Excess Interest; (3) any Excess Interest that
Lender may have received hereunder shall be, at Lender's option, (a) applied as
a credit against either or both of the outstanding principal balance of the
respective Loans for which it has been received or accrued and unpaid interest
thereunder (not to exceed the maximum amount permitted by law), (b) refunded to
the payor thereof, or (c) any combination of the foregoing; (4) the interest
rate(s) provided for herein shall be automatically reduced to the maximum
lawful rate allowed from time to time under applicable law (the "Maximum
Rate"), and this Loan Agreement and the other Loan Documents shall be deemed to
have been and shall be, reformed and modified to reflect such reduction; and
(5) the Borrowers shall not have any action against Lender for any damages
arising out of the payment or collection of any Excess Interest.
Notwithstanding the foregoing, if for any period of time interest on any
Obligation is calculated at the Maximum Rate rather than the applicable rate
under this Loan Agreement, and thereafter such applicable rate becomes less
than the Maximum Rate, the rate of interest payable on such Obligations shall,
to the extent permitted by law, remain at the Maximum Rate until Lender shall
have received or accrued the amount of interest which Lender would have
received or accrued during such period on Obligations had the rate of interest
not been limited to the Maximum Rate during such period. If the Default Rate
shall be finally determined to be unlawful, then the Component Rate with
respect to each Component shall be applicable during any time when the Default
Rate would have been applicable hereunder, provided however that if the Maximum
Rate is greater or lesser than the Component Rate with respect to any
Component, then the foregoing provisions of this paragraph shall apply.
(E) Late Charges. If an Event of Default regarding non-payment of
interest or other sums due hereunder or under any of the other Loan Documents
shall occur (other than payment at maturity or following acceleration of the
Loans, in which case the Default Rate alone under Section 2.2(B) will apply),
then the Borrowers shall pay to Lender, in addition to all sums otherwise due
and payable, a late fee in an amount equal to five percent (5.0%) of such
interest or other sums due hereunder or under any other Loan Document, such
late charge to be immediately due and payable without demand by Lender.
Section 2.3 Reserved.
Section 2.4 Payments.
(A) Payments of Interest; Application of Payments. On each Payment Date
commencing with the Payment Date in April 2006, and on each Payment Date
thereafter through and including the Maturity Date, each of the Borrowers shall
make a payment of interest at the applicable Component Rate on each Component
for their respective Loans for the Interest Accrual Period immediately
preceding each such Payment Date (together with any late charges, Servicing
Fees and other expenses then due and owing under the applicable Loan
Documents). Except during the continuance of an Event of Default, all payments
from whatever source (including prepayment of the Loans or any of them) shall
be applied first to pay late charges, the charges and expenses of Lender, and
any Servicing Fees as provided hereunder, second to currently accruing interest
at the applicable Component Rate of the most senior Component Class (i.e. the
Component Class with the earliest alphabetical (and numerical, if applicable)
designation) pro-rata across all Components in such Component Class until the
currently accruing interest on such Component Class has been paid current, and
then sequentially to each Component Class (pro-rata across all Components in
such Component Class) with the next earliest alphabetical (and numerical, if
applicable) designation in that order until the currently accruing interest on
such Component Class is paid current on each Component Class, and third, to the
Principal Amount of the most senior Component Class (i.e. the Component Class
with the earliest alphabetical (and numerical, if applicable) designation)
pro-rata across all Components in such Component Class until the Principal
Amount of such Component Class has been reduced to zero, and then sequentially
to each Component Class (pro-rata across all Components in such Component
Class) with the next earliest alphabetical (and numerical, if applicable)
designation in that order until the Principal Amount of each such Component
Class is repaid in full. Notwithstanding anything to the contrary contained in
this Loan Agreement to the contrary, Component Class A-1-FL and Component Class
A-1-FX shall be treated as one Component Class in determining payment priority
and shall be paid pro-rata and pari passu with each other.
(B) Date and Time of Payment. Two (2) Business Days prior to the
applicable Payment Date, Lender shall provide a statement of principal and
interest required to be paid on such Payment Date. The Borrowers shall receive
credit for payments on the Loans which are transferred to the account of Lender
as provided below (i) on the day that such funds are received by Lender if such
receipt occurs by 2:00 p.m. (New York time) on such day, or (ii) on the next
succeeding Business Day after such funds are received by Lender if such receipt
occurs after 2:00 p.m. (New York time). Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the
payment may be made on the next succeeding Business Day.
(C) Manner of Payment; Application of Payments. The Borrowers promise to
pay all of the Obligations relating to their respective Loans as such amounts
become due or are declared due pursuant to the terms of this Loan Agreement.
All payments by the Borrowers on the Loans shall be made without deduction,
defense, set off or counterclaim and in immediately available funds delivered
to Lender by wire transfer to such accounts at such banks as Lender may from
time to time designate. Prior to an Event of Default, each payment shall be
applied in accordance with Section 2.4(A) hereof and, to the extent sufficient
funds are contained in the Lock Box Account, or an Account or Sub-Account
thereof, to make the required monthly payments to the applicable Reserves and
Sub-Accounts on such Payment Date, the Borrowers shall be deemed to have
satisfied their obligations to make such payments. Upon the occurrence and
during the continuance of an Event of Default, payments shall be applied to the
Obligations in such order as Lender shall determine in its sole and absolute
discretion.
Section 2.5 Maturity.
(A) Maturity Date. To the extent not sooner due and payable in accordance
with this Loan Agreement, the then outstanding principal balance of the Loans,
all accrued and unpaid interest thereon (and including interest through the end
of the Interest Accrual Period then in effect), and all other sums then owing
to Lender hereunder and under the Notes, the Deeds of Trust and the other Loan
Documents, shall be due and payable on the Maturity Date.
Section 2.6 Prepayment.
(A) Limitation on Prepayment. The Borrowers shall have no right to prepay
the Loans in whole or in part, except as expressly set forth in this Loan
Agreement. (i) From and after the second (2nd) anniversary of the Closing Date,
the Borrowers may prepay the Loans in whole, or in part, at any time, and (ii)
if a partial prepayment is required to be made to cure a Default under Sections
8.1(E), 8.1(O) or 8.1(P), the Borrowers may prepay the Loan in part, at any
time, provided that (w) the Borrowers shall provide to Lender not less than
fifteen (15) days' prior written notice of such prepayment, (x) together with
such prepayment the Borrowers also shall pay all accrued and unpaid interest
and all other Obligations then due and owing, (y) if such prepayment occurs on
any day other than a Payment Date, then together therewith the Borrowers also
shall pay to Lender the amount of interest that would have accrued on the
amount being prepaid from and including the date of such prepayment to the end
of such Interest Accrual Period, and (z) all prepayments shall be first to the
most senior Component Class (i.e. the Component Class with the earliest
alphabetical (and numerical, if applicable) designation) pro-rata across all
Components in such Component Class until the Principal Amount of such Component
Class has been reduced to zero, and then sequentially to each Component Class
(pro-rata across all Components in such Component Class) with the next earliest
alphabetical (and numerical, if applicable) designation in that order until the
Principal Amount of each such Component Class is repaid in full.
(B) Yield Maintenance Due. If any prepayment of all or any portion of the
Loans shall occur (including on account of acceleration of the Loans (whether
or not due to an Event of Default) or otherwise), then except only as expressly
provided in this Loan Agreement or the other Loan Documents to the contrary,
the Borrowers shall pay the Yield Maintenance on the amount prepaid to Lender
together with such prepayment, as liquidated damages (which shall be the sole
and exclusive remedy of Lender in connection with such prepayment) and
compensation for costs incurred, and in addition to all other amounts due and
owing to Lender. Notwithstanding the foregoing, no Yield Maintenance will be
due as to a prepayment of the Loans on any Payment Date that occurs during the
three (3) month period immediately preceding the Maturity Date. The foregoing
designation of any amount of Yield Maintenance in this Agreement shall not
create a right to prepay at any time or in any circumstances where this Loan
Agreement does not expressly state that such a right exists. "Yield
Maintenance" means the excess, if any, of (x) the present value on the date of
prepayment (by acceleration or otherwise) of all future installments of
principal and interest that the Borrowers would otherwise be required to pay on
that portion of the applicable Component prepaid from the date of such
prepayment to and including the first Payment Date that is three (3) months
prior to the Maturity Date absent such prepayment, assuming the entire unpaid
Principal Amount of such Component is required to be paid on such Payment Date,
with such present value being determined by the use of a discount rate equal to
the sum of (a) the yield to maturity (adjusted to a "mortgage equivalent basis"
pursuant to the standards and practices of the Securities Industry
Association), on the date of such prepayment of the United States Treasury
Security having the term to maturity closest to the first Payment Date that is
three (3) months prior to the Maturity Date, plus (b) .50% over (y) that
portion of the applicable Component prepaid on the date of such prepayment.
Section 2.7 Outstanding Balance. The balance on Lender's books and records
shall be presumptive evidence (absent manifest error) of the amounts owing to
Lender by the Borrowers; provided that any failure to record any transaction
affecting such balance or any error in so recording shall not limit or otherwise
affect the Borrowers' obligation to pay the Obligations.
Section 2.8 Taxes. Any and all payments or reimbursements made hereunder or
under the Notes shall be made free and clear of and without deduction for any
and all taxes, withholding taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto arising out of or in
connection with the transactions contemplated by the respective Loan Documents
(all such taxes, levies, imposts, deductions, charges or withholdings and all
liabilities with respect thereto (excluding taxes imposed on net income in
accordance with the following sentence) herein "Tax Liabilities").
Notwithstanding the foregoing, the Borrowers shall not be liable for taxes
imposed on the net income of Lender by the jurisdiction under the laws of which
Lender is organized or doing business or any political subdivision thereof and
taxes imposed on its net income by the jurisdiction of Lender's applicable
lending office or any political subdivision thereof. If the Borrowers shall be
required by law to deduct any such Tax Liabilities (or amounts in estimation or
reimbursement for the same) from or in respect of any sum payable hereunder to
Lender, then the sum payable hereunder shall be increased as may be necessary so
that, after making all required deductions, Lender receives an amount equal to
the sum it would have received had no such deductions been made.
Section 2.9 Reasonableness of Charges. The Borrower Parties agree that (i) the
actual costs and damages that Lender would suffer by reason of an Event of
Default (exclusive of the attorneys' fees and other costs incurred in connection
with enforcement of Lender's rights under the respective Loan Documents) or a
prepayment would be difficult and needlessly expensive to calculate and
establish, and (ii) the amounts of the Default Rate, the late charges, and the
Yield Maintenance are reasonable, taking into consideration the circumstances
known to the parties at this time, and (iii) such Default Rate, late charges,
Yield Maintenance, and Lender's reasonable attorneys' fees and other costs and
expenses incurred in connection with enforcement of Lender's rights under the
respective Loan Documents shall be due and payable as provided herein, and (iv)
such interest at the Default Rate, late charges, Yield Maintenance, and the
obligation to pay Lender's reasonable attorneys' fees and other enforcement
costs do not, individually or collectively, constitute a penalty.
Section 2.10 Servicing/Special Servicing. Lender may change the Servicer from
time to time without the consent of the Borrowers, on prior written notice to
the Borrowers. The Borrowers expressly acknowledge and agree that the Servicer's
fees and Trustee's fees (to the extent not included in the Component Rate), and
if the Loans become specially serviced loans, any additional fees of the
Servicer payable in connection therewith, and such additional trust fund
expenses and fees, including any Rating Agency fees, as shall be incurred in
connection with the Securitization (collectively, the "Servicing Fee") shall be
payable by the Borrowers and shall constitute a portion of the Obligations;
provided, however, that at no time shall the Borrowers be liable for Servicing
Fees in excess of those fees charged to Lender. Lender shall provide a
reasonably detailed statement of Servicing Fees for which the Borrowers are
liable two (2) Business Days prior to the date when due; provided that failure
to timely provide such statement shall not relieve the Borrowers from the
obligation to pay all such Servicing Fees.
ARTICLE III
CONDITIONS TO LOAN
Section 3.1 Conditions to Funding of the Loan on the Closing Date. The Closing
is subject to the prior or concurrent satisfaction or waiver of the conditions
set forth below, and to satisfaction of any other conditions specified herein or
elsewhere in the Loan Documents. Where in this Section any documents,
instruments or information are to be delivered to Lender, then the condition
shall not be satisfied unless (i) the same shall be in form and substance
reasonably satisfactory to Lender, and (ii) if so required by Lender, the
Borrowers shall deliver to Lender a certificate duly executed by the Borrowers
stating that the applicable document, instrument or information is true and
complete and does not omit to state any information without which the same might
reasonably be deemed materially misleading.
(A) Loan Documents. On or before the Closing Date, the Borrowers shall
execute and deliver and cause to be executed and delivered to Lender all of the
Loan Documents to which the respective Borrowers are a party together with such
other documents as may be reasonably required by Lender, each, unless otherwise
noted, of even date herewith, duly executed, in form and substance satisfactory
to Lender and in quantities designated by Lender (except for each Note, of
which only one shall be signed), which Loan Documents shall become effective
upon the Closing.
(B) Deposits. The deposits required herein, including without limitation,
the initial deposits into the Reserves and Accounts, shall have been made (and
at the Borrowers' option, the same may be made from the proceeds of the Loans).
(C) Performance of Agreements, Truth of Representations and Warranties.
Each Borrower Party and all other Persons executing any agreement on behalf of
any Borrower Party shall have performed in all material respects all agreements
which this Loan Agreement provides shall be performed on or before the Closing
Date. The representations and warranties contained herein and in the other Loan
Documents shall be true, correct and complete in all material respects on and
as of the Closing Date.
(D) Closing Certificate. On or before the Closing Date, Lender shall have
received certificates of even date herewith executed on behalf of each Borrower
by the chief financial officer (or similar officer of the Borrowers) stating
that: (i) on such date, to the Borrowers' Knowledge no Default exists; (ii) no
material adverse change in the financial condition or operations of the
business of the Borrowers (taken as a whole) or the projected cash flow of the
Borrowers (taken as a whole) or the Properties has occurred since the delivery
to Lender of any financial statements, budgets, proformas, or similar materials
(or if there has been any change, specifying such change in detail), and that,
to the Borrowers' Knowledge after due inquiry, such financial materials fairly
present the financial condition and results of operations of the Borrowers
(taken as a whole), and all other materials delivered to Lender are complete
and accurate in all material respects; (iii) the representations and warranties
set forth in this Loan Agreement are true and correct in all material respects
on and as of such date with the same effect as though made on and as of such
date (or if any such representations or warranties require qualification,
specifying such qualification in detail); and (iv) to the Borrowers' Knowledge,
there are no material facts or conditions concerning the Properties or any
Borrower Party that have not been disclosed to Lender which could have a
Material Adverse Effect.
(E) Opinions of Counsel. On or before the Closing Date, Lender shall have
received from legal counsel for the Borrowers reasonably satisfactory to
Lender, written legal opinions, each in form and substance reasonably
acceptable to Lender, as to such matters as Lender shall request, including
opinions to the effect that (i) each of the Borrower Parties organized under
Delaware or Illinois law is validly existing and in good standing in its state
of organization, (ii) this Loan Agreement and the Loan Documents have been duly
authorized, executed and delivered and are enforceable in accordance with their
terms subject to customary qualifications for bankruptcy, general equitable
principles, and other customary assumptions and qualifications; (iii) the
Deposit Account Agreement and Cash Management Agreement have been duly
authorized, executed and delivered by the Borrowers and Manager and are
enforceable in accordance with their terms and the security interests in favor
of Lender in the Account Collateral have been validly created and perfected;
and (iv) none of the Borrowers, the Manager or the Guarantor would be
consolidated in any bankruptcy proceeding affecting GSI; provided that the
opinions with respect to valid existence, good standing and due authorization
and execution will be limited to those Borrower Parties organized under the
laws of Delaware and Illinois. Also on or before the Closing Date, Lender shall
have received the following legal opinions, each in form and substance
reasonably acceptable to Lender: (a) to the extent not delivered in connection
with the origination of the Existing Indebtedness, an opinion of the Borrowers'
local counsel in each state in which Mortgaged Properties generating five
percent (5%) or more of the Operating Revenues from the Mortgaged Properties
(taken as a whole with respect to each loan) are located as to the
enforceability of the form of the Deeds of Trust in such states and such other
matters as Lender may reasonably request; (b) opinions of Xxxxxxxx, Xxxxxx &
Finger or other Delaware legal counsel, reasonably acceptable to Lender, for
each of the Borrowers that are single member Delaware limited liability
companies, for the Guarantor and Manager that, among other matters, (1) under
Delaware law (x) the prior unanimous written consent of its board of directors
(including the Independent Directors) would be required for a voluntary
bankruptcy filing by such Borrower, the Guarantor or Manager, (x) such
unanimous consent requirements are enforceable against such Borrower, Guarantor
and Manager in accordance with their terms; (2) under Delaware law the
bankruptcy or dissolution of its member would not cause the dissolution of such
Borrower, the Guarantor or Manager; (3) under Delaware law, creditors of its
member shall have no legal or equitable remedies with respect to the assets of
such Borrower, the Guarantor or Manager; and (4) a federal bankruptcy court
would hold that Delaware law governs the determination of what Persons have
authority to file a voluntary bankruptcy petition on behalf of such Borrower,
the Guarantor and Manager; and (c) such other legal opinions as Lender may
reasonably request.
(F) Title Policies. On or before the Closing Date, Lender shall have
received the Title Policies with respect to each of the Loans.
(G) Certificates of Formation and Good Standing. On or before the Closing
Date, Lender shall have received copies of the organizational documents and
filings of each Borrower Party, together with good standing certificates (or
similar documentation) (including verification of tax status) from the state of
its formation and from all states in which the laws thereof require such Person
to be qualified and/or licensed to do business. Each such certificate shall be
dated not more than 30 days prior to the Closing Date, as applicable, and
certified by the applicable Secretary of State or other authorized governmental
entity. In addition, on or before the Closing Date the secretary or
corresponding officer of each Borrower Party, or the secretary or corresponding
officer of the partner, trustee, or other Person as required by such Borrower
Party's organizational documents (as the case may be, the "Borrower Party
Secretary") shall have delivered to Lender a certificate stating that the
copies of the organizational documents as delivered to Lender are true and
correct and are in full force and effect, and that the same have not been
amended except by such amendments as have been so delivered to Lender.
(H) Certificates of Incumbency and Resolutions. On or before the Closing
Date, Lender shall have received certificates of incumbency and resolutions of
each Borrower Party and its constituents as requested by Lender, approving and
authorizing the Loans and the execution, delivery and performance of the Loan
Documents to which the respective Borrower Parties are a party, certified as of
the Closing Date by the Borrower Party Secretary as being in full force and
effect without modification or amendment.
(I) Agreements. Not later than thirty (30) days following the Closing
Date, Lender shall have received a list of all Material Agreements and, to the
extent requested by Lender, copies thereof.
(J) Rent Roll. Prior to the Closing, Lender shall have received from the
Borrowers one or more rent rolls for the Properties (collectively, the "Rent
Roll"), certified by the Borrowers, and in form and substance satisfactory to
Lender.
(K) Leases. Not later than thirty (30) days following the Closing Date,
Lender shall have received true, correct and complete copies of the Leases, as
amended.
(L) Insurance Policies and Endorsements. On or before the Closing Date,
Lender shall have received copies of certificates of insurance (dated not more
than twenty (20) days prior to the Closing Date) regarding insurance required
to be maintained under this Loan Agreement, together with endorsements
satisfactory to Lender naming Lender as an additional insured and loss payee,
as required by this Loan Agreement, under such policies. In addition, as to any
insurance matters arising under Environmental Laws or pertaining to any
environmental insurance that any of the Borrowers has with respect to any
Property, the same shall be endorsed to Lender as required by this Loan
Agreement and shall name Lender as an insured, additional insured and/or loss
payee, as applicable.
(M) Documentation Regarding Application of Proceeds. At least two (2)
days prior to the Closing Date, Lender shall have received payoff demand
letters and wiring instructions from each lender or other obligee of any
existing indebtedness which is required to be repaid pursuant to this Loan
Agreement.
(N) Legal Fees; Closing Expenses. The Borrowers shall have paid any and
all reasonable legal fees and expenses of counsel to Lender, together with all
recording fees and taxes, title insurance premiums incurred through the date of
Closing, and other reasonable costs and expenses related to the Closing.
(O) Ground Leases. Not later than thirty (30) days following the Closing
Date, Lender shall have received true and complete copies of each of the Ground
Leases, certified by the Borrowers.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Loan Agreement and to make
the Loan, each Borrower represents and warrants to Lender on behalf of itself
and with respect to such Borrower's respective Loan, respective Loan Documents,
and its respective Properties, that the statements set forth in this Article IV,
after giving effect to the Closing, will be, true, correct and complete in all
material respects as of the Closing Date.
Section 4.1 Organization, Powers, Capitalization, Good Standing, Business.
(A) Organization and Powers. Each Borrower Party is duly organized,
validly existing and in good standing under the laws of the state of its
formation. Each Borrower Party has all requisite power and authority to own and
operate its properties, to carry on its business as now conducted and proposed
to be conducted, and to enter into each Loan Document to which it is a party
and to perform the terms thereof.
(B) Qualification. Each Borrower Party is duly qualified and in good
standing in the state of its formation. In addition, each Borrower Party is
duly qualified and in good standing in each state where necessary to carry on
its present business and operations, except in jurisdictions in which the
failure to be qualified and in good standing could not reasonably be expected
to have a Material Adverse Effect.
(C) Organization. The organizational chart set forth as Schedule
4.1(C)accurately sets forth the direct and indirect ownership structure of the
Borrowers.
Section 4.2 Authorization of Borrowing, etc.
(A) Authorization of Borrowing. Each Borrower has the power and authority
to incur the Indebtedness evidenced by the Note to which it is a party. The
execution, delivery and performance by each Borrower Party of each of the Loan
Documents to which it is a party and the consummation of the transactions
contemplated thereby have been duly authorized by all necessary limited
liability company, partnership, trustee, corporate or other action, as the case
may be.
(B) No Conflict. The execution, delivery and performance by each Borrower
Party of the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby do not and will not: (1) violate (x) any
provision of law applicable to any Borrower Party; (y) the partnership
agreement, certificate of limited partnership, certificate of formation,
certificate of incorporation, bylaws, declaration of trust, limited liability
company agreement, operating agreement or other organizational documents, as
the case may be, of each Borrower Party; or (z) any order, judgment or decree
of any Governmental Authority binding on any Borrower Party or any of its
Affiliates; (2) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
such Borrower Party or any of its Affiliates (except where such breach will not
cause a Material Adverse Effect); (3) result in or require the creation or
imposition of any material Lien (other than the Lien of the Loan Documents)
upon the Properties or assets of such Borrower Party; or (4) require any
approval or consent of any Person under any Contractual Obligation of such
Borrower Party, which approvals or consents have not been obtained on or before
the dates required under such Contractual Obligation, but in no event later
than the Closing Date (except where the failure to obtain such approval or
consent will not have a Material Adverse Effect).
(C) Governmental Consents. The execution and delivery by each Borrower
Party of the Loan Documents to which it is a party, and the consummation of the
transactions contemplated thereby do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
Governmental Authority.
(D) Binding Obligations. This Loan Agreement is, and the Loan Documents,
including the Notes, when executed and delivered will be, the legally valid and
binding obligations of each Borrower Party that is a party thereto, enforceable
against such Borrower Parties, as applicable, in accordance with their
respective terms, subject to bankruptcy, insolvency, moratorium, reorganization
and other similar laws affecting creditor's rights. No Borrower Party has any
defense or offset to any of its obligations under the Loan Documents to which
it is a party. No Borrower Party has any claim against Lender or any Affiliate
of Lender.
Section 4.3 Financial Statements. All financial statements concerning
any of the Borrowers and their Affiliates which have been furnished by or on
behalf of the Borrowers to Lender pursuant to this Loan Agreement present
fairly in all material respects the financial condition of the Persons covered
thereby.
Section 4.4 Indebtedness and Contingent Obligations. As of the Closing, the
Borrowers shall have no outstanding Indebtedness or Contingent Obligations
other than the Obligations or any other Permitted Indebtedness.
Section 4.5 Title to the Properties. The Borrowers have good and marketable fee
simple title (or, in the case of the Ground Leased Properties, leasehold or
subleasehold title) to the Properties, other than the Managed Properties, free
and clear of all Liens except for the Permitted Encumbrances. The Borrowers own
all personal property and improvements on the Properties (other than the
Managed Properties, personal property and improvements owned by Sprint, and
personal property which is owned by tenants of such Property, not used or
necessary for the operation of the applicable Property, or leased by the
Borrowers as permitted hereunder), subject only to the Permitted Encumbrances,
or which constitutes leased temporary mobile antennas. The Deeds of Trust will
create (i) a valid, perfected first lien on the interests of the applicable
Borrowers in and to the applicable Properties, subject only to the Permitted
Encumbrances, and (ii) perfected first priority security interests in and to,
and perfected collateral assignments of, all personalty owned by the Borrowers
in connection therewith (including the Rents and the Leases), all in accordance
with the terms thereof, in each case subject only to any applicable Permitted
Encumbrances. Except as set forth on Schedule 4.5, to the actual Knowledge of
the Borrowers, there are no proceedings in condemnation or eminent domain
affecting any of the Properties and none is threatened. Subject to the terms of
the Sprint Acquisition Documents with respect to the Properties of Global
Signal Acquisitions II only (the "Sprint Properties"), no Person has any option
or other right to purchase all or any portion of any interest owned by the
Borrowers with respect to the Properties. Except to the extent affirmative
coverage will be provided under the Title Policies, there are no mechanic's,
materialman's or other similar liens or claims which have been filed for work,
labor or materials affecting the Properties which are or will be liens prior
to, or equal or coordinate with, the lien of the applicable Deed of Trust the
effect of which is reasonably likely to have a Material Adverse Effect. The
Permitted Encumbrances, in the aggregate, do not materially interfere with the
benefits of the security intended to be provided by the Deeds of Trust and this
Loan Agreement, materially and adversely affect the value of any of the
Mortgaged Properties taken as a whole, impair the use or operations of the
Mortgaged Properties or impair the Borrowers' ability to pay their respective
obligations in a timely manner.
Section 4.6 Zoning; Compliance with Laws. The Properties and the use thereof
comply with all applicable zoning, subdivision and land use laws, regulations
and ordinances, all applicable health, fire, building codes, parking laws and
all other laws, statutes, codes, ordinances, rules and regulations applicable
to the Properties, or any of them, including without limitation the Americans
with Disabilities Act, except to the extent failure to so comply would not, in
the aggregate, be reasonably likely to have a Material Adverse Effect. All
permits, licenses and certificates for the lawful use, occupancy and operation
of each component of each of the Properties given as Collateral hereunder in
the manner in which it is currently being used, occupied and operated have been
obtained and are current and in full force and effect, except to the extent
failure to obtain any such permits, licenses or certificates would not, in the
aggregate, be reasonably likely to have a Material Adverse Effect. To the
Borrowers' Knowledge, (i) except as set forth on Schedule 4.6, no legal
proceedings are pending or threatened with respect to the zoning of any
Property and (ii) except as may be set forth in the Title Policies, neither the
zoning nor any other right to construct, use or operate any Property is in any
way dependent upon or related to any real estate other than such Property,
except to the extent same would not, in the aggregate, be reasonably likely to
have a Material Adverse Effect.
Section 4.7 Leases; Agreements.
(A) Leases; Agreements. The Borrowers have delivered, or will deliver
pursuant to Section 3.1(I) and (K), as applicable, to Lender (i) true and
complete copies (in all material respects) of all Material Leases and (ii) a
list of all Material Agreements affecting the operation and management of the
Properties, and such Leases and list of Material Agreements have not been
modified or amended except pursuant to amendments or modifications delivered to
Lender. Except for the rights of the Manager pursuant to the existing
Management Agreement, and the fee owners of Managed Properties, no Person has
any right or obligation to manage any of the Properties or to receive
compensation in connection with such management, except for certain limited
obligations of Sprint under the Sprint Acquisition Documents with respect to
the Sprint Properties only. Except for the parties to any leasing brokerage
agreement that has been delivered to Lender, no Person has any right or
obligation to lease or solicit tenants for the Properties, or (except for
cooperating outside brokers) to receive compensation in connection with such
leasing.
(B) Rent Roll, Disclosure. A true and correct copy of the Rent Roll has
been delivered to Lender. Except only as specified in the Rent Roll, to the
Borrowers' Knowledge, (i) the Leases are in full force and effect; (ii) the
Borrowers have not given any notice of default to any tenant under any Lease
which remains uncured; (iii) no tenant has any set off, claim or defense to the
enforcement of any Lease; (iv) no tenant is materially in default in the
performance of any other obligations under its Lease; and (v) there are no rent
concessions (whether in form of cash contributions, work agreements, assumption
of an existing tenant's other obligations, or otherwise) or extensions of time
whatsoever not reflected in such Rent Roll, except to the extent that the
failure of the representations set forth in items (i) through (iv) to be true
with respect to Leases (other than Material Leases) is not reasonably likely to
have a Material Adverse Effect. To the Borrowers' Knowledge, each of the Leases
is valid and binding on the parties thereto in accordance with its terms.
(C) Management Agreement. The Borrowers have delivered to Lender a true
and complete copy of the Management Agreement to which they are a party that
will be in effect on the Closing Date, and such Management Agreement has not
been modified or amended except pursuant to amendments or modifications
delivered to Lender. The Management Agreement is in full force and effect and
no default by any of the Borrowers or Manager exists thereunder.
Section 4.8 Condition of the Properties. To the Borrower's Knowledge, except as
set forth on Schedule 4.8, as of the Closing Date all Improvements are in good
repair and condition, ordinary wear and tear excepted except to the extent same
would not have a Material Adverse Effect. The Borrowers are not aware of any
latent or patent structural or other material defect or deficiency in the
Properties and all necessary utilities are fully connected to the Improvements
and are fully operational, are sufficient to meet the reasonable needs of each
of the Properties as now used or presently contemplated to be used, and no
other utility facilities or repairs are necessary to meet the reasonable needs
of each of the Properties as now used or presently contemplated, which could,
except as otherwise agreed to pursuant to the Sprint Master Lease Agreement, in
the aggregate, have a Material Adverse Effect. To the Borrowers' Knowledge,
except to the extent affirmative coverage will be provided under the Title
Policies against forced removal by Borrower, none of the Improvements create
encroachments over, across or upon the Properties' boundary lines, rights of
way or easements, and no building or other improvements on adjoining land
create such an encroachment, which could reasonably be expected to have a
Material Adverse Effect. Access will be insured (unless the related Mortgaged
Property is in a jurisdiction where such affirmative insurance is not allowed)
by the Title Company for all Ground Leased Properties and the Borrowers have
access to each of the Owned Properties except to the extent that failure to
have such access would not be reasonably likely to have a Material Adverse
Effect.
Section 4.9 Litigation; Adverse Facts. Except as set forth on Schedule 4.9,
there are no judgments outstanding against any Borrower Party, or affecting any
of the Properties or any property of any Borrower, nor to the Borrower's
Knowledge after due inquiry is there any action, charge, claim, demand, suit,
proceeding, petition, governmental investigation or arbitration now pending or
threatened against any Borrower Party or any of the Properties that could
reasonably be expected to result in a Material Adverse Effect.
Section 4.10 Payment of Taxes. All federal, state and local tax returns and
reports of each Borrower required to be filed have been timely filed (or each
Borrower has timely filed for an extension and the applicable extension has not
expired), and all taxes, assessments, fees and other governmental charges
(including any payments in lieu of taxes) upon such Person and upon its
properties, assets, income and franchises which are due and payable have been
paid except to the extent same are being contested in accordance with Section
5.3(B).
Section 4.11 Adverse Contracts. Except for the Loan Documents and the Sprint
Acquisition Documents, the Borrowers are not parties to or bound by, nor is any
property of such Person subject to or bound by, any contract or other agreement
which restricts such Person's ability to conduct its business in the ordinary
course as currently conducted that, either individually or in the aggregate,
has a Material Adverse Effect or could reasonably be expected to have a
Material Adverse Effect.
Section 4.12 Performance of Agreements. To the Borrowers' Knowledge, no
Borrower is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any Contractual
Obligation of any such Borrower which could reasonably be expected to have a
Material Adverse Effect, and no condition exists that, with the giving of
notice or the lapse of time or both, would constitute such a default which
could reasonably be expected to have a Material Adverse Effect.
Section 4.13 Governmental Regulation. No Borrower Party is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or to any federal or state
statute or regulation limiting its ability to incur indebtedness for borrowed
money.
Section 4.14 Employee Benefit Plans. Except as set forth on Schedule 4.14, no
Borrower Party maintains or contributes to, or has any obligation (including a
contingent obligation) under, any Employee Benefit Plans.
Section 4.15 Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable by or pursuant to any contract or other obligation
of the Borrowers with respect to the making of the Loan or any of the other
transactions contemplated hereby or by any of the Loan Documents. The Borrowers
shall indemnify, defend, protect, pay and hold Lender harmless from any and all
broker's or finder's fees claimed to be due in connection with the making of
the Loan arising from any Borrower Parties' actions.
Section 4.16 Solvency. The Borrowers (a) have not entered into the transaction
or any Loan Document with the actual intent to hinder, delay, or defraud any
creditor and (b) received reasonably equivalent value in exchange for the
obligations under the Loan Documents. Giving effect to the Loan and the
transactions contemplated by this Loan Agreement, the fair saleable value of
each Borrower's assets exceed and will, immediately following the making of the
Loan, exceed such Borrower's total liabilities, including, without limitation,
subordinated, unliquidated, disputed and Contingent Obligations. The fair
saleable value of each Borrower's assets is and will, immediately following the
making of the Loan and the transactions contemplated by this Loan Agreement, be
greater than the Borrower's probable liabilities, including the maximum amount
of its Contingent Obligations on its debts as such debts become absolute and
matured. Each Borrower's assets do not and, immediately following the making of
the Loan and the transactions contemplated by this Loan Agreement will not,
constitute unreasonably small capital to carry out its business as conducted or
as proposed to be conducted. The Borrowers do not intend to, and do not believe
that they will, incur Indebtedness and liabilities (including Contingent
Obligations and other commitments) beyond their ability to pay such
Indebtedness and liabilities as they mature (taking into account the timing and
amounts of cash to be received by all of the Borrowers under each of the Loans
(in the aggregate) and the amounts to be payable on or in respect of
obligations of the Borrowers).
Section 4.17 Disclosure. No financial statements or other information furnished
to Lender by any of the Borrowers contains any untrue representation, warranty
or statement of a material fact, or omits to state a material fact necessary in
order to make the statements contained therein not misleading. No Loan Document
or any other document, certificate or written statement for use in connection
with the Loan and prepared by the Borrowers, or any information provided by any
Borrower and contained in, or used in preparation of, any document or
certificate for use in connection with the Loan, contains any untrue
representation, warranty or statement of a material fact, or omits to state a
material fact necessary in order to make the statements contained therein not
misleading. There is no fact known to the Borrowers that has had or will have a
Material Adverse Effect and that has not been disclosed in writing to Lender by
the Borrowers.
Section 4.18 Use of Proceeds and Margin Security. The Borrowers shall use the
proceeds of the Loan only for the purposes set forth herein and consistent with
all applicable laws, statutes, rules and regulations. No portion of the
proceeds of the Loan shall be used by the Borrowers or any Person in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X or any other regulation of the Board
of Governors of the Federal Reserve System.
Section 4.19 Insurance. Set forth on Schedule 4.19 is a complete and accurate
description of all policies of insurance for each Borrower that are in effect
as of the Closing Date. Such insurance policies conform to the requirements of
Section 5.4. No notice of cancellation has been received with respect to such
policies, and, to each Borrower's Knowledge, the Borrowers are in compliance
with all conditions contained in such policies.
Section 4.20 Investments. The Borrowers have no (i) direct or indirect interest
in, including without limitation stock, partnership interest or other
securities of, any other Person (other than the other Borrowers), or (ii)
direct or indirect loan, advance or capital contribution to any other Person,
including all indebtedness from that other Person (other than the other
Borrowers).
Section 4.21 No Plan Assets. No Borrower Party is or will be (i) an employee
benefit plan as defined in Section 3(3) of ERISA which is subject to ERISA,
(ii) a plan as defined in Section 4975(e)(1) of the IRC which is subject to
Section 4975 of the IRC, or (iii) an entity whose underlying assets constitute
"plan assets" of any such employee benefit plan or plan for purposes of Title I
of ERISA of Section 4975 of the IRC; provided that, in making such
representation, the Borrowers have assumed that (i) no portion of the Loan
shall be funded with plan assets of any employee benefit plan that is subject
to Title I of ERISA or any plan that is covered by Section 4975 of the Code
unless the Lender is eligible to apply one or more exemptions such that the
Loan will not constitute a nonexempt prohibited transaction under Section 406
of ERISA or that could subject a Borrower Party or its Affiliates to an excise
tax under Section 4975 of the IRC; and (ii) such assumption in the preceding
clause is true and correct with respect to any party to which Lender transfers
or assigns any portion of the Loan.
Section 4.22 Governmental Plan. No Borrower Party is or will be a "governmental
plan" within the meaning of Section 3(32) of ERISA and transactions by or with
the Borrowers are not and will not be subject to state statutes applicable to
the Borrowers' regulating investments of and fiduciary obligations with
obligations with respect to governmental plans.
Section 4.23 Not Foreign Person. No Borrower Party is a "foreign person" within
the meaning of Section 1445(f)(3) of the IRC.
Section 4.24 No Collective Bargaining Agreements. Except as set forth on
Schedule 4.24, no Borrower Party is a party to any collective bargaining
agreement.
Section 4.25 Ground Leases.
(A) With respect to each Ground Leased Property encumbered by a Deed of
Trust (other than the Sprint Master Lease Sites):
(i) The Ground Lease contains the entire agreement of the Ground
Lessor and the applicable Borrower pertaining to the Ground Leased Property
covered thereby. The Borrowers have no estate, right, title or interest in or
to the Ground Leased Property except under and pursuant to the Ground Lease, or
if the Borrowers have any such interest, such interest is included as a
Property hereunder. The Borrowers have delivered, or will deliver pursuant to
Section 3.1(O), a true and correct copy of the Ground Lease to Lender and the
Ground Lease has not been modified, amended or assigned except as set forth
therein.
(ii) The Ground Lessor is the exclusive fee simple owner of its
Ground Leased Property, or the Borrowers have obtained title insurance insuring
the applicable Borrower's leasehold interest in each of the Ground Leases.
(iii) There are no rights to terminate the Ground Lease other than
the Ground Lessor's right to terminate by reason of default, casualty,
condemnation or other reasons, in each case as expressly set forth in the
applicable Ground Lease.
(iv) The Ground Lease is in full force and effect, and no breach
or default or event that with the giving of notice or passage of time would
constitute a breach or default under the Ground Lease (a "Ground Lease
Default") exists on the part of the Borrowers or, to the Borrowers' Knowledge,
on the part of the Ground Lessor under the Ground Lease. The Borrowers have not
received any written notice that a Ground Lease Default exists, or that the
Ground Lessor or any third party alleges the same to exist.
(v) The applicable Borrower is the exclusive owner of the lessee's
interest under and pursuant to the applicable Ground Lease and has not
assigned, transferred, or encumbered its interest in, to, or under the Ground
Lease (other than assignments that will terminate on or prior to Closing),
except in favor of Lender pursuant to this Loan Agreement and the other Loan
Documents.
(vi) The Ground Lease or a memorandum thereof or other (if
required) instrument sufficient to permit recording of a deed of trust or
similar security instrument has been recorded and the Ground Lease (or a
separate agreement with respect thereto (the "Estoppel")) permits the interest
of the lessee to be encumbered by the related Deed of Trust.
(vii) Except for the Permitted Encumbrances and as set forth on
Schedule 4.25(A)(vii), the interests in the Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related Deed
of Trust unless a non-disturbance agreement has been obtained from the
applicable holder of such lien or encumbrance.
(viii) Except as set forth on Schedule 4.25(A)(viii), the Ground
Lease (or the applicable Estoppel) requires the Ground Lessor to give notice of
any default by the Borrowers to the Lender which such notice must be delivered
before the Ground Lessor may terminate the Ground Lease, or the Ground Lease or
the Estoppel provides that notice of termination given under the Ground Lease
is not effective against the Lender unless a copy of the notice has been
delivered to the Lender in the manner described in the Ground Lease.
(ix) Except as set forth on Schedule 4.25(A)(ix), the Lender is
permitted to cure any default under the Ground Lease that is curable after the
receipt of notice of any default.
(x) Except as set forth on Schedule 4.25(A)(x), the Ground Lease
has a term (including all available extensions) that extends not less than ten
(10) years beyond the Maturity Date.
(xi) The Ground Lease does not impose restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
mortgage lender.
(xii) The Borrower's interest in the Ground Lease is assignable to
the Trustee upon notice to, but without the consent of, the Ground Lessor (or,
if any such consent is required, it has been obtained prior to the Closing
Date) or, except to the extent same is not reasonably likely to have a Material
Adverse Effect, in the event that it is so assigned, it is further assignable
by the Trustee and its successors and assigns upon notice to, but without a
need to obtain the consent of, the Ground Lessor.
(xiii) The Ground Lease (or the applicable Estoppel) requires the
Ground Lessor to enter into a new lease with the Lender upon termination of the
Ground Lease following rejection of the Ground Lease in a bankruptcy proceeding
under the Bankruptcy Code, provided that the Lender cures any defaults that are
susceptible to being cured by Lender, except to the extent that in any
bankruptcy proceeding of any Borrower the failure to have any such new lease
provision would not result in the rejection of Ground Leases that would have a
Material Adverse Effect.
(B) With respect to each Sprint Master Lease Site where Sprint's interest
is not pursuant to an easement:
(i) To the Borrowers' Knowledge, the Prime Ground Lease contains
the entire agreement of the applicable Prime Ground Lessor and the applicable
Sub-Prime Ground Lessor pertaining to the Ground Leased Property covered
thereby. The Borrowers have no estate, right, title or interest in or to the
Ground Leased Property except pursuant to the Sprint Master Lease Agreement and
to the Borrowers' Knowledge, the Sub-Prime Ground Lessor has no estate, right,
title or interest in or to the Ground Leased Property except pursuant to the
Prime Ground Lease, or if the Borrowers have any such interest, such interest
is included as a Property hereunder. The Borrowers have delivered, or will
deliver pursuant to Section 3.1(O), a true and correct copy of the Prime Ground
Lease to Lender and the Prime Ground Lease has not been modified, amended or
assigned except as set forth therein.
(ii) The Borrowers have obtained title insurance insuring the
applicable Borrower's subleasehold interest in each of the Prime Ground Leases.
(iii) To the Borrowers' Knowledge, there are no rights to
terminate the Prime Ground Lease other than the Prime Ground Lessor's right to
terminate by reason of default, casualty, condemnation or other reasons, in
each case as expressly set forth in the applicable Prime Ground Lease.
(iv) To the Borrowers' Knowledge, each Prime Ground Lease is in
full force and effect, and to the Borrower's Knowledge no breach or default or
event that with the giving of notice or passage of time would constitute a
breach or default under the Prime Ground Lease (a "Prime Ground Lease Default")
exists on the part of the Sub-Prime Ground Lessor under the Prime Ground Lease.
Except as set forth on Schedule 4.25(B)(iv) the Borrowers have not received any
written notice that a Prime Ground Lease Default exists, or that the Prime
Ground Lessor or any third party alleges the same to exist.
(v) To the Borrowers' Knowledge, the Sub-Prime Ground Lessor has
not assigned, transferred, or encumbered its interest in, to, or under the
Prime Ground Lease (other than assignments that will terminate on or prior to
Closing).
(vi) The Prime Ground Lease or a memorandum thereof or Estoppel
permits the interest of the Sub-Prime Ground Lessor, as lessee (and
consequently, the sublessee), to be encumbered and permits, or does not
prohibit, the encumbrance by the applicable Borrower of its leasehold or
subleasehold, as applicable, interest pursuant to the related Deed of Trust.
(vii) Except for the Permitted Encumbrances and as set forth on
Schedule 4.25(B)(vii), the interests in the Prime Ground Lease is not subject
to any liens or encumbrances (whether on the fee interest in the property
demised thereunder or the Sub-Prime Ground Lessor's interest, as lessee, in the
Prime Ground Lease) superior to, or of equal priority with, the related Deed of
Trust unless (x) a non-disturbance agreement has been obtained from the
applicable holder of such lien or encumbrance or (y) the priority of the lien
of the applicable Deed of Trust over such encumbrance will be insured by the
Title Policies.
(viii) Except as set forth on Schedule 4.25(B)(viii), the Prime
Ground Lease (or the applicable Estoppel) requires the Prime Ground Lessor to
give notice of any default by the Sub-Prime Ground Lessor to any leasehold
mortgagee which such notice must be delivered before the Prime Ground Lessor
may terminate the Prime Ground Lease, or the Estoppel provides that notice of
termination given under the Prime Ground Lease is not effective against the
Lender unless a copy of the notice has been sent to Lender in the manner
described in the Prime Ground Lease.
(ix) Except as set forth on Schedule 4.25(B)(ix), a leasehold
mortgagee is permitted to cure any default under the Prime Ground Lease that is
curable after the receipt of notice of any default.
(x) Except as set forth on Schedule 4.25(B)(x), the Prime Ground
Lease has a term (including all available extensions) that extends not less
than ten (10) years beyond the Maturity Date.
(xi) The Prime Ground Lease does not impose restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial mortgage lender.
(xii) The Borrower's subleasehold interest in the Prime Ground
Lease is assignable to the Trustee upon notice to, but without the consent of,
the Prime Ground Lessor and Sub-Prime Ground Lessor (or, if any such consent is
required, it has been obtained prior to the Closing Date) or, except to the
extent same is not reasonably likely to have a Material Adverse Effect, in the
event that it is so assigned, it is further assignable by the Trustee and its
successors and assigns upon notice to, but without a need to obtain the consent
of, the Prime Ground Lessor or Sub-Prime Ground Lessor.
(xiii) The Prime Ground Lease (or the applicable Estoppel)
requires the Prime Ground Lessor to recognize the Borrowers as a direct lessee
of Prime Ground Lessor upon termination of the Prime Ground Lease following
rejection of the Prime Ground Lease by Sub-Prime Ground Lessor in a bankruptcy
proceeding under the Bankruptcy Code, provided that the Borrowers cure any
defaults that are susceptible to being cured by the Borrowers, except to the
extent that in any bankruptcy proceeding of any Sub-Prime Ground Lessor the
failure to have any such new lease provision would not result in the rejection
of Prime Ground Leases that would have a Material Adverse Effect.
(xiv) Global Signal Acquisitions II is the exclusive owner of the
sublessee's interest under and pursuant to the applicable Prime Ground Lease
and the Sub-Prime Ground Lessor has not assigned, transferred, or encumbered
its interest in, to, or under the Prime Ground Lease (other than assignments
that will terminate on or prior to Closing).
(C) With respect to each Property constituting both an Additional Pledged
Property and a Sprint Property:
(i) To the Borrowers' Knowledge, the Prime Ground Lease contains
the entire agreement of the applicable Prime Ground Lessor and the applicable
Sub-Prime Ground Lessor pertaining to the Property covered thereby. The
Borrowers have no estate, right, title or interest in or to the Property except
pursuant to the Sprint Master Lease Agreement and the Sub-Prime Ground Lessor
has no estate, right, title or in interest in or to the Property except
pursuant to the Prime Ground Lease or, if the Borrowers have any such interest,
such interest is included as a Property hereunder. The Borrowers have
delivered, or will deliver pursuant to Section 3.1(O), a true and correct copy
of the Prime Ground Lease to Lender and the Prime Ground Lease has not been
modified, amended or assigned except as set forth therein.
(ii) To the Knowledge of the Borrowers, the Prime Ground Lessor is
the exclusive owner of the fee or leasehold interest in its Property.
(iii) There are no rights to terminate the Sprint Master Lease
Agreement, other than Sprint's right to terminate by reason of default or other
reasons as expressly set forth in the Sprint Master Lease Agreement.
(iv) To the Borrower's Knowledge, there are no rights to terminate
the Prime Ground Leases other than the Prime Ground Lessor's right to terminate
by reason of default, casualty, condemnation or other reasons, in each case as
expressly set forth in the applicable Prime Ground Lease.
(v) The Sprint Master Lease Agreement is in full force and effect,
and no default exists on the part of Global Signal Acquisitions II. The
Borrowers have not received any written notice that a Prime Ground Lease
Default exists, or that the Prime Ground Lessor or any third party alleges the
same to exist.
(vi) To the Borrower's Knowledge, each Prime Ground Lease is in
full force and effect, and to the Borrower's Knowledge no Prime Ground Lease
Default exists on the part of the Sub-Prime Ground Lessor under the Prime
Ground Lease.
(vii) The Prime Ground Leases do not impose restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial mortgage lender.
(D) With respect to each Ground Leased Property constituting an
Additional Pledged Property (other than Sprint Properties):
(i) The Ground Lease contains the entire agreement of the Ground
Lessor and the applicable Borrower pertaining to the Ground Leased Property
covered thereby. The Borrowers have no estate, right, title or interest in or
to the Ground Leased Property except under and pursuant to the Ground Leases
or, if the Borrowers have any such interest, such interest is included as a
Property hereunder. The Borrowers have delivered a true and correct copy of the
Ground Lease to Lender and the Ground Lease has not been modified, amended or
assigned except as set forth therein.
(ii) To the Knowledge of the Borrowers, the Ground Lessor is the
exclusive fee simple owner of its Ground Leased Property.
(iii) There are no rights to terminate the Ground Lease other than
the Ground Lessor's right to terminate by reason of default, casualty,
condemnation or other reasons, in each case as expressly set forth in the
Ground Lease.
(iv) The Ground Lease is in full force and effect, and no Ground
Lease Default exists on the part of the Borrowers or, to the Borrowers'
Knowledge, on the part of the Ground Lessor under the Ground Lease. The
Borrowers have not received any written notice that a Ground Lease Default
exists, or that the Ground Lessor or any third party alleges the same to exist.
(v) The applicable Borrower is the exclusive owner of the lessee's
interest under and pursuant to the Ground Lease and has not assigned,
transferred, or encumbered its interest in, to, or under the Ground Lease
(other than assignments that will terminate on or prior to Closing), except in
favor of Lender pursuant to this Loan Agreement and the other Loan Documents.
(vi) The Ground Lease does not impose restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
mortgage lender.
Section 4.26 Easements.
(A) Each Easement contains the entire agreement pertaining to the
applicable Property covered thereby. The Borrowers have no estate, right, title
or interest in or to such Properties except under and pursuant to the
Easements, or if the Borrowers have any such interest, such interest is
included as a Property hereunder. The Borrowers have delivered true and correct
copies of each of the Easements to Lender and the Easements have not been
modified, amended or assigned except as set forth therein.
(B) Each fee owner of the Properties subject to the Easements is the
exclusive fee simple owner of the fee estate with respect to such Property.
(C) There are no rights to terminate any Easement other than as expressly
set forth in the applicable Easement.
(D) Each Easement is in full force and effect and to the Borrowers'
Knowledge, no breach or default or event that with the giving of notice or
passage of time would constitute a breach or default under any Easement (an
"Easement Default") exists on the part of the Borrowers. The Borrowers have not
received any written notice that a Easement Default exists, or that any third
party alleges the same to exist.
(E) The applicable Borrower is the exclusive owner of the easement
interest under and pursuant to the applicable Easement and has not assigned,
transferred, or encumbered its interest in, to, or under any Easement (other
than assignments that will terminate on or prior to Closing), except in favor
of Lender pursuant to this Loan Agreement and the other Loan Documents.
Section 4.27 Principal Place of Business. The Borrowers' principal place of
business is located in the State of Florida.
Section 4.28 Environmental Compliance. The Properties are in compliance with
all applicable Environmental Laws (except to the extent failure to so comply
would not have a Material Adverse Effect), and no notice of violation of such
Environmental Laws has been issued by any Governmental Authority; no action has
been taken by the Borrowers that would cause the Properties to not be in
compliance with all Environmental Laws pertaining to Hazardous Materials; and
no Hazardous Materials are present at the Properties (except to the extent the
presence thereof on Properties would not have a Material Adverse Effect).
Section 4.29 Separate Tax Lot. Each of the Properties that the Borrowers own in
fee constitute one or more separate tax parcels.
ARTICLE V
COVENANTS OF BORROWER PARTIES
The Borrowers covenant and agree that until payment in full of the Loan,
all accrued and unpaid interest and all other Obligations, the Borrowers shall
perform and comply with all covenants in this Article V applicable to such
Person on behalf of itself and with respect to such Borrower's respective Loan,
its respective Loan Documents, and its respective Properties (unless otherwise
indicated to be performed on a consolidated basis).
Section 5.1 Financial Statements and Other Reports.
(A) Financial Statements.
(i) Annual Reporting. Within one hundred twenty (120) days after
the end of each calendar year, commencing with the end of the 2006 calendar
year, the Borrowers (on a consolidated basis) shall, and shall cause Global
Signal Inc. ("GSI") to, provide true and complete copies of their Financial
Statements for such year to Lender; provided that, while GSI is a publicly
traded entity, delivery of GSI's annual report on form 10-K filed with the
United States Securities and Exchange Commissions (the "SEC") shall satisfy the
requirements of this Section 5.1(A)(i) with respect to GSI. All such Financial
Statements shall be audited by an Approved Accounting Firm or by other
independent certified public accountants reasonably acceptable to Lender, and
shall bear the unqualified certification of such accountants that such
Financial Statements present fairly in all material respects the financial
position of the subject company. The annual Financial Statements shall be
accompanied by Supplemental Financial Information for such calendar year. The
annual Financial Statements for the Borrowers (on a consolidated basis) shall
also be accompanied by a certification executed by the entity's chief executive
officer or chief financial officer (or other officer with similar duties),
satisfying the criteria set forth in Section 5.1(A)(vii) below, and a
Compliance Certificate (as defined below).
(ii) Quarterly Reporting. Within forty-five (45) days after the
end of the first three (3) calendar quarters in each year, the Borrowers (on a
consolidated basis) and GSI (on a consolidated basis) shall provide copies of
their Financial Statements for such quarter to Lender, together with a
certification executed on behalf of each of the Borrowers by their respective
chief executive officers or chief financial officers (or other officer with
similar duties) in accordance with the criteria set forth in Section
5.1(A)(vii) below; provided that, while GSI is a publicly traded entity,
delivery of GSI's quarterly report on form 10-Q filed with the SEC shall
satisfy the requirements of this Section 5.1(A)(ii) with respect to GSI. Such
quarterly Financial Statements shall be accompanied by Supplemental Financial
Information and a Compliance Certificate for such calendar quarter. Together
with the quarterly Financial Statements delivered hereunder, the Borrowers
shall, or shall cause Manager to, deliver copies of all Leases executed during
such calendar quarter.
(iii) Leasing Reports. Within forty-five (45) days after each
calendar quarter, the Borrowers (on a consolidated basis) shall provide to
Lender: (a) a certified Rent Roll and a schedule of security deposits held
under Material Leases, each in form and substance reasonably acceptable to
Lender, (b) a schedule of any Material Leases that expired during such calendar
quarter, and (c) a schedule of Material Leases scheduled to expire within the
next twelve (12) months.
(iv) Monthly Reporting. Within thirty (30) days after the end of
each calendar month commencing March 31, 2006, the Borrowers (on a consolidated
basis) shall provide, or cause Manager to provide, to Lender the following
items determined on an accrual basis: (a) monthly and year to date operating
statements prepared for such calendar month (which shall include comparison to
the Operating Expense budget and, commencing with the 2007 calendar year, last
year results for the same year-to-date period), containing such information as
is necessary and sufficient under GAAP to fairly represent the results of
operation of the Properties during such calendar month (except that full
financial statement footnotes are only required annually), all in form
reasonably satisfactory to Lender; and (b) monthly and year to date detailed
reports of Operating Expenses other than expenses reserved in the Impositions
and Insurance Reserve (substantially in the form of Schedule 5.1(A)(iv)),
including supporting documentation satisfactory to Lender in its sole
discretion for each item of Extraordinary Expense (as such term is defined in
the Cash Management Agreement) for which Lender has approved a disbursement
from the Cash Trap Reserve pursuant to the terms of Section 3.3 of the Cash
Management Agreement. Along with such operating statements, the Borrowers (on a
consolidated basis) shall deliver to Lender a Compliance Certificate of such
Borrower's chief executive officer or chief financial officer (or other officer
with similar duties) satisfying the criteria set forth in Section 5.1(A)(vii)
below.
(v) Additional Reporting. In addition to the foregoing, the
Borrowers shall, and shall cause Guarantor and Manager to, promptly provide to
Lender such further documents and information concerning its operations,
properties, ownership, and finances as Lender shall from time to time
reasonably request upon prior written notice to the Borrowers.
(vi) GAAP. The Borrowers will, and will cause Guarantor and
Manager to, maintain systems of accounting established and administered in
accordance with sound business practices and sufficient in all respects to
permit preparation of Financial Statements in conformity with GAAP. All annual
Financial Statements shall be prepared in accordance with GAAP.
(vii) Certifications of Financial Statements and Other Documents,
Compliance Certificate. Together with the Financial Statements and other
documents and information provided to Lender by or on behalf of the Borrowers
and GSI under this Section, the Borrowers also shall deliver (on a consolidated
basis), and shall cause GSI to deliver, to Lender a certification to Lender,
executed on behalf of the Borrowers and GSI by their respective chief executive
officer or chief financial officer (or other officer with similar duties),
stating that to their Knowledge after due inquiry such quarterly and annual
Financial Statements and information fairly present the financial condition and
results of operations of the Borrowers and GSI for the period(s) covered
thereby (except for the absence of footnotes with respect to the monthly and
quarterly Financial Statement), and do not omit to state any material
information without which the same might reasonably be misleading, and all
other non-financial documents submitted to Lender (whether monthly, quarterly
or annually) are true, correct, accurate and complete in all material respects.
In addition, where this Loan Agreement requires a "Compliance Certificate", the
Person required to submit the same shall deliver a certificate duly executed on
behalf of such Person by its chief executive officer or chief financial officer
(or other officer with similar duties) stating that, to their Knowledge after
due inquiry, there does not exist any Default or Event of Default under the
Loan Documents (or if any exists, specifying the same in detail).
(viii) Fiscal Year. Each Borrower represents that its fiscal year
and that of the Guarantor ends on December 31, and agrees that no change shall
be made to each such fiscal year.
(B) Accountants' Reports. Promptly upon receipt thereof, the Borrowers
(on a consolidated basis) will deliver copies of all material reports submitted
by independent public accountants in connection with each annual audit of the
Financial Statements or other business operations of the Borrowers made by such
accountants, including the comment letter submitted by such accountants to
management in connection with the annual audit.
(C) Tax Returns. Within thirty (30) days after filing the same, each of
the Borrowers shall deliver to Lender a copy of its Federal income tax returns
(or the return of the applicable Person into which such Borrower's Federal
income tax return is consolidated) certified on its behalf by its chief
financial officer (or similar position) to be true and correct in all material
respects.
(D) Annual Operating Budget and CapEx Budgets. Lender has received the
Operating Budget and the CapEx Budget for the balance of the 2006 calendar
year. Prior to February 15 of each subsequent calendar year (commencing with
the 2007 calendar year), the Borrowers (on a consolidated basis) shall deliver
to Lender the Operating Budget and CapEx Budget (in each case presented on a
monthly and annual basis) for such calendar year for informational purposes
only. The Borrowers may make changes to the Operating Budget and the CapEx
Budget from time to time as deemed reasonably necessary by the Borrowers.
Notice of any modifications to the Operating Budget and the CapEx Budget shall
be delivered to Lender at the time of delivery of the next financial reporting
required pursuant to Section 5.1(A)(iv). The Operating Budget shall identify
and set forth the Borrowers' reasonable estimate, after due consideration, of
all Operating Expenses on a line-item basis consistent with the form of
Operating Budget delivered to Lender prior to Closing. The Operating Budget and
the CapEx Budget will be delivered to Lender for Lender's information only and
shall not be subject to Lender's approval provided that each such budget is
consistent in form with the budgets delivered to Lender in connection with the
Closing.
(E) Material Notices.
(i) The Borrowers shall promptly deliver, or cause to be
delivered, copies of all notices given or received with respect to a default
under any term or condition related to any Permitted Indebtedness of any
Borrower, and shall notify Lender within five (5) Business Days of any event of
default with respect to any such Permitted Indebtedness.
(ii) The Borrowers shall promptly deliver to Lender copies of any
and all notices of a material default or breach which is reasonably expected to
result in a termination received with respect to any Material Agreement or any
Material Lease.
(F) Events of Default, etc. Promptly upon any of the Borrowers obtaining
Knowledge of any of the following events or conditions, such Borrower shall
deliver a certificate executed on its behalf by its chief financial officer or
similar officer specifying the nature and period of existence of such condition
or event and what action such Borrower or any Affiliate thereof has taken, is
taking and proposes to take with respect thereto: (i) any condition or event
that constitutes an Event of Default; (ii) any Material Adverse Effect; or
(iii) any actual or alleged breach or default or assertion of (or written
threat to assert) remedies under the Management Agreement, any Ground Lease,
any Prime Ground Lease, the Sprint Master Lease Agreement or any Easement.
(G) Litigation. Promptly upon any of the Borrowers obtaining knowledge of
(1) the institution of any action, suit, proceeding, governmental investigation
or arbitration against any of the Borrowers or any of the Properties not
previously disclosed in writing by the Borrowers to Lender which would be
reasonably likely to have a Material Adverse Effect and is not covered by
insurance or (2) any material development in any action, suit, proceeding,
governmental investigation or arbitration at any time pending against or
affecting the Borrowers or the Properties which, in each case, if adversely
determined could reasonably be expected to have a Material Adverse Effect, the
Borrowers will give notice thereof to Lender and, upon request from Lender,
provide such other information as may be reasonably available to them to enable
Lender and its counsel to evaluate such matter.
(H) Insurance. Prior to the end of each insurance policy period of the
Borrowers, the Borrowers will deliver certificates, reports, and/or other
information (all in form and substance reasonably satisfactory to Lender), (i)
outlining all material insurance coverage maintained as of the date thereof by
the Borrowers and all material insurance coverage planned to be maintained by
the Borrowers in the subsequent insurance policy period and (ii) to the extent
not paid directly by the Servicer, evidencing payment in full of the premiums
for such insurance policies.
(I) Other Information. With reasonable promptness, Borrowers will deliver
such other information and data with respect to such Person and its Affiliates
or the Properties as from time to time may be reasonably requested by Lender.
Section 5.2 Existence; Qualification. The Borrowers will, and will cause
Guarantor to, at all times preserve and keep in full force and effect their
existence as a limited partnership, limited liability company, or corporation,
as the case may be, and all rights and franchises material to its business,
including their qualification to do business in each state where it is required
by law to so qualify.
Section 5.3 Payment of Impositions and Claims.
(A) Except for those matters being contested pursuant to clause (B)
below, the Borrowers will pay (i) all Impositions; (ii) all claims (including
claims for labor, services, materials and supplies) for sums that have become
due and payable and that by law have or may become a Lien upon any of its
properties or assets (hereinafter referred to as the "Claims"); and (iii) all
federal, state and local income taxes, sales taxes, excise taxes and all other
taxes and assessments of the Borrowers on their business, income or assets; in
each instance before any penalty or fine is incurred with respect thereto.
(B) The Borrowers shall not be required to pay, discharge or remove any
Imposition or Claim relating to a Property so long as the Borrowers contest in
good faith such Imposition, Claim or the validity, applicability or amount
thereof by an appropriate legal proceeding which operates to prevent the
collection of such amounts and the sale of the applicable Property or any
portion thereof, so long as: (i) no Event of Default shall have occurred and be
continuing, (ii) prior to the date on which such Imposition or Claim would
otherwise have become delinquent, the Borrowers shall have given Lender prior
written notice of their intent to contest said Imposition or Claim and shall
have deposited with Lender (or with a court of competent jurisdiction or other
appropriate body reasonably approved by Lender) such additional amounts as are
necessary to keep on deposit at all times, an amount by way of cash (or other
form reasonably satisfactory to Lender), equal to (after giving effect to any
Reserves then held by Lender for the item then subject to contest) at least one
hundred twenty-five percent (125%) of the total of (x) the balance of such
Imposition or Claim then remaining unpaid, and (y) all interest, penalties,
costs and charges accrued or accumulated thereon; (iii) no risk of sale,
forfeiture or loss of any interest in the applicable Property or any part
thereof arises, in Lender's reasonable judgment, during the pendency of such
contest; (iv) such contest does not, in Lender's reasonable determination, have
a Material Adverse Effect; and (v) such contest is based on bona fide,
material, and reasonable claims or defenses. Any such contest shall be
prosecuted with due diligence, and the Borrowers shall promptly pay the amount
of such Imposition or Claim as finally determined, together with all interest
and penalties payable in connection therewith. Lender shall have full power and
authority, but no obligation, to apply any amount deposited with Lender to the
payment of any unpaid Imposition or Claim to prevent the sale or forfeiture of
the applicable Property for non-payment thereof, if Lender reasonably believes
that such sale or forfeiture is threatened.
Section 5.4 Maintenance of Insurance.
The Borrowers will continuously maintain the following described
policies of insurance without cost to Lender, which may be maintained on a
consolidated basis with respect to all of the Properties of the Borrowers (the
"Insurance Policies"):
(i) Property insurance against loss and damage by all risks of
physical loss or damage and other risks covered by the so-called extended
coverage endorsement covering the Improvements and personal property on each of
the Properties owned by any of the Borrowers, in amounts not less than the full
insurable replacement value of all Improvements (less building foundations and
footings) and personal property from time to time on the Properties and without
sublimits, and bearing a replacement cost agreed-amount endorsement;
(ii) Commercial general liability insurance, including death,
bodily injury and broad form property damage coverage with a combined single
limit in an amount not less than One Million Dollars ($1,000,000) per occurrence
and Two Million Dollars ($2,000,000) in the aggregate for any policy year;
(iii) If any of the Properties (other than the Managed Properties)
are in an area prone to geological phenomena, including, but not limited to,
sinkholes, mine subsidence or earthquakes, insurance covering such risks in an
amount equal to one hundred percent (100%) of the replacement value with a
maximum permissible deductible of $100,000;
(iv) For each Property (other than the Managed Properties) located
in whole or in part in a federally designated "special flood hazard area", flood
insurance in an amount equal to the lesser of (x) the maximum available amount
and (y) the replacement cost of the Improvements and the Borrowers' personal
property located on the applicable Property;
(v) An umbrella excess liability policy with a limit of not less
than Forty Million Dollars ($40,000,000) over primary insurance, which policy
shall include coverage for water damage, so-called assumed and contractual
liability coverage, premises medical payment and automobile liability coverage,
and coverage for safeguarding of personalty and shall also include such
additional coverages and insured risks which are acceptable to Lender;
(vi) Business interruption and/or rent loss insurance with an
aggregate limit equal to six (6) months of gross income from the Properties plus
continuing fixed costs for the Properties for a period of not less than six (6)
months;
(vii) Worker's Compensation Insurance in statutory amounts, if any,
at all times;
(viii) During any period of construction, repair or restoration,
builders "all risk" insurance in an amount equal to not less than the full
insurable value of the Properties applicable construction project;
(ix) If the Properties (other than the Managed Properties), or any
of them, are or become a "non-conforming use" under applicable zoning and
building ordinances, or other requirements of the applicable Governmental
Authority, law or ordinance coverage to compensate for the cost of demolition
and the increased cost of construction, if available;
(x) Such other insurance as may from time to time be reasonably
required by Lender and which is then customarily required by institutional
lenders for securitized loans secured by similar properties similarly situated,
against other insurable hazards, including, but not limited to, malicious
mischief, vandalism, windstorm and or earthquake, due regard to be given to the
size and type of the Properties, Improvements, fixtures and equipment and their
location, construction and use. Additionally, the Borrowers shall carry such
insurance coverage as Lender may from time to time require if the failure to
carry such insurance would result in a downgrade, qualification or withdrawal of
any class of securities issued in connection with a Securitization (or the
placing of such certificate or other security on negative credit watch or
ratings outlook in contemplation of any such action with respect thereto).
All Insurance Policies shall be in content (including, without limitation,
endorsements or exclusions, if any), form, and amounts, and issued by companies,
satisfactory to Lender from time to time and shall name Lender and its
successors and assignees as their interests may appear as an "additional
insured" for each of the liability policies under this Section 5.4 hereof and
shall (except for Worker's Compensation Insurance) contain a waiver of
subrogation clause reasonably acceptable to Lender. All Insurance Policies under
Sections 5.4 (i), (iv), (vi), and (vii) hereof with respect to the Mortgaged
Properties shall contain a Non-Contributory Standard mortgagee clause and a
mortgagee's Loss Payable Endorsement (Form 438 BFU NS), or their equivalents
(such endorsements shall entitle Lender to collect any and all proceeds payable
under all such insurance, with the insurance company waiving any claim or
defense against Lender for premium payment, deductible, self-insured retention
or claims reporting provisions). All Insurance Policies shall provide that the
coverage shall not be modified without thirty (30) days' advance written notice
to Lender and shall provide that no claims shall be paid thereunder to a Person
other than Lender without ten (10) days' advance written notice to Lender. The
Borrowers may obtain any insurance required by this Section through blanket
policies; provided, however, that such blanket policies shall separately set
forth the amount of insurance in force (together with applicable deductibles,
and per occurrence limits) with respect to the Properties (which shall not be
reduced by reason of events occurring on property other than the Properties) and
shall afford all the protections to Lender as are required under this Section.
Except as may be expressly provided above, all policies of insurance required
hereunder shall contain no annual aggregate limit of liability, other than with
respect to liability insurance. If a blanket policy is issued, a certified copy
of said policy shall be furnished, together with a certificate indicating that
Lender is an additional insured (and, if applicable, loss payee) under such
policy in the designated amount. The Borrowers will deliver duplicate originals
of all Insurance Policies, premium prepaid for a period of one (1) year, to
Lender and, in case of Insurance Policies about to expire, the Borrowers will
deliver duplicate originals of replacement policies satisfying the requirements
hereof to Lender prior to the date of expiration; provided, however, if such
replacement policy is not yet available, the Borrowers shall provide Lender with
an insurance certificate executed by the insurer or its authorized agent
evidencing that the insurance required hereunder is being maintained under such
policy, which certificate shall be acceptable to Lender on an interim basis
until the duplicate original of the policy is available. An insurance company
shall not be satisfactory unless such insurance company (a) is licensed or
authorized to issue insurance in the State where the applicable Property is
located and (b) has a claims paying ability rating by the Rating Agencies of "A"
(or its equivalent). Notwithstanding the foregoing, a carrier which does not
meet the foregoing ratings requirement shall nevertheless be deemed acceptable
hereunder provided that such carrier is reasonably acceptable to Lender and the
Borrowers shall obtain and deliver to Lender a Rating Confirmation with respect
to such carrier from each of the Rating Agencies. If any insurance coverage
required under this Section 5.4 is maintained by a syndicate of insurers, the
preceding ratings requirements shall be deemed satisfied (without any required
Rating Confirmation) as long as at least seventy-five percent (75%) of the
coverage (if there are four or fewer members of the syndicate) or at least sixty
percent (60%) of the coverage (if there are five or more members of the
syndicate) is maintained with carriers meeting the claims-paying ability ratings
requirements by S&P set forth above and all carriers in such syndicate have a
claims-paying ability rating by S&P of not less than "BBB". The Borrowers shall
furnish Lender receipts for the payment of premiums on such insurance policies
or other evidence of such payment reasonably satisfactory to Lender in the event
that such premiums have not been paid by Lender pursuant to the Loan Agreement.
The requirements of this Section 5.4 shall apply to any separate policies of
insurance taken out by the Borrowers concurrent in form or contributing in the
event of loss with the Insurance Policies. Losses shall be payable to Lender
notwithstanding (1) any act, failure to act or negligence of the Borrowers or
their agents or employees, Lender or any other insured party which might, absent
such agreement, result in a forfeiture of all or part of such insurance payment,
other than the willful misconduct of Lender knowingly in violation of the
conditions of such policy, (2) the occupation or use of the Properties or any
part thereof for purposes more hazardous than permitted by the terms of such
policy, (3) any foreclosure or other action or proceeding taken pursuant to this
Loan Agreement or (4) any change in title to or ownership of the Properties or
any part thereof. The property insurance described in this Section 5.4 hereof
shall include "underground hazards" coverage; "time element" coverage by which
Lender shall be assured payment of all amounts due under the Note, this Loan
Agreement and the other Loan Documents; "extra expense" (i.e., soft costs),
clean-up, transit and ordinary payroll coverage; and "expediting expense"
coverage to facilitate rapid repair or restoration of the Properties. The
Insurance Policies shall not contain any deductible in excess of $250,000.
Section 5.5 Operation and Maintenance of the Properties; Casualty;
Condemnation.
(A) The Borrowers shall maintain or cause to be maintained in good repair,
working order and condition all material property necessary for use in the
business of each Borrower, including the applicable Property, and will make or
cause to be made all appropriate repairs, renewals and replacements thereof. All
work required or permitted under this Loan Agreement shall be performed in a
workmanlike manner and in compliance with all applicable laws.
(B) (i) In the event of casualty or loss at any of the Properties, the
Borrowers shall give immediate written notice of any such casualty or loss
exceeding $250,000, or which is not covered by insurance, to the insurance
carrier and to Lender and shall promptly commence and diligently prosecute to
completion, in accordance with the terms hereof, and subject to the terms of the
Sprint Acquisition Documents with respect to the Sprint Properties, the repair
and restoration of the Property as nearly as possible to the Pre-Existing
Condition, excluding replacement of obsolete Other Company Collateral which is
not required in connection with operating the applicable Property (a
"Restoration"). The Borrowers, subject in all instances to the terms of the
Sprint Acquisition Documents with respect to the Sprint Properties, hereby
authorize and empower Lender as attorney-in-fact for the Borrowers (jointly with
the Borrowers unless an Event of Default has occurred and is continuing), or any
of them, with respect to Insurance Proceeds in excess of $1,000,000 to make
proof of loss, to adjust and compromise any claim under insurance policies, to
appear in and prosecute any action arising from such insurance policies, to
collect and receive insurance proceeds (to be held in the Loss Proceeds Reserve
Sub-Account pending the Borrowers' determination with respect to restoration of
the affected Property as set forth in Subsection 5.5(C)), and to deduct
therefrom Lender's expenses incurred in the collection of such proceeds;
provided however, that nothing contained in this Section shall require Lender to
incur any expense or take any action hereunder. The Borrowers further authorize
Lender, subject in all instances to the terms of the Sprint Acquisition
Documents with respect to the Sprint Properties, at Lender's option, with
respect to proceeds in excess of $1,000,000 (a) to hold the balance of such
proceeds to be used to reimburse the Borrowers for the cost of Restoration of
any of the Properties or (b) subject to Subsection 5.5(C), to apply such
Insurance Proceeds to payment of the Obligations whether or not then due, in any
order.
(ii) The Borrowers shall promptly give Lender written notice of any
known actual or threatened commencement of any condemnation or eminent domain
proceeding affecting the Properties or any portion thereof and shall deliver to
Lender copies of any and all papers served in connection with such proceedings.
Lender is hereby irrevocably appointed as the attorney-in-fact for the Borrowers
(jointly with the Borrowers unless an Event of Default has occurred and is
continuing), or any of them, with respect to Condemnation Proceeds in excess of
$1,000,000 to collect, receive and retain any Condemnation Proceeds (to be held
in the Loss Proceeds Reserve Sub-Account pending the Borrowers' determination
with respect to Restoration of the affected Property as set forth in Subsection
5.5(C)) and to make any compromise or settlement in connection with such
proceeding. In accordance with the terms hereof, the Borrowers shall cause the
Condemnation Proceeds in excess of $1,000,000 which are payable to the
Borrowers, to be paid directly to Lender. If the applicable Property is sold
following an Event of Default, through foreclosure or otherwise, prior to the
receipt by Lender of Condemnation Proceeds, Lender shall have the right, whether
or not a deficiency judgment on the Note shall have been sought, recovered or
denied, to receive said Condemnation Proceeds, or a portion thereof sufficient
to pay the Obligations. Notwithstanding the foregoing, the Borrowers may
prosecute any condemnation proceeding and settle or compromise and collect
Condemnation Proceeds of not more than $1,000,000 provided that: (a) no Event of
Default shall have occurred and be continuing, (b) in Lender's reasonable good
faith judgment, such condemnation or taking does not and will not materially
restrict access to the Properties or otherwise have a Material Adverse Effect
and the Property remaining after such condemnation or taking is capable of being
restored to an economically viable whole of substantially the same type which
existed prior to the condemnation or taking or in substantial compliance with
all applicable laws, (c) the Borrowers apply the Condemnation Proceeds to any
reconstruction or repair of the Property necessary as a result of such
condemnation or taking, and (d) the Borrowers promptly commence and diligently
prosecute such reconstruction or repair to completion in accordance with all
applicable laws. Subject to the terms hereof, the Borrowers authorize Lender to
apply such Condemnation Proceeds, after the deduction of Lender's reasonable
expenses incurred in the collection of such Condemnation Proceeds, at Lender's
option, to restoration or repair of the Properties or to payment of the sums
secured by the Loan Documents, whether or not then due, in the order determined
by Lender, with the balance, if any, to the Borrowers. Application of any
Condemnation Proceeds to payment of the Obligations pursuant to the foregoing
sentence shall be made with the required Yield Maintenance. Lender shall not
exercise Lender's option to apply such Condemnation Proceeds to payment of the
Obligations provided that each of the conditions (as applicable) to the release
of Loss Proceeds for restoration or repair of the Properties under Section
5.5(C) below have been satisfied with respect to such condemnation awards or
damages.
(C) Lender shall not exercise Lender's option to apply Loss Proceeds to
payment of the Obligations if all of the following conditions are met: (i) no
Event of Default then exists; (ii) Lender reasonably determines that there will
be sufficient funds to complete the Restoration of the Property to at least
substantially to the condition it was in immediately prior to such casualty
(excluding replacement of obsolete Other Company Collateral which is not
required in connection with operating the applicable Property) and in compliance
with applicable laws (the "Pre-Existing Condition") and to timely make all
payments due under the Loan Documents during the Restoration of the affected
Property; (iii) Lender reasonably determines that the Operating Revenues of the
Properties (including rental income or business interruption insurance) will be
sufficient to pay principal and interest on the Loans and Operating Revenues of
the Properties, after the Restoration thereof to the Pre-Existing Condition,
will be sufficient to meet all Operating Expenses, and payments for Reserves;
and (iv) Lender determines that the Restoration of the affected Property to the
Pre-Existing Condition will be completed not later than six (6) months prior to
the Maturity Date; provided that Lender shall make Loss Proceeds available with
respect to any Sprint Property for Restoration if the Loss Proceeds are required
to be utilized for a Restoration under the Sprint Acquisition Documents with
respect to such Sprint Property and no Event of Default is then continuing. If
Lender elects to apply Loss Proceeds to payment of the Obligations, such
application shall be made on the Payment Date immediately following such
election in accordance with the terms of the Cash Management Agreement.
Notwithstanding the foregoing to the contrary, the Borrowers may, in their
reasonable discretion, and within thirty (30) days of receipt of such Loss
Proceeds, elect not to restore or replace a Property, in which event all Loss
Proceeds held in the Loss Proceeds Reserve Sub-Account shall be applied to
payment of the Obligations on the Payment Date immediately following such
election with the required Yield Maintenance.
(D) Lender shall not be obligated to disburse Loss Proceeds more
frequently than once every calendar month. If Loss Proceeds are applied to the
payment of the Obligations, such application of Loss Proceeds to principal shall
be with the applicable Yield Maintenance and shall not extend or postpone the
due dates of the monthly payments due under the Note or otherwise under the Loan
Documents, or change the amounts of such payments. If Lender elects to apply all
of such insurance or condemnation proceeds toward the repayment of the
Obligations, the Borrowers shall (subject to compliance with Section 11.4) be
entitled to obtain from Lender a release (without representation or warranty) of
the applicable Property from the Lien of the Deed of Trust relating to such
Property (in which event the Borrowers shall not be obligated to restore the
applicable Property pursuant to Section 5.5(B) above) provided that the
Borrowers pay to Lender (with the required Yield Maintenance) the amount, if
any, by which the Release Price for such Property exceeds the Loss Proceeds
received by Lender and applied to repayment of the Obligations in accordance
with Section 2.4(A). Any amount of Loss Proceeds remaining in Lender's
possession after full and final payment and discharge of all Obligations shall
be refunded to, or as directed by, the Borrowers or otherwise paid in accordance
with applicable law. If the Property is sold at foreclosure or if Lender
acquires title to the Property, Lender shall have all of the right, title and
interest of the applicable Borrower in and to any Loss Proceeds and unearned
premiums on Insurance Policies.
(E) In no event shall Lender be obligated to make disbursements of Loss
Proceeds in excess of an amount equal to the costs actually incurred from time
to time for work in place as part of the Restoration, as certified by the
Borrowers, less a retainage equal to the greater of (x) the actual retainage
required pursuant to the permitted contract, or (y) ten percent (10%) of such
costs incurred until the Restoration has been completed. The retainage shall in
no event be less than the amount actually held back by the Borrowers from
contractors, subcontractors and materialmen engaged in the Restoration. The
retainage shall not be released until Lender is reasonably satisfied that the
Restoration has been completed in accordance with the provisions of this Section
5.5 and that all approvals necessary for the re-occupancy and use of the
Property have been obtained from all appropriate governmental authorities, and
Lender receives final lien waivers and such other evidence reasonably
satisfactory to Lender that the costs of the Restoration have been paid in full
or will be paid in full out of the retainage.
Section 5.6 Inspection. Each Borrower shall permit any authorized
representatives designated by Lender to visit and inspect during normal business
hours its Properties and its business, including its financial and accounting
records, and to make copies and take extracts therefrom and to discuss its
affairs, finances and business with its officers and independent public
accountants (with such Borrower's representative(s) present), at such reasonable
times during normal business hours and as often as may be reasonably requested,
provided that same is conducted in such a manner as to not unreasonably
interfere with the Borrowers' business. Unless an Event of Default has occurred
and is continuing, Lender shall provide advance written notice of at least three
(3) Business Days prior to visiting or inspecting any Property or such
Borrower's offices.
Section 5.7 Compliance with Laws and Contractual Obligations. The Borrowers
will (A) comply with the requirements of all present and future applicable laws,
rules, regulations and orders of any governmental authority in all jurisdictions
in which it is now doing business or may hereafter be doing business, other than
those laws, rules, regulations and orders the noncompliance with which
collectively could not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect, (B) maintain all licenses and permits
now held or hereafter acquired by any Borrower, the loss, suspension, or
revocation of which, or failure to renew, in the aggregate could have a Material
Adverse Effect and (C) perform, observe, comply and fulfill all of its material
obligations, covenants and conditions contained in any Contractual Obligation.
Section 5.8 Further Assurances. The Borrowers shall, from time to time, execute
and/or deliver such documents, instruments, agreements, financing statements,
and perform such acts as Lender at any time may reasonably request to evidence,
preserve and/or protect the Collateral at any time securing or intended to
secure the Obligations and/or to better and more effectively carry out the
purposes of this Loan Agreement and the other Loan Documents.
Section 5.9 Performance of Agreements and Leases. Each Borrower Party shall
duly and punctually perform, observe and comply in all material respects with
all of the terms, provisions, conditions, covenants and agreements on its part
to be performed, observed and complied with (i) hereunder and under the other
Loan Documents to which it is a party, (ii) under all Material Agreements and
Material Leases and (iii) all other agreements entered into or assumed by such
Person in connection with the Properties, and will not suffer or permit any
material default or event of default (giving effect to any applicable notice
requirements and cure periods) to exist under any of the foregoing except where
the failure to perform, observe or comply with any agreement referred to in this
clause (iii) would not reasonably be expected to have a Material Adverse Effect.
Notwithstanding the foregoing to the contrary, the Borrowers shall be permitted
to terminate any Site Management Agreement which the Borrowers reasonably deem
necessary in accordance with prudent business practices, provided that (i) the
Borrowers provide written notice to Lender of such determination not later than
thirty (30) days prior to such termination, (ii) together with such notice the
Borrowers provide supporting information reasonably acceptable to Lender that
following such termination the DSCR will be equal to or greater than the DSCR
immediately prior to such termination, (iii) if the aggregate Allocated Loan
Amount with respect to (x) each such Property for which termination has occurred
under this Section 5.9, Section 5.23(A), and Section 5.24(A), and (y) the
Property for which a termination is proposed, is greater than five percent (5%)
of the Principal Amount of the Loan at Closing, the Borrowers have delivered a
Rating Confirmation, and (iv) following such termination, such Property will be
owned and managed by a Person other than the Borrowers or any of their
Affiliates. In connection with any sale permitted pursuant to the terms of this
Section 5.9, the Borrowers may sell any Other Company Collateral associated with
the applicable Property and no longer required in connection with the operation
of the Borrowers' business.
Section 5.10 Leases. Any Rents which constitute Advance Rents Reserve Deposits
shall be deposited into the Advance Rents Reserve Sub-Account to be applied in
accordance with the Cash Management Agreement. The Borrowers, at Lender's
request, shall furnish Lender with executed copies of all Leases hereafter made.
Each new Lease other than (x) the addition of new sites pursuant to existing
master Leases, or (y) Governmental Leases, shall specifically provide that such
Lease (i) is subordinate to the Deeds of Trust, provided that Lender agrees not
to disturb the applicable tenant's possession for so long as tenant is not in
default under the terms of the applicable lease (as evidenced by an agreement
substantially in the form of Exhibit C (an "SNDA"); (ii) that the tenant attorns
to Lender; (iii) that the attornment of the tenant shall not be terminated by
foreclosure; and (iv) that in no event shall Lender, as holder of the Deeds of
Trust or as successor landlord, be liable to the tenant for any act or omission
of any prior landlord or for any liability or obligation of any prior landlord
occurring prior to the date that Lender or any subsequent owner acquires title
to the Property. On the Closing Date and at such other times as shall be
required by applicable law (including upon replacement of the Manager), Lender
shall execute a power of attorney (in the form of Exhibit D) enabling Manager
(on behalf of Lender) to execute SNDAs in the form of Exhibit C (with the
appropriate information completed therein) without any material changes being
made to the form with respect to Leases providing for annual rent or other
payments in an amount not greater than $1,000,000 per annum.
Section 5.11 Management Agreement.
(A) The Borrowers shall cause Manager to manage the Properties in
accordance with the Management Agreement. The Borrowers shall (i) perform and
observe all of the material terms, covenants and conditions of the Management
Agreement on the part of each Borrower to be performed and observed, (ii)
promptly notify Lender of any notice to any of the Borrowers of any material
default under the Management Agreement of which it is aware, and (iii) prior to
termination of the Manager in accordance with Section 5.11(C) hereof, Borrower
shall renew the Management Agreement prior to each expiration date thereunder in
accordance with its terms. If any of the Borrowers shall default in the
performance or observance of any material term, covenant or condition of the
Management Agreement on the part of the Borrowers to be performed or observed,
then, without limiting Lender's other rights or remedies under this Agreement or
the other Loan Documents, and without waiving or releasing the Borrowers from
any of their obligations hereunder or under the Management Agreement, Lender
shall have the right, upon prior written notice to the Borrowers, but shall be
under no obligation, to pay any sums and to perform any act as may be reasonably
appropriate to cause such material conditions of the Management Agreement on the
part of the Borrowers to be performed or observed.
(B) The Borrowers shall not surrender, terminate, cancel, or modify (other
than non-material changes), the Management Agreement, or enter into any other
Management Agreement with any new Manager (other than an Acceptable Manager), or
consent to the assignment by the Manager of its interest under the Management
Agreement, in each case without delivery of Rating Confirmations from each of
the Rating Agencies and written consent of the Lender. If at any time Lender
consents to the appointment of a new Manager, or if an Acceptable Manager shall
become the Manager, such new Manager, or the Acceptable Manager, as the case may
be, and the Borrowers shall, as a condition of Lender's consent, or with respect
to an Acceptable Manager, prior to commencement of its duties as Manager,
execute a subordination of management agreement in substantially the form
delivered in connection with the closing of the Loan.
(C) Lender shall have the right to require that the Manager be replaced
with a Person chosen by the Borrowers (or, if an Event of Default has occurred
and is then continuing, Lender) and reasonably acceptable to Lender, upon the
earliest to occur of any one or more of the following events: (i) an Event of
Default has occurred and is then continuing, (ii) thirty (30) days after notice
from Lender to the Borrowers if Manager has engaged in fraud, gross negligence
or willful misconduct arising from or in connection with its performance under
the Management Agreement, (iii) thirty (30) days after notice from Lender to the
Borrowers if the DSCR is less than 1.05:1 and Lender reasonably determines that
such decline in the DSCR is primarily attributable to acts or omissions of the
Manager rather than factors affecting the Borrowers' industry generally, or (iv)
Manager defaults under the Management Agreement, such default is reasonably
likely to have a Material Adverse Effect, and such default remains unremedied
for thirty (30) days following written notice to Manager.
Section 5.12 Reserved.
Section 5.13 Deposits; Application of Receipts. The Borrowers will deposit all
Receipts into, and otherwise comply with, the Accounts established from time to
time hereunder. Subject to Article VII hereof and the Cash Management Agreement,
each Borrower shall promptly apply all Receipts to the payment of all current
and past due Operating Expenses, and to the repayment of all sums currently due
or past due under the Loan Documents, including all payments into the Reserves.
Section 5.14 Estoppel Certificates.
(A) Within ten (10) Business Days following a request by Lender, the
Borrowers shall provide to Lender a duly acknowledged written statement
confirming with respect to the applicable Borrower's Loan (i) the amount of the
outstanding principal balance of the Loan, (ii) the terms of payment and
maturity date of the Note, (iii) the date to which interest has been paid, (iv)
whether any offsets or defenses exist against the Obligations, and if any such
offsets or defenses are alleged to exist, the nature thereof shall be set forth
in detail and (v) that this Loan Agreement, the Note, the Deeds of Trust and the
other Loan Documents are legal, valid and binding obligations of the Borrowers
and have not been modified or amended, or if modified or amended, describing
such modification or amendments.
(B) Within ten (10) Business Days following a written request by the
Borrowers, Lender shall provide to the Borrowers a duly acknowledged written
statement setting forth the amount of the outstanding principal balance of the
Loans, the date to which interest has been paid, and whether Lender has provided
the Borrowers with written notice of any Event of Default. Compliance by Lender
with the requirements of this Section shall be for informational purposes only
and shall not be deemed to be a waiver of any rights or remedies of Lender
hereunder or under any other Loan Document.
Section 5.15 Indebtedness. The Borrowers will not directly or indirectly
create, incur, assume, guaranty, or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness except for the following
(collectively, "Permitted Indebtedness"):
(A) The Obligations;
(B) (i) Unsecured trade payables not evidenced by a note and arising out
of purchases of goods or services in the ordinary course of business and (ii)
Indebtedness incurred in the financing of equipment or other personal property
used at any Property in the ordinary course of business, provided that (a) each
such trade payable is payable not later than ninety (90) days after the original
invoice date and is not overdue by more than thirty (30) days, and (b) the
aggregate amount of such trade payables and Indebtedness relating to financing
of equipment and personal property or otherwise referred to in clauses (i) and
(ii) above outstanding does not, at any time, exceed $80,000,000 in the
aggregate with respect to all of the Borrowers under the Loans.
In no event shall any Indebtedness other than the Loans be secured, in whole or
in part, by the Properties or any portion thereof or interest therein.
Section 5.16 No Liens. The obligations of each of the Borrowers under this
Section are in addition to and not in limitation of its obligations under
Article XI herein. The Borrowers shall not create, incur, assume or permit to
exist any Lien on or with respect to the Properties, any other Collateral or any
such direct or indirect ownership interest in the Borrowers, except the
Permitted Encumbrances.
Section 5.17 Contingent Obligations. Other than Permitted Indebtedness, no
Borrower Party shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation other than obligations for the benefit of
Lender under the Loan Agreement and each of the Borrower's respective Loan
Documents.
Section 5.18 Restriction on Fundamental Changes. Except as otherwise expressly
permitted in this Loan Agreement, no Borrower Party shall, or shall permit any
other Person to, (i) amend, modify or waive any term or provision of such
Borrower Party's partnership agreement, certificate of limited partnership,
articles of incorporation, by-laws, articles of organization, operating
agreement or other organizational documents so as to violate or permit the
violation of the single-purpose entity provisions set forth in Article IX,
unless required by law; or (ii) liquidate, wind-up or dissolve such Borrower
Party or Manager.
Section 5.19 Transactions with Related Persons. The Borrowers shall not
directly or indirectly enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any Related Person (other than the other Borrowers hereunder) of
any of the Borrowers or with any director, officer or employee of any Borrower
Party, except transactions in the ordinary course of and pursuant to the
reasonable requirements of the business of the Borrowers and upon fair and
reasonable terms and are no less favorable to any of the Borrowers than would be
obtained in a comparable arm's length transaction with a Person that is not a
Related Person of any Borrower (other than the other Borrowers hereunder). The
Borrowers shall not make any payment or permit any payment to be made on behalf
of the Borrowers to any Related Person of any of the Borrowers when or as to any
time when any Event of Default shall exist except as may be permitted by Lender
pursuant to the terms of the Cash Management Agreement.
Section 5.20 Bankruptcy, Receivers, Similar Matters.
(A) Voluntary Cases. The Borrower Parties shall not commence any voluntary
case under the Bankruptcy Code or under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect.
(B) Involuntary Cases, Receivers, etc. The Borrower Parties shall not
apply for, consent to, or aid, solicit, support, or otherwise act, cooperate or
collude to cause the appointment of or taking possession by, a receiver, trustee
or other custodian for all or a substantial part of the assets of any Borrower.
As used in this Loan Agreement, an "Involuntary Borrower Bankruptcy" shall mean
any involuntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, in which any of the
Borrowers is a debtor or any portion of the Properties is property of the estate
therein. The Borrowers shall not file a petition for, consent to the filing of a
petition for, or aid, solicit, support, or otherwise act, cooperate or collude
to cause the filing of a petition for an Involuntary Borrower Bankruptcy. In any
Involuntary Borrower Bankruptcy, no Borrower Party shall, without the prior
written consent of Lender, consent to the entry of any order, file any motion,
or support any motion (irrespective of the subject of the motion), and the
Borrowers shall not file or support any plan of reorganization. The Borrowers
having any interest in any Involuntary Borrower Bankruptcy shall do all things
reasonably requested by Lender to assist Lender in obtaining such relief as
Lender shall seek, and shall in all events vote as directed by Lender. Without
limitation of the foregoing, each such Borrower shall do all things reasonably
requested by Lender to support any motion for relief from stay or plan of
reorganization proposed or supported by Lender.
Section 5.21 ERISA.
(A) No ERISA Plans. None of the Borrower Parties will establish any
Employee Benefit Plan or Multiemployer Plan, or will commence making
contributions to (or become obligated to make contributions to) any Employee
Benefit Plan or Multiemployer Plan.
(B) Compliance with ERISA. The Borrowers shall not: (i) engage in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the IRC; or (ii) except as may be necessary to comply with applicable laws,
establish or amend any Employee Benefit Plan which establishment or amendment
could result in liability to the Borrowers or any ERISA Affiliate or increase
the obligation of the Borrowers, provided that the Borrower shall not be in
default of this covenant if, in either case, any portion of the Loan has been,
or will be, funded with plan assets of any employee benefit plan that either (x)
is subject to Title I of ERISA or any plan that is covered by Section 4975 of
the Code (unless the Lender is eligible to apply for one or more exemptions such
that the Loan will not constitute a nonexempt prohibited transaction under
Section 406 of ERISA) or (y) could subject a Borrower Party or its Affiliates to
an excise tax under Section 4975 of the IRC.
(C) No Plan Assets. The Borrowers shall not at any time during the term of
this Loan Agreement become (1) an employee benefit plan defined in Section 3(3)
of ERISA which is subject to ERISA, (2) a plan as defined in Section 4975(e)(1)
of the IRC which is subject to Section 4975 of the IRC, (3) a "governmental
plan" within the meaning of Section 3(32) of ERISA or (4) an entity any of whose
underlying assets constitute "plan assets" of any such employee benefit plan,
plan or governmental plan for purposes of Title I of ERISA, Section 4975 of the
IRC or any state statutes applicable to the Borrowers regulating investments of
governmental plans.
Section 5.22 Reserved
Section 5.23 Ground Leases; Prime Ground Leases.
(A) Modification. Except as provided in this Section 5.23, the Borrowers
shall not modify or amend any material substantive or economic terms of, or,
subject to the terms of Section 11.5 hereof, terminate or surrender, or consent
to the termination or surrender of, any Ground Lease or Prime Ground Lease, in
each case without the prior written consent of Lender, which consent shall not
be unreasonably withheld, conditioned or delayed. Any such attempted or
purported material modification, amendment, or any surrender or termination of
any Ground Lease or Prime Ground Lease without Lender's prior written consent
shall be null and void and of no force or effect. Notwithstanding the foregoing
to the contrary, the Borrowers shall be permitted, without Lender's consent, to:
(i) extend the terms of the Ground Leases on commercially
reasonable substantive and economic terms and, in the case of Prime Ground
Leases, in accordance with the terms of the applicable Sprint Master Lease
Agreement;
(ii) terminate any Ground Lease (or remove any Ground Leased
Property from any Ground Lease that covers more than one (1) Property) or any
Prime Ground Lease which the Borrowers reasonably deem necessary in accordance
with prudent business practices, provided that (a) the Borrowers provide written
notice to Lender of such determination not later than thirty (30) days prior to
such termination, (b) together with such notice the Borrowers provide supporting
information reasonably acceptable to Lender that following such termination the
DSCR will be equal to or greater than the DSCR immediately prior to such
termination or the Annualized Run Rate Net Cash Flow from such Property is equal
to or less than zero at the time of such termination and is not expected by the
Borrowers (as evidenced by an Officer's Certificate) to have a positive
Annualized Run Rate Net Cash Flow during the succeeding six (6) month period,
(c) if (1) the aggregate Allocated Loan Amount of (x) each such Property for
which a termination has occurred under this Section 5.23(A), Section 5.9, and
Section 5.24(A) plus (y) the Property for which a termination is proposed is
greater than five percent (5%) of the Principal Amount of the Loan at Closing,
or (2) at least seventy-five percent (75%) of the Operating Revenues of the
Properties that remain following a proposed termination do not consist of
telephony revenues, the Borrowers have delivered a Rating Confirmation, and (d)
following such termination such Property is not held by any Affiliate of the
Borrowers. In connection with any termination permitted pursuant to the terms of
this Section 5.23(A), the Borrowers may sell any Other Company Collateral
associated with the applicable Property and no longer required in connection
with the operation of the Borrowers' business; and
(iii) provided no Event of Default shall have occurred and is then
continuing, and in the case of the Sprint Properties provided that Global Signal
Acquisitions II complies with the provisions of the Sprint Master Lease
Agreement, increase the area of real property covered by a Ground Lease or Prime
Ground Lease, and in connection therewith amend and restate the existing Ground
Lease or Prime Ground Lease, or replace the existing Ground Lease or Prime
Ground Lease (either, an "Amended Ground Lease" or "Amended Prime Ground Lease",
as the case may be), to include such additional real property, provided that
such Amended Ground Lease or Amended Prime Ground Lease, as applicable, is on
commercially reasonable substantive (including, by way of either an estoppel or
as provided by the terms of the Amended Ground Lease or Amended Prime Ground
Lease, such lender protections as were available to Lender in the Ground Lease
(or Estoppel delivered in connection therewith) being replaced with the Amended
Ground Lease or Amended Prime Ground Lease) and economic terms (taking into
consideration the additional real property covered by the Amended Ground Lease
or Amended Prime Ground Lease), and subject to the following conditions:
(a) Lender shall have received at least ten (10) day's prior
written notice of the execution of the Amended Ground Lease or Amended Prime
Ground Lease, together with a summary of the economic terms thereof, and,
following execution and delivery of the Amended Ground Lease or Amended Prime
Ground Lease, Lender shall have received a copy of the Amended Ground Lease or
Amended Prime Ground Lease certified by the applicable Borrower as being true,
accurate and complete, and if the Amended Ground Lease or Amended Ground Lease,
as applicable, is an amendment of an existing Ground Lease or Prime Ground
Lease, as applicable, an estoppel with respect to the Ground Lease or Prime
Ground Lease subject to amendment;
(b) on or prior to execution and delivery of the Amended Ground
Lease or Amended Prime Ground Lease, Lender shall have received a database
search environmental report prepared by Xxxxxx and Associates (or another
consultant reasonably acceptable to Lender) on the real property to be included
under the Amended Ground Lease or Amended Prime Ground Lease, together with a
Phase I or Phase II environment assessment report (if any database search
environmental report reveals any condition that in Lender's reasonable judgment
warrants such a report) which concludes that the subject property does not
contain any Hazardous Materials (except for cleaning and other products used in
connection with the routine maintenance, operation or repair of the subject
property or the operation thereof as a tower property in full compliance with
Environmental Laws) and is not in violation of any Environmental Laws;
(c) if the Ground Lease or Prime Ground Lease being replaced or
amended is with respect to a Mortgaged Property, simultaneous with the execution
and delivery of the Amended Ground Lease or Amended Prime Ground Lease, Lender
shall have received an Amended Deed of Trust executed and delivered by a duly
authorized officer of the applicable Borrower encumbering the property included
under the Amended Ground Lease or Amended Prime Ground Lease, together with an
endorsement to (or replacement of) the existing Title Policy in substantially
the form delivered in connection with the Deed of Trust encumbering such
Property insuring the lien of the Amended Deed of Trust, issued by the Title
Company and dated as of the date of the Amended Ground Lease or Amended Prime
Ground Lease;
(d) Borrower shall pay or reimburse Lender for all reasonable costs
and expenses incurred by Lender (including, without limitation, reasonable
attorneys fees and disbursements) in connection with such Amended Ground Lease
or Amended Prime Ground Lease, and all recording charges, filing fees, taxes or
other expenses (including, without limitation, mortgage and intangibles taxes
and documentary stamp taxes) payable in connection therewith; and
(e) if the aggregate Allocated Loan Amount of all Properties for
which an Amended Ground Lease or Amended Prime Ground Lease has been executed
exceeds ten percent (10%) of the original Principal Amount of the Loan, the
Borrowers shall deliver a Rating Confirmation to Lender.
(B) Performance of Ground Leases and Prime Ground Leases. The Borrowers
shall fully perform, as lessee or sublessee, as and when due each and all of its
obligations under each Ground Lease and each Prime Ground Lease in accordance
with the terms of such Ground Lease or Prime Ground Lease, as applicable, and
shall not cause or suffer to occur any material breach or default in any of such
obligations. The Borrowers shall exercise any option to renew or extend any
Ground Lease or Prime Ground Lease, as applicable (in the case of any Prime
Ground Lease, pursuant to, and to the extent required by, Global Signal
Acquisition II's rights under the Sprint Master Lease Agreement) and if the
Borrowers elect not to renew a Ground Lease or Prime Ground Lease (which shall
only be permitted if the Borrowers would be entitled to terminate such Ground
Lease or Prime Ground Lease, as applicable pursuant to clause (A) above) the
Borrowers shall give Lender thirty (30) days prior written notice of the
Borrowers' intention not to renew such Ground Lease or Prime Ground Lease, as
applicable. If the Borrowers fail to renew a Ground Lease or a Prime Ground
Lease, as applicable, which is required to be renewed pursuant to this Section
5.23(B), Lender shall have the right to renew such Ground Lease or Prime Ground
Lease, as applicable, on behalf of the Borrowers. Notwithstanding that certain
of the obligations of the Borrowers under this Loan Agreement may be similar or
identical to certain of the obligations of the Borrowers under the Ground
Leases, or the Prime Ground Leases, all of the obligations of the Borrowers
under this Loan Agreement are and shall be separate from and in addition to its
obligations under the Ground Leases and the Prime Ground Lease.
(C) Notice of Default. If any of the Borrowers shall have or receive any
written notice that any Ground Lease Default or Prime Ground Lease Default has
occurred, then the Borrowers immediately shall notify Lender in writing of the
same and immediately deliver to Lender a true and complete copy of each such
notice. Further, the Borrowers shall provide such documents and information as
Lender shall reasonably request concerning the Ground Lease Default or Prime
Ground Lease Default.
(D) Lender's Right to Cure. If any Ground Lease Default or Prime Ground
Lease Default shall occur and be continuing, or if any Ground Lessor asserts
that a Ground Lease Default or if any Prime Ground Lessor asserts that a Prime
Ground Lease Default has occurred (whether or not the Borrowers question or deny
such assertion), then, subject to (i) the terms and conditions of the applicable
Ground Lease or Prime Ground Lease, as applicable, and (ii) the Borrowers' right
to terminate Ground Leases or Prime Ground Lease, as applicable in accordance
with Section 5.23(A) hereof, Lender, upon five (5) Business Days' prior written
notice to the Borrowers, unless Lender reasonably determines that a shorter
period (or no period) of notice is necessary to protect Lender's interest in the
Ground Lease or Prime Ground Lease, as applicable, may (but shall not be
obligated to) take any action that Lender deems reasonably necessary, including,
without limitation, (i) performance or attempted performance of the applicable
Borrower's obligations under the applicable Ground Lease or Prime Ground Lease,
as applicable, (ii) curing or attempting to cure any actual or purported Ground
Lease Default or Prime Ground Lease Default, (iii) mitigating or attempting to
mitigate any damages or consequences of the same and (iv) entry upon the
applicable Property for any or all of such purposes. Upon Lender's request, each
Borrower shall submit satisfactory evidence of payment or performance of any of
its obligations under each Ground Lease or Prime Ground Lease, as applicable.
Lender may pay and expend such sums of money as Lender in its sole discretion
deems necessary or desirable for any such purpose, and the Borrowers shall pay
to Lender within five (5) Business Days of the written demand of Lender all such
sums so paid or expended by Lender, together with interest thereon from the date
of expenditure at the Default Rate.
(E) Legal Action. The Borrowers shall not commence any action or
proceeding against any Ground Lessor or Prime Ground Lessor or affecting or
potentially affecting any Ground Lease or Prime Ground Lease, as applicable, or
the Borrowers' or Lender's interest therein, the effect of which could cause an
event of default or termination of any such Ground Lease or Prime Ground Lease,
as applicable, without the prior written consent of Lender, which consent shall
not be unreasonably withheld, conditioned or delayed. The Borrowers shall notify
Lender immediately if any action or proceeding shall be commenced between any
Ground Lessor or Prime Ground Lessor and any Borrower, or affecting or
potentially affecting any Ground Lease, or any Prime Ground Lease, as applicable
or any Borrower's or Lender's interest therein (including, without limitation,
any case commenced by or against any Ground Lessor or Prime Ground Lessor under
the Bankruptcy Code). Lender shall have the option, exercisable upon notice from
Lender to the Borrowers, to participate in any such action or proceeding with
counsel of Lender's choice. The Borrowers shall cooperate with Lender, comply
with the reasonable instructions of Lender, execute any and all powers,
authorizations, consents or other documents reasonably required by Lender in
connection therewith, and shall not settle any such action or proceeding without
the prior written consent of Lender, which consent shall not be unreasonably
withheld, conditioned or delayed.
(F) Bankruptcy.
(i) If any Ground Lessor or Prime Ground Lessor shall reject any
Ground Lease, or any Prime Ground Lease, as applicable under or pursuant to
Section 365 of the Bankruptcy Code, the Borrowers shall not (and in the case of
a Prime Ground Lease, to the extent within Global Signal Acquisitions II's
control, Global Signal Acquisitions II shall not suffer any Sub-Prime Ground
Lessor to) elect to treat the Ground Lease or the Prime Ground Lease, as
applicable, as terminated but shall elect to remain in possession of the
applicable Ground Leased Property and the leasehold estate under such Ground
Lease or the Prime Ground Lease, as applicable. The lien of the Deed of Trust
covering such Property does and shall encumber and attach to all of the
Borrowers' rights and remedies at any time arising under or pursuant to Section
365 of the Bankruptcy Code, including without limitation, all of such Borrower's
rights to remain in possession of such Property and the leasehold estate.
(ii) The Borrowers acknowledge and agree that in any case commenced
by or against the Borrowers under the Bankruptcy Code, Lender by reason of the
liens and rights granted under the Deed of Trust covering such Property and the
Loan Documents shall have a substantial and material interest in the treatment
and preservation of such Borrower's rights and obligations under such Ground
Lease or such Prime Ground Lease, as applicable, and that such Borrower shall,
in any such bankruptcy case, provide to Lender immediate and continuous
reasonably adequate protection of such interests. Each Borrower and Lender agree
that such adequate protection shall include but shall not necessarily be limited
to the following:
(a) Lender shall be deemed a party to the Ground Lease or the Prime
Ground Lease, as applicable (but shall not have any obligations thereunder) for
purposes of Section 365 of the Bankruptcy Code, and shall, provided that, prior
to an Event of Default, no such action by Lender would adversely and materially
affect the Borrowers' ability to prosecute, or defend, any such claims asserted
therein, have standing to appear and act as a party in interest in relation to
any matter arising out of or related to the Ground Lease or the Prime Ground
Lease, as applicable, or such Property.
(b) The Borrowers shall serve Lender with copies of all notices,
pleadings and other documents relating to or affecting the Ground Lease or any
Prime Ground Lease, as applicable, or the applicable Property. Any notice,
pleading or document served by the Borrowers on any other party in the
bankruptcy case shall be contemporaneously served by such Borrower on Lender,
and any notice, pleading or document served upon or received by such Borrower
from any other party in the bankruptcy case shall be served by such Borrower on
Lender promptly upon receipt by such Borrower.
(c) Upon written request of Lender, the Borrowers shall assume (or,
in the case of a Prime Ground Lease, to the extent within Global Signal
Acquisitions II's control, assume pursuant to its rights under the Sprint Master
Lease Agreement or cause the lessor under the Sprint Master Lease Agreement to
assume) the Ground Lease or the Prime Ground Lease, as applicable, and shall
take such steps as are necessary to preserve such Borrower's right to assume the
Ground Lease or the Prime Ground Lease, as applicable, including without
limitation using commercially reasonable efforts to obtain extensions of time to
assume or reject the Ground Lease or the Prime Ground Lease, as applicable,
under Subsection 365(d) of the Bankruptcy Code to the extent it is applicable.
(iii) If the Borrowers or the applicable Ground Lessor seeks to
reject any Ground Lease or the Prime Ground Lease, as applicable, or have the
Ground Lease or the Prime Ground Lease, as applicable, deemed rejected, then
prior to the hearing on such rejection Lender shall, subject to applicable law,
be given no less than twenty (20) days' notice and opportunity to elect in lieu
of rejection to have the Ground Lease or the Prime Ground Lease, as applicable,
assumed and assigned to a nominee of Lender. If Lender shall so elect to assume
and assign the Ground Lease or the Prime Ground Lease, as applicable, then the
Borrowers shall, subject to applicable law, continue any request to reject the
Ground Lease until after the motion to assume and assign has been heard. If
Lender shall not elect to assume and assign the Ground Lease or the Prime Ground
Lease, as applicable, then Lender may, subject to applicable law, obtain in
connection with the rejection of the Ground Lease a determination that the
applicable Ground Lessor, at Lender's option, shall (1) agree to terminate the
Ground Lease or the Prime Ground Lease, as applicable, and enter into a new
lease with Lender on the same terms and conditions as the Ground Lease or the
Prime Ground Lease, as applicable, for the remaining term of the Ground Lease or
the Prime Ground Lease, as applicable, or (2) treat the Ground Lease as breached
and provide Lender with the rights to cure defaults under the Ground Lease or
the Prime Ground Lease, as applicable, and to assume the rights and benefits of
the Ground Lease or the Prime Ground Lease, as applicable.
Each Borrower shall join with and support any request by Lender to
grant and approve the foregoing as necessary for adequate protection of Lender's
interests. Notwithstanding the foregoing, Lender may seek additional terms and
conditions, including such economic and monetary protections as it deems
reasonably appropriate to adequately protect its interests, and any request for
such additional terms or conditions shall not delay or limit Lender's right to
receive the specific elements of adequate protection set forth herein.
Each Borrower hereby appoints Lender as its attorney in fact to act
on behalf of Lender in connection with all matters relating to or arising out of
the assumption or rejection of any Ground Lease or the Prime Ground Lease, as
applicable, in which the other party to the lease is a debtor in a case under
the Bankruptcy Code. This grant of power of attorney is present, unconditional,
irrevocable, durable and coupled with an interest.
(G) Regarding Sprint Master Lease Agreements. In addition to the other
provisions of this Section 5.23, the following shall apply with respect to each
Sprint Master Lease Agreement:
(i) Global Signal Acquisitions II shall enforce the Sprint Master
Lease Agreement and will not terminate, modify, cancel, change, supplement,
alter or amend the Sprint Master Lease Agreement, or waive, excuse, condone or
in any way release or discharge the Sprint Master Lessor of or from any of the
material covenants and conditions to be performed or observed by Sprint Master
Lessor to the extent such action would have a material adverse impact on
Lender's interest in the Collateral. Global Signal Acquisitions II hereby grant,
mortgage, bargain, sell, assign and set over to Lender, all of Global Signal
Acquisitions II's interests in the Sprint Master Lease Agreement. The assignment
of Global Signal Acquisitions II's interest set forth in this Section is an
absolute, unconditional and present assignment from Global Signal Acquisitions
II to Lender and not an assignment for security and the existence or exercise of
Global Signal Acquisitions II's revocable license to take all actions with
respect to the Sprint Master Lease Agreement shall not operate to subordinate
this assignment to any subsequent assignment. The exercise by Lender of any of
its rights or remedies pursuant to this Section shall not be deemed to make
Lender a mortgagee-in-possession. So long as no Event of Default shall exist,
Global Signal Acquisitions II shall have a revocable license to take all actions
with respect to the Sprint Master Lease Agreement subject to the terms of this
Agreement and the Deeds of Trust and subject to Lender's rights as a "Lessee
Lender" which are granted to each "Lessee Lender" pursuant to the Sprint Master
Lease Agreement. Any surrender of the sub-leasehold estate created by the Sprint
Master Lease Agreement or termination, cancellation, modification, change,
supplement, alteration or amendment of the Sprint Master Lease Agreement without
the prior written consent of Lender shall be void and of no force and effect.
(ii) Lender shall have the right, but not the obligation (unless
and until Lender takes control of one or more Properties), to perform any
obligations of Global Signal Acquisitions II under the terms of the Sprint
Master Lease Agreement during the continuance of a default under the Sprint
Master Lease Agreement, a Default or Event of Default. All costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) so
incurred, shall be treated as an advance secured by the Deeds of Trust, shall
bear interest thereon at the Default Rate from the date of payment by Lender
until paid in full and shall be paid by Global Signal Acquisitions II to Lender
during the continuance of an Event of Default within ten (10) days after demand.
No performance by Lender of any obligations of Global Signal Acquisitions II
under the Sprint Master Lease Agreement shall constitute a waiver of any Event
of Default arising by reason of Global Signal Acquisitions II's failure to
perform the same. If Lender shall make any payment or perform any act or take
action in accordance with this Section 5.23(G), Lender will notify Global Signal
Acquisitions II of the making of any such payment, the performance of any such
act, or the taking of any such action. In any such event, subject to the terms
of the Sprint Master Lease Agreement, and the rights of lessees, sublessees and
other occupants under the Leases, Lender and any Person designated by Lender
shall have, and are hereby granted, the right to enter upon the Property at any
time and from time to time for the purpose of taking any such action.
(iii) To the extent permitted by law, the price payable by Global
Signal Acquisitions II or any other Person in the exercise of any right of
redemption following foreclosure of the Property shall include all amounts paid
under the Sprint Master Lease Agreement and other sums advanced by Lender on
behalf of Global Signal Acquisitions II, together with interest thereon at the
Default Rate.
(iv) Unless Lender shall otherwise consent, the fee or leasehold
title and the leasehold or subleasehold estate, as applicable, in each of the
Sprint Properties shall not merge but shall always be kept separate and
distinct, notwithstanding the union of said estates either in Sprint Master
Lessor or in Global Signal Acquisitions II or Lender, or in a third party, by
purchase (in either estate) or otherwise.
(v) If the Sprint Master Lessor shall deliver to Lender a copy of
any notice of default sent by the Sprint Master Lessor to Global Signal
Acquisitions II, as tenants under the Sprint Master Lease Agreement, such notice
shall constitute full protection to Lender for any action taken or omitted to be
taken by Lender, in good faith in accordance with this Agreement, in reliance
thereon.
(vi) Global Signal Acquisitions II hereby assigns, transfers and
sets over to Lender all of Global Signal Acquisitions II's claims and rights to
the payment of damages arising from any rejection by the Sprint Master Lessor of
the Sprint Master Lease Agreement under the Bankruptcy Code. Global Signal
Acquisitions II shall notify Lender promptly (and in any event within ten (10)
days) of any claim, suit, action or proceeding relating to the rejection of the
Sprint Master Lease Agreement. Lender is hereby irrevocably appointed as Global
Signal Acquisitions II's attorney-in-fact, coupled with an interest, with
exclusive power to file and prosecute (during the existence of an Event of
Default), to the exclusion of Global Signal Acquisitions II, any proofs of
claim, complaints, motions, applications, notices and other documents, in any
case in respect of the Sprint Master Lessor under the Bankruptcy Code. Global
Signal Acquisitions II may make any compromise or settlement in connection with
such proceedings (subject to Lender's approval); provided, however, that Lender
shall be authorized and entitled to compromise or settle any such proceeding if
such compromise or settlement is made after the occurrence and during the
continuance of an Event of Default. Global Signal Acquisitions II shall promptly
execute and deliver to Lender any and all instruments reasonably required in
connection with any such proceeding after request therefor by Lender. Except as
set forth above, Global Signal Acquisitions II shall not adjust, compromise,
settle or enter into any agreement with respect to such proceedings without the
prior written consent of Lender, which consent shall not be unreasonably
withheld or delayed.
(vii) If pursuant to Section 365(h)(2) of the Bankruptcy Code,
Global Signal Acquisitions II seeks to offset against the rent reserved in the
Sprint Master Lease Agreement the amount of any damages caused by the
non-performance by the Sprint Master Lessor of any of the Sprint Master Lessor's
obligations under the Sprint Master Lease Agreement after the rejection by the
Sprint Master Lessor of the Sprint Master Lease Agreement under the Bankruptcy
Code, Global Signal Acquisitions II shall, prior to effecting such offset,
notify Lender of their intention to do so, setting forth the amounts proposed to
be so offset and the basis therefor. If Lender has failed to object as aforesaid
within ten (10) days after notice from Global Signal Acquisitions II in
accordance with the first sentence of this clause (vii), Global Signal
Acquisitions II may proceed to effect such offset in the amounts set forth in
Global Signal Acquisitions II's notice. Neither Lender's failure to object as
aforesaid nor any objection or other communication between Lender and Global
Signal Acquisitions II relating to such offset shall constitute an approval of
any such offset by Lender. Global Signal Acquisitions II shall indemnify and
save Lender harmless from and against any and all claims, demands, actions,
suits, proceedings, damages, losses, costs and expenses of every nature
whatsoever (including, without limitation, reasonable attorneys' fees and
disbursements) arising from or relating to any such offset by Global Signal
Acquisitions II against the rent reserved in the Sprint Master Lease Agreement.
(viii) Effective upon the entry of an order for relief in respect
of Global Signal Acquisitions II under the Bankruptcy Code, Global Signal
Acquisitions II hereby assign and transfer to Lender a non-exclusive right to
apply to the appropriate bankruptcy court under Section 365(d)(4) of the
Bankruptcy Code for an order extending the period during which the Sprint Master
Lease Agreement may be rejected or assumed.
(ix) In the event that Global Signal Acquisitions II or any
Affiliate of Global Signal Acquisitions II or any Person Controlled by Global
Signal Acquisitions II or any Person holding a direct or indirect (through
intervening entities) legal or beneficial interest in Global Signal Acquisitions
II (or family members of such Persons) acquires any economic interest, whether
directly or indirectly (through intervening entities), in Sprint Master Lessor,
Global Signal Acquisitions II shall provide immediate written notice thereof to
Lender and Lender shall have the right to act for Global Signal Acquisitions II
with respect to any arbitration or other legal or administrative proceedings
under the Sprint Master Lease Agreement.
Section 5.24 Easements.
(A) Modification. Except as provided in this Section 5.24, the Borrowers
shall not modify or amend any material substantive or economic terms of, or,
subject to the terms of Section 11.5 hereof, terminate or surrender any
Easement, in each case without the prior written consent of Lender, which
consent shall not be unreasonably withheld, conditioned or delayed. Any such
attempted or purported material modification, amendment, or any surrender or
termination of any Easement without Lender's prior written consent shall be null
and void and of no force or effect. Notwithstanding the foregoing to the
contrary, the Borrowers shall be permitted, without Lender's consent, to:
(i) extend the terms of the Easement on commercially reasonable
substantive and economic terms;
(ii) terminate any Easement which the Borrowers reasonably deem
necessary in accordance with prudent business practices, provided that (i) the
Borrowers provide written notice to Lender of such determination not later than
thirty (30) days prior to such termination, (ii) together with such notice the
Borrowers provide supporting information reasonably acceptable to Lender that
following such termination the DSCR will be equal to or greater than the DSCR
immediately prior to such termination, or the Annualized Run Rate Net Cash Flow
from such Property is equal to or less than zero at the time of such termination
and is not expected by the Borrowers (as evidenced by an Officer's Certificate)
to have a positive Annualized Run Rate Net Cash Flow during the succeeding six
(6) month period, (iii) if (1) the aggregate Allocated Loan Amount with respect
to (x) each such Property for which a termination has occurred under this
Section 5.24(A), Section 5.9 and Section 5.23(A) and (y) the Property for which
a termination is proposed is greater than five percent (5%) of the Principal
Amount of the Loan at Closing, or (2) at least seventy-five percent (75%) of the
Operating Revenues of the Properties that remain following a proposed
termination do not consist of telephony revenues, the Borrowers have delivered a
Rating Confirmation, and (iv) following such termination such Property is not
held by any Affiliate of the Borrowers for a period of more than ninety (90)
days unless agreed to by Lender, such consent not to be unreasonably withheld,
conditioned or delayed. In connection with any termination permitted pursuant to
the terms of this Section 5.24(A), the Borrowers may sell any Other Company
Collateral associated with the applicable Property and no longer required in
connection with the operation of the Borrowers' business.
(iii) provided no Event of Default shall have occurred and is then
continuing, increase the area of real property covered by an Easement, and in
connection therewith amend and restate or replace the existing agreement
establishing the Easement (an "Amended Easement"), to include such additional
real property, provided that such Amended Easement is on commercially reasonable
substantive and economic terms (taking into consideration the additional real
property covered by the Amended Easement), and subject to the following
conditions:
(a) Lender shall have received at least ten (10) day's prior
written notice of the execution of the Amended Easement, together with a summary
of the economic terms thereof, and, following execution and delivery of the
Amended Easement, Lender shall have received a copy of the Amended Easement
certified by the applicable Borrower as being true, accurate and complete;
(b) on or prior to execution and delivery of the Amended Easement,
Lender shall have received a database search environmental report prepared by
Xxxxxx and Associates (or another consultant reasonably acceptable to Lender) on
the real property to be included under the Amended Easement, together with a
Phase I or Phase II environment assessment report (if any database search
environmental report reveals any condition that in Lender's reasonable judgment
warrants such a report) which concludes that the subject property does not
contain any Hazardous Materials (except for cleaning and other products used in
connection with the routine maintenance, operation or repair of the subject
property or the operation thereof as a tower property in full compliance with
Environmental Laws) and is not in violation of any Environmental Laws;
(c) if the Easement being replaced is with respect to a Mortgaged
Property, on or prior to execution and delivery of the Amended Easement, Lender
shall have received a current survey (together with legal description) for the
property proposed to be included under the Amended Easement, certified to the
title company and Lender and their successors and assigns, prepared by a
professional land surveyor licensed in the state in which the applicable
Property is located;
(d) if the Easement being replaced is with respect to a Mortgaged
Property, simultaneous with the execution and delivery of the Amended Easement,
Lender shall have received an Amended Deed of Trust executed and delivered by a
duly authorized officer of the applicable Borrower encumbering the property
included under the Amended Easement, together with an endorsement to (or
replacement of) the existing Title Policy in substantially the form delivered in
connection with the Deed of Trust encumbering such Property insuring the lien of
the Amended Deed of Trust, issued by the Title Company and dated as of the date
of the Amended Easement;
(e) Borrower shall pay or reimburse Lender for all reasonable costs
and expenses incurred by Lender (including, without limitation, reasonable
attorneys fees and disbursements) in connection with such Amended Easement, and
all recording charges, filing fees, taxes or other expenses (including, without
limitation, mortgage and intangibles taxes and documentary stamp taxes) payable
in connection therewith; and
(f) if the aggregate Allocated Loan Amount of all Properties for
which an Amended Easement has been executed exceeds twenty percent (20%) of the
original Principal Amount of the Loan, the Borrowers shall deliver a Rating
Confirmation to Lender.
(B) Performance of Easements. The Borrowers shall fully perform as and
when due each and all of its obligations under each Easement in accordance with
the terms of such Easement, and shall not cause or suffer to occur any material
breach or default in any of such obligations. Notwithstanding that certain of
the obligations of the Borrowers under this Loan Agreement may be similar or
identical to certain of the obligations of the Borrowers under the Easements,
all of the obligations of the Borrowers under this Loan Agreement are and shall
be separate from and in addition to its obligations under the Easements.
(C) Notice of Default. If any of the Borrowers shall have or receive any
written notice that any Easement Default has occurred, then the Borrowers
immediately shall notify Lender in writing of the same and immediately deliver
to Lender a true and complete copy of each such notice. Further, the Borrowers
shall provide such documents and information as Lender shall reasonably request
concerning the Easement Default.
(D) Lender's Right to Cure. If any Easement Default shall occur and be
continuing, or if the fee owner asserts that an Easement Default has occurred
(whether or not the Borrowers question or deny such assertion), then, subject to
the terms and conditions of the applicable Easement, Lender, upon five (5)
Business Days' prior written notice to the Borrowers, unless Lender reasonably
determines that a shorter period (or no period) of notice is necessary to
protect Lender's interest in the Easement, may (but shall not be obligated to)
take any action that Lender deems reasonably necessary, including, without
limitation, (i) performance or attempted performance of the applicable
Borrower's obligations under the applicable Easement, (ii) curing or attempting
to cure any actual or purported Easement Default, (iii) mitigating or attempting
to mitigate any damages or consequences of the same and (iv) entry upon the
applicable Property for any or all of such purposes. Upon Lender's request, each
of the Borrowers shall submit satisfactory evidence of payment or performance of
any of its obligations under each Easement. Lender may pay and expend such sums
of money as Lender in its sole discretion deems necessary or desirable for any
such purpose, and the Borrowers shall pay to Lender within five (5) Business
Days of the written demand of Lender all such sums so paid or expended by
Lender, together with interest thereon from the date of expenditure at the
Default Rate.
Section 5.25 Lender's Expenses. The Borrowers shall pay, on demand by Lender,
all reasonable out-of-pocket expenses, charges, costs and fees (including
reasonable attorneys' fees and expenses) in connection with the negotiation,
documentation, closing, administration, servicing, enforcement interpretation,
and collection of the Loans and the Loan Documents, and in the preservation and
protection of Lender's rights hereunder and thereunder. Without limitation the
Borrowers shall pay all costs and expenses, including reasonable attorneys'
fees, incurred by Lender in any case or proceeding under the Bankruptcy Code (or
any law succeeding or replacing any of the same).
ARTICLE VI
RESERVES
Section 6.1 Security Interest in Reserves; Other Matters Pertaining to
Reserves.
(A) The Borrowers hereby pledge, assign and grant to Lender a security
interest in and to all of the Borrowers' right, title and interest in and to the
Account Collateral, including the Reserves, as security for payment and
performance of all of the Obligations hereunder and under the Note and the other
Loan Documents. The Reserves constitute Account Collateral and are subject to
the security interest in favor of Lender created herein and all provisions of
this Loan Agreement and the other Loan Documents pertaining to Account
Collateral. All Reserves shall be made and held by Lender (and shall be
commingled among the respective Loans) on a consolidated basis with respect to
all of the Loans pursuant to the terms of the Cash Management Agreement.
(B) In addition to the rights and remedies provided in Article VII and
elsewhere herein, upon the occurrence and during the continuance of any Event of
Default, Lender shall have all rights and remedies pertaining to the Reserves as
are provided for in any of the Loan Documents or under any applicable law.
Without limiting the foregoing, upon and at all times after the occurrence and
during the continuance of an Event of Default, Lender in its sole and absolute
discretion, may use the Reserves (or any portion thereof) for any purpose,
including but not limited to any combination of the following: (i) payment of
any of the Borrower's respective Obligations including the Yield Maintenance (if
any) applicable upon such payment in such order as Lender may determine in its
sole discretion; provided, however, that such application of funds shall not
cure or be deemed to cure any default; (ii) reimbursement of Lender for any
actual losses or expenses (including, without limitation, reasonable legal fees)
suffered or incurred as a result of such Event of Default; (iii) payment for the
work or obligation for which such Reserves were reserved or were required to be
reserved; and (iv) application of the Reserves in connection with the exercise
of any and all rights and remedies available to Lender at law or in equity or
under this Loan Agreement or pursuant to any of the other Loan Documents.
Nothing contained in this Loan Agreement shall obligate Lender to apply all or
any portion of the funds contained in the Reserves during the continuance of an
Event of Default to payment of the Loan or in any specific order of priority.
Section 6.2 Funds Deposited with Lender.
(A) Interest, Offsets. Except only as expressly provided otherwise herein,
all funds of the Borrowers which are deposited with Lock Box Account Bank as
Reserves hereunder shall be held by Lock Box Account Bank in one or more
Permitted Investments, such Permitted Investments, prior to an Event of Default,
to be as directed by the Borrowers. All interest which accrues on the Reserves
shall be taxable to the Borrowers and shall be added to and disbursed in the
same manner and under the same conditions as the principal sum on which said
interest accrued. The amount of actual losses sustained on a liquidation of a
Permitted Investment shall be deposited by the Borrowers into the Lock Box
Account no later than three (3) Business Days following such liquidation.
Additional provisions pertaining to investments are set forth in Article VII.
After repayment of all of the Obligations, all funds held as Reserves will be
promptly returned to, or as directed by, the Borrowers.
(B) Funding at Closing. The Borrowers shall deposit with Lender the
amounts necessary to fund each of the Reserves as set forth below. Deposits into
the Reserves at Closing may occur by deduction from the amount of the Loans (pro
rata) that otherwise would be disbursed to the Borrowers, followed by deposit of
the same into the applicable Sub-Account or Account of the Lock Box Account in
accordance with the Cash Management Agreement on the Closing Date.
Notwithstanding such deductions, the Loans shall be deemed for all purposes to
be fully disbursed at Closing.
Section 6.3 Impositions and Insurance Reserve. On the Closing Date, the
Borrowers shall deposit with Lock Box Account Bank $19,450,000 with respect to
all of the Borrower's respective Properties and, pursuant to the Cash Management
Agreement, the Borrowers shall deposit monthly, on each Payment Date commencing
on the Payment Date in April 2006, one-twelfth (1/12th) of the annual charges
(as reasonably estimated by Lender) for all Impositions and all Insurance
Premiums (provided that any amounts in respect of blanket policies shall include
only that portion of Insurance Premiums allocated to the coverage provided for
the Borrowers and the Properties) payable with respect to all of the Borrower's
respective Properties (said funds, together with any interest thereon and
additions thereto, the "Impositions and Insurance Reserve"). The initial amount
of the monthly deposit to be made to the Impositions and Insurance Reserve from
and after the date hereof is $8,560,000. The Borrowers shall also deposit with
Lock Box Account Bank within ten (10) Business Days of the written demand by
Lender, to be added to and included within such reserve, a sum of money which
Lender reasonably estimates, together with such monthly deposits, will be
sufficient to make the payment of each such charge (but, with respect to blanket
policies, only that portion of the Insurance Premiums allocated to the coverage
provided for the Borrowers and the Properties) at least ten (10) Business Days
prior to the date initially due. The Borrowers shall provide Lender with bills
or a statement of amounts due for the next calendar month which shall be
accompanied by an Officer's Certificate and such other documents as may be
reasonably required to establish the amounts required to be paid in the
following calendar month at least five (5) days prior to the date on which each
payment shall first become subject to penalty or interest if not paid, or if
paid, copies of paid bills. So long as (i) no Event of Default has occurred and
is continuing, (ii) the Borrowers have provided Lender with the foregoing
materials in a timely manner, and (iii) sufficient funds are held by Lender for
the payment of the Impositions and Insurance Premiums relating to the
Properties, as applicable, Lender shall at the Borrowers' election, (x) pay said
items, (y) disburse to the Borrowers from such Reserve an amount sufficient to
pay said items, or (z) reimburse the Borrowers for items previously paid by the
Borrowers or disburse to the Borrowers amounts determined to be in excess of
required deposits. Interest shall accrue in favor of the Borrowers on funds in
the Impositions and Insurance Reserve.
Section 6.4 Advance Rents Reserve Sub-Account. On the Closing Date, the
Borrowers shall deposit with Lock Box Bank $4,150,000, and, pursuant to the Cash
Management Agreement, the Borrowers shall deposit, or instruct Lock Box Bank to
deposit, (i) the Annual Advance Rents Reserve Deposit not later than the third
(3rd) Business Day of each month immediately following the first (1st) month for
which annual rent is required to be paid under the applicable Leases for which
Annual Advance Rents Reserve Deposits are required to be made, and (ii) the
Quarterly Advance Rents Reserve Deposit not later than the third (3rd) Business
Day of February, May, August and November of each calendar year, such amounts to
be deposited into a sub-account of the Lock Box Account (said sub-account, the
"Advance Rents Reserve Sub-Account") for deposit of such Advance Rents Reserve
Deposit and such Advance Rents Reserve Deposit shall be held, allocated and
disbursed in accordance with the terms and conditions of the Cash Management
Agreement. The Advance Rents Reserve Sub-Account shall be under the sole
dominion and control of Lender and/or its designee including any Servicer of the
Loans, and the Borrowers shall have no rights to control or direct the
investment or payment of funds therein except as expressly provided herein.
Section 6.5 Cash Trap Reserve. If a Cash Trap Event shall occur, then, from and
after the date that it is determined that a Cash Trap Event has occurred (which
shall be based upon the financial reporting required to be delivered pursuant to
Section 5.1(A)(iv)) and for so long as such Cash Trap Event continues to exist,
all Excess Cash Flow (except as otherwise expressly provided below) shall be
deposited with Lender (or its Servicer or agent) and held in the Lock Box
Account in accordance with the terms of the Cash Management Agreement (said
funds, together with any interest thereon, the "Cash Trap Reserve"). A "Cash
Trap Event" shall occur as of the last day of any calendar quarter when the Debt
Service Coverage Ratio is equal to or less than the Cash Trap DSCR, and shall
continue to exist until such time as the Debt Service Coverage Ratio exceeds the
Cash Trap DSCR for two (2) consecutive calendar quarters. If as of the last day
of any calendar quarter the Debt Service Coverage Ratio is less than the Minimum
DSCR, Lender will apply any amounts in the Cash Trap Reserve to payment of the
Loans on the next Payment Date (including any required Yield Maintenance). Any
funds on deposit in the Cash Trap Reserve shall continue to be held as
additional Collateral in accordance with this Section 6.5. Provided that no
Event of Default exists and the Cash Trap DSCR test has been satisfied for two
(2) consecutive calendar quarters (as determined above), any funds remaining in
the Cash Trap Reserve shall be released to the Borrowers. The existence of a
Cash Trap Event shall be determined by Lender in its reasonable good faith
determination. Notwithstanding any provision herein to the contrary, during the
continuance of an Event of Default all funds on deposit in the Cash Trap Reserve
and any subsequent Excess Cash Flow may be applied by Lender to payment of the
Loans, or any of them (including payment of Yield Maintenance, if any) or other
Obligations of any of the Borrowers as Lender may elect.
ARTICLE VII
DEPOSIT ACCOUNT;
LOCK BOX ACCOUNT; CASH MANAGEMENT
Section 7.1 Establishment of Deposit Account and Lock Box Account.
(A) (i) Deposit Account. On or before the Closing Date, one or more
deposit accounts, which shall be Eligible Accounts, shall be established at the
Borrowers' sole cost and expense in the name of Lender, as secured party
hereunder (said accounts, and any accounts replacing same in accordance with
this Loan Agreement and the Deposit Account Agreement, collectively, the
"Deposit Account") with one or more financial institutions reasonably approved
by Lender (collectively, the "Deposit Bank"), pursuant to one or more agreements
(collectively, the "Deposit Account Agreement") substantially similar to
Lender's form or otherwise in form and substance reasonably acceptable to
Lender, executed and delivered by the Borrowers and the Deposit Bank. The
Deposit Account shall be under the sole dominion and control of Lender (which
dominion and control may be exercised by Servicer). Among other things, the
Deposit Account Agreement shall provide that the Borrowers shall have no access
to or control over the Deposit Account, that all available funds on deposit in
the Deposit Account shall be transferred by wire transfer (or transfer via the
ACH System) on each Business Day of each calendar week by the Deposit Bank into
the Lock Box Account, for application in accordance with the Cash Management
Agreement. The Deposit Bank and the Lock Box Account Bank shall be directed to
deliver to the Borrowers copies of bank statements and other information made
available by the Deposit Bank and the Lock Box Account Bank concerning the
Deposit Account and the Lock Box Account, respectively.
(ii) Each tenant occupying space at the Properties shall be, or has
been, instructed, by irrevocable written direction, in form and substance
reasonably acceptable to Lender, to pay all Rents and other amounts owed to the
Borrowers directly to the Deposit Account, unless Lender shall otherwise direct
in writing. The Borrowers shall, or shall cause Manager to, send direction
letters to each tenant until each such tenant commences paying all required
amounts to the Deposit Account, and, if any tenant ceases to pay such amounts to
the Deposit Account for three (3) consecutive months, shall send additional
direction letters to the applicable tenant, until such tenant complies with such
irrevocable written directions. The Borrowers shall cause any and all other
Receipts to be deposited promptly into the Deposit Account and in no event later
than two (2) Business Days after receipt thereof by the Borrowers or Manager. To
the extent that the Borrowers or any Person on their behalf holds any Receipts,
whether in accordance with this Loan Agreement or otherwise, the Borrowers shall
be deemed to hold the same in trust for Lender for the protection of the
interests of Lender hereunder and under the Loan Documents.
(iii) The Borrowers shall pay all reasonable out-of-pocket costs
and expenses incurred by Lender in connection with the transactions and other
matters contemplated by this Section 7.1, including but not limited to, Lender's
reasonable attorneys' fees and expenses, and all reasonable fees and expenses of
the Deposit Bank and the Lock Box Account Bank, including without limitation
their reasonable attorneys' fees and expenses.
(B) Lock Box Account. On or before the Closing Date, pursuant to the terms
of the Cash Management Agreement, an Eligible Account shall be established in
the name of Lender, as secured party hereunder, to serve as the "Lock Box
Account" (said account, and any account replacing the same in accordance with
this Loan Agreement and the Cash Management Agreement, the "Lock Box Account";
and the depositary institution in which the Lock Box Account is maintained, the
"Lock Box Account Bank"). The Lock Box Account shall be under the sole dominion
and control of Lender (which dominion and control may be exercised by Servicer);
and except as expressly provided hereunder or in the Cash Management Agreement,
the Borrowers shall not have the right to control or direct the investment or
payment of funds therein during the continuance of an Event of Default. Lender
may elect to change any financial institution in which the Lock Box Account
shall be maintained if such institution is no longer an Eligible Bank, upon not
less than five (5) Business Days' notice to the Borrower. The Lock Box Account
shall be deemed to contain such sub-accounts as Lender may designate
("Sub-Accounts"), which may be maintained as separate ledger accounts and need
not be separate Eligible Accounts. The Sub-Accounts shall include the following
as more particularly described in the Cash Management Agreement:
(i) "Debt Service Sub-Account" shall mean the Sub-Account of the
Lock Box Account established for the purposes of reserving for payments of
principal and interest and other amounts due under the Loan Documents for each
of the Loans taken as a whole (but without duplication of amounts covered under
item (ii) below); and
(ii) "Reserve Sub-Accounts" shall mean the Sub-Accounts of the Lock
Box Account established for the purpose of holding funds in the Reserves
including: (a) the "Imposition and Insurance Reserve Sub-Account", (b) the "Cash
Trap Reserve Sub-Account", (c) the "Advance Rents Reserve Sub-Account", and (d)
the "Loss Proceeds Reserve Sub-Account".
Section 7.2 Application of Funds in Lock Box Account. Funds in the Lock Box
Account shall be allocated to the Sub-Accounts or the other Accounts (or paid,
as the case may be) in accordance with the Cash Management Agreement.
Section 7.3 Application of Funds After Event of Default. If any Event of
Default shall occur and be continuing, then notwithstanding anything to the
contrary in this Section or elsewhere, Lender shall have all rights and remedies
available under applicable law and under the Loan Documents for each of the
Loans. Without limitation of the foregoing, for so long as an Event of Default
exists, Lender may apply any and all Receipts in the Deposit Account, the Lock
Box Account, the Cash Trap Reserve Sub-Account, and any other Accounts or
Sub-Accounts against all or any portion of any of the Obligations of any or all
of the Borrowers, in any order.
ARTICLE VIII
DEFAULT, RIGHTS AND REMEDIES
Section 8.1 Event of Default.
"Event of Default" shall mean the occurrence or existence of any one or
more of the following with respect to the respective Borrower and the Loan
Documents to which it is a party:
(A) Scheduled Payments. Failure of the Borrowers to pay any scheduled
payment amount when the same is due under this Loan Agreement, the Note, or any
other Loan Documents (whether such amount is interest, principal, Reserves, or
otherwise), or to pay for any Insurance Policies required pursuant to Section
5.4 hereof; or
(B) Other Payments. Failure of the Borrowers to pay any amount from time
to time owing under this Loan Agreement, the Note, or any other Loan Documents
(other than amounts subject to the preceding paragraph) within ten (10) days
after written notice to the Borrowers; or
(C) Breach of Reporting Provisions. Failure of any Borrower Party to
perform or comply with any term or condition contained in Section 5.1 which
continues for a period of ten (10) days after written notice to the Borrowers;
or
(D) Breach of Provisions Regarding Insurance, Transfers, Liens, Single
Purpose. Breach or default under any of Section 5.4, 5.10, 5.15, 5.16, 5.17,
5.18, Article IX (including with respect to Manager or Guarantor), or Section
11.1; provided that (i) in the case of an involuntary Lien under Section 5.16 or
11.1, the same shall not constitute an Event of Default if such liens, in the
aggregate, are not reasonably likely to have a Material Adverse Effect or if
within thirty (30) days after the Borrowers' receipt of notice thereof, the
Borrowers shall either (x) cause the same to be removed of record, or (y)
provide to Lender security for the same in an amount and pursuant to terms both
satisfactory to Lender in Lender's sole discretion, and (ii) in the case of a
default under Section 5.16, such default shall not constitute an Event of
Default if cured within thirty (30) days after the occurrence thereof, provided
that (x) if such default is capable of cure but with diligence cannot be cured
within such thirty (30) day period, (y) the Borrowers (or the applicable
Borrower Party) has commenced to cure such default within such thirty (30) day
period and has pursued such cure diligently, and (z) each Borrower delivers to
Lender promptly following written demand (which demand may be made from time to
time by Lender) evidence reasonably satisfactory to Lender of the foregoing,
such period may be extended for a period not to exceed ninety (90) days after
the original notice of default; or
(E) Breach of Warranty. Any representation, warranty, certification or
other statement made by any of the Borrowers, Guarantor or Manager in any Loan
Document or in any statement or certificate at any time given in writing
pursuant to or in connection with any Loan Document is false as of the date made
and such breach is reasonably likely to have a Material Adverse Effect, provided
that such breach shall not constitute an Event of Default if within forty-five
(45) days of the Borrowers' Knowledge thereof (or such longer period as may be
consented to by Lender), the Borrowers' take such action as may be required to
make such representation, warranty, certification or other statement to be true
as made, which may include removing the affected Property by effectuating a
Release, Substitution or Other Property Substitution subject to the terms of
Section 11.4, Section 11.5 or Section 11.6, respectively; or
(F) Other Defaults Under Loan Documents. A default shall occur in the
performance of or compliance with any term contained in this Loan Agreement
(other than a default already described in another subsection of this Section
8.1) or the other Loan Documents and such default is reasonably likely to have a
Material Adverse Effect and such default is not fully cured within thirty (30)
days after receipt by the Borrowers of written notice from Lender of such
default; provided however that if (i) the default is capable of cure but with
diligence cannot be cured within such period of thirty (30) days, (ii) the
Borrowers (or the applicable Borrower Party) has commenced the cure within such
thirty (30) day period and has pursued such cure diligently, and (iii) the
applicable Borrower delivers to Lender promptly following written demand (which
demand may be made from time to time by Lender) evidence reasonably satisfactory
to Lender of the foregoing, then such period shall be extended for so long as is
reasonably necessary for the Borrowers in the exercise of due diligence to cure
such default, but in no event beyond one hundred and twenty (120) days after the
original notice of default; or
(G) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court
enters a decree or order for relief with respect to any Borrower Party in an
Involuntary Borrower Bankruptcy, or Manager in a proceeding under the Bankruptcy
Code or under applicable bankruptcy, insolvency or other similar law where
Manager is a debtor, which decree or order is not stayed or other similar relief
is not granted under any applicable federal or state law unless dismissed within
ninety (90) days; (ii) the occurrence and continuance of any of the following
events for ninety (90) days unless dismissed or discharged within such time: (x)
an Involuntary Borrower Bankruptcy is commenced, (y) a decree or order of a
court for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over any Borrower Party,
Manager or over all or a substantial part of its or their property, is entered,
or (z) an interim receiver, trustee or other custodian is appointed without the
consent of any Borrower Party or Manager, applicable, for all or a substantial
part of the property of such Person; or
(H) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) An order for
relief is entered with respect to any Borrower Party or Manager, or any Borrower
Party or Manager commences a voluntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
or to the conversion of an involuntary case to a voluntary case under any such
law or consents to the appointment of or taking possession by a receiver,
trustee or other custodian for any Borrower Party or Manager, or for all or a
substantial part of the property of any Borrower Party or Manager; (ii) any
Borrower Party or Manager makes any assignment for the benefit of creditors; or
(iii) the Board of Directors or other governing body of any Borrower Party or
Manager adopts any resolution or otherwise authorizes action to approve any of
the actions referred to in this subsection 8.1(H); or
(I) Bankruptcy Involving Ownership Interests or Properties. Other than as
described in either of Subsections 8.1(G) or 8.1(H), all or any portion of the
Collateral (other than Ground Leased Properties or Prime Ground Leased
Properties for which the Ground Lessor or the Prime Ground Lessor is the subject
of a bankruptcy proceeding) becomes property of the estate or subject to the
automatic stay in any case or proceeding under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect (provided that if the same occurs in the context of an involuntary
proceeding, it shall not constitute an Event of Default if it is dismissed or
discharged within ninety (90) days following its occurrence); or
(J) Solvency. Any Borrower Party or Manager ceases to be solvent or admits
in writing its present or prospective inability to pay its debts as they become
due; or
(K) Judgment and Attachments. Any lien, money judgment, writ or warrant of
attachment, or similar process is entered or filed against any Borrower Party or
any of its assets which claim is not fully covered by insurance (other than with
respect to the amount of commercially reasonable deductibles permitted
hereunder), would have a Material Adverse Effect and remains undischarged,
unvacated, unbonded or unstayed for a period of forty-five (45) days; or
(L) Injunction. The Borrowers are enjoined, restrained or in any way
prevented by the order of any court or any administrative or regulatory agency
from conducting all or any material part of their business and such order
continues for more than thirty (30) days; or
(M) Invalidity of Loan Documents. This Loan Agreement, any Deed of Trust
or any of the Loan Documents for any reason ceases to be in full force and
effect or ceases to be a legally valid, binding and enforceable obligation of
the Borrowers or any Lien securing the Obligations shall, in whole or in part,
cease to be a perfected first priority Lien, subject to the Permitted
Encumbrances (except in any of the foregoing cases in accordance with the terms
hereof or under any other Loan Document) which is reasonably likely to have a
Material Adverse Effect, and the Borrowers do not take all actions requested by
Lender to correct such defect within ten (10) days after the written request by
Lender to take such action, or any Person under the control of the Borrowers or
Guarantor who is a party thereto, other than Lender, denies that it has any
further liability (as distinguished from denial of the existence of a Default or
Event of Default) under any Loan Documents to which it is party, or gives notice
to such effect; or
(N) Default under Management Agreement. Any breach or default shall occur
in the material obligations of the Borrowers under the Management Agreement, and
such breach or default either is of such a nature or continues for such a period
of time beyond applicable notice and cure periods, if any, that Manager shall
have the right to exercise material remedies as a consequence thereof; or
(O) Ground Lease. Any default by any of the Borrowers beyond any
applicable grace period shall occur under any Ground Lease and the Borrowers
have not effectuated a Release or Substitution of such affected Property within
forty-five (45) days of the expiration of such grace period or, subject to
Section 5.23 or Section 11.5 hereof, any actual or attempted surrender,
termination, modification or amendment of any Ground Lease without Lender's
prior written consent, except to the extent same is not reasonably likely to
have a Material Adverse Effect; or
(P) Easements. Any default by any of the Borrowers beyond any applicable
grace period shall occur under any Easement and the Borrowers have not
effectuated a Release or Substitution of such affected Property within
forty-five (45) days of the expiration of such grace period or, subject to
Section 5.24 or Section 11.5 hereof, any actual or attempted surrender,
termination, modification or amendment of any Easement without Lender's prior
written consent, except to the extent same is not reasonably likely to have a
Material Adverse Effect; or
(Q) Sprint Master Lease Agreement. Any default by Global Signal
Acquisitions II beyond any applicable grace period shall occur under the Sprint
Master Lease Agreement or any actual or attempted surrender, termination,
modification or amendment of the Sprint Master Lease Agreement occurs without
Lender's prior written consent if required hereunder, except to the extent same
is not reasonably likely to have a Material Adverse Effect; or
(R) Crossed Loans Event of Default. If an Event of Default beyond all
applicable notice and grace periods shall occur under any of the Loans of the
other Borrowers party to this Loan Agreement.
If more than one of the foregoing paragraphs shall describe the
same condition or event, then Lender shall have the right to select which
paragraph or paragraphs shall apply. In any such case, Lender shall have the
right (but not the obligation) to designate the paragraph or paragraphs which
provide for non-written notice (or for no notice) or for a shorter time to cure
(or for no time to cure).
Section 8.2 Acceleration and Remedies.
(A) Upon the occurrence and during the continuance of any Event of Default
described in any of Subsections 8.1(G), 8.1(H), or 8.1(I), the unpaid principal
amount of and accrued interest and fees on the Loans (or any of them) and all
other Obligations of any of the Borrowers shall automatically become immediately
due and payable, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or other requirements of any kind, all of
which are hereby expressly waived by the Borrowers. Upon and at any time after
the occurrence of any other Event of Default, at the option of Lender, which may
be exercised without notice or demand to anyone, all or any portion of the Loans
(or any of them) and other Obligations of any of the Borrowers shall immediately
become due and payable.
(B) Upon the occurrence and during the continuance of an Event of Default,
all or any one or more of the rights, powers, privileges and other remedies
available to Lender against the Borrowers under this Loan Agreement (including
Article X hereof) or any of the other Loan Documents of any of the Borrowers, or
at law or in equity, may be exercised by Lender at any time and from time to
time, whether or not all or any of the Obligations of any of the Borrowers shall
be declared due and payable, and whether or not Lender shall have commenced any
foreclosure proceeding or other action for the enforcement of its rights and
remedies under any of the Loan Documents with respect to the Properties. Any
such actions taken by Lender shall be cumulative and concurrent and may be
pursued independently, singly, successively, together or otherwise, at such time
and in such order as Lender may determine in its sole discretion, to the fullest
extent permitted by law, without impairing or otherwise affecting the other
rights and remedies of Lender permitted by law, equity or contract or as set
forth herein or in the other Loan Documents. Without limiting the generality of
the foregoing, if an Event of Default is continuing (i) to the fullest extent
permitted by law, Lender shall not be subject to any "one action" or "election
of remedies" law or rule, and (ii) all liens and other rights, remedies or
privileges provided to Lender shall remain in full force and effect until Lender
has exhausted all of its remedies against each Property and the Deeds of Trust
have been foreclosed, sold and/or otherwise realized upon in satisfaction of the
Obligations of any of the Borrowers or the Obligations of all of the Borrowers
have been paid in full.
(C) Lender shall have the right from time to time to partially foreclose
the Deeds of Trust in any manner and for any amounts secured by the Deeds of
Trust then due and payable as determined by Lender in its sole discretion
including, without limitation, the following circumstances: (i) in the event the
Borrowers default beyond any applicable grace period in the payment of one or
more scheduled payments of principal and interest, Lender may foreclose the Deed
of Trust to recover such delinquent payments, or (ii) in the event Lender elects
to accelerate less than the entire outstanding principal balance of the Loans,
or any of them, Lender may foreclose the Deed of Trust or any of them to recover
so much of the principal balance of the Loans as Lender may accelerate and such
other sums secured by the Deed of Trust as Lender may elect. Notwithstanding one
or more partial foreclosures, the Property shall remain subject to the Deed of
Trust to secure payment of sums secured by the Deed of Trust and not previously
recovered.
(D) During the continuance of an Event of Default, Lender shall have the
right from time to time to sever the Notes of each of the Borrowers and the
other Loan Documents of each of the Borrowers into one or more separate notes,
mortgages and other security documents in such denominations as Lender shall
determine in its sole discretion for purposes of evidencing and enforcing its
rights and remedies provided hereunder. The Borrowers shall execute and deliver
to Lender from time to time, within ten (10) days after the request of Lender, a
severance agreement and such other documents as Lender shall reasonably request
in order to effect the severance described in the preceding sentence, all in
form and substance reasonably satisfactory to Lender. The Borrowers hereby
absolutely and irrevocably appoint Lender as their true and lawful
attorney-in-fact, coupled with an interest, in their name and xxxxx to make and
execute all documents reasonably necessary to effect the aforesaid severance if
the Borrowers fail to do so within ten (10) days of Lender's written request,
the Borrowers ratifying all that their said attorney-in-fact shall do by virtue
thereof.
(E) Any amounts recovered from the Properties or any other collateral for
the Loans after an Event of Default may be applied by Lender toward the payment
of any interest and/or principal of the Loans, or any of them, and/or any other
amounts due under the Loan Documents of any of the Borrowers in such order,
priority and proportions as Lender in its sole discretion shall determine.
(F) The rights, powers and remedies of Lender under this Loan Agreement
shall be cumulative and not exclusive of any other right, power or remedy which
Lender may have against the Borrowers pursuant to this Loan Agreement or the
other Loan Documents of any of the Borrowers, or existing at law or in equity or
otherwise. Lender's rights, powers and remedies may be pursued singly,
concurrently or otherwise, at such time and in such order as Lender may
determine in Lender's sole discretion. No delay or omission to exercise any
remedy, right or power accruing upon an Event of Default shall impair any such
remedy, right or power or shall be construed as a waiver thereof, but any such
remedy, right or power may be exercised from time to time and as often as may be
deemed expedient. A waiver of one Default or Event of Default with respect to
the Borrowers shall not be construed to be a waiver of any subsequent Default or
Event of Default by the Borrowers or to impair any remedy, right or power
consequent thereon.
Section 8.3 Performance by Lender.
(A) Upon the occurrence and during the continuance of an Event of Default,
if any of the Borrowers shall fail to perform, or cause to be performed, any
material covenant, duty or agreement contained in any of the Loan Documents of
the respective Borrowers (subject to applicable notice and cure periods), Lender
may perform or attempt to perform such covenant, duty or agreement on behalf of
the Borrowers including making protective advances on behalf of any Borrower,
or, in its sole discretion, causing the obligations of any of the Borrowers to
be satisfied with the proceeds of any Reserve. In such event, the Borrowers
shall, at the request of Lender, promptly pay to Lender, or reimburse, as
applicable, any of the Reserves, any actual amount reasonably expended or
disbursed by Lender in such performance or attempted performance, together with
interest thereon at the Default Rate (including reimbursement of any applicable
Reserves), from the date of such expenditure or disbursement, until paid. Any
amounts advanced or expended by Lender to perform or attempt to perform any such
matter shall be added to and included within the indebtedness evidenced by the
applicable Notes and shall be secured by all of the Collateral of all of the
Borrowers securing the applicable Loans. Notwithstanding the foregoing, it is
expressly agreed that Lender shall not have any liability or responsibility for
the performance of any obligation of the Borrowers under this Loan Agreement or
any other Loan Document of the respective Borrowers, and it is further expressly
agreed that no such performance by Lender shall cure any Event of Default
hereunder.
(B) Lender may cease or suspend any and all performance required of Lender
under the Loan Documents upon and at any time after the occurrence and during
the continuance of any Event of Default.
Section 8.4 Evidence of Compliance. Promptly following request by Lender, each
Borrower shall provide such documents and instruments as shall be reasonably
satisfactory to Lender to evidence compliance with any material provision of
their respective Loan Documents applicable to the respective Borrowers.
ARTICLE IX
SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section 9.1 Applicable to Borrower Parties. Each of the Borrowers hereby
represents, warrants and covenants as of the Closing Date and until such time as
all Obligations are paid in full on behalf of itself, and its related Borrower
Parties, that absent express advance written waiver from Lender, which may be
withheld in Lender's sole discretion, that each Borrower Party:
(A) Except for properties, or interests therein, which the Borrowers have
sold and for which the Borrowers have no continuing obligations or liabilities,
has not owned, and does not own and will not own any assets other than (i) with
respect to the Borrowers, the Properties (including incidental personal property
necessary for the operation thereof and proceeds therefrom), or (ii) with
respect to the Member and the Borrowers, direct or indirect ownership interests
in the Borrowers or such incidental assets as are necessary to enable it to
discharge its obligations with respect to the Borrowers (the "Ownership
Interests");
(B) has not, and is not, engaged and will not engage in any business,
directly or indirectly, other than the ownership, management and operation of
the Properties or the Ownership Interests, as applicable;
(C) has not entered into, and will not enter into, any contract or
agreement with any partner, member, shareholder, trustee, beneficiary, principal
or Affiliate of any Borrower Party (other than the other Borrowers) except upon
terms and conditions that are intrinsically fair and substantially similar to
those that would be available on an arm's-length basis with third parties other
than such Affiliate (including the Management Agreement);
(D) has not incurred any debt (other than among the Borrowers) that
remains outstanding as of Closing and will not incur any debt, secured or
unsecured, direct or contingent (including guaranteeing any obligation), other
than (i) the Obligations, and (ii) Permitted Indebtedness;
(E) has not made any loans or advances to any Person that remains
outstanding as of Closing and will not make any loan or advances to any Person
(including any of its Affiliates, other than among the other Borrowers), and has
not acquired and will not acquire obligations or securities of any of its
Affiliates other than the other Borrower Parties;
(F) is and reasonably expects to remain solvent and pay its own
liabilities, indebtedness, and obligations of any kind from its own separate
assets as the same shall become due;
(G) has done or caused to be done and will do all things necessary to
preserve its existence, and will not, nor will any partner, member, shareholder,
trustee, beneficiary, or principal amend, modify or otherwise change its
partnership certificate, partnership agreement, articles of incorporation,
by-laws, articles of organization, operating agreement, or other organizational
documents in any manner with respect to the matters set forth in this Article
IX;
(H) has continuously maintained, and shall continuously maintain, its
existence and be qualified to do business in all states necessary to carry on
its business, specifically including in the case of each Borrower, the state
where its Properties are located;
(I) has conducted and operated, and will conduct and operate, its business
as presently contemplated with respect to the ownership of the Properties, or
the Ownership Interests, as applicable;
(J) has maintained, and will maintain, books and records and bank accounts
(other than bank accounts established hereunder or under the Cash Management
Agreement, or established by Manager pursuant to the Management Agreement)
separate from those of its partners, members, shareholders, trustees,
beneficiaries, principals, Affiliates, and any other Person (other than the
other Borrowers) and will maintain separate financial statements except that it
may also be included in consolidated financial statements of its Affiliates;
(K) has at all times held, and will continue to hold, itself out to the
public as, a legal entity separate and distinct from any other Person (including
any of its partners, members, shareholders, trustees, beneficiaries, principals
and Affiliates, and any Affiliates of any of the same), and not as a department
or division of any Person (other than the other Borrowers) and will correct any
known misunderstandings regarding its existence as a separate legal entity;
(L) has paid, and will pay, the salaries of its own employees, if any;
(M) has allocated, and will continue to allocate, fairly and reasonably
any overhead for shared office space;
(N) has used, and will continue to use, its own stationery, invoices and
checks (other than those Borrowers who are expressly permitted to use, along
with other Borrowers only, common stationery, invoices and checks);
(O) has filed, and will continue to file, its own tax returns with respect
to itself (or consolidated tax returns, if applicable) as may be required under
applicable law;
(P) reasonably expects to maintain adequate capital for its obligations in
light of its contemplated business operations;
(Q) has not sought, acquiesced in, or suffered or permitted, and will not
seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding
up, in whole or in part;
(R) will not enter into any transaction of merger or consolidation, sell
all or substantially all of its assets, or acquire by purchase or otherwise all
or substantially all of the business or assets of, or any stock or beneficial
ownership of, any Person;
(S) has not commingled or permitted to be commingled, and will not
commingle or permit to be commingled, its funds or other assets with those of
any other Person (other than, with respect to the Borrowers, each other
Borrower, or as may be held by Manager, as agent, for each Borrower pursuant to
the terms of the Management Agreement);
(T) has and will maintain its assets in such a manner that it is not
costly or difficult to segregate, ascertain or identify its individual assets
from those of any other Person other than the other Borrowers;
(U) does not and will not hold itself out to be responsible for the debts
or obligations (other than the Obligations) of any other Person;
(V) has not guaranteed or otherwise become liable in connection with any
obligation of any other Person (other than the other Borrowers) that remains
outstanding, and will not guarantee or otherwise become liable on or in
connection with any obligation (other than the Obligations) of any other Person
(other than the other Borrowers) that remains outstanding;
(W) has not held, and, except for funds deposited into the Accounts in
accordance with the Loan Documents, shall not hold, title to its assets other
than in its name;
(X) shall comply in all material respects with all of the assumptions,
statements, certifications, representations, warranties and covenants regarding
or made by it contained in or appended to the nonconsolidation opinion delivered
pursuant hereto;
(Y) has conducted, and will continue to conduct, its business in its own
name; and
(Z) has observed, and will continue to observe, all corporate, limited
liability company, or limited partnership, as applicable, formalities.
Section 9.2 Applicable to Borrowers, Guarantor and Manager. In addition to
their respective obligations under Section 9.1, each of the Borrowers hereby
represents, warrants and covenants as of the Closing Date on behalf of itself
and until such time as all Obligations are paid in full, that absent express
advance written waiver from Lender, which may be withheld in Lender's sole
discretion:
(A) The Borrowers, Guarantor and Manager shall not, without the prior
unanimous written consent of its board of directors, including its two (2)
Independent Directors, institute proceedings for itself to be adjudicated
bankrupt or insolvent; consent to the institution of bankruptcy or insolvency
proceedings against it; file a petition seeking, or consent to, reorganization
or relief under any applicable federal or state law relating to bankruptcy;
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) for itself or a substantial part of its
property; make any assignment for the benefit of creditors; or admit in writing
its inability to pay its debts generally as they become due;
(B) Each Borrower, Guarantor and Manager has elected and at all times
shall maintain at least two (2) Independent Directors on its board of directors,
who shall be selected by such Borrower, Guarantor, or Manager, as applicable.
(C) Manager shall comply with the provisions of Section 9.1 applicable to
Manager and as is necessary and incidental to its performance under the
Management Agreement, provided that Manager may enter into additional management
agreements with Affiliates of the Borrowers engaged in business substantially
similar to that of the Borrowers and employ such persons and own such assets as
may be necessary or incidental thereto.
ARTICLE X
PLEDGE OF OTHER COMPANY COLLATERAL
Section 10.1 Grant of Security Interest/UCC Collateral. Each of the Borrowers
hereby pledges, assigns and grants to Lender a security interest in and to all
of such Borrower's fixtures and personal property (including, but not limited to
all, (i) equipment in all of its forms, now or hereafter existing, all parts
thereof and all accessions thereto, including but not limited to machinery,
towers, satellite receivers, antennas, headend electronics, furniture, motor
vehicles, aircraft and rolling stock, (ii) of the Borrower's fixtures now
existing or hereafter acquired, all substitutes and replacements therefor, all
accessions and attachments thereto, and all tools, parts and equipment now or
hereafter added to or used in connection with the fixtures on or above the
Properties described herein and all real property now owned or hereafter
acquired by the respective Borrowers and all substitutes and replacements for,
accessions, attachments and other additions to, tools, parts, and equipment used
in connection with, and all proceeds, products, and increases of, any and all of
the foregoing Collateral of such Borrower (including, without limitation,
proceeds which constitute property of the types described herein), (iii)
accounts now or hereafter existing, (iv) inventory now or hereafter existing,
(v) general intangibles (other than Site Management Agreements) now or hereafter
existing, (vi) investment property now or hereafter existing, (vii) deposit
accounts now or hereafter existing, (viii) chattel paper now or hereafter
existing, (ix) instruments, (x) Site Management Agreements now or hereafter
existing (including all rights to payment thereunder, but excluding any other
rights that cannot be assigned without third party consent under such Site
Management Agreements), and the proceeds of the foregoing (collectively, the
"Other Company Collateral"), as security for payment and performance of all of
the Obligations hereunder and under the Note and the other Loan Documents of
such Borrower. The Other Company Collateral is subject to the security interest
in favor of Lender created herein and all provisions of this Loan Agreement and
the other Loan Documents of such Borrower. The Borrowers hereby authorize Lender
to file such financing statements as Lender shall deem reasonably necessary to
perfect Lender's interest in the Other Company Collateral owned by such
Borrower. Upon the occurrence and during the continuance of any Event of
Default, Lender shall have all rights and remedies pertaining to the Other
Company Collateral as are provided for in any of the Loan Documents of such
Borrower or under any applicable law including, without limitation of Lender's
rights of enforcement with respect to the Other Company Collateral or any part
thereof, exercising its rights of enforcement with respect to the Other Company
Collateral or any part thereof under the UCC as amended (or under the UCC in
force in any other state to the extent the same is applicable law) and in
conjunction with, in addition to, or in substitution for, such rights and
remedies of the following:
(A) Lender may enter upon the Borrowers' premises to take possession of,
assemble and collect the Other Company Collateral or to render it unusable.
(B) Lender may require the Borrowers to assemble the Other Company
Collateral and make it available at a place Lender designates which is mutually
convenient to allow Lender to take possession or dispose of the Other Company
Collateral.
(C) Written notice mailed to the Borrowers as provided herein at least
five (5) days prior to the date of public sale of the Other Company Collateral
or prior to the date after which private sale of the Other Company Collateral
will be made shall constitute reasonable notice.
(D) In the event of a foreclosure sale, the Other Company Collateral and
the other Properties may, at the option of Lender, be sold as a whole.
(E) It shall not be necessary that Lender take possession of the Other
Company Collateral or any part thereof prior to the time that any sale pursuant
to the provisions of this section is conducted and it shall not be necessary
that the Other Company Collateral or any part thereof be present at the location
of such sale.
(F) Prior to application of proceeds of disposition of the Other Company
Collateral to the secured indebtedness, such proceeds shall be applied to the
reasonable expenses of retaking, holding, preparing for sale or lease, selling,
leasing and the like and the reasonable attorneys' fees and legal expenses
incurred by Lender.
(G) Any and all statements of fact or other recitals made in any xxxx of
sale or assignment or other instrument evidencing any foreclosure sale hereunder
as to nonpayment of the secured indebtedness or as to the occurrence of any
default, or as to Lender having declared all of such indebtedness to be due and
payable, or as to notice of time, place and terms of sale and of the properties
to be sold having been duly given, or as to any other act or thing having been
duly done by Lender, shall be taken as prima facie evidence of the truth of the
facts so stated and recited.
(H) Lender may appoint or delegate any one or more persons as agent to
perform any act or acts necessary or incident to any sale held by Lender,
including the sending of notices and the conduct of the sale, but in the name
and on behalf of Lender.
ARTICLE XI
RESTRICTIONS ON LIENS, TRANSFERS; ASSUMABILITY;
RELEASE OF PROPERTIES
Section 11.1 Restrictions on Transfer and Encumbrance. Except as expressly
permitted under this Article XI, transfers of Properties among the Borrowers
(provided that appropriate amendments to the Loan Documents are delivered in
connection with such transfer as are necessary to continue Lender's first
priority perfected security interest in the Collateral), and Leases entered into
as permitted hereunder, the Borrowers shall not cause or suffer to occur or
exist, directly or indirectly, voluntarily or involuntarily, by operation of law
or otherwise, any sale, transfer, mortgage, pledge, Lien or encumbrance (other
than the Permitted Encumbrances) of (i) all or any part of the Properties or any
interest therein (except in connection with a termination permitted pursuant to
Section 5.9, 5.23(A) or 5.24(A)), or (ii) any direct or indirect ownership or
beneficial interest in any Borrower, the Guarantor or Manager, irrespective of
the number of tiers of ownership without Lender's consent and receipt of a
Rating Confirmation.
Section 11.2 Transfers of Beneficial Interests. The following voluntary or
involuntary sales, encumbrances, conveyances, transfers and pledges (each, a
"Transfer") of a direct, indirect or beneficial interest shall be permitted
without Lender's consent ("Permitted Ownership Interest Transfers"):
(A) A Transfer of no more than forty-nine percent (49%) of the direct or
indirect ownership interests in Guarantor or Manager (in the aggregate).
(B) A Transfer or a series of Transfers that result in the proposed
transferee, together with Affiliates of such transferee, owning in the aggregate
(directly or indirectly) more than forty-nine percent (49%) of the economic and
beneficial interests in Guarantor or Manager (where, prior to such Transfer,
such proposed transferee and its Affiliates owned in the aggregate (directly or
indirectly) forty-nine percent (49%) or less of such interests in Guarantor or
Manager, as applicable); and, provided that such Transfer shall not be a
Permitted Ownership Interest Transfer unless Lender receives, prior to such
Transfer, both (x) evidence reasonably satisfactory to Lender (which shall
include a legal non-consolidation opinion reasonably acceptable to Lender and
the Rating Agencies) that the single purpose nature and bankruptcy remoteness of
the Borrowers, the Guarantor or Manager, as applicable (and their members and
general partners, as applicable) following such Transfer or Transfers will be
the same as prior to such Transfer or Transfers and (y) Rating Confirmation.
(C) For so long as GSI's (or its successor's) stock is traded through the
"over-the-counter market" or through any recognized stock exchange, (x) any
Transfer of all or any portion of the issued and outstanding capital stock of
GSI, or the issuance of additional capital stock of GSI (including common or
preferred shares) through the "over-the-counter market" or through any
recognized stock exchange, or (y) the issuance by Global Signal Operating
Partnership, L.P. of partnership interests in connection with a permitted
contribution under the IRC, so long as such issuance does not result in the
proposed transferee, together with Affiliates of such transferee, owning in the
aggregate (directly or indirectly) more than 49% of the economic and beneficial
interests in Parent and/or the Manager (where, prior to such transfer, such
proposed transferee and its Affiliates owned in the aggregate (directly or
indirectly) 49% or less of such interests in Parent and/or the Manager, as the
case may be).
For purposes of this Section 11.2, "control" shall have the meaning given
thereto in the definition of "Affiliate" in Section 1.1 and a "change of
control" of any Person shall include the Transfer of legal or equitable
ownership interests in such Person which after giving effect to such Transfer
results in any transferee or pledgee of such interests holding more than a
forty-nine (49%) legal or equitable ownership interest or security interest in
such Person.
Section 11.3 Defeasance. At any time prior to the first Payment Date that is
three (3) months prior to the Maturity Date, the Borrowers may defease the Loans
(but not less than all of the Loans) at any time, in whole only in accordance
with the following provisions:
(A) Lender shall have received from the Borrowers not less than thirty
(30) days' prior written notice specifying the date proposed for such
defeasance.
(B) The Borrowers shall also pay to Lender all interest due through and
including the last day of the Interest Accrual Period during which such
defeasance is being made, together with any and all other amounts due and owing
pursuant to the terms of their respective Loan Documents, including, without
limitation, any costs incurred in connection with a defeasance.
(C) No Event of Default shall have occurred and be continuing unless, in
connection with such defeasance, the Release of one or more Properties which are
the subject of a proposed defeasance will cure such Event of Default.
(D) The Borrowers shall (i) deliver Federal Obligations sufficient to make
the Scheduled Defeasance Payments to Lender (ii) deliver to Lender (1) a
security agreement, in form and substance reasonably satisfactory to Lender,
creating a first priority lien on the Federal Obligations purchased by the
applicable Borrowers in accordance with the terms of this Section 11.3 (the
"Security Agreement"); (2) deliver to Lender an Officer's Certificate certifying
that the requirements set forth in this Section 11.3 have been satisfied; (3)
deliver to Lender an opinion of counsel for the applicable Borrowers in form and
substance reasonably satisfactory to Lender stating, among other things, that
Lender has a first priority perfected security interest in the Federal
Obligations; (4) deliver to Lender a certificate, in form and substance
reasonably satisfactory to Lender from an independent certified public
accountant confirming that the requirements of this Section 11.3 have been
satisfied; and (5) deliver to Lender such other certificates, documents,
opinions or instruments as Lender may reasonably request. The applicable
Borrowers, pursuant to the Security Agreement or other appropriate document,
shall authorize and direct that the payments received from the Federal
Obligations shall be made directly to Lender and applied to satisfy the
obligations of the applicable Borrowers under the Notes.
(E) Lender shall have received a Rating Confirmation.
(F) If the applicable Borrowers will continue to own any assets other than
the Federal Obligations delivered to Lender, the applicable Borrowers shall
establish or designate a special-purpose bankruptcy-remote successor entity
reasonably acceptable to Lender (the "Successor Borrowers"), with respect to
which a substantive nonconsolidation opinion satisfactory to Lender has been
delivered to Lender and the Borrowers shall transfer and assign to the Successor
Borrowers all obligations, rights and duties under the Note and the Security
Agreement, together with the pledged Federal Obligations. The Successor
Borrowers shall assume the obligations of the Borrowers under the Note and the
Security Agreement and the Borrowers shall be relieved of its obligations
hereunder and thereunder. The applicable Borrowers shall pay Ten and No/100
Dollars ($10.00) to the Successor Borrowers as consideration for assuming such
Borrowers obligations.
Section 11.4 Release of Properties.
(A) Defeasance; Prepayments. If (x) the Borrowers defease the Loans
pursuant to Section 11.3 hereof or (y) a prepayment is made pursuant to Section
2.6(A), Section 5.5(C), Section 11.4(B), or Section 11.4(C) hereof, Lender
shall, promptly upon satisfaction of all the following terms and conditions
execute, acknowledge and deliver to the Borrowers a release of the applicable
Loan Documents with respect to any such Property (a "Release", and each such
released Property, a "Released Property") in recordable form with respect to the
applicable Released Property:
(i) In the event of a prepayment of a Loan in part, but not in
whole, Lender shall have received the Release Price on the date proposed for
such prepayment, which shall be applied in accordance with Section 2.4(A)
hereof.
(ii) Except for prepayments which are made (x) contemporaneously
with the application of Loss Proceeds towards the payment of a Loan where such
Loss Proceeds constitute at least fifty percent (50%) of the Release Price, or
(y) under Section 11.4(B) or Section 11.4(C), Lender shall have received from
the Borrowers evidence in form and substance satisfactory to Lender that the
Debt Service Coverage Ratio immediately following the Release is equal to the
greater of (x) 1.35:1 or (y) the Debt Service Coverage Ratio immediately prior
to effecting such Release, unless the Borrowers have delivered a Rating
Confirmation in connection with such Release, accompanied by an Officer's
Certificate stating that the statements, calculations and information comprising
such evidence are true, correct and complete in all respects.
(iii) The applicable Borrowers shall, at their sole expense,
prepare any and all documents and instruments necessary to effect the Release,
all of which shall be subject to the reasonable approval of Lender, and the
Borrowers shall pay all costs reasonably incurred by Lender (including, but not
limited to, reasonable attorneys' fees and disbursements, title search costs or
endorsement premiums) in connection with the review, execution and delivery of
the Release.
(iv) No Event of Default has occurred and is continuing, unless the
proposed Release will cure such Event of Default.
(v) Immediately following such Release, the Released Property will
be owned by a Person other than the Borrowers or any of their Affiliates (unless
such Release is effectuated to cure a Default, in which event the Released
Property may be owned by an Affiliate of the Borrowers).
(B) Underperforming Properties. The Borrowers shall be permitted, without
Lender's consent, to sell or dispose of any Properties which the Borrowers
reasonably deem necessary in accordance with prudent business practices,
provided that:
(i) The Borrowers provide written notice to Lender of such
determination not later than thirty (30) days prior to such sale.
(ii) Together with such notice the Borrowers provide supporting
information reasonably acceptable to Lender that following such sale the DSCR
will be equal to or greater than the DSCR immediately prior to such sale, or the
Annualized Run Rate Net Cash Flow from such Property is equal to or less than
zero at the time of disposition and is not expected by the Borrowers (as
evidenced by an Officer's Certificate) to have a positive Annualized Run Rate
Net Cash Flow during the succeeding six (6) month period.
(iii) If (1) the aggregate Allocated Loan Amount of (x) each such
Property for which a sale has occurred under this Section 11.4(B) and (y) the
Property for which a sale or disposition is proposed is greater than five
percent (5%) of the Principal Amount of all of the Loans in the aggregate at
Closing, or (2) at least seventy-five percent (75%) of the Operating Revenues of
the Properties that remain following a proposed termination do not consist of
telephony revenues, the Borrowers have delivered a Rating Confirmation.
(iv) Following such sale such Property is not held by any Affiliate
of the Borrowers.
In connection with any sale permitted pursuant to the terms of this
Section 11.4(B), the Borrowers may sell any Other Company Collateral associated
with the applicable Mortgaged Property and no longer required in connection with
the operation of the Borrowers' business, and the net proceeds of sale (after
reasonable and customary expenses) of any Mortgaged Property and Other Company
Collateral pursuant to the terms of this Section 11.4 shall be deemed "Receipts"
for all intents and purposes under this Agreement and shall be applied in
accordance with the terms of the Cash Management Agreement.
(C) Master Lease Sites; Additional Pledged Properties. The Global Signal
Acquisitions II shall be permitted, without Lender's consent, to release any
Master Lease Site or Additional Pledged Properties from a Sprint Master Lease
Agreement to the extent required pursuant to the terms of the Sprint Acquisition
Documents upon payment of the Release Price for such Master Lease Site or
Additional Pledged Properties.
Section 11.5 Substitution of Property. Subject to the terms and conditions set
forth in this Section 11.5, the Borrowers shall have the right to obtain a
release of the lien of the applicable Deed of Trust (and the related Loan
Documents) encumbering one or more Mortgaged Properties (for purposes of this
section only, hereinafter referred to as, the "Substituted Property") by (i)
substituting therefor one or more properties of like kind and quality (which
shall include, among other things, the geographic diversity of the Substituted
Property and markets and submarkets with, among other similarities, similar
demographics, populations, absorption trends, accessibility and visibility) or
(ii), with respect to any of the Ground Leased Properties, subjecting the fee
interest, or an easement interest, in such Ground Leased Property to the lien of
a security instrument in favor of Lender as security for the Loan (individually,
a "Replacement Property" and collectively, the "Replacement Properties"). In
addition, any such substitution (each a "Substitution") shall be subject, in
each case, to the satisfaction of the following conditions precedent:
(A) No Event of Default shall have occurred and be continuing, unless the
release of the Substituted Property will cure such Event of Default.
(B) The Borrowers shall have given Lender at least forty-five (45) days
prior written notice of its election to seek a Substitution.
(C) The aggregate value of the Replacement Properties, as established by
the Borrowers to the reasonable satisfaction of Lender, shall be at least equal
to the Allocated Loan Amount of the Substituted Property as of the date
immediately preceding the Substitution.
(D) After giving effect to the Substitution, the Debt Service Coverage
Ratio is at least equal to the Debt Service Coverage Ratio as of the date
immediately preceding the Substitution.
(E) The Borrowers shall deliver or cause to be delivered to Lender a copy
of the instrument conveying to the applicable Borrower the transferred interests
and, if such instrument creates a leasehold interest or an easement interest in
favor of the Borrowers, such instrument shall be reasonably satisfactory to
Lender, contain such Lender protections as are contained in similar instruments
accepted by Lender at Closing, and is accompanied by an estoppel or similar
instrument reasonably satisfactory to Lender.
(F) The Borrowers shall have executed, acknowledged and delivered to
Lender (i) a mortgage, a deed of trust, or a deed to secure debt, as applicable,
with respect to the Replacement Property, so as to effectively create upon
recording and filing valid and enforceable liens upon the Replacement Property,
of first priority, in favor of Lender (or such other trustee as may be desired
under local law), subject only to the Permitted Encumbrances and such other
liens as are permitted pursuant to the applicable Loan Documents, (ii) an
environmental indemnity with respect to the Replacement Property, (iii) written
confirmation from each Guarantor regarding such Substitution, (iv) modifications
to the applicable Loan Documents as Lender deems desirable to properly reflect
the Substitution, and (v) such other documents and agreements as reasonably
requested to evidence the Substitution. The security instrument and
environmental indemnity shall be in the same form and substance as the
counterparts of such documents executed and delivered with respect to the
Substituted Property, subject to modifications reflecting the Replacement
Property as the property that is the subject of such documents and such
modifications reflecting the laws of the State in which the Replacement Property
is located.
(G) Lender shall have received (i) a title insurance policy (or a marked,
signed and redated commitment to issue such title insurance policy) reasonably
satisfactory to Lender insuring the lien of the security instrument encumbering
the Replacement Property, issued by the Title Company and dated as of the date
of the Substitution, and (ii) reasonably requested endorsements to the title
policies delivered to Lender in connection with the Deeds of Trust to reflect
the Substitution. Lender also shall have received copies of paid receipts
showing that all premiums in respect of such endorsements and title insurance
policies have been paid.
(H) The Borrowers shall deliver or cause to be delivered to Lender
resolutions, if any are required, authorizing the Substitution and any actions
taken in connection with such Substitution.
(I) Lender shall have received such opinions as may be reasonably
requested with respect to the Loan Documents delivered with respect to the
Replacement Property, the applicable Borrower's qualification, and authorization
substantially in the form delivered at Closing, together with an update of the
insolvency opinion indicating that the Substitution does not affect the opinions
set forth therein, and an opinion of counsel stating that the Substitution does
not constitute a "significant modification" of the Loan or "deemed exchange" of
the Note under Section 1001 of the Code.
(J) The Borrowers shall have paid or reimbursed Lender for all third party
out-of-pocket costs and expenses incurred by Lender (including, without
limitation, reasonable attorneys fees and disbursements) in connection with the
Substitution and the Borrowers shall have paid all Rating Agency fees, recording
charges, filing fees, taxes or other expenses (including, without limitation,
mortgage and intangibles taxes and documentary stamp taxes) payable in
connection with the Substitution.
(K) Lender shall have received a database search environmental report
prepared by Xxxxxx and Associates (or another consultant reasonably acceptable
to Lender) on the Replacement Property, together with a Phase I or Phase II
environment assessment report (if any database search environmental report
reveals any condition that in Lender's reasonable judgment warrants such a
report) which concludes that the subject property does not contain any Hazardous
Materials (except for cleaning and other products used in connection with the
routine maintenance or repair of the subject property) and is not in material
violation of any Environmental Laws.
(L) Lender shall have received a physical conditions report with respect
to the Replacement Property from a nationally recognized structural consultant
approved by Lender in a form recognized and approved by Lender prior to such
release and Substitution stating that the Replacement Property and its use
comply in all material respects with applicable legal requirements of the
Governmental Authorities and that the Replacement Property is in good condition
and repair and free of damage or waste.
(M) Except with respect to any Substitution converting Ground Leased
Properties to fee or easement owned properties, or in connection with a
Substitution to cure a Default, if (1) the aggregate Allocated Loan Amount of
all Substituted Properties during any calendar year exceeds five percent (5%) of
the original Principal Amount of all of the Loans in the aggregate (with any
excess limit permitted to be carried over into subsequent years), (2) the
percentage of Operating Revenues from the applicable Replacement Property
represented by telephony and investment grade tenants (taken together) is less
than that from the Substituted Property, (3) the Substitute Property will be
subject to a Ground Lease with a term (including all available extensions) of
less than fifteen (15) years following the applicable Substitution, (4) the
weighted average remaining term of the Leases with respect to the Replacement
Properties is shorter than the weighted average remaining term of the Leases
with respect to the Substituted Property, or (5) the Maintenance Capital
Expenditures for the Replacement Properties are materially greater than the
Maintenance Capital Expenditures for the Substituted Property, the Borrowers
shall have delivered Rating Confirmation.
(N) On or prior to the date of Substitution, the Borrowers shall deliver
an Officer's Certificate dated as of the date of Substitution certifying that
the requirements set forth in this Section 11.5 have been satisfied and remaking
the applicable representations and warranties as of that date.
(O) Immediately following such Substitution, the Substituted Property will
be owned by a Person other than (i) the Borrowers or (ii) any of their
Affiliates for a period of more than ninety (90) days unless agreed to by
Lender, not to be unreasonably withheld, conditioned or delayed (unless such
Substitution is effectuated to cure a Default, in which event the Substituted
Property may be owned by an Affiliate of the Borrowers).
Upon the satisfaction of the foregoing conditions precedent, as reasonably
determined by Lender, (i) Lender will release its lien from the Substituted
Property, (ii) the Replacement Property shall be deemed to be a "Mortgaged
Property" hereunder, (iii) all references herein to the Deeds of Trust shall
include the applicable security instrument encumbering the Replacement Property,
and (iv) the applicable Allocated Loan Amount with respect to the Substituted
Property shall be deemed to be the Allocated Loan Amount with respect to the
Replacement Property for all purposes hereunder.
Section 11.6 Substitution of Additional Pledged Properties. Subject to the
terms and conditions set forth in this Section 11.6, the Borrowers shall have
the right to transfer Additional Pledged Properties (for purposes of this
section only, hereinafter referred to as, the "Substituted Additional Pledged
Property") by substituting therefor one or more properties of like kind and
quality (which shall include, among other things, the geographic diversity of
the Substituted Additional Pledged Property and markets and submarkets with,
among other similarities, similar demographics, populations, absorption trends,
accessibility and visibility) (individually, a "Replacement Additional Pledged
Property" and collectively, the "Replacement Additional Pledged Properties"). In
addition, any such substitution (each an "Additional Pledged Property
Substitution") shall be subject, in each case, to the satisfaction of the
following conditions precedent:
(A) No Event of Default shall have occurred and be continuing, unless the
release of the Substituted Additional Pledged Property will cure such Event of
Default.
(B) The Borrowers shall have given Lender at least forty-five (45) days
prior written notice of its election to seek an Additional Pledged Property
Substitution.
(C) The aggregate value of the Replacement Additional Pledged Property, as
established by the Borrowers to the reasonable satisfaction of Lender, shall be
at least equal to the aggregate value of the Substituted Additional Pledged
Property as of the date immediately preceding the Additional Pledged Property
Substitution.
(D) After giving effect to the Additional Pledged Property Substitution,
the Debt Service Coverage Ratio is at least equal to the Debt Service Coverage
Ratio as of the date immediately preceding the Additional Pledged Property
Substitution.
(E) Lender shall have received a copy of the instrument conveying to the
applicable Borrower the transferred interests.
(F) The Borrowers shall deliver or cause to be delivered to Lender
resolutions, if any are required, authorizing the Additional Pledged Property
Substitution and any actions taken in connection with such Additional Pledged
Property Substitution.
(G) The Borrowers shall have paid or reimbursed Lender for all third party
out-of-pocket costs and expenses incurred by Lender (including, without
limitation, reasonable attorneys fees and disbursements) in connection with the
Additional Pledged Property Substitution.
(H) Lender shall have received a database search environmental report
prepared by Xxxxxx and Associates (or another consultant reasonably acceptable
to Lender) on the Replacement Additional Pledged Property, together with a Phase
I or Phase II environment assessment report (if any database search
environmental report reveals any condition that in Lender's reasonable judgment
warrants such a report) which concludes that the subject property does not
contain any Hazardous Materials (except for cleaning and other products used in
connection with the routine maintenance or repair of the subject property) and
is not in material violation of any Environmental Laws.
(I) Lender shall have received a physical conditions report with respect
to the Replacement Additional Pledged Property from a nationally recognized
structural consultant approved by Lender in a form recognized and approved by
Lender prior to such release and Additional Pledged Property Substitution
stating that the Replacement Additional Pledged Property and its use comply in
all material respects with applicable legal requirements of the Governmental
Authorities and that the Replacement Additional Pledged Property is in good
condition and repair and free of damage or waste.
(J) On or prior to the date of the Additional Pledged Property
Substitution, the Borrowers shall deliver an Officer's Certificate dated as of
the date of Additional Pledged Property Substitution certifying that the
requirements set forth in this Section 11.6 have been satisfied.
(K) On or prior to the date of the Additional Pledged Property
Substitution, the Borrowers shall deliver an opinion of counsel stating that the
Additional Pledged Property Substitution does not constitute a "significant
modification" of the Loan or "deemed exchange" of the Note under Section 1001 of
the Code.
(L) If (1) the aggregate Allocated Loan Amount of all Substituted
Additional Pledged Properties during any calendar year exceeds five percent (5%)
of the original Principal Amount of all of the Loans in the aggregate (with any
excess limit permitted to be carried over into subsequent years), (2) the
percentage of Operating Revenues from the applicable Replacement Additional
Pledged Property represented by telephony and investment grade tenants (taken
together) is less than that from the Substituted Additional Pledged Property,
(3) the Substituted Additional Pledged Property will be subject to a Ground
Lease with a term (including all available extensions) of less than fifteen (15)
years following the applicable Additional Pledged Property Substitution, (4) the
weighted average remaining term of the Leases with respect to the Replacement
Additional Pledged Properties is shorter than the weighted average remaining
term of the Leases with respect to the Substituted Additional Pledged Property,
or (5) the Maintenance Capital Expenditures for the Replacement Additional
Pledged Properties are materially greater than the Maintenance Capital
Expenditures for the Substituted Additional Pledged Property, the Borrowers
shall have delivered Rating Confirmation.
(M) Immediately following such Additional Pledged Property Substitution,
the Substituted Additional Pledged Property will be owned by a Person other than
(i) the Borrowers or (ii) any of their Affiliates for a period of more than
ninety (90) days unless agreed to by Lender, not to be unreasonably withheld,
conditioned or delayed (unless such Additional Pledged Property Substitution is
effectuated to cure a Default, in which event the Substituted Additional Pledged
Property may be owned by an Affiliate of the Borrowers).
Upon the satisfaction of the foregoing conditions precedent, as reasonably
determined by Lender, the Replacement Additional Pledged Property shall be
deemed to be an "Additional Pledged Property" hereunder.
ARTICLE XII
RECOURSE; LIMITATIONS ON RECOURSE
Section 12.1 Limitations on Recourse. Subject to the provisions of this
Article, and notwithstanding any provision of the Loan Documents other than this
Article, the personal liability of the Borrowers (but not that of Guarantor
which shall remain fully liable under the Guaranty) to pay any and all of their
respective Obligations including but not limited to the principal of and
interest on the debt evidenced by the Notes and any other agreement evidencing
the Borrowers' obligations under the Notes shall be limited to (i) the
Properties, (ii) the rents, profits, issues, products and income of the
Properties, received or collected by or on behalf of the Borrowers or any
Borrower Party after an Event of Default, and (iii) any other Collateral.
Notwithstanding anything to the contrary in this Loan Agreement, the Deeds of
Trust or any of the Loan Documents, Lender shall not be deemed to have waived
any right which Lender may have under Section 506(a), 506(b), 1111(b) or any
other provisions of the Bankruptcy Code to file a claim for the full amount of
the Obligations secured by the Deeds of Trust or to require that all collateral
shall continue to secure all of the Obligations owing to Lender in accordance
with the Loan Documents.
Section 12.2 Partial Recourse. Notwithstanding Section 12.1, the Borrowers (but
not their members, partners, employees, shareholders agents, directors or
officers (the "Exculpated Parties")) shall be personally liable to the extent of
any liability, loss, damage, cost or expense (including, without limitation,
attorneys' fees and expenses) suffered or incurred by Lender resulting from any
and all of the following: (i) fraud of any of the Borrowers; (ii) any material
misrepresentation made by the Borrowers in this Loan Agreement or any other Loan
Document; (iii) insurance proceeds, condemnation awards, or other sums or
payments attributable to the Properties that are not applied in accordance with
the provisions of the Loan Documents; (iv) all Receipts of the Properties
received by or on behalf of the Borrowers or any Borrower Party or Manager and
not deposited into the Deposit Account in accordance with Article VII and the
Cash Management Agreement; (v) failure to turn over to Lender, after an Event of
Default, or misappropriation of any tenant security deposits or rents collected
in advance (other than by Lender or Servicer); (vi) failure to notify Lender of
any change in the jurisdiction of organization of any of the Borrowers or of any
change in the name of any of the Borrowers or if any of the Borrowers takes any
other action which could make the information set forth in the Financing
Statements relating to the Loan materially misleading; (vii) failure by the
Borrowers to comply with the covenants, obligations, liabilities, warranties and
representations contained in the Environmental Indemnity or otherwise pertaining
to environmental matters; (viii) material waste; (ix) any uncured default under
Section 11.1; and (x) any material uncured default under Article IX.
Section 12.3 Miscellaneous. No provision of this Article shall (i) affect the
enforcement of the Environmental Indemnity, the Guaranty or any guaranty or
similar agreement executed in connection with the Loan, (ii) release or reduce
the debt evidenced by the Note, (iii) impair the lien of any of the Deeds of
Trust or any other security document, (iv) impair the rights of Lender to
enforce any provisions of the Loan Documents, or (v) limit Lender's ability to
obtain a deficiency judgment or judgment on the Note or otherwise against any
Borrower Party but not any Exculpated Party to the extent necessary to obtain
any amount for which such Borrower Party may be liable in accordance with this
Article or any other Loan Document.
ARTICLE XIII
WAIVERS OF DEFENSES OF GUARANTORS AND SURETIES
Section 13.1 Waivers. To the extent that any of the Borrowers (in this Article,
a "Waiving Party") is deemed for any reason to be a guarantor or surety of or
for any other Borrower Party or Affiliate or to have rights or obligations in
the nature of the rights or obligations of a guarantor or surety (whether by
reason of execution of a guaranty, provision of security for the obligations of
another, or otherwise) then this Article shall apply. This Article shall not
affect the rights of the Waiving Party other than to waive or limit rights and
defenses that Waiving Party would have (i) in its capacity as a guarantor or
surety or (ii) in its capacity as one having rights or obligations in the nature
of a guarantor or surety.
Waiving Party hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of receivership or bankruptcy of any
of the other Borrower Parties, protest or notice with respect to any of the
obligations of any of the other Borrower Parties, setoffs and counterclaims and
all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance, the benefits
of all statutes of limitation, and all other demands whatsoever (and shall not
require that the same be made on any of the other Borrower Parties as a
condition precedent to the obligations of Waiving Party), and covenants that the
Loan Documents will not be discharged, except by complete payment and
performance of the obligations evidenced and secured thereby, except only as
limited by the express contractual provisions of the Loan Documents. Waiving
Party further waives all notices that the principal amount, or any portion
thereof, and/or any interest on any instrument or document evidencing all or any
part of the obligations of any of the other Borrower Parties to Lender is due,
notices of any and all proceedings to collect from any of the other Borrower
Parties or any endorser or any other guarantor of all or any part of their
obligations, or from any other person or entity, and, to the extent permitted by
law, notices of exchange, sale, surrender or other handling of any security or
collateral given to Lender to secure payment of all or any part of the
obligations of any of the other Borrower Parties.
Except only to the extent provided otherwise in the express contractual
provisions of the Loan Documents, Waiving Party hereby agrees that all of its
obligations under the Loan Documents shall remain in full force and effect,
without defense, offset or counterclaim of any kind, notwithstanding that any
right of Waiving Party against any of the other Borrower Parties or defense of
Waiving Party against Lender may be impaired, destroyed, or otherwise affected
by reason of any action or inaction on the part of Lender. Waiving Party waives
all rights and defenses arising out of an election of remedies by the Lender,
even though that election of remedies, may have destroyed the Waiving Party's
rights of subrogation and reimbursement against the other Borrower Parties.
Lender is hereby authorized, without notice or demand, from time to time,
(a) to renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, all or any part of the obligations of any of the other
Borrower Parties; (b) to accept partial payments on all or any part of the
obligations of any of the other Borrower Parties; (c) to take and hold security
or collateral for the payment of all or any part of the obligations of any of
the other Borrower Parties; (d) to exchange, enforce, waive and release any such
security or collateral for such obligations; (e) to apply such security or
collateral and direct the order or manner of sale thereof as in its discretion
it may determine; (f) to settle, release, exchange, enforce, waive, compromise
or collect or otherwise liquidate all or any part of such obligations and any
security or collateral for such obligations. Any of the foregoing may be done in
any manner, and Waiving Party agrees that the same shall not affect or impair
the obligations of Waiving Party under the Loan Documents.
Waiving Party hereby assumes responsibility for keeping itself informed of
the financial condition of all of the other Borrower Parties and any and all
endorsers and/or other guarantors of all or any part of the obligations of the
other Borrower Parties, and of all other circumstances bearing upon the risk of
nonpayment of such obligations, and Waiving Party hereby agrees that Lender
shall have no duty to advise Waiving Party of information known to it regarding
such condition or any such circumstances.
Waiving Party agrees that neither Lender nor any person or entity acting
for or on behalf of Lender shall be under any obligation to marshal any assets
in favor of Waiving Party or against or in payment of any or all of the
obligations secured hereby. Waiving Party further agrees that, to the extent
that any of the other Borrower Parties or any other guarantor of all or any part
of the obligations of the other Borrower Parties makes a payment or payments to
Lender, or Lender receives any proceeds of collateral for any of the obligations
of the other Borrower Parties, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid or refunded, then, to the extent of such payment or
repayment, the part of such obligations which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the time immediately preceding such initial payment, reduction or
satisfaction.
Waiving Party (i) shall have no right of subrogation with respect to the
obligations of the other Borrower Parties; (ii) waives any right to enforce any
remedy that Lender now has or may hereafter have against any of the other
Borrower Parties any endorser or any guarantor of all or any part of such
obligations or any other person; and (iii) waives any benefit of, and any right
to participate in, any security or collateral given to Lender to secure the
payment or performance of all or any part of such obligations or any other
liability of the other parties to Lender.
Waiving Party agrees that any and all claims that it may have against any
of the other Borrower Parties, any endorser or any other guarantor of all or any
part of the obligations of the other Borrower Parties, or against any of their
respective properties, shall be subordinate and subject in right of payment to
the prior payment in full of all obligations secured hereby. Notwithstanding any
right of any of the Waiving Party to ask, demand, xxx for, take or receive any
payment from the other Borrower Parties, all rights, liens and security
interests of Waiving Party, whether now or hereafter arising and howsoever
existing, in any assets of any of the other Borrower Parties (whether
constituting part of the security or collateral given to Lender to secure
payment of all or any part of the obligations of the other Borrower Parties or
otherwise) shall be and hereby are subordinated to the rights of Lender in those
assets.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Expenses and Attorneys' Fees. Whether or not the transactions
contemplated hereby shall be consummated, the Borrowers agree to promptly pay
all reasonable fees, costs and expenses incurred by Lender in connection with
any matters contemplated by or arising out of this Loan Agreement, including the
following, and all such fees, costs and expenses shall be part of the
Obligations, payable on demand: (A) reasonable fees, costs and expenses
(including reasonable attorneys' fees, and other professionals retained by
Lender) incurred in connection with the examination, review, due diligence
investigation, documentation and closing of the financing arrangements evidenced
by the Loan Documents; (B) reasonable fees, costs and expenses (including
reasonable attorneys' fees and other professionals retained by Lender) incurred
in connection with the administration of the Loan Documents and the Loan and any
amendments, modifications and waivers relating thereto; (C) reasonable fees,
costs and expenses (including reasonable attorneys' fees) incurred in connection
with the review, documentation, negotiation, closing and administration of any
subordination or intercreditor agreements; (D) reasonable fees, costs and
expenses (including attorneys' fees and fees of other professionals retained by
Lender) incurred in any action to enforce or interpret this Loan Agreement or
the other Loan Documents or to collect any payments due from the Borrowers under
this Loan Agreement, the Note or any other Loan Document or incurred in
connection with any refinancing or restructuring of the credit arrangements
provided under this Loan Agreement, whether in the nature of a "workout" or in
connection with any insolvency or bankruptcy proceedings or otherwise, and (E)
reasonable fees and expenses (including recording costs and fees) incurred in
connection with preparation and recording of assignments of the Deeds of Trust
from the Existing Lenders to the trustee in the Securitization. Any costs and
expenses due and payable to Lender after the Closing Date may be paid to Lender
pursuant to the Cash Management Agreement.
Section 14.2 Indemnity. In addition to the payment of expenses as required
elsewhere herein, whether or not the transactions contemplated hereby shall be
consummated, the Borrowers agree to indemnify, defend, protect, pay and hold
Lender, Servicer and their successors and assigns (including, without
limitation, the trustee and/or the trust under any trust agreement executed in
connection with any Securitization backed in whole or in part by the Loan and
any other Person which may hereafter be the holder of the Note or any interest
therein), and the officers, directors, stockholders, partners, members,
employees, agents, Affiliates and attorneys of Lender and such successors and
assigns (collectively called the "Indemnitees") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, Tax Liabilities, broker's or finders fees, reasonable
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of outside counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto) that are imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of (A) the negotiation,
execution, delivery, performance, administration, ownership, or enforcement of
any of the Loan Documents; (B) any of the transactions contemplated by the Loan
Documents; (C) any breach by the Borrowers of any material representation,
warranty, covenant, or other agreement contained in any of the Loan Documents;
(D) Lender's agreement to make the Loan hereunder; (E) any claim brought by any
third party arising out of any condition or occurrence at or pertaining to the
Properties; (F) any design, construction, operation, repair, maintenance, use,
non-use or condition of the Properties or Improvements, including claims or
penalties arising from violation of any applicable laws or insurance
requirements, as well as any claim based on any patent or latent defect, whether
or not discoverable by Lender; (G) any performance of any labor or services or
the furnishing of any materials or other property in respect of the Properties
or any part thereof; (H) any contest referred to in Section 5.3(B) hereof; (I)
any obligation or undertaking relating to the performance or discharge of any of
the terms, covenants and conditions of the landlord contained in the Leases; or
(J) the use or intended use of the proceeds of any of the Loan (the foregoing
liabilities herein collectively referred to as the "Indemnified Liabilities");
provided that the Borrowers shall not have an obligation to an Indemnitee
hereunder with respect to Indemnified Liabilities arising from the fraud, gross
negligence or willful misconduct of such Indemnitee as determined by a court of
competent jurisdiction. The obligations and liabilities of the Borrowers under
this Section 14.2 shall survive the term of the Loan and the exercise by Lender
of any of its rights or remedies under the Loan Documents, including the
acquisition of the Properties by foreclosure or a conveyance in lieu of
foreclosure.
Section 14.3 Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this Loan
Agreement, the Notes or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Lender and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on the Borrowers in any case shall entitle the Borrowers or other Person
to any other or further notice or demand in similar or other circumstances.
Section 14.4 Retention of the Borrowers' Documents. Lender may, in accordance
with Lender's customary practices, destroy or otherwise dispose of all
documents, schedules, invoices or other papers, delivered by the Borrowers to
Lender (other than the Note) unless the Borrowers request in writing that same
be returned. Upon such request and at the Borrowers' expense, Lender shall
return such papers when Lender's actual or anticipated need for same has
terminated.
Section 14.5 Notices. Unless otherwise specifically provided herein, any notice
or other communication required or permitted to be given shall be in writing and
addressed to the respective party as set forth below. Notices shall be effective
(i) three (3) days after the date such notice is sent by certified mail, return
receipt requested, postage prepaid, (ii) on the next Business Day if sent by a
nationally recognized overnight courier service, (iii) on the date of delivery
by personal delivery and (iv) on the date of transmission if sent by telefax
(with confirmation sent by certified mail) during business hours on a Business
Day (otherwise on the next Business Day).
Notices shall be addressed as follows:
If to the Borrowers or any Borrower Party:
c/o Global Signal Inc.
000 Xxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Sidley Austin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
If to Lender:
c/o LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group
Global Signal Trust III, Series 2006-1
With a copy to:
Midland Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Global Signal Trust III, Series 2006-1
Dechert LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
Any party may change the address at which it is to receive notices to another
address in the United States at which business is conducted (and not a
post-office box or other similar receptacle), by giving notice of such change of
address in accordance with the foregoing. This provision shall not invalidate or
impose additional requirements for the delivery or effectiveness of any notice
(i) given in accordance with applicable statutes or rules of court, or (ii) by
service of process in accordance with applicable law. If there is any assignment
or transfer of Lender's interest in the Loan, then the new Lenders may give
notice to the parties in accordance with this Section, specifying the addresses
at which the new Lenders shall receive notice, and they shall be entitled to
notice at such address in accordance with this Section.
Section 14.6 Survival of Warranties and Certain Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Loan Agreement, the making of the Loans hereunder and the
execution and delivery of the Notes. Notwithstanding anything in this Loan
Agreement or implied by law to the contrary, the agreements of the Borrowers to
indemnify or release Lender or Persons related to Lender, or to pay Lender's
costs, expenses, or taxes shall survive the payment of the Loans and the
termination of this Loan Agreement.
Section 14.7 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure
or delay on the part of Lender in the exercise of any power, right or privilege
hereunder or under the Notes or any other Loan Document shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under this Loan Agreement,
the Notes and the other Loan Documents are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
Section 14.8 Marshaling; Payments Set Aside. Lender shall not be under any
obligation to marshal any assets in favor of any Person or against or in payment
of any or all of the Obligations. To the extent that any Person makes a payment
or payments to Lender, or Lender enforces its remedies or exercises its rights
of set off, and such payment or payments or the proceeds of such enforcement or
set off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such recovery, the
Obligations or part thereof originally intended to be satisfied, and all Liens,
if any, and rights and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or set
off had not occurred.
Section 14.9 Severability. The invalidity, illegality or unenforceability in
any jurisdiction of any provision in or obligation under this Loan Agreement,
the Notes or other Loan Documents shall not affect or impair the validity,
legality or enforceability of the remaining provisions or obligations under this
Loan Agreement, the Notes or other Loan Documents or of such provision or
obligation in any other jurisdiction.
Section 14.10 Headings. Section and subsection headings in this Loan Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Loan Agreement for any other purpose or be given any substantive
effect.
Section 14.11 APPLICABLE LAW. THIS LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS
WERE NEGOTIATED IN THE STATE OF NEW YORK, AND EXECUTED AND DELIVERED IN THE
STATE OF NEW YORK, AND THE PROCEEDS OF THE LOANS WERE DISBURSED FROM NEW YORK,
WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. THIS LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE
CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED
PURSUANT TO THE DEEDS OF TRUST AND THE ASSIGNMENTS OF LEASES SHALL BE GOVERNED
BY THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED, EXCEPT THAT THE SECURITY
INTERESTS IN ACCOUNT COLLATERAL SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK OR THE STATE WHERE THE SAME IS HELD, AT THE OPTION OF LENDER.
Section 14.12 Successors and Assigns. This Loan Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns except that the Borrowers may not assign their rights or obligations
hereunder or under any of their respective Loan Documents except as expressly
provided in Article XI.
Section 14.13 Sophisticated Parties, Reasonable Terms, No Fiduciary
Relationship. The Borrowers, on behalf of themselves and all Borrower Parties,
represent, warrant and acknowledge that (i) they are sophisticated real estate
investors, familiar with transactions of this kind, and (ii) they have entered
into this Loan Agreement and their respective Loan Documents after conducting
their own assessment of the alternatives available to them in the market, and
after lengthy negotiations in which they have been represented by legal counsel
of their choice. The Borrowers, on behalf of themselves and all Borrower
Parties, also acknowledge and agree that the rights of Lender under this Loan
Agreement and the other Loan Documents are reasonable and appropriate, taking
into consideration all of the facts and circumstances including without
limitation the quantity of the Loans, the nature of the Properties, and the
risks incurred by Lender in this transaction. No provision in this Loan
Agreement or in any of the other Loan Documents and no course of dealing between
the parties shall be deemed to create (i) any partnership or joint venture
between Lender and the Borrowers or any other Person, or (ii) any fiduciary or
similar duty by Lender to the Borrowers or any other Person. The relationship
between Lender and the Borrowers is exclusively the relationship of a creditor
and a debtor, and all relationships between Lender and any other Borrower are
ancillary to such creditor/debtor relationship.
Section 14.14 Reasonableness of Determinations. In any instance where any
consent, approval, determination or other action by Lender is, pursuant to the
Loan Documents or applicable law, required to be done reasonably or required not
to be unreasonably withheld, then Lender's action shall be presumed to be
reasonable, and the applicable Borrowers shall bear the burden of proof of
showing that the same was not reasonable. In the event that a claim or
adjudication is made that Lender or its agents have acted unreasonably or
unreasonably delayed acting in any case where, by law or under this Loan
Agreement or the other Loan Documents, Lender or such agent, as the case may be,
has an obligation to act reasonably or promptly, neither Lender nor its agents
shall be liable for any monetary damages, and the Borrowers' sole remedy shall
be limited to commencing an action seeking injunctive relief or declaratory
judgment. Any action or proceeding to determine whether Lender has acted
reasonably shall be determined by an action seeking declaratory judgment.
Section 14.15 Limitation of Liability. Neither Lender, nor any Affiliate,
officer, director, employee, attorney, or agent of Lender, shall have any
liability with respect to, and each of the Borrowers hereby waives, releases,
and agrees not to xxx any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by the Borrower
Parties in connection with, arising out of, or in any way related to, this Loan
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Loan Agreement or any of the other Loan Documents, other
than the gross negligence or willful misconduct of Lender. Each of the Borrowers
hereby waives, releases, and agrees not to xxx Lender or any of Lender's
Affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Loan Agreement or any of the other Loan Documents, or any
of the transactions contemplated by this Loan Agreement or any of the
transactions contemplated hereby, except to the extent the same is caused by the
gross negligence or willful misconduct of Lender.
Section 14.16 No Duty. All attorneys, accountants, appraisers, and other
professional Persons and consultants retained by Lender shall have the right to
act exclusively in the interest of Lender and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to any of the Borrowers or Affiliates thereof, or any other Person.
Section 14.17 Entire Agreement. This Loan Agreement, the Notes, and the other
Loan Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous, or subsequent oral agreements or discussions of the
parties hereto. There are no oral agreements among the parties to the Loan
Documents.
Section 14.18 Construction; Supremacy of Loan Agreement; Sprint Acquisition
Documents. The Borrowers and Lender acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Loan Agreement and the other Loan Documents with its legal
counsel and that this Loan Agreement and the other Loan Documents shall be
construed as if jointly drafted by the Borrowers and Lender. If any term,
condition or provision of this Loan Agreement shall be inconsistent with any
term, condition or provision of any other Loan Document, then this Loan
Agreement shall control. If any term, condition or provision of the Loan
Documents, or the performance or withholding of performance under the Loan
Documents by Lender, Global Signal Acquisition II or any Borrower Party, would
cause a default under the Sprint Acquisition Documents, the Sprint Acquisition
Documents shall control and such performance shall be waived or shall be
required to the extent disallowed or required, as applicable, under the Sprint
Acquisition Documents.
Section 14.19 Consent to Jurisdiction. EACH OF THE BORROWERS HEREBY CONSENTS TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW
YORK, STATE OF NEW YORK OR WITHIN THE COUNTY AND STATE IN WHICH THE PROPERTY IS
LOCATED AND IRREVOCABLY AGREES THAT, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF
OR RELATING TO THIS LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE
LITIGATED IN SUCH COURTS. EACH OF THE BORROWERS ACCEPTS FOR ITSELF AND IN
CONNECTION WITH THE PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT, THE NOTE, SUCH OTHER LOAN DOCUMENTS OR SUCH
OBLIGATION. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING PROCEEDINGS
AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
Section 14.20 Waiver of Jury Trial. EACH OF THE BORROWERS AND LENDER HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS LOAN AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR
ANY DEALINGS BETWEEN ANY BORROWER PARTY AND LENDER RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION AND THE LENDER/BORROWER RELATIONSHIP THAT IS
BEING ESTABLISHED. EACH OF THE BORROWER PARTIES AND LENDER ALSO WAIVES ANY BOND
OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF IT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH OF THE BORROWERS AND LENDER ACKNOWLEDGES THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO THIS LOAN AGREEMENT, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS LOAN AGREEMENT AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THE FUTURE. EACH OF THE BORROWERS AND
LENDER FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS LOAN AGREEMENT, THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENT RELATING TO THE LOAN. IN THE EVENT OF LITIGATION, THIS LOAN AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Section 14.21 Counterparts; Effectiveness. This Loan Agreement and other Loan
Documents and any amendments or supplements thereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which counterparts together shall constitute but one and the same
instrument. This Loan Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
Section 14.22 Servicer; Delivery of Borrower Funds. Lender shall have the right
from time to time to designate and appoint a Servicer and special servicer, and
to change or replace any Servicer or special servicer. Provided that the
Borrowers have been notified of such Servicer's role, all rights of the Lender
hereunder may be exercised by Servicer on behalf of Lender. Lender shall notify
the Borrowers in writing as to the identity of the Servicer and any special
servicer. Whenever funds are to be delivered to the Borrowers pursuant to the
terms of this Agreement or the other Loan Documents (unless specifically
designated therein to the contrary), such funds shall be paid to the following
account:
Company: Global Signal Services LLC
Bank: Bank of America
ABA: 000000000
Account: 3756322246
which account the Borrowers may change from time to time upon not less than ten
(10) days prior written notice to Lender (or the applicable Servicer if notice
of such Servicer has been given to the Borrowers), and satisfaction of Lender's
(or Servicer's, as applicable) obligations with respect to such payment shall be
deemed satisfied upon such payment to such account.
Section 14.23 Obligations of Borrower Parties. The Borrower Parties other than
the Borrowers are parties to this Loan Agreement only with regard to the
representations, warranties, and covenants specifically applicable to them.
Section 14.24 Additional Inspections; Reports. Notwithstanding anything
contained in this Loan Agreement to the contrary, if for any reason whatsoever
Lender suspects that any conditions exist or may exist at any Property which
might have a Material Adverse Effect, Lender shall have the right, at the
Borrowers' sole reasonable cost and expense, to cause such inspections and
reports to be prepared and performed with respect to any Property as Lender
shall reasonably determine.
Section 14.25 Cross-Default; Cross-Collateralization; Waiver of Marshalling of
Assets.
(A) Each of the Borrowers acknowledges that Lender has made the Loans to
each of the respective Borrowers upon the security of the Properties and the
Other Company Collateral taken as a whole with respect to all Loans taken
together and in reliance upon the aggregate value of the Properties and the
Other Company Collateral taken together being of greater value as collateral
security than the sum of each such Property and each of the Borrowers' interests
in the Company Collateral taken separately. Each of the Borrowers agrees that
the Deeds of Trusts and other security agreements given hereunder are and will
be cross-collateralized and cross-defaulted with each other so that (i) an Event
of Default shall constitute an Event of Default under each of the Deeds of
Trusts and the other security agreements given hereunder which secure the
respective Obligations; (ii) each Deed of Trust and the other security
agreements given hereunder shall constitute security for the respective
Obligations as if a single blanket lien were placed on all of the Properties and
the Other Company Collateral as security for the respective Obligations; and
(iii) such cross-collateralization shall in no event be deemed to constitute a
fraudulent conveyance.
(B) To the fullest extent permitted by law, each of the Borrowers, for
itself and its successors and assigns, waives all rights to a marshalling of the
assets of each of the Borrowers, each of the Borrowers' members and others with
interests in each of the Borrowers, and of the Properties and the Other Company
Collateral, or to a sale in inverse order of alienation in the event of
foreclosure of all or any of the Deeds of Trusts or the Other Company
Collateral, and agrees not to assert any right under any laws pertaining to the
marshalling of assets, the sale in inverse order of alienation, homestead
exemption, the administration of estates of decedents, or any other matters
whatsoever to defeat, reduce or affect the right of Lender under the Loan
Documents to a sale of the Properties and the Other Company Collateral for the
collection of the Loans without any prior or different resort for collection or
of the right of Lender to the payment of the Loans out of the net proceeds of
the Properties and the Other Company Collateral in preference to every other
claimant whatsoever. In addition, each of the Borrowers, for itself and its
successors and assigns, waives in the event of foreclosure of any or all of the
Deeds of Trusts or Other Company Collateral, any equitable right otherwise
available to each of the Borrowers which would require the separate sale of the
Properties and the Other Company Collateral or require Lender to exhaust its
remedies against any such Properties and the Other Company Collateral or any
combination of the Properties and the Other Company Collateral before proceeding
against any other Properties and the Other Company Collateral or combination of
Properties and the Other Company Collateral; and further in the event of such
foreclosure each of the Borrowers does hereby expressly consent to and
authorize, at the option of Lender, the foreclosure and sale either separately
or together of any combination of the Properties and the Other Company
Collateral.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Loan Agreement as of the date first written above.
BORROWERS:
---------
GLOBAL SIGNAL ACQUISITIONS LLC
By: /s/Xxxxxx X. Guard
-----------------------------------
Name: Xxxxxx X. Guard
Title: Authorized Signatory
GLOBAL SIGNAL ACQUISITIONS II LLC
By: /s/Xxxxxx X. Guard
-----------------------------------
Name: Xxxxxx X. Guard
Title: Authorized Signatory
PT MORTGAGE BORROWERS
Pinnacle Towers LLC
Intracoastal City Towers LLC
Tower Systems LLC
Radio Station WGLD LLC
High Point Management Co. LLC
ICB Towers, LLC
AirComm of Avon, L.L.C.
Interstate Tower Communications LLC
Tower Technology Company of Jacksonville
LLC
Pinnacle Towers III LLC
Coverage Plus Antenna Systems LLC
By: /s/Xxxxxx X. Guard
-----------------------------------
Name: Xxxxxx X. Guard
Title: Authorized Signatory
Pinnacle Towers V Inc.
Xxxxxxx & Associates Inc.
Sierra Towers, Inc.
By: /s/Xxxxxx X. Guard
-----------------------------------
Name: Xxxxxx X. Guard
Title: Authorized Signatory
LENDER:
------
TOWERS XXXXX III LLC
By: /s/Xxxxxx X. Guard
-----------------------------------
Name: Xxxxxx X. Guard
Title: Authorized Signatory