Exhibit 10.2
MANAGEMENT AGREEMENT
between
PINNACLE TOWERS ACQUISITION HOLDINGS LLC AND
THE SUBSIDIARIES THEREOF LISTED ON THE SIGNATURE PAGES,
collectively, as Owners,
and
GLOBAL SIGNAL SERVICES LLC,
as Manager
Dated as of December 7, 2004
TABLE OF CONTENTS
SECTION 1. Definitions...............................................1
SECTION 2. Appointment...............................................4
SECTION 3. Site Management Services..................................4
SECTION 4. Administrative Services...................................6
SECTION 5. Operation Standards.......................................7
SECTION 6. Authority of Manager......................................7
SECTION 7. Operating Account; Receipts...............................7
SECTION 8. Budgets...................................................8
SECTION 9. Operating Expenses and Capital Expenditures...............8
SECTION 10. Compensation..............................................9
SECTION 11. Employees................................................10
SECTION 12. Books, Records and Inspections...........................11
SECTION 13. Insurance Requirements...................................11
SECTION 14. Environmental............................................12
SECTION 15. Cooperation..............................................12
SECTION 16. Representations and Warranties of Manager................13
SECTION 17. Representations and Warranties of Owners.................14
SECTION 18. Restrictions on Other Activities of Manager..............15
SECTION 19. Removal or Substitution of Sites.........................15
SECTION 20. Term of Agreement........................................15
SECTION 21. Duties Upon Termination..................................17
SECTION 22. Indemnities..............................................17
SECTION 23. Miscellaneous............................................18
LIST OF SCHEDULES AND EXHIBITS
Schedule I List of Sites
Exhibit A Initial Budget
Exhibit B Form of Manager Report
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT is entered into as of December 7, 2004 (the
"Effective Date") by and between each of the entities listed on the signature
pages hereto under the heading "Owners" (collectively, the "Owners") and
Global Signal Services LLC, a Delaware limited liability company (the
"Manager").
SECTION 1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Administrative Services" has the meaning specified in Section 4.
"Affiliate" has the meaning specified in the Loan Agreement.
"Agreement" means this Management Agreement together with all
amendments hereof and supplements hereto.
"Budget" means the Operating Budget or the CapEx Budget.
"Business Day" has the meaning specified in the Loan Agreement.
"CapEx Budget" has the meaning specified in the Loan Agreement.
"Capital Expenditures" has the meaning specified in the Loan
Agreement.
"Debt Service Coverage Ratio" or "DSCR" has the meaning specified in
the Loan Agreement.
"Deposit Account" has the meaning specified in the Loan Agreement.
"Depositor" means Towers ▇▇▇▇▇ II LLC, a Delaware limited liability
company.
"Easement" has the meaning specified in the Loan Agreement.
"Effective Date" has the meaning specified in the first paragraph of
this Agreement, subject to any modification thereto specified in Section 10.
"Environmental Laws" has the meaning specified in the Loan Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and all rules and regulations promulgated thereunder.
"Expiration Date" means January 7, 2005, as such date may be extended
from time to time pursuant to Section 20.
"Extension Notice" has the meaning specified in Section 20.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"Fiscal Agent" means ABN AMRO Bank N.V., in its capacity as fiscal
agent under the Trust and Servicing Agreement, and any successor thereto in
such capacity.
"Ground Lease" has the meaning specified in the Loan Agreement.
"Hazardous Materials" has the meaning specified in the Loan
Agreement.
"Impositions" has the meaning specified in the Loan Agreement.
"Impositions and Insurance Reserve" has the meaning specified in the
Loan Agreement.
"Insurance Policies" has the meaning specified in the Loan Agreement.
"Insurance Premiums" has the meaning specified in the Loan Agreement.
"Lease" has the meaning specified in the Loan Agreement.
"Lender" has the meaning specified in the Loan Agreement.
"Loan Agreement" means the Amended and Restated Loan Agreement dated
as of December 7, 2004, 2004 among the Owners and the Depositor, as initial
lender thereunder.
"Loan Documents" has the meaning specified in the Loan Agreement.
"Lock Box Account" has the meaning specified in the Loan Agreement.
"Managed Site" means a Site subject to a Site Management Agreement.
"Management Fee" has the meaning specified in Section 10.
"Manager" has the meaning specified in the first paragraph of this
Agreement.
"Material Adverse Effect" has the meaning specified in the Loan
Agreement.
"Operating Account" has the meaning specified in Section 7(a).
"Operating Budget" has the meaning specified in the Loan Agreement.
"Operating Expenses" has the meaning specified in the Loan Agreement.
"Operating Revenue" has the meaning specified in the Loan Agreement.
"Operation Standards" means the standards for the performance of the
Services set forth in Section 5.
"Other Management Agreements" has the meaning specified in Section
18.
"Owner Representative" has the meaning specified in Section 23(i).
"Owners" has the meaning specified in the first paragraph of this
Agreement.
"Payment Date" has the meaning specified in the Loan Agreement.
"Permitted Investments" has the meaning specified in the Loan
Agreement.
"Permitted Operations" has the meaning specified in Section 18.
"Person" has the meaning specified in the Loan Agreement.
"Rating Agencies" has the meaning specified in the Loan Agreement.
"Rating Confirmation" has the meaning specified in the Loan
Agreement.
"Receipts" has the meaning specified in the Loan Agreement.
"Records" has the meaning specified in Section 12.
"Servicer" has the meaning specified in the Trust and Servicing
Agreement.
"Services" means, collectively, the Site Management Services and the
Administrative Services.
"Site Management Agreement" has the meaning specified in the Loan
Agreement.
"Site Management Services" has the meaning specified in Section 3.
"Sites" means each tower, rooftop or other telecommunication site
listed on Schedule I hereto, as modified from time to time pursuant to Section
19.
"Tenant" means a tenant or licensee under a Lease, including any
ground lessee under a Lease where an Owner is the ground lessor.
"Term" has the meaning specified in Section 20.
"Trust and Servicing Agreement" means the Trust and Servicing
Agreement dated as of December 7, 2004, among the Trustee, the Fiscal Agent,
the Depositor and the Servicer.
"Trustee" means LaSalle Bank National Association, in its capacity as
trustee under the Trust and Servicing Agreement, and any successor thereto in
such capacity.
References to "Articles", "Sections", "Subsections", "Exhibits" and
"Schedules" shall be to Articles, Sections, Subsections, Exhibits and
Schedules, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in this Section 1 may, unless the context
otherwise requires, be used in the singular or the plural depending on the
reference. In this Agreement, "hereof", "herein", "hereto", "hereunder" and
the like mean and refer to this 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 2. Appointment. On the terms and conditions set forth
therein, each Owner hereby engages the Manager to perform the Services
described herein. The Manager hereby accepts such engagement. The Manager is
an independent contractor, and nothing in this Agreement or in the
relationship of any Owner and the Manager shall constitute a partnership,
joint venture or any other similar relationship.
SECTION 3. Site Management Services. During the Term of this
Agreement, the Manager shall, subject to the terms hereof, perform those
functions reasonably necessary to maintain, market, operate, manage and
administer the Sites (collectively, the "Site Management Services"), all in
accordance with the Operation Standards. Without limiting the generality of
the foregoing, the Manager will have the following specific duties in relation
to the Sites:
(a) Marketing/Leasing of Sites. The Manager shall use commercially
reasonable efforts to market and procure Leases with third party customers for
the Sites, including locating potential Tenants, negotiating Leases with such
Tenants and executing and/or brokering Leases as agent for the Owners. The
Manager shall have complete authority to negotiate all of the terms of each
Lease, both economic and non-economic, as well as complete authority to
negotiate and execute amendments and other modifications thereto in the name
of or on behalf of the Owners; provided, however, that the terms of any Lease
or amendment or modification thereof shall be on commercially reasonable terms
and in accordance with the Operation Standards.
(b) Site Operations. The Manager shall monitor and manage each
Owner's property rights associated with the Sites, make periodic inspections
of the Sites for needed repairs, arrange for all such repairs determined to be
necessary or appropriate, and otherwise provide for the maintenance of the
Sites, including using commercially reasonable efforts to ensure that Tenants
install their equipment in accordance with the terms of the relevant Lease and
that all Sites are maintained in compliance in all material respects with any
applicable FAA and FCC regulations, the terms of any applicable Ground Lease
or Easement and any other applicable laws, rules and regulations. The Manager
shall arrange for all utilities, services, equipment and supplies necessary
for the management, operation, maintenance and servicing of the Sites in
accordance with the terms and conditions of the Leases, the Site Management
Agreements and applicable law. All utility contracts shall be in the name of
the applicable Owner with all notices to be addressed to such Owner in care of
the Manager, at the Manager's address. The Manager shall perform on behalf of
each Owner any obligation reasonably required of such Owner pursuant to any
Site Management Agreement, agency agreement, or other agreement related to the
Sites (other than the payment of amounts due from the Owners thereunder, which
payments shall be paid out of the Operating Account as provided herein). If
any Owner is obligated to or otherwise undertakes any alterations or
improvements to a Site, the Manager shall arrange for such alteration or
improvement on the Owner's behalf.
(c) Administration of Leases. The Manager shall, on behalf of the
Owners (i) maintain a database of the Leases indicating, for each Lease, the
amount of all payments due from the Tenant thereunder, the dates on which such
payments are due and, in the case of a Managed Site, the amount of all
payments due to or from the counterparty under the relevant Site Management
Agreement, (ii) invoice all rent and other amounts due under the Leases and
use commercially reasonable efforts to collect such rent and other amounts,
(iii) perform all services required to be performed by the Owners under the
terms of the Leases and the Site Management Agreements and (iv) otherwise use
commercially reasonable efforts to ensure compliance on the part of the
Tenants and the Owners with the terms of each Lease and Site Management
Agreement, all in accordance with the Operation Standards. Each Owner hereby
authorizes the Manager to take any action the Manager deems to be necessary or
appropriate to enforce the terms of each Lease and Site Management Agreement
in accordance with the Operation Standards, including the right to exercise
(or not to exercise) any right such Owner may have to collect rent and other
amounts due under the Leases (whether through judicial proceedings or
otherwise), to terminate any Lease and/or to evict any Tenant. The Manager
shall also have the right, in accordance with the Operation Standards, to
compromise, settle, and otherwise resolve claims and disputes with regard to
Leases and Site Management Agreements. The Manager may agree to any
modification, waiver or amendment of any term of, forgive any payment on, and
permit the release of any Tenant on, any Lease pertaining to the Sites as it
may determine to be necessary or appropriate in accordance with the Operation
Standards.
(d) Compliance with Law, Etc. The Manager will take such actions
within its reasonable control as may be necessary to comply in all material
respects with any and all laws, ordinances, orders, rules, regulations,
requirements, permits, licenses, certificates of occupancy, statutes and deed
restrictions applicable to the Sites. Without limiting the generality of the
foregoing, the Manager shall use commercially reasonable efforts to apply for,
obtain and maintain, in the name of the respective Owners, or, if required, in
the name of the Manager, the licenses and permits reasonably required for the
operation of the Sites as telecommunications sites, or for the management,
marketing and operation of the Sites (including such licenses required to be
obtained from the FAA and the FCC). The cost of complying with this paragraph
shall be the responsibility of the Owners, shall be considered an Operating
Expense, shall be included in the Operating Budget and will be payable out of
the Operating Account.
(e) On each Payment Date, the Manager will furnish to the Owner
Representative and the Servicer a report (the "Manager Report") in
substantially the form attached as Exhibit B with respect to the periods
specified therein. In addition, the Manager will, from time to time upon
request, furnish to each Rating Agency such additional information pertaining
to the Sites as such Rating Agency may reasonably request.
SECTION 4. Administrative Services. During the Term of this
Agreement, the Manager shall, subject to the terms hereof, provide to each
Owner the following administrative services in accordance with the Operation
Standards (collectively, the "Administrative Services"):
(i) provide to the Owners clerical, bookkeeping and
accounting services, including maintenance of general records of the
Owners and the preparation of monthly financial statements, as
necessary or appropriate in light of the nature of the Owners'
business and the requirements of the Loan Documents to which they are
a party;
(ii) maintain accurate books of account and records of the
transactions of each Owner, render statements or copies thereof from
time to time as reasonably requested by such Owner and assist in all
audits of such Owner;
(iii) prepare and file, or cause to be prepared and filed,
all franchise, withholding, income and other tax returns of such
Owner required to be filed by it and arrange for any taxes owing by
such Owner to be paid to the appropriate authorities out of funds of
such Owner available for such purpose, all on a timely basis and in
accordance with applicable law;
(iv) administer such Owner's performance under the Loan
Documents to which it is a party or by which it is bound, including
(A) preparing and delivering on behalf of such Owner such opinions of
counsel, officers' certificates, financial statements, reports,
notices and other documents as are required under such Loan Documents
and (B) holding, maintaining and preserving such Loan Documents and
books and records relating to such Loan Documents and the
transactions contemplated or funded thereby, and making such books
and records available for inspection in accordance with the terms of
such Loan Documents;
(v) take all actions on behalf of such Owner as may be
necessary or appropriate in order for such Owner to remain duly
organized and qualified to carry out its business under applicable
law, including making all necessary or appropriate filings with
federal, state and local authorities under corporate and other
applicable statutes; and
(vi) managing all litigation instituted by or against such
Owner, including retaining on behalf of and for the account of such
Owner legal counsel to perform such services as may be necessary or
appropriate in connection therewith and negotiating any settlements
to be entered into in connection therewith.
SECTION 5. Operation Standards. The Manager shall perform the
Services in accordance with the terms of the Loan Documents, the Leases, the
Site Management Agreements, the Ground Leases, the Easements and applicable
law and, to the extent consistent with the foregoing, (i) using the same
degree of care, skill, prudence and diligence that the Owners employed in the
management of their Sites and operations prior to the date hereof and that the
Manager uses for other sites it manages and (ii) with the objective of
maximizing revenue and minimizing expenses on the Sites. The Site Management
Services shall be of a scope and quality not less than those generally
performed by first class, professional managers of properties similar in type
and quality to the Sites and located in the same market areas as the Sites.
The Manager hereby acknowledges that it has received a copy of the Loan
Agreement and agrees not to take any action that would cause the Owners to be
in default thereunder.
SECTION 6. Authority of Manager. During the Term hereof, the parties
recognize that Manager will be acting as the exclusive agent of the Owners
with regard to the Services described herein. Each Owner hereby grants to the
Manager the exclusive right and authority, and hereby appoints the Manager as
its true and lawful attorney-in-fact, with full authority in the place and
stead of such Owner and in the name of such Owner, to negotiate, execute,
implement or terminate, as circumstances dictate, for and on behalf of such
Owner, any and all Leases, Ground Leases, Site Management Agreements,
easements, contracts, permits, licenses, registrations, approvals, amendments
and other instruments, documents, and agreements as the Manager deems
necessary or advisable in accordance with the Operation Standards. In
addition, the Manager will have full discretion in determining whether to
commence litigation on behalf of an Owner, and will have full authority to act
on behalf of each Owner in any litigation proceedings or settlement
discussions commenced by or against any Owner. Each Owner shall promptly
execute such other or further documents as the Manager may from time to time
reasonably request to more completely effect or evidence the authority of the
Manager hereunder, including the delivery of such powers of attorney (or other
similar authorizations) as the Manager may reasonably request to enable it to
carry out the Services hereunder. Notwithstanding anything herein to the
contrary, the Manager shall not have the right or power, and in no event shall
it have any obligation, to institute, or to join any other Person in
instituting, or to authorize a trustee or other Person acting on its behalf or
on behalf of others to institute, any bankruptcy, reorganization, arrangement,
insolvency, liquidation or receivership proceedings under the laws of the
United States of America or any state thereof with respect to any Owner.
SECTION 7. Operating Account; Receipts.
(a) Operating Account. On or prior to the Effective Date, the Manager
shall establish, and at all times during the Term of this Agreement shall
maintain, one or more operating bank accounts in the name of an Owner and/or
on behalf of one or more Owners (such account or accounts being the "Operating
Account"). The Owners shall deposit funds into the Operating Account for the
payment of Capital Expenditures and Operating Expenses (other than Impositions
and Insurance Premiums that are to be paid directly out of the Impositions and
Insurance Reserve pursuant to the Loan Documents) in accordance with the
amounts and timing set forth in the Budgets. At all times during the Term of
this Agreement the Manager shall have full access to the Operating Account for
the purposes set forth herein, and all checks or disbursements from the
Operating Account will require only the signature of the Manager. Funds may be
withdrawn by Manager from the Operating Account only (i) to pay Operating
Expenses and Capital Expenditures in accordance with the terms hereof, (ii) to
withdraw amounts deposited in error and (iii) if the Manager determines, in
accordance with the Operation Standards, that the amount on deposit in the
Operating Account exceeds the amount required to pay the Operating Expenses
and Capital Expenditures as the same become due and payable, to make such
other distributions as the Owner Representative may direct. The Manager may
direct any institution maintaining the Operating Account to invest the funds
held therein in one or more Permitted Investments as the Manager may select in
its discretion. All interest and investment income realized on funds deposited
therein shall be deposited to the Operating Account.
(b) Receipts. The Manager shall cause all Receipts to be deposited
into the Deposit Account (or to the Lock Box Account or the appropriate
sub-account thereof, to the extent permitted or required by the Loan
Documents) as soon as practicable and in any event within two Business Days of
the Manager's receipt thereof. To the extent that the Manager holds any
Receipts, whether in accordance with this Agreement or otherwise, the Manager
shall be deemed to hold the same in trust for the applicable Owner and for the
benefit of the Lender.
SECTION 8. Budgets. Contemporaneously with the execution and delivery
of this Agreement, the Manager and the Owners have agreed on an initial
Operating Budget and CapEx Budget for the current calendar year, copies of
which are attached as Exhibit A. On or before February 15 of each year, the
Manager shall deliver to the Owner Representative an Operating Budget and
CapEx Budget for such year (in each case presented on a monthly and annual
basis). The Operating Budget shall identify and set forth the Managers'
reasonable estimate, after due consideration, of all Operating Expenses on a
line-item basis consistent with the form of Operating Budget attached as
Exhibit A. Each of the parties hereto acknowledges and agrees that the
Operating Budget and the CapEx Budget represent an estimate only, and that
actual Operating Expenses and Capital Expenditures may vary from those set
forth in the applicable Budget. In the event the Manager determines, in
accordance with the Operation Standards, that the actual Operating Expenses or
Capital Expenditures for any year will materially differ from those set forth
in the applicable Budget for such year, such Budget shall, at the request of
the Manager and subject to the Loan Documents, be modified or supplemented as
appropriate to reflect such differences. The Manager will furnish a copy of
each Budget to the Servicer at the times required by the Loan Documents.
SECTION 9. Operating Expenses and Capital Expenditures.
(a) The Manager is hereby authorized to incur Operating Expenses and
to make Capital Expenditures on behalf of the Owners, the necessity, nature
and amount of which may be determined in Manager's discretion in accordance
with the Operation Standards. The Manager shall use commercially reasonable
efforts to incur Operating Expenses and to make Capital Expenditures within
the limits prescribed by the Budgets; provided that the Manager may at any
time incur Operating Expenses and make Capital Expenditures in amounts that
exceed the Operating Expenses or Capital Expenditures, as the case may be,
specified in the applicable Budget if and to the extent that the Manager
determines in accordance with the Operation Standards that it is necessary or
advisable to do so.
(b) The Manager shall maintain accurate records with respect to each
Site reflecting the status of real estate and personal property taxes, ground
lease payments, insurance premiums and other Operating Expenses payable in
respect thereof and shall furnish to the Owner Representative and the Servicer
from time to time such information regarding the payment status of such items
as the Owner Representative or the Servicer may from time to time reasonably
request. The Manager shall arrange for the payment of all such real estate and
personal property taxes, ground lease payments, insurance premiums and other
Operating Expenses as the same become due and payable out of funds available
for that purpose in the Imposition and Insurance Reserve or the Operating
Account, as applicable. All Operating Expenses will be funded through the
Imposition and Insurance Reserve or the Operating Account, as applicable, and
the Manager shall have no obligation to subsidize, incur, or authorize any
Operating Expense that cannot, or will not be paid by or through the
Imposition and Insurance Reserve or the Operating Account. If the Manager
determines that the funds on deposit in the Imposition and Insurance Reserve
and the Operating Account are not sufficient to pay all Operating Expenses
related to the Sites as the same shall become due and payable, the Manager
shall notify the Owner Representative and the Lender of the amount of such
deficiency and the Owners shall deposit the amount of such deficiency therein
as soon as practicable. In the event of any such deficiency, the Manager may,
in its sole discretion, elect to pay such Operating Expenses out of its own
funds, but shall have no obligation to do so. The Owners, jointly and
severally, shall be obligated to pay or reimburse the Manager for all such
Operating Expenses paid by the Manager out of its own funds together with
interest thereon at the Advance Rate (as defined in the Trust and Servicing
Agreement).
SECTION 10. Compensation. In consideration of the Manager's agreement
to perform the Services described herein, during the Term hereof, the Owners
hereby jointly and severally agree to pay to the Manager a fee (the
"Management Fee"), on each Payment Date, equal to 10% of the Operating
Revenues for the immediately preceding calendar month. On each Payment Date,
the Manager shall report to the Owners the Management Fee then due and payable
based on the best information regarding Operating Revenues for the immediately
preceding calendar month then available to it. If the Manager subsequently
determines that Management Fee so paid to it was less than what should have
been paid (based on a re-computation of the Operating Revenues for such
calendar month), then the Management Fee due on the next Payment Date
following the date of such determination shall be increased by the amount of
the underpayment. If the Manager subsequently determines that Management Fee
so paid to it was higher than what should have been paid (based on a
re-computation of the Operating Revenues for such calendar month), then the
Management Fee due on the next Payment Date following the date of such
determination shall be reduced by the amount of the overpayment Upon the
expiration or earlier termination of this Agreement as set forth in Section
20, the Manager shall be entitled to receive, on the next succeeding Payment
Date, the portion of the Management Fee which was earned by the Manager
through the effective date of such expiration or termination (such earned
portion being equal to the product at (a) the total Management Fee that would
have been payable for the month in which such expiration or termination
occurred had this Agreement remained in effect multiplied by (b) a fraction,
the numerator of which is the number of days in such month through the
effective of such expiration or termination, and the denominator of which is
the total number of days in such month). The Manager shall be entitled to no
other fees or payments from the Owners as a result of the termination or
expiration of this Agreement in accordance with the terms hereof. All expenses
necessary to the performance of the Manager's duties (other than Operating
Expenses and any capital expenditures, all of which are payable by the Owners)
will be paid from the Manager's own funds. Notwithstanding the foregoing to
the contrary, the Owners and Manager acknowledge that this Agreement
supercedes in its entirety that certain Management Agreement (the "Existing
Management Agreement") between certain of the Owners and Manager dated as of
September 25, 2003 (as amended by that certain Assignment and Assumption of
Management Agreement dated as of February 5, 2004, and that certain First
Amendment to Management Agreement dated as of May 13, 2004, and as same may
have been further amended) and, accordingly, as of the Effective Date (i) the
Existing Management Agreement shall have no further force or effect, (ii) any
amounts required to be paid or reimbursed to Manager pursuant to the terms of
the Existing Management Agreement shall continue to be due and owing to
Manager (without duplication) pursuant to the terms of this Agreement, and,
(iii) with respect to the rights and obligations of Manager and GoldenState
Towers, LLC under this Agreement, the "Effective Date" shall be deemed to be
November 12, 2004 for all purposes hereunder.
SECTION 11. Employees. The Manager shall employ, supervise and pay at
all times a sufficient number of capable employees as may be necessary for
Manager to perform the Services hereunder in accordance with the Operation
Standards. All employees of Manager will be employed at the sole cost of the
Manager. All matters pertaining to the employment, supervision, compensation,
promotion, and discharge of such employees are the sole responsibility of
Manager, who is, in all respects, the employer of such employees. To the
extent the Manager, its designee, or any subcontractor negotiates with any
union lawfully entitled to represent any such employees, it shall do so in its
own name and shall execute any collective bargaining agreements or labor
contracts resulting therefrom in its own name and not as an agent for any
Owner. The Manager shall comply in all material respects with all applicable
laws and regulations related to workers' compensation, social security, ERISA,
unemployment insurance, hours of labor, wages, working conditions, and other
employer-employee related subjects. The Manager is independently engaged in
the business of performing management and operation services as an independent
contractor. All employment arrangements are therefore solely Manager's concern
and responsibility, and the Owners shall have no liability with respect
thereto.
SECTION 12. Books, Records and Inspections. The Manager shall, on
behalf of the Owners, keep such materially accurate and complete books and
records pertaining to the Sites and the Services as may be necessary or
appropriate under the Operation Standards. Such books and records shall
include all Leases, Site Management Agreements, Ground Leases corporate
records, monthly summaries of all accounts receivable and accounts payable,
maintenance records, Insurance Policies, receipted bills and vouchers, and
other documents and papers pertaining to the Sites. All such books and records
("Records") shall be kept in an organized fashion and in a secure location and
separate from records relating to Other Management Agreements. During the Term
of this Agreement, the Manager shall afford to the Owners and the Lender
access to any Records relating to the Sites and the Services within its
control, except to the extent it is prohibited from doing so by applicable law
or the terms of any applicable obligation of confidentiality or to the extent
such information is subject to a privilege under applicable law to be asserted
on behalf of the Owners. Such access shall be afforded without charge but only
upon reasonable prior written request and during normal business hours at the
offices of the Manager designated by it.
SECTION 13. Insurance Requirements.
(a) Owner Insurance. The Manager shall maintain, on behalf of the
Owners, all Insurance Policies required to be maintained by the Owners
pursuant to the Loan Documents and such other Insurance Policies as the
Manager shall determine to be necessary or appropriate in accordance with the
Operation Standards. The Manager shall prepare and present, on behalf of the
Owners, claims under any such insurance policy in a timely fashion in
accordance with the terms of such policy. Any payments on such policy shall be
made to the Manager as agent of and for the account of the Owners (and for the
benefit of the Lender to the extent provided in the Loan Documents), except as
otherwise required by the Loan Documents. All such payments shall be applied
in accordance with the Loan Documents or, if the Loan Documents do not specify
an application, shall be deposited into the Operating Account. The Manager
shall provide to the Lender on behalf of the Owners such evidence of insurance
and payments of the premiums thereof required by Section 5.4 of the Loan
Agreement.
(b) Manager's Insurance. The Manager shall maintain, at its own
expense, a commercial crime policy and professional liability insurance
policy. Any such commercial crime policy and professional liability insurance
shall protect and insure the Manager against losses, including forgery, theft,
embezzlement, errors and omissions and negligent acts of the employees of the
Manager and shall be maintained in a form and amount consistent with customary
industry practices for managers of properties such as the Sites. The Manager
shall be deemed to have complied with this provision if one of its respective
Affiliates has such commercial crime policy and professional liability policy
and the coverage afforded thereunder extends to the Manager. Annually, upon
request of the Owner Representative, the Manager shall cause to be delivered
to the Owner Representative and the Lender a certification evidencing coverage
under such commercial crime policy and professional liability insurance
policy. Any such commercial crime policy or professional liability insurance
policy shall not be cancelled without 10 days' prior written notice to the
Owner Representative and the Lender. In cases where any Owner and Manager
maintain insurance policies that duplicate coverage, then the policies of such
Owner shall provide primary coverage and Manager's policies shall be excess
and non-contributory.
SECTION 14. Environmental.
(a) None of the Owners is aware of any material violations of
Environmental Laws at the Sites.
(b) The Manager shall not consent to the installation, use or
incorporation into the Sites of any Hazardous Materials in violation of
applicable Environmental Laws and shall not consent to the discharge,
dispersion, release, or storage, treatment, generation or disposal of any
pollutants or toxic or Hazardous Materials and covenants and agrees to take
reasonable steps to comply with the Environmental Laws.
(c) Manager covenants and agrees (i) that it shall advise the Owner
Representative and the Lender in writing of each notice of any material
violation of Environmental Law of which Manager has actual knowledge, promptly
after manager obtains actual knowledge thereof, and (ii) to deliver promptly
to the Owner Representative and the Lender copies of all communications from
any Federal, state and local governmental authorities received by Manager
concerning any such violation and Hazardous Material on, at or about the
Sites.
SECTION 15. Cooperation. Each Owner and the Manager shall cooperate
with the other parties hereto in connection with the performance of any
responsibility required hereunder or otherwise related to the Sites or the
Services. In the case of the Owners, such cooperation shall include (i)
executing such documents and/or performing such acts as may be required to
protect, preserve, enhance, or maintain the Sites or the Operating Account,
(ii) executing such documents as may be reasonably required to accommodate a
Tenant or its installations, (iii) furnishing to the Manager, on or prior to
the Effective Date, all keys, key cards or access codes required in order to
obtain access to the Sites, (iv) furnishing to the Manager, on or prior to the
Effective Date, all books, records, files, abstracts, contracts, Leases, Site
Management Agreements, materials and supplies, budgets and other Records
relating to the Sites or the performance of the Services and (v) providing to
the Manager such other information as Manager considers reasonably necessary
for the effective performance of the Services. In the case of the Manager,
such cooperation shall include cooperating with the Lender, potential
purchasers of any of the Sites, appraisers, auditors and their respective
agents and representatives, with the view that such parties shall be able to
perform their duties efficiently and without interference.
SECTION 16. Representations and Warranties of Manager. The Manager
makes the following representations and warranties to the Owners all of which
shall survive the execution, delivery, performance or termination of this
Agreement:
(a) The Manager is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The Manager's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Manager's organizational
documents or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in a material
breach of, any material agreement or other material instrument to which it is
a party or by which it is bound.
(c) The Manager has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal and
binding obligation of the Manager, enforceable against the Manager in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(e) The Manager is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Manager's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Manager to perform its obligations under this
Agreement or the financial condition of the Manager.
(f) The Manager's execution and delivery of, performance under and
compliance with, this Agreement do not breach or result in a violation of, or
default under, any material indenture, mortgage, deed of trust, agreement or
instrument to which the Manager is a party or by which the Manager is bound or
to which any of the property or assets of the Manager are subject.
(g) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation
by the Manager of the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
(h) No litigation is pending or, to the best of the Manager's
knowledge, threatened against the Manager that, if determined adversely to the
Manager, would prohibit the Manager from entering into this Agreement or that,
in the Manager's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Manager to perform its
obligations under this Agreement or the financial condition of the Manager.
SECTION 17. Representations and Warranties of Owners. Each Owner
makes the following representations and warranties to the Manager all of which
shall survive the execution, delivery, performance or termination of this
Agreement:
(a) Such Owner is a limited liability company or corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
(b) Such Owner's execution and delivery of, performance under, and
compliance with this Agreement, will not violate such Owner's organizational
documents or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in a material
breach of, any material agreement or other material instrument to which it is
a party or by which it is bound.
(c) Such Owner has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal and
binding obligation of such Owner, enforceable against such Owner in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Owner is not in violation of, and its execution and delivery
of, performance under and compliance with this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in such Owner's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of such Owner to perform its obligations under this Agreement or the
financial condition of such Owner.
(f) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation
by such Owner of the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
(g) No litigation is pending or, to the best of such Owner's
knowledge, threatened against such Owner that, if determined adversely to such
Owner, would prohibit such Owner from entering into this Agreement or that, in
such Owner's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of such Owner to perform its obligations
under this Agreement or the financial condition of such Owner.
SECTION 18. Restrictions on Other Activities of Manager. The Manager
hereby covenants and agrees that (i) it shall not engage in any business
except as contemplated by this Agreement and other management agreements with
Affiliates of the Manager ("Other Management Agreements"), (ii) it shall not
acquire any assets other than office space, computer equipment and other
assets necessary or appropriate for the conduct of its operations as permitted
under this Agreement, the Other Management Agreements and its limited
liability company agreement (such operations, the "Permitted Operations"),
(iii) it shall not incur any indebtedness or other liabilities except for (A)
obligations hereunder and under the Other Management Agreements, (B)
liabilities for the salaries and benefits of its officers and employees and
(C) other liabilities incurred in the ordinary course of business in
connection with its Permitted Operations, (iv) it shall not consolidate with
any other Person or merge with or into any other Person, or sell its
properties and assets as, or substantially as, an entirety without the prior
written consent of the Owner Representative, (v) it shall comply in all
material respects with the provisions of its limited liability company
agreement and (vi) it shall not amend its limited liability company agreement
in a manner that would require the consent of the "independent director"
thereunder without the prior written consent of the Owner Representative.
SECTION 19. Removal, Substitution or Acquisition of Sites. If during
the Term of this Agreement an Owner assigns or otherwise transfers all of its
right, title and interest in and to any Site to a Person other than another
Owner or the Lender (whether pursuant to a taking under the power of eminent
domain or otherwise) or otherwise ceases to have an interest in a Site, this
Agreement shall terminate (as to that Site only) on the date of such
assignment or transfer and the Owners shall promptly deliver to Manager an
amended Schedule I reflecting the removal of such Site from the scope of this
Agreement. Upon the termination of this Agreement as to a particular Site, the
Manager and the respective Owner of such Site shall be released and discharged
from all liability hereunder with respect to such Site for the period from and
after the applicable termination date and the Manager shall have no further
obligation to perform any Site Management Services with respect thereto from
and after such date. In addition, the Owners may at any time add any
additional Site to Schedule I in connection with a substitution or acquisition
permitted under the terms of the Loan Agreement. Upon such substitution or
acquisition, the Owners shall promptly deliver to Manager an amended Schedule
I reflecting the addition of such Site, whereupon the Manager shall assume
responsibility for the performance of the Site Management Services hereunder
with respect to such Site.
SECTION 20. Term of Agreement.
(a) Term. This Agreement shall be in effect during the period (the
"Term") commencing on the date hereof and ending at 5:00 p.m. (New York time)
on the Expiration Date, unless sooner terminated in accordance with the
provisions of this Section 20. The Expiration Date under this Agreement may be
extended from time to time at the option of the Owner Representative (or the
Lender on its behalf), acting in its sole and absolute discretion, for
successive 30-day periods by written notice to that effect to the Manager from
the Owner Representative (or the Lender on its behalf) delivered on or prior
to the then-current Expiration Date (an "Extension Notice"). Each of the
Owners and Manager agrees that if the Owner Representative fails to deliver an
Extension Notice to the Manager by the Expiration Date, the Manager shall, on
such Expiration Date, provide Lender with notice of such failure and Lender
shall have ten (10) Business Days following its receipt of such notice to
deliver an Extension Notice to the Manager, and upon delivery of such
Extension Notice the Expiration Date shall be extended to the date falling 30
days after the Expiration Date as in effect immediately prior to such
Extension Notice. Upon delivery of an Extension Notice, the then-current
Expiration Date shall be automatically extended to the date specified therein
without any further action by any party.
(b) Termination for Cause The Owner Representative (or the Lender on
its behalf) shall have the right, upon notice to the Manager, to terminate
this Agreement: (i) upon the declaration of an "Event of Default" under (and
as defined in) the Loan Agreement, (ii) following the Maturity Date, (iii) if
the DSCR falls to less than 1.0x as of the end of any calendar quarter and the
Lender reasonably determines, pursuant to the Loan Agreement, that such
decline in the DSCR is primarily attributable to acts or omissions of the
Manager rather than factors affecting the Owners' industry generally, (iv) if
the Manager has engaged in fraud, gross negligence or willful misconduct
arising from or in connection with its performance under this Agreement or (v)
if the Manager defaults in the performance of its obligations hereunder and
such default (A) could reasonably be expected to have a Material Adverse
Effect and (B) remains unremedied for 30 days after the Manager receives
written notice thereof.
(c) Automatic Termination for Bankruptcy, Etc. If the Manager or any
Owner files a petition for bankruptcy, reorganization or arrangement, or makes
an assignment for the benefit of the creditors or takes advantage of any
insolvency or similar law, or if a receiver or trustee is appointed for the
assets or business of the Manager or any Owner and is not discharged within
ninety (90) days after such appointment, then this Agreement shall terminate
automatically; provided that if any such event shall occur with respect to
less than all of the Owners, then this Agreement will terminate solely with
respect to the Owner or Owners for which such event has occurred and the
respective Sites owned, leased or managed by such Owner(s). Upon the
termination of this Agreement as to a particular Owner, the Manager and such
Owner shall be released and discharged from all liability hereunder for the
period from and after the applicable termination date and the Manager shall
have no further obligation to perform any Services for such Owner or any Sites
owned, leased or managed by such Owner from and after such date.
(d) Resignation By Manager. Unless and until the Loan Agreement has
terminated in accordance with its terms and all loans thereunder have been
paid in full, the Manager shall not resign from the obligations and duties
hereby imposed on it hereunder except upon determination that (i) the
performance of its duties hereunder is no longer permissible under applicable
law and (ii) there is no reasonable action which can be taken to make the
performance of its duties hereunder permissible under applicable law. Any such
determination under clause (d)(i) above permitting the resignation of the
Manager shall be evidenced by an opinion of counsel (who is not an employee of
the Manager) to such effect delivered, and in form and substance reasonably
satisfactory, to the Owner Representative. From and after the date on which
the Loan Agreement has terminated in accordance with its terms and all loans
thereunder have been paid in full, the Manager shall have the right in its
sole and absolute discretion, upon 30 days' prior written notice to the Owner
Representative, to resign from the obligations and duties hereby imposed on
it. This Agreement shall terminate on the effective date of any resignation of
the Manager permitted under this paragraph (d).
SECTION 21. Duties Upon Termination. Upon the expiration or
termination of the Term, the Manager shall have no further right to act for
any Owner or to draw checks on the Operating Account and shall promptly (i)
furnish to the Owner Representative or its designee all keys, key cards or
access codes required in order to obtain access to the Sites, (ii) deliver to
the Owner Representative or its designee all rent, income, tenant security
deposits and other monies due or belonging to the Owners under this Agreement
but received after such termination, (iii) deliver to the Owner Representative
or its designee all books, files, abstracts, contracts, leases, materials and
supplies, budgets and other Records relating to the Sites or the performance
of the Services and (iv) upon request, assign, transfer, or convey, as
required, to the respective Owners all service contracts and personal property
relating to or used in the operation and maintenance of the Sites, except any
personal property which was paid for and is owned by Manager. The Manager
shall also, for a period of ninety (90) days after such expiration or
termination, make itself available to consult with and advise the Owners
regarding the operation and maintenance of the Sites or otherwise to
facilitate an orderly transition of management to a new manager of the Sites.
This Section 21 shall survive the expiration or earlier termination of this
Agreement (whether in whole or part).
SECTION 22. Indemnities.
(a) Subject to Section 23(g), the Owners jointly and severally agree
to indemnify, defend and hold Manager harmless from and against, any and all
suits, liabilities, damages, or claims for damages (including any reasonable
attorneys' fees and other reasonable costs and expenses relating to any such
suits, liabilities or claims), in any way relating to the Sites, the Manager's
performance of the Services hereunder, or the exercise by the Manager of the
powers or authorities herein or hereafter granted to the Manager, except for
those actions, omissions and breaches of Manager in relation to which the
Manager has agreed to indemnify the Owners pursuant to Section 22(b).
(b) Subject to Section 23(g), the Manager agrees to indemnify, defend
and hold the Owners harmless from and against any and all suits, liabilities,
damages, or claims for damages (including any reasonable attorneys' fees and
other reasonable costs and expenses relating to any such suits, liabilities or
claims), in any way arising out of (i) any acts or omissions of the Manager or
its agents, officers or employees in the performance of the Services hereunder
constituting misfeasance, bad faith or negligence or (ii) any material breach
of any representation or warranty made by the Manager hereunder.
(c) "Indemnified Party" and "Indemnitor" shall mean the Manager and
Owners, respectively, as to Section 22(a) and shall mean the Owners and
Manager, respectively, as to Section 22(b). If any action or proceeding is
brought against an Indemnified Party with respect to which indemnity may be
sought under this Section 22, the Indemnitor, upon written notice from the
Indemnified Party, shall assume the investigation and defense thereof,
including the employment of counsel and payment of all expenses. The
Indemnified Party shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the
Indemnitor shall not be required to pay the fees and expenses of such separate
counsel unless such separate counsel is employed with the written approval and
consent of the Indemnitor, which shall not be unreasonably withheld or
refused.
(d) The indemnities in this Section 22 shall survive the expiration
or termination of the Agreement.
SECTION 23. Miscellaneous.
(a) Amendments. No amendment, supplement, waiver or other
modification of this Agreement shall be effective unless in writing and
executed and delivered by the Manager and the Owner Representative; provided
that, until the Loan Agreement has been terminated in accordance with its
terms and the loans thereunder have been paid in full, any material amendment,
supplement, waiver or other modification of this Agreement shall also require
the consent of the Lender and Rating Confirmations from each Rating Agency. No
failure by any party hereto to insist on the strict performance of any
obligation, covenant, agreement, term or condition of this Agreement, or to
exercise any right or remedy available upon a breach of this Agreement, shall
constitute a waiver of any of the terms of this Agreement.
(b) Notices. Any notice or other communication required or permitted
hereunder shall be in writing and may be delivered personally or by commercial
overnight carrier, telecopied or mailed (postage prepaid via the US postal
service) to the applicable party at the following address (or at such other
address as the party may designate in writing from time to time); however, any
such notice or communication shall be deemed to be delivered only when
actually received by the party to whom it is addressed:
(1) To any Owner c/o Pinnacle Towers Acquisition Holdings LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(2) To Manager: Global Signal Services LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) Assignment, Etc. The provisions of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. None of the rights, interests,
duties, or obligations created by this Agreement may be assigned, transferred,
or delegated in whole or in part by the Manager or any Owner, and any such
purported assignment, transfer, or delegation shall be void; provided,
however, that (i) the Owners may assign this Agreement to the Lender and grant
a security interest in their rights and interests hereunder pursuant to the
Loan Documents and (ii) the Manager may, in accordance with the Operation
Standards, utilize the services of third-party service providers to perform
all or any portion of its Services hereunder; and provided, further, that
Manager may not use any third-party service providers (other than insurance
agents) to prepare any Manager Reports or to perform any Services described in
Section 9(b) or Section 13(a) without the consent of the Servicer (such
consent not to be unreasonably withheld). Notwithstanding the appointment of a
third-party service provider, the Manager shall remain primarily liable to the
Owners to the same extent as if the Manager were performing the Services
alone, and the Manager agrees that no additional compensation shall be
required to be paid by the Owners in connection with any such third-party
service provider.
(d) Entire Agreement; Severability. This Agreement constitutes the
entire agreement between the parties hereto, and no oral statements or prior
written matter not specifically incorporated herein shall be of any force or
effect. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby.
(e) Limitations on Liability.
(i) Notwithstanding anything herein to the contrary, neither
the Manager nor any director, officer, employee or agent of the
Manager shall be under any liability to the Owners or any other
Person for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgement; provided, however, that
this provision shall not protect the Manager against any liability to
the Owners or the Lender for the material breach of a representation
or warranty made by the Manager herein or against any liability which
would otherwise be imposed on the Manager by reason of misfeasance,
bad faith or negligence in the performance of the Services hereunder.
(ii) No party will be liable to any other for special,
indirect, incidental, exemplary, consequential or punitive damages,
or loss of profits, arising from the relationship of the parties or
the conduct of business under, or breach of, this Agreement, except
where such damages or loss of profits are claimed by or awarded to a
third party in a claim or action against which a party to this
Agreement has a specific obligation to indemnify another party to
this Agreement.
(iii) Notwithstanding any other provision of this Agreement
or any rights which the Manager might otherwise have at law, in
equity, or by statute, any liability of an Owner to the Manager shall
be satisfied only from such Owner's interest in the Sites, the
Leases, the Site Management Agreements, the Insurance Policies and
the proceeds thereof, and then only to the extent that such Owner has
funds available to satisfy such liability in accordance with the Loan
Documents (any such available funds being hereinafter referred to as
"Available Funds"). In the event the Available Funds of an Owner are
insufficient to pay in full any such liabilities of an Owner, the
excess of such liabilities over such Available Funds shall not
constitute a claim (as defined in the United States Bankruptcy Code)
against such Owner unless and until a proceeding of the type
described in Section 23(j) is commenced against such Owner by a party
other than the Manager.
(iv) No officer, director, employee, agent, shareholder,
member or Affiliate of any Owner or the Manager (except, in the case
of an Owner, for Affiliates that are also Owners hereunder) shall in
any manner be personally or individually liable for the obligations
of any Owner or the Manager hereunder or for any claim in any way
related to this Agreement or the performance of the Services.
(v) The provisions of this Section 23(e) shall survive the
expiration and termination of this Agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT OTHERWISE
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
(g) Litigation Costs. If any legal action or other proceeding of any
kind is brought for the enforcement of this Agreement or because of a default,
misrepresentation, or any other dispute in connection with any provision of
this Agreement or the Services, the successful or prevailing party shall be
entitled to recover all fees and other costs incurred in such action or
proceeding, in addition to any other relief to which it may be entitled.
(h) Confidentiality. Each party hereto agrees to keep confidential
(and (a) to cause its respective officers, directors and employees to keep
confidential and (b) to use its best efforts to cause its respective agents
and representatives to keep confidential) the Information (as defined below)
and all copies thereof, extracts therefrom and analyses or other materials
based thereon, except that the parties hereto shall be permitted to disclose
Information (i) to the extent required by applicable laws and regulations or
by any subpoena or similar legal process, (ii) as requested by Rating
Agencies, (iii) to the extent provided in the Private Offering Memorandum (as
defined in the Trust and Servicing Agreement), (iv) to the parties to the Loan
Documents who are subject to the confidentiality provisions contained therein
and (v) to actual or prospective Tenants. For the purposes of this paragraph
(h), the term "Information" shall mean the terms and provisions of this
Agreement and all financial statements, certificates, reports, Records,
agreements and information (including the Leases, the Site Management
Agreements and all analyses, compilations and studies based on any of the
foregoing) that relate to the Sites or the Services, other than any of the
foregoing that are or become publicly available other than by a breach of the
confidentiality provisions contained herein.
(i) Owners' Representative and Agent. From time to time during the
Term, the Owners shall appoint one (1) Owner (the "Owner Representative") to
serve as the Owners' representative and agent to act, make decisions, and
grant any necessary consents or approvals hereunder, collectively, on behalf
of all of the Owners. Each Owner hereby appoints Pinnacle Towers Acquisition
Holdings LLC as the initial Owner Representative hereunder and hereby
authorizes the Owner Representative to take such action as agent on its behalf
and to exercise such powers as are delegated to the Owner Representative by
the terms hereof, together with such powers as are reasonably incidental
thereto.
(j) No Petition. Prior to the date that is one year and one day after
the date on which (a) the Loan Agreement has been terminated in accordance
with its terms and (b) all loans thereunder have been repaid in full in
accordance with the terms thereof, the Manager shall not institute, or join
any other Person in instituting, or authorize a trustee or other Person acting
on its behalf or on behalf of others to institute, any bankruptcy,
reorganization, arrangement, insolvency, liquidation or receivership
proceedings under the laws of the United States of America or any state
thereof against any Owner.
(k) Other Management Agreements. The Owners hereby acknowledge and
agree that the Manager may become a party to Other Management Agreements and,
as a result, the Manager may engage in business activities that are in
competition with the business of the Owners in respect of the Sites. Nothing
in this Agreement shall in any way preclude the Manager or its Affiliates,
subsidiaries, officers, employees and agents from engaging in any business
activity (including the operation, maintenance, leasing and/or marketing of
telecommunications sites for itself or for others), even if, by doing so, such
activities could be construed to be in competition with the business
activities of the Owners; provided that (i) if, pursuant to any Other
Management Agreement, the Manager arranges for a Lease of a telecommunication
site with a tenant that is also a Tenant under a Lease with an Owner, such new
Lease will be separate from and independent of the Lease(s) between the Tenant
and such Owner, (ii) unless a Site has been released pursuant to Article XI of
the Loan Agreement, the Manager will not solicit a tenant to transfer its
Lease from a Site owned, leased or managed by an Owner to a telecommunication
site owned, leased or managed by a Person that is not an Owner, (iii) if the
Tenant with respect to a Site is an Affiliate of the Manager, the Manager
shall perform all Services in respect of such Site in the same manner as if
such Tenant were not an Affiliate and (iv) in all cases the Manager shall
perform its duties and obligations hereunder in accordance with the Operation
Standards notwithstanding any potential conflicts of interest that may arise,
including any relationship that the Manager may have with any Tenant or any
other owners of telecommunication sites that it manages.
(l) Headings. Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are
not to effect the construction of, or to be taken into consideration in
interpreting, this Agreement.
(m) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall constitute an original, but all of which when taken together shall
constitute one contract. Delivery of an executed counterpart of this Agreement
by facsimile shall be effective as delivery of a manually executed counterpart
of this Agreement.
[NO ADDITIONAL TEXT ON THIS PAGE]
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
Manager: GLOBAL SIGNAL SERVICES LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Owners: PINNACLE TOWERS ACQUISITION HOLDINGS LLC
PINNACLE TOWERS ACQUISITION LLC
TOWER VENTURES III, LLC
GLOBAL SIGNAL REIT SAVINGS TRS, INC.
TVHT, LLC
GOLDENSTATE TOWERS, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Management Agreement
SCHEDULE I
LIST OF SITES
Sites listed on Exhibit A to Loan Agreement.
EXHIBIT A
INITIAL BUDGET
Global Signal Inc. - the Borrowers
2005 Monthly Operating Expense Budget(1)
(US $000s)
Jan-04 Feb-04 Mar-04 Apr-04 May-04 Jun-04 Jul-04 Aug-04 Sep-04 Oct-04 Nov-04 Dec-04 2004
-------------------------------------------------------------------------------------------------------------
Rent
(Managed
Sites) 8 8 8 8 8 8 8 9 8 8 8 7 96
Regular
maintenance 21 22 23 23 22 23 23 25 23 23 22 21 273
Major
maintenance 36 37 38 38 37 39 39 41 39 38 36 35 453
Utilities 36 37 38 38 37 39 39 41 39 38 36 35 451
Site Manage-
ment/Other 0 0 0 0 0 0 0 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------
Total Tower
Level
Expenses 100 103 108 107 104 109 109 116 109 107 101 98 1,273
--------------------------------------------------------------------------------------------------------------
Capital
Expenditure 36 37 38 38 37 39 39 41 39 38 36 35 452
--------------------------------------------------------------------------------------------------------------
Total
Operating
Expenses 136 140 146 146 141 148 148 158 148 145 137 133 1,725
==============================================================================================================
(1) Operating budget will be amended as New Sites are acquired using funds from Site Acquisition Account.
EXHIBIT B
FORM OF MANAGER REPORT
Attached.
