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EXHIBIT 10.8
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
DATED ______________
BETWEEN
GLOBAL SIGNAL ACQUISITIONS LLC, GLOBAL SIGNAL ACQUISITIONS II LLC,
AND ANY OTHER BORROWER OR BORROWERS THAT ARE OR MAY BECOME A
PARTY HERETO,
AS BORROWERS
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSET FUNDING INC., AS ADMINISTRATIVE AGENT
AND COLLATERAL AGENT, AND FOR THE BENEFIT OF ANY
SUCCESSOR ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
AS LENDER
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 2
Section 1.1 Certain Defined Terms................................... 2
Section 1.2 Accounting Terms........................................ 24
Section 1.3 Other Definitional Provisions........................... 24
ARTICLE II TERMS OF THE LOAN............................................. 25
Section 2.1 Loan.................................................... 25
Section 2.2 Interest................................................ 26
Section 2.3 Additional Borrowers.................................... 27
Section 2.4 Payments................................................ 27
Section 2.5 Maturity................................................ 28
Section 2.6 Prepayment.............................................. 28
Section 2.7 Outstanding Balance..................................... 29
Section 2.8 Taxes................................................... 29
Section 2.9 Reasonableness of Charges............................... 29
Section 2.10 Servicing/Special Servicing............................. 30
ARTICLE III CONDITIONS TO LOAN........................................... 30
Section 3.1 Conditions to Funding of the Loan on the Closing Date... 30
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................ 33
Section 4.1 Organization, Powers, Capitalization, Good Standing,
Business................................................ 33
Section 4.2 Authorization of Borrowing, etc......................... 34
Section 4.3 Financial Statements.................................... 34
Section 4.4 Indebtedness and Contingent Obligations................. 34
Section 4.5 Title to the Properties................................. 35
Section 4.6 Zoning; Compliance with Laws............................ 35
Section 4.7 Leases; Agreements...................................... 36
Section 4.8 Condition of the Properties............................. 36
Section 4.9 Litigation; Adverse Facts............................... 37
Section 4.10 Payment of Taxes........................................ 37
Section 4.11 Adverse Contracts....................................... 37
Section 4.12 Performance of Agreements............................... 37
Section 4.13 Governmental Regulation................................. 37
Section 4.14 Employee Benefit Plans.................................. 37
Section 4.15 Broker's Fees........................................... 37
Section 4.16 Solvency................................................ 38
Section 4.17 Disclosure.............................................. 38
Section 4.18 Use of Proceeds and Margin Security..................... 38
Section 4.19 Insurance............................................... 38
Section 4.20 Investments............................................. 38
Section 4.21 No Plan Assets.......................................... 39
Section 4.22 Governmental Plan....................................... 39
Section 4.23 Not Foreign Person...................................... 39
Section 4.24 No Collective Bargaining Agreements..................... 39
Section 4.25 Ground Leases........................................... 39
Section 4.26 Easements............................................... 39
Section 4.27 Principal Place of Business............................. 42
Section 4.28 Environmental Compliance................................ 42
Section 4.29 Separate Tax Lot........................................ 42
ARTICLE V COVENANTS OF BORROWER PARTIES.................................. 43
Section 5.1 Financial Statements and Other Reports.................. 43
Section 5.2 Existence; Qualification................................ 46
Section 5.3 Payment of Impositions and Claims....................... 46
Section 5.4 Maintenance of Insurance................................ 47
Section 5.5 Operation and Maintenance of the Properties;
Casualty; Condemnation.................................. 50
Section 5.6 Inspection.............................................. 52
Section 5.7 Compliance with Laws and Contractual Obligations........ 53
Section 5.8 Further Assurances...................................... 53
Section 5.9 Performance of Agreements and Leases.................... 53
Section 5.10 Leases.................................................. 53
Section 5.11 Management Agreement.................................... 54
Section 5.12 Reserved................................................ 55
Section 5.13 Deposits; Application of Receipts....................... 55
Section 5.14 Estoppel Certificates................................... 55
Section 5.15 Indebtedness............................................ 55
Section 5.16 No Liens................................................ 56
Section 5.17 Contingent Obligations.................................. 56
Section 5.18 Restriction on Fundamental Changes...................... 56
Section 5.19 Transactions with Related Persons....................... 56
Section 5.20 Bankruptcy, Receivers, Similar Matters.................. 56
Section 5.21 ERISA................................................... 57
Section 5.22 Reserved................................................ 57
Section 5.23 Ground Leases........................................... 58
Section 5.24 Easements............................................... 64
Section 5.25 Master Lease Sites...................................... 67
Section 5.26 Lender's Expenses....................................... 69
ARTICLE VI RESERVES...................................................... 69
Section 6.1 Security Interest in Reserves; Other Matters Pertaining
to Reserves............................................. 69
Section 6.2 Funds Deposited with Lender............................. 69
ii
Section 6.3 Impositions and Insurance Reserve....................... 70
Section 6.4 Advance Rents Reserve Sub-Account....................... 71
Section 6.5 Acquisition Reserve..................................... 71
Section 6.6 Reserved................................................ 75
Section 6.7 Reserved................................................ 75
Section 6.8 Cash Trap Reserve....................................... 75
ARTICLE VII DEPOSIT ACCOUNT; LOCK BOX ACCOUNT; CASH MANAGEMENT........... 75
Section 7.1 Establishment of Deposit Account and Lock Box Account... 75
Section 7.2 Application of Funds in Lock Box Account................ 77
Section 7.3 Application of Funds After Event of Default............. 77
ARTICLE VIII DEFAULT, RIGHTS AND REMEDIES................................ 77
Section 8.1 Event of Default........................................ 77
Section 8.2 Acceleration and Remedies............................... 80
Section 8.3 Performance by Lender................................... 82
Section 8.4 Evidence of Compliance.................................. 82
ARTICLE IX SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS,
WARRANTIES AND COVENANTS.............................................. 83
Section 9.1 Applicable to Borrower Parties.......................... 83
Section 9.2 Applicable to Borrowers, Guarantor and Manager.......... 85
ARTICLE X PLEDGE OF OTHER COMPANY COLLATERAL............................. 86
Section 10.1 Grant of Security Interest/UCC Collateral............... 86
ARTICLE XI RESTRICTIONS ON LIENS, TRANSFERS; ASSUMABILITY;
RELEASE OF PROPERTIES................................................. 87
Section 11.1 Restrictions on Transfer and Encumbrance................ 87
Section 11.2 Transfers of Beneficial Interests....................... 87
Section 11.3 Defeasance.............................................. 88
Section 11.4 Release of Properties................................... 89
Section 11.5 Substitution of Property................................ 91
Section 11.6 Substitution of Additional Pledged Properties........... 94
ARTICLE XII RECOURSE; LIMITATIONS ON RECOURSE............................ 95
Section 12.1 Limitations on Recourse................................. 95
Section 12.2 Partial Recourse........................................ 96
Section 12.3 Miscellaneous........................................... 96
iii
ARTICLE XIII WAIVERS OF DEFENSES OF GUARANTORS AND SURETIES.............. 97
Section 13.1 Waivers................................................. 97
ARTICLE XIV MISCELLANEOUS................................................ 99
Section 14.1 Expenses and Attorneys' Fees............................ 99
Section 14.2 Indemnity............................................... 99
Section 14.3 Amendments and Waivers.................................. 100
Section 14.4 Retention of the Borrowers' Documents................... 100
Section 14.5 Notices................................................. 100
Section 14.6 Survival of Warranties and Certain Agreements........... 101
Section 14.7 Failure or Indulgence Not Waiver; Remedies Cumulative... 101
Section 14.8 Marshaling; Payments Set Aside.......................... 102
Section 14.9 Severability............................................ 102
Section 14.10 Headings................................................ 102
Section 14.11 APPLICABLE LAW.......................................... 102
Section 14.12 Successors and Assigns.................................. 103
Section 14.13 Sophisticated Parties, Reasonable Terms, No Fiduciary
Relationship............................................ 103
Section 14.14 Reasonableness of Determinations........................ 103
Section 14.15 Limitation of Liability................................. 103
Section 14.16 No Duty................................................. 104
Section 14.17 Entire Agreement........................................ 104
Section 14.18 Construction; Supremacy of Loan Agreement............... 104
Section 14.19 Consent to Jurisdiction................................. 104
Section 14.20 Waiver of Jury Trial.................................... 105
Section 14.21 Counterparts; Effectiveness............................. 105
Section 14.22 Servicer................................................ 105
Section 14.23 Obligations of Borrower Parties......................... 105
Section 14.24 Additional Inspections; Reports......................... 106
Section 14.25 Cross-Default; Cross-Collateralization; Waiver of
Marshalling of Assets................................... 106
iv
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this "LOAN
AGREEMENT") is dated as of [___________], 2005, and entered into by and between
GLOBAL SIGNAL ACQUISITIONS LLC, a Delaware limited liability company
("ACQUISITIONS I"), Global Signal Acquisitions II LLC, a Delaware limited
liability company ("ACQUISITIONS II") and the other BORROWER OR BORROWERS
signatory hereto or that may become a party hereto (collectively, "BORROWERS",
and individually, each a "BORROWER"), and ______________________, a Delaware
limited liability company (together with its successors and assigns, "LENDER").
RECITALS
WHEREAS, Acquisitions I entered into that certain Acquisition Credit
Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Funding Inc., as Administrative Agent and
Collateral Agent, and the lenders set forth therein (collectively, the
"ACQUISITIONS I LENDERS"), dated as of April 22, 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 "ACQUISITIONS I
INDEBTEDNESS") to Acquisitions I;
WHEREAS, certain subsidiaries of Acquisitions I (the "Existing
Subsidiaries") have become obligated as guarantors under the Acquisitions I
Credit Agreement and have delivered mortgages, deeds of trust, and/or deeds to
secure debt as additional security for the obligations of Acquisitions I under
the Acquisitions I Credit Agreement;
WHEREAS, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 "ACQUISITIONS II
INDEBTEDNESS") to Acquisitions II;
WHEREAS, Acquisitions II has delivered mortgages, deeds of trust,
and/or deeds to secure debt as additional security for the obligations of
Acquisitions II under the Acquisitions II Credit Agreement;
WHEREAS, Lender has (i) succeeded to the rights and obligations of the
Acquisitions I Lenders under the Acquisitions I Credit Agreement, (ii) succeeded
to the rights and obligations of the Acquisitions II Lenders under the
Acquisitions II Credit Agreement (the Acquisitions I Credit Agreement and the
Acquisitions II Credit Agreement being collectively referred to herein as the
"EXISTING CREDIT AGREEMENTS"), and (ii) 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;
WHEREAS, the Existing Subsidiaries, Acquisitions I, Acquisitions II,
and Lender have agreed to (i) combine and consolidate the Acquisitions I
Indebtedness and the
Acquisitions II Indebtedness (collectively, the "EXISTING INDEBTEDNESS"), (ii)
modify the terms and conditions of the Existing Indebtedness, (iii) include the
Existing Subsidiaries, Acquisitions I and Acquisitions II as "BORROWERS"
hereunder and under the Loan, and (iv) provide for one additional advance in an
amount (the "INCREASED INDEBTEDNESS") such that the Principal Amount of the Loan
outstanding as of the Closing Date will be $[______________] pursuant to the
terms hereof;
WHEREAS, to secure the additional obligations under the Increased
Indebtedness, the Borrowers have agreed to deliver certain additional collateral
to Lender pursuant to the terms hereof;
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 the
Existing Credit Agreements and the Increased Indebtedness and all other
obligations, liabilities or sums due or to become due pursuant to the Loan
Documents, the Borrowers and Lender have executed and delivered this Agreement
and 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 consolidated, modified, amended and restated are hereby consolidated,
modified, ratified and confirmed in all respects by the Borrowers and the terms,
covenants and provisions of the Existing Credit Agreements are hereby
consolidated, modified, amended and restated so that henceforth, the terms,
covenants and provisions of this Agreement shall supersede the terms, covenants
and provisions of the Existing Credit Agreements and the terms, covenants and
provisions 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 all of the Borrowers' 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, the Acquisition Reserve and any other accounts pledged
to Lender pursuant to this Loan Agreement or any other Loan Document.
"ACQUISITION" means any acquisition by the Borrowers of (i) Towers, (ii)
all of the Capital Stock of any Person that holds Towers as a principal asset,
and/or (iii) a fee, easement, or long term ground lease interest in real
property upon which wireless communications towers are, or are to be, located.
"ACQUISITION DATE" has the meaning set forth in Section 6.5.
"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 INDEBTEDNESS" has the meaning set forth in the Recitals.
"ACQUISITIONS II INDEBTEDNESS" has the meaning set forth in the Recitals.
"ACQUISITIONS I LENDERS" has the meaning set forth in the Recitals.
"ACQUISITIONS II LENDERS" has the meaning set forth in the Recitals.
"ACQUISITION PERIOD" means the period commencing as of the Closing Date and
ending on the earlier of (x) the date that the Acquisition Reserve is terminated
by the Borrowers in accordance with Section 6.5 and (y) the Business Day
immediately prior to the _______ Payment Date.
"ACQUISITION PROPERTY" means any Tower that is subject to an Acquisition
pursuant to Section 6.5.
"ACQUISITION RESERVE" has the meaning set forth in Section 6.5.
"ADDITIONAL PLEDGED PROPERTIES" means initially, all the properties
(including land and Improvements) described in EXHIBIT A, and all related
facilities, owned by the Borrowers and pledged as additional Collateral for the
Loan; provided that, following (w) an Additional Pledged Property Substitution,
"ADDITIONAL PLEDGED PROPERTIES" shall include the Replacement Additional Pledged
Property and shall exclude the Substituted Additional Pledged Property, (x) an
Acquisition, "ADDITIONAL PLEDGED PROPERTIES" shall include all Acquisition
Properties that are not Mortgaged Properties, (y) a Conversion, "ADDITIONAL
PLEDGED PROPERTIES" shall exclude the applicable Conversion Property, and (z)
delivery of the required Deeds of Trust, "ADDITIONAL PLEDGED PROPERTY" shall
exclude the applicable Mortgaged 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 the portion of the Loan allocated to each
Property calculated as the Cash Purchase Price for the applicable Properties
multiplied by the quotient (expressed as a percentage) of (x) Net Tower Cash
Flow of the applicable Property divided by (y) Net Tower Cash Flow of all
Properties.
"ALLOCATED PURCHASE PRICE" means with respect to a particular Property, the
amount designated on EXHIBIT A as the "ALLOCABLE VALUE" 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 or an Amended
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 or Amended 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.
"ANNUAL ADVANCE RENTS RESERVE DEPOSIT" has the meaning set forth in the
Cash Management Agreement.
"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 the 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 the Loan, as same may be amended or modified from time to time.
"AVAILABILITY" means an amount equal to the lesser of (x) the amount
remaining in the Acquisition Reserve, (y) one hundred (100%) of the Cash
Purchase Price for the applicable Acquisition, and (z) an amount which would
cause the Yield after consideration of the applicable Acquisition to be not less
than ______________________________________________________.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended from
time to time, and all rules and regulations promulgated thereunder.
"BORROWER" and "BORROWERS" have the meanings set forth in the preamble;
provided that, following a Release, "BORROWERS" shall mean each of the Borrowers
remaining as a party to the Loan Documents, and whose Properties remain
encumbered by the Loan Documents as Collateral for the Loan and "BORROWER" shall
mean any of such remaining parties, as each of such terms may be modified
pursuant to the terms of Section 2.3 in connection with an Acquisition.
"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 Ground Leased Property, or
non-recurring expenditures made to enhance the Operating Revenues of a Property.
"CAPITAL EXPENDITURES" means expenditures for Capital Improvements.
"CAPITAL IMPROVEMENTS" means 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 not be included in the Borrowers' annual financial statements as an
operating expense of the Properties.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all similar ownership interests in a Person (other than a corporation) and
any and all warrants, rights or options to purchase any of the foregoing.
"CASH MANAGEMENT AGREEMENT" means the Cash Management Agreement of even
date herewith among Acquisitions II (and any other Borrower that may become a
party hereto), Lender, Manager, and Lock Box Account Bank.
"CASH PURCHASE PRICE" means the aggregate cash consideration required to be
paid by the Borrowers for any Properties (after giving effect to any purchase
price adjustments, including any earnouts, holdbacks or prepaids which are
required to be paid (or put into escrow pursuant to the applicable purchase
agreement) by the Borrowers at or prior to such time in settlement of the final
purchase price therefor), together with reasonable and customary transaction
costs (including commissions, accountant costs and audits), the reasonable fees
and expenses of counsel to the Borrowers for services rendered in connection
with the transaction and the amount of taxes that are payable by the Borrowers
as a result of such transaction.
"CASH TRAP DSCR" means ________________.
"CASH TRAP EVENT" has the meaning set forth in Section 6.8.
"CASH TRAP RESERVE" has the meaning set forth in Section 6.8.
"CLAIMS" has the meaning set forth in Section 5.3.
"CLOSING" means the funding of the Loan and the consummation of the other
transactions contemplated by this Loan Agreement.
"CLOSING DATE" means the date on which the Closing occurs.
"COLLATERAL" means rights, interests, and property of every kind, real and
personal, tangible and intangible, which is granted, pledged, liened, or
encumbered as security for the Loan or any of the other Obligations under this
Loan Agreement, the Deeds of Trust, the Cash Management Agreement, the Guaranty,
the Pledge Agreement or other Loan Documents, including without limitation the
Properties and the Account Collateral.
"COLLOCATION AGREEMENT" means an agreement pursuant to which a Contributor
rents a third party space at any wireless communication site, including all
amendments, modifications, supplements, assignments, guaranties and side letters
related thereto.
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 5.1.
"COMPONENT" has the meaning set forth in the Note.
"COMPONENT RATE" means, for any Component, the rate per annum set forth in
the Note for such Component.
"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
to 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.
"CONTRIBUTOR" has the meaning set forth in the Sprint Contribution
Agreement.
"CONVERSION" means (x) with respect to Pre-Lease Sites, the conversion of a
Pre-Lease Site to a Master Lease Site and (y) with respect to Non-Contributable
Sites, a Non-Contributable Site Conversion where the site will directly become a
Master Lease Site, in accordance with the terms of the Sprint Contribution
Agreement on the applicable Conversion Closing Date.
"CONVERSION CLOSING DATE" has the meaning set forth in the Sprint
Acquisition Documents.
"CONVERSION PROPERTY" means, as of the applicable Conversion Closing Date,
any Pre-Lease Site or Non-Contributable Site under the Sprint Contribution
Agreement that is converted to a Master Lease Site.
"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.
"DEBT SERVICE COVERAGE RATIO" or "DSCR" means, at any time of
determination, Net Tower 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 the Loan; provided that in calculating the DSCR during the
Acquisition Period, the Principal Amount of the Loan (and debt
service with respect thereto calculated at the average weighted Component Rate
across all Components) shall be deemed to be equal to ____% of the Cash Purchase
Price of all Properties owned as of the date of determination.
"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 the Loan 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 RATE" has the meaning set forth in Section 2.2.
"DEFEASED NOTE" has the meaning set forth in Section 11.3.
"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 [__________] 2005.
"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 Borrowers by the owner of the applicable fee interest in the
Properties described on SCHEDULE 4.26 attached hereto, which such easement
interests have been, or may be in the future, subjected to a Deed of Trust as
Collateral for the Loan; 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, (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, and (iii) with
respect to, or following, an Acquisition, "EASEMENT" shall include all
Acquisition Properties acquired by the purchase of an easement for the property
located under one or more Towers.
"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 Section
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 the Borrowers to Lender, 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) - (v) 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 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 SUBSIDIARIES" 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 [______________] 2005.
"FITCH" means Fitch, Inc.
"FORCE MAJEURE" means acts of god, governmental restrictions, stays,
judgments, orders, decrees, enemy actions, civil commotion, 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.
"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 Master Lease Sites and Properties subject to the Ground
Leases as described on SCHEDULE 4.25 attached hereto; 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, (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, (iii) with
respect to, or following, an Acquisition, "GROUND LEASED PROPERTIES" shall
include all Acquisition Properties which are subject to a Ground Lease, and (iv)
with respect to, or following, a Conversion, "GROUND LEASED PROPERTIES" shall
include all Conversion Properties.
"GROUND LEASES" means each Master Lease Agreement, the Prime Ground Leases,
and, following an Acquisition, any future ground leases with respect to
Replacement Properties and Acquisition 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.
"GSI" has the meaning set forth in Section 5.1.
"GUARANTOR" means ______________________, a Delaware limited liability
company.
"GUARANTY" means collectively, the Environmental Indemnity and the Parent
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
any of the 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 the
Properties under Section 5.4.
"INSURANCE PROCEEDS" means all of the proceeds received by the 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 Master Lease Agreement in respect of the Towers leased
to Sprint, including the rights and obligations in 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).
"LOAN" has the meaning set forth in Section 2.1.
"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 this Loan Agreement, the Note, the Deeds of Trust,
the Assignment of Management Agreement, the Guaranty, the Pledge Agreement, the
Environmental Indemnity, the Financing Statements, the Cash Management
Agreement, and 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 Loan.
"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 Operating Revenues of a Property.
"MANAGED PROPERTIES" means the Pre-Lease Sites (prior to a Conversion) and
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, (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, and (iii) following an Acquisition, "MANAGED PROPERTIES" shall include
all Acquisition Properties subject to a Site Management Agreement.
"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 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.
"MASTER LEASE AGREEMENT" has the meaning set forth in Section 5.25.
"MASTER LEASE SITES" has the meaning set forth in the Master Lease
Agreement.
"MASTER LESSOR" means the applicable Sprint entity party to a Master Lease
Agreement, in its capacity as the landlord thereunder.
"MATERIAL ADVERSE EFFECT" means, as determined by Lender in its reasonable
discretion, after giving effect to the Sprint Acquisition, (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 (taken as a whole), or (C) the material
impairment of the ability of Lender to enforce or collect the Obligations as
such Obligations become due, or (D) a material adverse effect on the use, value
or operation of the Properties as Collateral for the Loan, provided, however
that if five percent (5%) or more of the Operating Revenues derived from the
Properties (after giving effect to the Sprint Acquisition) 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 $250,000 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
$250,000, 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 $100,000, 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 [___________], 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 ____________________.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGED PROPERTIES" and "MORTGAGED PROPERTY" means, collectively, or
individually, the properties (including land and Improvements, and all
leaseholds and easements) 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; 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 Loan, (ii) following a Substitution,
"MORTGAGED PROPERTIES" shall include the Replacement Property and shall exclude
the Substituted Property, (iii) with respect to, or following, an Acquisition,
"MORTGAGED PROPERTIES" shall include all Acquisition Properties required to be
encumbered by a Deed of Trust pursuant to Section 6.5, (iv) with respect to, or
following, a Conversion, "MORTGAGED PROPERTIES" shall include all Master Lease
Sites required to be encumbered by a Deed of Trust pursuant to Section 5.25, and
(v) following delivery of the required Deed of Trust, "MORTGAGED PROPERTY" shall
include the applicable Property encumbered by the related Deed of Trust.
"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 TOWER CASH FLOW" at any time, an amount equal to (i) the aggregate
annualized amount of the rent then payable by all lessees under Leases with
respect to Towers, or, in the case of Towers that are Managed Properties, the
revenue then due to the Borrowers or any of their Subsidiaries under the Site
Management Agreement for such Towers (net of any payments required to be
remitted by the Borrowers or their Subsidiaries to the owner or lessor of such
Towers), less (ii) the sum of (a) the aggregate annualized current insurance
expense, real estate and property taxes, ground lease payments (if any) and
amounts payable to a third party owner under any Site Management Agreement (if
applicable) with respect to the Towers; (b) the aggregate trailing twelve
(12)-month Maintenance Capital Expenditures and other expenses in respect of the
Towers for direct maintenance expenses, utilities, licensing and permitting
(provided, that in no event shall any item referred to in clauses (a) and (b) of
this definition (including Maintenance Capital Expenditures and utilities paid
by Sprint treated as a reduction in the purchase price under the Sprint
Acquisition) be deducted in respect of any Tower the maintenance of which is the
obligation of a Person other than the Borrowers or one or more of their
Subsidiaries); and (c) a management fee equal to the greater of (x) $9,600,000
per annum, and (y) five percent (5%) of the aggregate annualized amount of the
rent then payable by all lessees under Leases. For purposes of clause (ii)(a) of
this definition, the amount of "current" expenses, taxes and other payments
shall be determined, for the first month after the Acquisition of any Tower (i)
with respect to the Towers acquired pursuant to the Sprint Acquisition, the
amount set forth in EXHIBIT A under the heading "insurance, taxes and
ground/lease payments", and (ii) with respect to any other Towers acquired by
the Borrowers or their subsidiaries, in accordance with the methodology set
forth in EXHIBIT J and, at any time thereafter, based on the actual amount of
such expenses, taxes and other payments. For purposes of clause (b) of this
definition, the calculation of the aggregate trailing twelve (12)-month
Maintenance Capital Expenditures and other expenses with respect to any Tower
(in each case after giving effect to the proviso thereto) shall be based on (i)
at the time of the Acquisition of such Tower and for one month thereafter, (A)
with respect to Maintenance Capital Expenditures and direct maintenance
expenses, the higher of (x) the sum of the actual annual budgeted Maintenance
Capital Expenditures and the annual budgeted direct maintenance expenses for
such Tower, and (y) $700, and (B) with respect to all other expenses, the
information obtained from the seller of such Tower pursuant to the
pre-acquisition due diligence process of the Borrowers to the extent the
Borrowers are required to pay such costs following the Sprint Acquisition, and
(ii) at any time after the first month until the first anniversary of the
Acquisition of such Tower, the actual amount of such Maintenance Capital
Expenditures and other expenses (excluding utilities expenses to the extent they
are paid for by Sprint), annualized based on the number of months that have
passed since the date of such Acquisition.
"NON-CONTRIBUTABLE SITE" has the meaning set forth in the Sprint
Contribution Agreement.
"NON-CONTRIBUTABLE SITE CONVERSION" means the conversion of a
Non-Contributable Site to a Pre-Lease Site or a Master Lease Site in accordance
with the terms of the Sprint Contribution Agreement.
"NOTE" has the meaning set forth in Section 2.1.
"NOTICE OF CONVERSION" has the meaning set forth in Section 5.25.
"NOTICE OF DRAW" has the meaning set forth in Section 6.5.
"OBLIGATIONS" means the Loan and all obligations, liabilities and
indebtedness of every nature to be paid or performed by the Borrowers under the
Loan Documents, including the Principal Amount of the 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 REVENUES" means, without duplication, all revenues of the
Borrowers from operation of the Properties 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 No. 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, or following an Acquisition, to be 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 GUARANTY" means the Parent Guaranty of even date herewith, from
Guarantor to Lender, as same may amended or modified from time to time.
"PAYMENT DATE" means each day that is four (4) Business Days prior to any
Distribution Date.
"PERMITTED ENCUMBRANCES" means, collectively, (i) the Deeds of Trust and
the other Liens of the Loan Documents in favor of Lender, (ii) the items shown
in Schedule B to the Title Policies as of the date such Property is encumbered
by a Deed of Trust, (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, that certain Pledge and Security
Agreement delivered by Guarantor and that certain Pledge and Security Agreement
delivered by Acquisitions I, each dated as of the date hereof and given for the
benefit of Lender.
"PRE-EXISTING CONDITION" has the meaning set forth in Section 5.5.
"PRE-LEASE SITES" has the meaning set forth in the Sprint Contribution
Agreement.
"PRIME GROUND LEASES" means the ground leases described on Schedule 4.25
attached hereto; provided that "PRIME GROUND LEASES" shall not refer to any
Master Lease Agreement.
"PRINCIPAL AMOUNT" means, with respect to the Loan, the principal amount of
all Components of the 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, the Note or the other Loan
Documents.
"PROPERTIES" means, collectively, the Mortgaged Properties and the
Additional Pledged Properties.
"QUALIFYING ACQUISITION PROPERTY" means each of the Acquisition Properties
which are capable of being encumbered by a Deed of Trust; provided however, if
the representations and warranties set forth in Sections 4.6, 4.25(A)(i) - (vi)
and (viii) - (xi), 4.26, and 4.28 with respect to all Acquisition Properties
(including Acquisition Properties included within a prior Acquisition) are not
true in all material respects with respect to more than ten percent (10%) of the
Acquisition Properties (calculated based upon the number of Acquisition
Properties to be acquired in such Acquisition), the Acquisition Properties
included in such Acquisition which exceed the ten percent (10%) threshold shall
be excluded as Qualifying Properties unless the Borrowers deliver a Rating
Confirmation in connection with such proposed Acquisition; provided that any
Acquisition Property previously excluded as a Qualifying Acquisition Property
will be included as a Qualifying Acquisition Property if the representations and
warranties which precluded such Acquisition Property being included as a
Qualifying Acquisition Property are, at the time of determination, true in all
material respects, or the required Rating Confirmation has been obtained.
"QUARTERLY ADVANCE RENTS RESERVE DEPOSIT" has the meaning set forth in the
Cash Management Agreement.
"RATING AGENCY" means ▇▇▇▇▇'▇ and ▇▇▇▇▇.
"RATING CONFIRMATION" means, with respect to the transaction or matter in
question, each applicable Rating Agency shall have 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).
"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 ▇▇▇▇▇'▇ 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
▇▇▇▇▇'▇ and "A" by Fitch, if deposits are held by such Person for a period of
one month or more.
"RECEIPTS" means 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
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SCHEDULED DEFEASANCE PAYMENTS" means:
(a) with respect to a defeasance of the 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 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 the Loan and accrued interest thereon; or
(b) with respect to any defeasance of the 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 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 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 Loan or the right to receive income therefrom.
"SECURITIZATION OUTSIDE DATE" means December 1, 2005.
"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 Loan.
"SERVICING FEES" has the meaning set forth in Section 2.10.
"SFAS" 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 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 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.
"SUB-ACCOUNTS" has the meaning set forth in Section 7.1.
"SUB-PRIME GROUND LESSOR" means the applicable Sprint entity party to a
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 2005
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, ▇▇▇▇▇▇▇
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) of title insurance pertaining to the Deeds
of Trust on the Mortgaged Properties issued, or to be issued, by the Title
Company to Lender.
"TOWER" and "TOWERS" means collectively, or individually, any wireless
communications towers owned, leased or managed (or to be owned, leased or
managed) by the Borrowers, including any rooftop or other sites owned, leased or
managed by the Borrowers, together with any real estate, fixtures and
appurtenances that accompany the towers, rooftops or other sites acquired in an
Acquisition.
"TRANSFER" has the meaning set forth in Section 11.2.
"TRUSTEE" means the trustee of the trust established to hold the Loan 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.
"UNDEFEASED NOTE" has the meaning set forth in Section 11.3.
"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.
"YIELD" means the quotient (expressed as a percentage) of (x) Net Tower
Cash Flow for the existing Properties (excluding Acquisition Properties excluded
from the definition of Qualifying Acquisition Properties) and the applicable
Qualifying Acquisition Properties divided by (y) the sum of (i)
$[______________] plus (ii) that portion of the Cash Purchase Price of all
Acquisitions which have been and will be withdrawn from the Acquisition Reserve;
provided that, in calculating Yield, the Rents from non-telephony sources shall
be limited to twenty-five percent (25%) of the aggregate Rents utilized in
calculating Net Tower Cash Flow.
"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.
ARTICLE II
TERMS OF THE LOAN
SECTION 2.1 LOAN.
(A) AMENDMENT AND RESTATEMENT; LOAN. The Existing Credit Agreements are
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 Borrowers agree to combine the Existing
Indebtedness and the Increased Indebtedness so that together they shall
constitute one loan in the principal amount of $[_______________] (such loan and
the obligation of the Borrowers to repay the same together with all interest and
other amounts from time to time owing hereunder may be referred to as the
"LOAN") which Loan shall be comprised of one (1) or more Components.
(B) NOTE. On the Closing Date, the Borrowers shall execute and deliver to
Lender a Amended and Restated Promissory Note, dated of even date herewith (as
amended, modified or restated, and any replacement or substitute notes therefor,
by means of multiple notes or otherwise, collectively, the "NOTE"), made by the
Borrowers to the order of Lender, in the principal amount of $____________
allocated to each of the Components as more fully described in the Note.
(C) USE OF PROCEEDS. The proceeds of the Loan funded at Closing shall be
used 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 Loan; (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 Loan, if any, shall be disbursed to or
as otherwise directed by the Borrowers.
SECTION 2.2 INTEREST.
(A) RATE OF INTEREST. The outstanding principal balance of each Component
of the Loan 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 and in any event from and after
the Maturity Date of the Loan and until the Loan and all other Obligations are
satisfied in full, the outstanding principal balance of each Component of the
Loan 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
Note (the "DEFAULT RATE").
(C) COMPUTATION OF INTEREST. Interest on the Loan 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 Loan 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
principal, interest or other sums due hereunder or under any of the other Loan
Documents shall occur, 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 principal, 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 ADDITIONAL BORROWERS. Subject to the provisions of Section 6.5
hereof, on or before the expiration of the Acquisition Period, the Borrowers
shall, in connection with an Acquisition, cause any Person acquired in
connection with an Acquisition to assume and become jointly and severally
obligated under the Note and the Loan Documents for repayment of the Loan,
including causing any Acquisition Properties owned by such Person to be added as
Collateral for repayment of the Loan. Upon such assumption, (i) SCHEDULE 1 shall
be amended to include such additional Persons as are designated to become
"BORROWERS" hereunder; (ii) all references to the Borrowers hereunder shall
include all of the Borrowers identified on such amended SCHEDULE 1; and (iii)
each additional designated Affiliate shall execute an assumption and joinder
agreement in the form of EXHIBIT G.
SECTION 2.4 PAYMENTS.
(A) PAYMENTS OF INTEREST; APPLICATION OF PAYMENTS. On each Payment Date
commencing with the Payment Date in [______________] 2005, and on each Payment
Date thereafter through and including the Maturity Date, the Borrowers shall
make a payment of interest at the applicable Component Rate on each Component
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 Loan Documents). Except during the continuance of an Event of
Default, all payments from whatever source (including prepayment of the Loan)
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 on each Component, and third, to the
Principal Amount of the most senior Component (i.e. the Component with the
earliest alphabetical designation) until the Principal Amount of such Component
has been reduced to zero, and then sequentially to each Component with the next
earliest alphabetical designation in that order until the Principal Amount of
each such Component is repaid in full.
(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 Loan 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 the Loan as such amounts become due or
are declared due pursuant to the terms of this Loan Agreement. All payments by
the Borrowers on the Loan 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 its
obligation 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 the Loan Documents, the then outstanding principal balance of the Loan, 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 Note, 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 Loan 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 Loan 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 (x) the Borrowers shall provide to Lender not less than
fifteen (15) days' prior written notice of such prepayment, (y) together with
such prepayment the Borrowers also shall pay all accrued and unpaid interest and
all other Obligations then due and owing, and (z) 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. Subject to the provisions of Section 2.4(C), all
prepayments made under this Loan Agreement shall be applied in accordance with
Section 2.4(A).
(B) YIELD MAINTENANCE DUE. If any prepayment of all or any portion of the
Loan shall occur (including on account of acceleration of the Loan (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 Loan on any Payment Date that occurs during the three
(3) month period immediately preceding the Maturity Date (provided the amount of
interest that would have accrued on the amount being
prepaid from and including the date of such prepayment through the following
Payment Date shall be payable with such prepayment). 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 Note 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 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 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 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 Loan becomes a specially serviced loan, 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
obligations of Lender to fund the Loan are 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 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 the 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 Loan).
(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 or the projected cash flow of the Borrowers 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, 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 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 Borrower 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. 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) 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) are located as to the enforceability
of, and the creation and perfection of Liens under, the Deeds of Trust in such
states and such other matters as Lender may reasonably request; (b) opinions of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 and approved the Title Policies. The Title Policies shall be in form
and substance reasonably satisfactory to Lender, shall be in full force and
effect, shall be freely assignable to and will inure to the benefit of the
Trustee (subject to recordation of assignments of the Deeds of Trust) without
the consent or any notification to the Title Company, shall have the premium
therefor paid in full as of the Closing Date, the Title Company shall be
licensed in the state in which the Mortgaged Property is located, shall have no
claims made under such Title Policy, and shall affirmatively insure (unless the
related Mortgaged Property is in a jurisdiction where such affirmative insurance
is not available) that the applicable Borrowers' interest in the applicable
Property is the same as the Mortgaged Property legally described in the related
Deed of Trust.
(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 Loan and the execution, delivery and performance of the Loan
Documents, 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 a rent roll for each of 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 20 days prior to the Closing Date) regarding insurance required to be
maintained under this Loan Agreement and the other Loan Documents, 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, 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 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. The Borrowers have the power and authority
to incur the Indebtedness evidenced by the Note. 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 any 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 any Borrower Party; or (4) require any approval or
consent of any Person under any Contractual Obligation of any 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 Note, when executed and delivered will be, the legally valid and
binding obligations of each Borrower Party that is a party thereto, enforceable
against each of the 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, 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 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 (other than personal
property owned by Sprint) 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 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. 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, or as
otherwise disclosed to Lender in the estoppel certificates delivered to Lender
at Closing, 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 which could, in the aggregate, have a Material Adverse Effect, 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. 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 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, 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, 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 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 its ability to pay such Indebtedness and liabilities
as they mature (taking into account the timing and amounts of cash to be
received by the Borrowers 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:
(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 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. 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 Borrowers have obtained title insurance insuring the
applicable Borrower's subleasehold interest in each of the Prime Ground Leases.
(iii) There are no rights to terminate the Master Lease Agreement, or
to the Borrowers' Knowledge, the Prime 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 Master Lease Agreement, and to the Borrowers' Knowledge, 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 lessees's or
sublessee's, as applicable, interest under and pursuant to the applicable Ground
Lease and 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 Ground Lease or a memorandum thereof or other 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 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(A)(VII), the interests in the 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(A)(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 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(A)(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(A)(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) Except as set forth on Schedule 4.25(A)(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 cures any defaults that are susceptible to being cured by
Borrowers.
(B) With respect to the Ground Leased Properties constituting an Additional
Pledged 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 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 Master Lease Agreement and the
Sub-Prime Ground Lessor has no estate, right, title or in interest in or to the
Ground Leased Property except pursuant to the Prime Ground Lease. 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 Ground Lessor is the
exclusive owner of the fee or leasehold interest in its Ground Leased Property.
(iii) There are no rights to terminate the Master Lease Agreement, or
to the Borrowers' Knowledge, the Prime 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 Master Lease Agreement, and to the Borrower's Knowledge, the
Prime Ground Lease is in full force and effect, and Ground Lease Default exists
on the part of the Borrower or, to the Borrowers' Knowledge, on the part of the
Prime Ground Lessor under the Ground Lease. 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) The applicable Borrower 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).
(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.
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 that are not then the subject of a pending
Acquisition 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.
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 2005 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, each Borrower 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, each Borrower 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, commencing
with the 2006 calendar year, shall include budgeted and 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 (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, each
Borrower 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, 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, each Borrower 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 such Borrower 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
Borrower 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. Prior to February 15 of each
calendar year, the Borrowers 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. During the Acquisition Period the
Borrowers shall deliver updates to the Operating Budget and the CapEx Budget
within thirty (30) days after each calendar month. 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 each Borrower's
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 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 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 (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 $10,000;
(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 and ▇▇▇▇▇'▇ (if applicable) set forth above and all carriers
in such syndicate have a claims-paying ability rating by S&P of not less than
"BBB" and by ▇▇▇▇▇'▇ of not less than "Baa2" (to the extent rated by ▇▇▇▇▇'▇).
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 or 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, 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, 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, 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 Net Tower Cash Flow of the
Properties (including rental income or business interruption insurance) will be
sufficient to pay principal and interest on the Loan 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 for
Restoration if the Loss Proceeds are required to be utilized for a Restoration
under the Sprint Acquisition Documents 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 Property 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. 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 (1) 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, or (2) at least seventy-eight
percent (78%) 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 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 E (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 F) enabling Manager (on behalf of Lender) to
execute SNDAs in the form of EXHIBIT E (with the appropriate information
completed therein) without any material changes being made to the form.
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 1.0:1 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 (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
Loan, 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 $40,000,000.
In no event shall any Indebtedness other than the Loan 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 Borrower under this Section are
in addition to and not in limitation of its obligations under Article XI herein.
The Borrower 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 excluding obligations for the benefit of
Lender hereunder.
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 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. 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.
(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, 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
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 Master Lease Agreement;
(ii) terminate any 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, (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-eight percent
(78%) 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, increase the area of real property covered by a Ground Lease, and in
connection therewith amend and restate the existing Ground Lease or replace the
existing Ground Lease (either, an "AMENDED GROUND LEASE"), to include such
additional real property, provided that such Ground Lease is on commercially
reasonable substantive (including, by way of either an estoppel or as provided
by the terms of the Amended 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) and economic terms
(taking into consideration the additional real property covered by the Amended
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, together with a summary of
the economic terms thereof, and, following execution and delivery of the Amended
Ground Lease, Lender shall have received a copy of the Amended Ground Lease
certified by the applicable Borrower as being
true, accurate and complete, together with an estoppel from the applicable
Ground Lessor demonstrating that the Amended Ground Lease is in full force and
effect;
(b) on or prior to execution and delivery of the Amended Ground Lease,
Lender shall have received a database search environmental report prepared by
▇▇▇▇▇▇ and Associates (or another consultant reasonably acceptable to Lender) on
the real property to be included under the Amended 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 being replaced is with respect to a Mortgaged
Property, simultaneous with the execution and delivery of the Amended 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, together with an
endorsement to (or replacement of) the existing Title Policy in substantially
the form delivered at the time of acquisition thereof 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;
(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,
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 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 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 in accordance with the terms of such Ground Lease, 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 (in the case of any Prime Ground Lease, pursuant to Borrower's
rights under the Master Lease Agreement) and if the Borrowers elect not to renew
a Ground Lease (which shall only be permitted if the Borrowers would be entitled
to terminate such Ground Lease 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. If the Borrowers fail to renew a Ground Lease
which is required to be renewed pursuant to this Section 5.23(B), Lender shall
have the right to renew such Ground Lease 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, 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.
(C) NOTICE OF DEFAULT. If any of the Borrowers shall have or receive any
written notice that any 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.
(D) LENDER'S RIGHT TO CURE. If any Ground Lease Default shall occur and be
continuing, or if any Ground Lessor asserts that a 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, and (ii)
the Borrowers' right to terminate Ground Leases 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,
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, (ii) curing or attempting to cure any actual or purported Ground Lease
Default, (iii) mitigating or attempting to mitigate any damages or consequences
of the same and (iv) entry upon the applicable Ground Leased 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. 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 affecting or potentially affecting any Ground Lease
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, 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 and any
Borrower, or affecting or potentially affecting any Ground Lease or any
Borrower's or Lender's interest therein (including, without limitation, any case
commenced by or against any 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 shall reject any Ground Lease 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 the Borrowers' control,
Borrower shall not suffer any Sub-Prime Ground Lessor to) elect to treat the
Ground Lease as terminated but shall elect to remain in possession of the
applicable Ground Leased Property and the leasehold estate under such Ground
Lease. 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, 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 (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 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 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 the Borrowers' control,
assume pursuant to its rights under the Master Lease Agreement or cause the
lessor under the Master Lease Agreement to assume) the Ground Lease, and shall
take such steps as are necessary to preserve such Borrower's right to assume the
Ground Lease, including without limitation using commercially reasonable efforts
to obtain extensions of time to assume or reject the Ground Lease 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 have the Ground Lease 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 assumed and assigned to a
nominee of Lender. If Lender shall so elect to assume and assign the Ground
Lease, 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, 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 and enter into a
new lease with Lender on the same terms and conditions as the Ground Lease, for
the remaining term of the Ground Lease, or (2) treat the Ground Lease as
breached and provide Lender with the rights to cure defaults under the Ground
Lease and to assume the rights and benefits of the Ground Lease.
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, 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 MASTER LEASE AGREEMENTS. In addition to the other provisions
of this Section 5.23, the following shall apply with respect to each Master
Lease Agreement:
(i) The Borrowers shall enforce the Master Lease Agreement and will
not terminate, modify, cancel, change, supplement, alter or amend the Master
Lease Agreement, or waive, excuse, condone or in any way release or discharge
the Master Lessor of or from any of the material covenants and conditions to be
performed or observed by Master Lessor to the extent such action would have a
material adverse impact on Lender's interest in the Collateral. The Borrowers
hereby grant, mortgage, bargain, sell, assign and set over to Lender, all of the
Borrowers' interests in the Master Lease Agreement. The assignment of the
Borrowers' interest set forth in this Section is an absolute, unconditional and
present assignment from the Borrowers to Lender and not an assignment for
security and the existence or exercise of the Borrowers' revocable license to
take all actions with respect to the 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, the Borrowers shall have a revocable license to take all actions with
respect to the 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 Master Lease Agreement. Any
surrender of the leasehold estate created by the Master Lease Agreement or
termination, cancellation, modification, change, supplement, alteration or
amendment of the 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 the Borrowers under the terms of the Master Lease Agreement
during the continuance of a default under the 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 the Borrowers to Lender during the continuance of an Event of Default
within ten (10) days after demand. No performance by Lender of any obligations
of the Borrowers under the Master Lease Agreement shall constitute a waiver of
any Event of Default arising by reason of Borrower'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 the Borrowers 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 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 the
Borrowers or any other Person in the exercise of any right of redemption
following foreclosure of the Property shall include all amounts paid under the
Master Lease Agreement and other sums advanced by Lender on behalf of the
Borrowers, 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
Properties shall not merge but shall always be kept separate and distinct,
notwithstanding the union of said estates either in Master Lessor or in the
Borrowers or Lender, or in a third party, by purchase (in either estate) or
otherwise.
(v) If the Master Lessor shall deliver to Lender a copy of any notice
of default sent by the Master Lessor to the Borrowers, as tenants under the
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) The Borrowers hereby assigns, transfers and sets over to Lender
all of the Borrowers' claims and rights to the payment of damages arising from
any rejection by the Master Lessor of the Master Lease Agreement under the
Bankruptcy Code. The Borrowers 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 Master Lease Agreement. Lender is hereby irrevocably appointed
as the Borrowers' 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 the Borrowers, any proofs of claim, complaints, motions,
applications, notices and other documents, in any case in respect of the Master
Lessor under the Bankruptcy Code. The Borrowers 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. The Borrowers
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,
the Borrowers 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, the
Borrowers seek to offset against the rent reserved in the Master Lease Agreement
the amount of any damages caused by the non-performance by the Master Lessor of
any of the Master Lessor's obligations under the Master Lease Agreement after
the rejection by the Master Lessor of the Master Lease Agreement under the
Bankruptcy Code, the Borrowers 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 the Borrowers in accordance with the
first sentence of this clause (vii), the Borrowers may proceed to effect such
offset in the amounts set forth in the Borrowers' notice. Neither Lender's
failure to object as aforesaid nor any objection or other communication between
Lender and the Borrowers relating to such offset shall constitute an approval of
any such offset by Lender. The Borrowers 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 the Borrowers against the rent
reserved in the Master Lease Agreement.
(viii) Effective upon the entry of an order for relief in respect of
the Borrowers under the Bankruptcy Code, the Borrowers 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 Master Lease Agreement may be rejected or assumed.
(ix) In the event that the Borrowers or any Affiliate of the Borrowers
or any Person Controlled by the Borrowers or any Person holding a direct or
indirect (through intervening entities) legal or beneficial interest in the
Borrowers (or family members of such Persons) acquires any economic interest,
whether directly or indirectly (through intervening entities), in Master Lessor,
the Borrowers shall provide immediate written notice thereof to Lender and
Lender shall have the right to act for the Borrowers with respect to any
arbitration or other legal or administrative proceedings under the 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, (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-eight
percent (78%) 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. 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
▇▇▇▇▇▇ 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 acquisition thereof 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 Borrower 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 MASTER LEASE SITES; MORTGAGED PROPERTIES.
(A) ADDITION OF MASTER LEASE SITES AS MORTGAGED PROPERTIES. The Borrowers
shall, pursuant to the terms of the Sprint Acquisition Documents, enter into
those certain Master Lease and Sublease Agreements (each, a "MASTER LEASE
AGREEMENT") whereby (a) the Master Lease Sites will be leased to the Borrowers,
(b) the Borrowers will be assigned all Collocation Agreements and Tower Related
Assets and all Assumed Liabilities relating to the applicable Master Lease
Sites, (c) the Borrowers shall have the right to operate the Pre-Lease Sites and
all Collocation Agreements relating to the Pre-Lease Sites and (d) the Borrowers
shall be assigned all Assumed Liabilities with respect to the Pre-Lease Sites.
Upon the execution of each new Master Lease Agreement and compliance with the
requirements of this Section 5.25, the Master Lease Sites contained therein
shall become Mortgaged Properties under this Agreement.
(B) NOTICE OF ADDITION OF MASTER LEASE SITES. In connection with any
Conversion, or Non-Contributable Site Conversion, in either case where a site
will become a Master Lease Site, Borrower shall give Lender revocable notice
substantially in the form of EXHIBIT H (a "NOTICE OF CONVERSION") specifying and
accompanied by the following:
(i) the proposed date upon which such site shall become a Master Lease
Site, which such date may be extended from time to time by Borrower upon written
notice to Lender;
(ii) a report specifying for each of the Conversion Properties the
"Tower Identifier" (name/ID);
(iii) if not previously provided to Lender, a database search
environmental report prepared by ▇▇▇▇▇▇ and Associates (or another consultant
reasonably acceptable to Lender) on the real property where each such Tower is
located (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 each Master
Lease Site does not contain any Hazardous Materials (except for cleaning and
other products used in connection with the routine maintenance, operation or
repair of the Master Lease Site) and is not in material violation of any
Environmental Laws;
(iv) a copy of each engineering report (if any) obtained by the
Borrowers with respect to such Master Lease Site; and
(v) an calculation of the Allocated Loan Amount for each Conversion
Property.
(C) REQUIRED DELIVERIES IN CONNECTION WITH CONVERSION PROPERTIES. For each
Conversion Property, Borrower shall deliver to Lender:
(i) within sixty (60) days of the Conversion Closing Date, a Deed of
Trust for each Conversion Property, executed and delivered by a duly authorized
officer of Borrower which shall be:
(a) if a Securitization has not yet occurred, prior to the
Securitization Outside Date, in the name of the
securitization trustee provided to Borrower; and
(b) if a Securitization has not occurred and the Securitization
Outside Date has passed, in the name of Lender, as
collateral agent;
(ii) within the later of (a) the Conversion Closing Date or (b) six
(6) months of the Closing Date, a Title Policy in the form of (EXHIBIT I) dated
as of the Conversion Closing Date (with coverage in the amount of the Allocated
Loan Amount together with evidence that all premiums in respect of the Title
Policies shall have been paid) for each of the Properties for which title has
been ordered as indicated on SCHEDULE 4.25; provided that the Borrowers shall
not be required to obtain Title Policies with respect to Properties with
Allocated Purchase Prices in excess of eighty-percent (80%) of the aggregate
Allocated Purchase Prices of all Properties as of the Closing Date;
(iii) valid certificates of insurance indicating that the requirements
for the Insurance Policies required hereunder have been satisfied with respect
to each Conversion Property;
(iv) payments or reimbursement to Lender, to the extent invoiced, of
all reasonable fees, costs and expenses incurred by Lender (including, without
limitation, reasonable attorneys fees and disbursements) in connection with the
Conversion Property, and all recording charges, filing fees, taxes or other
expenses (including, without limitation, mortgage and intangible taxes and
documentary stamp taxes) payable in connection with the applicable Deeds of
Trust shall have been paid;
(v) a copy of the applicable Master Lease Agreement (or amendment
thereto) adding the applicable Conversion Property.
(D) FORMAT FOR NOTICES/DELIVERIES. All notices and deliveries required
pursuant to the terms of this Section 5.25 may be provided by (i) electronic
delivery, (ii) access to a dedicated electronic documentation web-based site
(provided that confirmation of such access together with any required access
code is delivered to Lender within the time periods provided herein), or (iii)
as provided pursuant to Section 14.5 hereof (which may include delivery in
digital media form).
(E) UPDATES OF REPRESENTATIONS. In connection with the delivery of Deeds of
Trust and the conversion of any Property to a Mortgaged Property during the term
hereof, the Borrowers shall deliver to Lender on the first (1st) Business Day of
each calendar month (commencing in August 2005) an Officer's Certificate
updating the representations and warranties contained in Section 4.25 hereof
with respect to any Property converted to a Mortgaged Property during the period
following delivery of the most recent Officer's Certificate
related thereto, including additions, if any, to the Schedules related to the
representations and warranties set forth in Section 4.25.
SECTION 5.26 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 Loan 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.
(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 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 Loan 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 Loan 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 $_________ and, pursuant to
the Cash Management Agreement, the Borrowers shall deposit monthly, on each
Payment Date commencing on the Payment date in the month immediately following
the Securitization, one-twelfth (1/12th) of the annual charges (as reasonably
estimated by Lender) for all Impositions (excluding, however, personal property
taxes) 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 the Properties hereunder (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 $_________. In connection
with any disbursements from the Acquisition Reserve for an Acquisition, the
Borrowers shall deposit a sum of money sufficient (together with future monthly
deposits) to make the payment of Impositions and Insurance Premiums with respect
to the applicable Acquisition Properties at least ten (10) Business Days prior
to the date initially due, and deliver to Lender an Officer's Certificate
setting forth in reasonable detail (a) the calculation of the required sums to
be deposited into the Impositions and Insurance Reserve with respect to such
Acquisition, and (b) the new monthly deposit amount as will be required to make
the payments on the dates contemplated by this Section 6.3, taking into
consideration such Acquisition. 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. Interest shall accrue in favor of the Borrowers on funds in the
Impositions and Insurance Reserve.
SECTION 6.4 ADVANCE RENTS RESERVE SUB-ACCOUNT. Pursuant to the Cash Management
Agreement, from and after the Securitization, 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 February of each calendar year,
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 Loan, 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 ACQUISITION RESERVE.
(A) ESTABLISHMENT OF ACQUISITION RESERVE. On the Closing Date, the
Borrowers shall deposit with Lock Box Bank $___________________ (said funds
together with interest thereon being referred to herein as the "ACQUISITION
RESERVE"). From time to time after Closing, amounts held in the Acquisition
Reserve shall be disbursed and made available to the Borrowers solely for
payment of the Cash Purchase Price of an Acquisition in accordance with the
provisions of this Section 6.5 through the expiration of the Acquisition Period.
Upon expiration of the Acquisition Period, the Acquisition Reserve shall cease
to be available to the Borrowers at which time all amounts remaining in the
Acquisition Reserve will be applied (together with the applicable Yield
Maintenance) to the outstanding Principal Amount in accordance with Section
2.4(A).
(B) NOTICE OF DRAW; INITIAL DELIVERIES. In connection with an Acquisition,
the Borrowers may request a disbursement from the Acquisition Reserve on any
Business Day prior to the expiration of the Acquisition Period, and Lender shall
make such disbursement, in an aggregate principal amount not to exceed the
Availability at such time, provided that the Borrowers shall give Lender a
revocable notice substantially in the form of EXHIBIT H (a "NOTICE OF DRAW")
(which Notice of Draw must be received by Lender prior to 11:00 a.m., New York
City time, two (2) Business Days prior to the proposed Acquisition Date),
specifying, and accompanied by, the following:
(i) the amount to be disbursed from the Acquisition Reserve, which
such amount may be adjusted upward or downward by up to ten percent (10%) of
such amount (but in no case exceeding the Availability) upon written notice to
Lender received no later than one (1) Business Day prior to the requested
Acquisition Date;
(ii) the proposed date for the Acquisition, which such date may be
extended from time to time at the request of the Borrowers upon written notice
to Lender received no later than one (1) Business Day prior to any proposed date
for an Acquisition (such date, as same may be adjusted, the "ACQUISITION DATE").
(iii) wire instructions of the seller party to any Acquisition (or
other Persons) to which the Cash Purchase Price of such Acquisition to be
financed with such disbursement is to be provided, including any such portion
which is to be paid following consummation of such Acquisition in respect of
post closing adjustments, including, but not limited to, holdbacks and earnouts;
(iv) a calculation of the Availability, certified by a Responsible
Officer of the Borrowers upon which Lender is entitled to rely in making such
disbursement;
(v) a written instruction signed by a Responsible Officer of the
Borrowers directing Lender to wire the proceeds of the disbursement to the
accounts and Persons specified in the Notice of Draw;
(vi) a report specifying for each of the applicable Acquisition
Properties being acquired pursuant to such Acquisition, (1) the "Tower
Identifier" (name/ID), (2) the Cash Purchase Price, (3) the Net Tower Cash Flow
(including the proposed Acquisition Properties), and (4) whether the Acquisition
Property will be acquired as an Owned Property, a Ground Leased Property, a
Managed Property or acquired through the acquisition of an Easement;
(vii) a database search environmental report prepared by ▇▇▇▇▇▇ and
Associates (or another consultant reasonably acceptable to Lender) on the real
property where each such Tower is located, (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 each Acquisition 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 Acquisition Property)
and is not in material violation of any Environmental Laws;
(viii) a copy of each engineering report obtained by the Borrowers
with respect to any Acquisition Property acquired in such Acquisition; and
(ix) a calculation of the Allocated Loan Amount for each Acquisition
Property.
(C) DISBURSEMENT. Each disbursement shall be made on the Acquisition Date
in an amount equal to at least $100,000, subject to the satisfaction of the
following conditions:
(i) An Officer's Certificate from the Borrowers stating that each of
the representations and warranties made by the Borrowers and the other Borrower
Parties in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date, and following the Acquisition Date, as
if made on and as of each such date (except (1) to the extent such
representation or warranty expressly relates to an earlier date, in which case
such representation or warranty shall be true and correct in all material
respects as of such earlier date,
and (2) the failure of any such representation and warranty to be true would not
reasonably be expected to have a Material Adverse Effect).
(ii) No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the disbursement requested to
be made on such date.
(iii) Disbursement of the amount requested by the Notice of Draw is
subject to Lender receiving on or prior to the Acquisition Date the following
all in form and substance reasonably satisfactory to Lender:
(a) a Deed of Trust with respect to each Acquisition Property (other
than (1) Properties which are prohibited by the applicable Ground
Lease or Easement from being encumbered by a Deed of Trust and
(2) Managed Properties), or if a leasehold or fee interest in any
Acquisition Property is subsequently acquired by a Borrower,
delivery of a Deed of Trust within a reasonable period following
such acquisition, each executed and delivered by a duly
authorized officer of the applicable Borrowers;
(b) Title Policies (containing the endorsements and affirmative
coverages set forth in EXHIBIT I to the extent available in the
applicable jurisdiction) for each Acquisition Property to be
encumbered by a Deed of Trust dated as of the date of the
Acquisition (or if a leasehold or fee interest in any Acquisition
Property is subsequently acquired by a Borrower, within a
reasonable period following such acquisition) with coverage in
the amount of the Cash Purchase Price for the applicable
Acquisition and insuring Lender (together with its successors and
assigns) that the relevant Deed of Trust creates a valid first
lien on the Acquisition Property encumbered thereby, free and
clear of all exceptions from coverage other than Permitted
Encumbrances and standard exceptions and exclusions from coverage
(as modified by the terms of any endorsements). Lender shall also
have received copies of the closing statements for such
Acquisition showing that all premiums in respect of such
endorsements and Title Policies shall have been paid as of the
closing of such Acquisition;
(c) valid certificates of insurance indicating that the requirements
for the Insurance Policies required hereunder have been satisfied
with respect to each Acquisition Property and evidence of the
payment of all premiums payable for the existing policy period by
including such premium on the closing statement for such
Acquisition;
(d) payment or reimbursement to Lender to the extent invoiced of all
reasonable fees, costs and expenses incurred by Lender
(including, without limitation, reasonable attorneys fees and
disbursements) in connection with such Acquisition, and all
recording charges, filing fees, taxes or other expenses
(including, without limitation, mortgage and intangibles taxes
and documentary stamp taxes) payable in connection with the
applicable Deeds of Trust shall have been paid;
(e) evidence that each Acquisition Property that is an Owned Property
acquired in such Acquisition constitutes a separate tax lot;
(f) if such Acquisition consists of the acquisition of the Capital
Stock of any Person, in addition to the foregoing deliveries, the
Borrowers shall have delivered (i) a Rating Confirmation, (ii) an
assumption and joinder agreement in the form of EXHIBIT G
executed and delivered by a duly authorized officer of the
applicable Borrower, and (iii) good standing certificates from
the applicable jurisdiction of formation for such Person
(together with such resolutions and other evidence of corporate,
limited liability company or partnership action, as applicable,
as shall be required to complete the Acquisition);
(g) a calculation of the Allocated Loan Amount for each Acquisition
Property which shall be equal to the Cash Purchase Price for the
applicable Acquisition funded from the Acquisition Reserve
multiplied by the quotient (expressed as a percentage) of (x) Net
Tower Cash Flow of the applicable Property divided by (y) Net
Tower Cash Flow of all Qualifying Acquisition Properties acquired
in such Acquisition; provided that the Allocated Loan Amount for
any Properties that are not Qualifying Acquisition Properties
shall be $0.00; and
(h) evidence that, with respect to all Acquisition Properties, after
giving effect to such Acquisition, (x) the average remaining term
(including all available extensions) of the Ground Leases for
such Properties (taken as a whole) is equal to or greater than
fifteen (15) years, and (y) at least eighty percent (80%) of the
Operating Revenues generated by such Properties (taken as a
whole) comes from telephony tenants.
(iv) Not later than forty-five (45) days following completion of an
Acquisition, the Borrowers shall, or shall cause Manager to, deliver to Lender
copies of all leases and any Ground Leases affecting any Acquisition Property
acquired in such Acquisition, certified, to the Knowledge of the Borrowers as
being true and correct.
(D) TERMINATION OF ACQUISITION RESERVE. The Borrowers shall have the right,
upon not less than three (3) Business Days' prior written notice to Lender, to
terminate the Acquisition Reserve at which time any amounts remaining in the
Acquisition Reserve will be applied (together with the applicable Yield
Maintenance) to the outstanding Principal Amount in accordance with Section
2.4(A).
(E) FORMAT FOR NOTICES/DELIVERIES. All notices and deliveries required
pursuant to the terms of this Section 6.5 may be provided by (i) electronic
delivery, (ii) access to a dedicated electronic documentation web-based site
(provided that confirmation of such access together with any required access
code is delivered to Lender within the time periods provided herein), or (iii)
as provided pursuant to Section 14.5 hereof (which may include delivery in
digital media form).
SECTION 6.6 RESERVED.
SECTION 6.7 RESERVED.
SECTION 6.8 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
Loan 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 6.8. 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
Loan (including payment of Yield Maintenance, if any) or other Obligations 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, and prior to the
completion of any Acquisition, 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 Monday, Wednesday and
Friday of each calendar week (or if such day is
not a Business day, the next such day that is a Business Day) 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
Borrower 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 (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. 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, the Acquisition Reserve and any other Accounts or Sub-Accounts
against all or any portion of any of the Obligations, 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:
(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 Borrower, 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) 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, 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 for which 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; 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.
(Q) MASTER LEASE AGREEMENT. Any default by any of the Borrowers beyond any
applicable grace period shall occur under the Master Lease Agreement or any
actual or attempted surrender, termination, modification or amendment of the
Master Lease Agreement occurs without Lender's prior written consent if required
hereunder.
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 Loan and all other Obligations
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 Loan and other Obligations 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, 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 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 or the Obligations 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 Loan,
Lender may foreclose the Deed of Trust or any of them to recover so much of the
principal balance of the Loan 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 Note and the other Loan Documents 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
▇▇▇▇▇ 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 Loan after an Event of Default may be applied by Lender toward the payment
of any interest and/or
principal of the Loan and/or any other amounts due under the Loan Documents 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, 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
(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 Note
and shall be secured by all of the Collateral securing the applicable Loan.
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, 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 the
Loan Documents applicable to the Borrowers.
ARTICLE IX
SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS,
WARRANTIES AND COVENANTS
SECTION 9.1 APPLICABLE TO BORROWER PARTIES. The Borrowers hereby represent,
warrant and covenant as of the Closing Date 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, 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, and acquisition of the
Acquisition Properties;
(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 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 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 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 stationary, 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 other than in connection with an Acquisition;
(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;
(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 Borrower hereby represents,
warrants and covenants as of the Closing Date 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 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. The Borrowers hereby
pledge, assign and grant to Lender a security interest in and to all of the
Borrowers' 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 Borrowers' 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
(and, following an Acquisition, all Acquisition Properties) described herein and
all real property now owned or hereafter acquired by the 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 (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.
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. 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. 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 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 ▇▇▇▇ 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.
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 Loan
at any time, in whole or, from time to time, in part 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 and
the amount which is to be defeased, which proposed date shall be a Payment Date.
(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 the 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 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 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) if
only a portion of the Loan is being defeased, the Borrowers shall execute and
deliver all necessary documents to split the Note into two substitute notes, one
having a principal balance equal to the defeased portion of the Note (the
"DEFEASED NOTE") and one note having a principal balance equal to the undefeased
portion of the Note (the "UNDEFEASED NOTE"), with a balloon payment on the
Defeased Note due on the first Payment Date that occurs three (3) months prior
to the Maturity Date; (5) 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 (6) deliver to Lender such other certificates, documents,
opinions or instruments as Lender may reasonably request. The 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
Borrowers under the Defeased Note. The Defeased Note and the Undefeased Note
shall have identical terms as the Note, except for the principal balance,
payment amounts and amortization schedules and with a balloon payment on the
Defeased Note due on the first Payment Date that occurs three (3) months prior
to the Maturity Date. A Defeased Note cannot be the subject of a further
defeasance.
(E) Lender shall have received a Rating Confirmation.
(F) If the Borrowers defease the Loan in whole and will continue to own any
assets other than the Federal Obligations delivered to Lender, the 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 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 all or a portion
of the Loan pursuant to Section 11.3 hereof to facilitate the disposition of a
Property 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 the 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 or defeasances, as applicable, which are
made (x) contemporaneously with the application of Loss Proceeds towards the
payment of the 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 (1) the Debt Service Coverage Ratio immediately
following the Release is equal to the greater of (x) 1.30:1 or (y) the Debt
Service Coverage Ratio immediately prior to effecting such Release, and (2) at
least seventy-eight percent (78%) of the Operating Revenues of the Properties
that remain following a proposed Release will consist of telephony revenues,
unless in either such case 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 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 OWNED PROPERTIES. The Borrowers shall be permitted,
without Lender's consent, to sell 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.
(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 is proposed is greater than five percent (5%) of the
Principal Amount of the Loan at Closing, or (2) at least seventy-eight percent
(78%) of the Operating Revenues of the Properties that remain following a
proposed sale 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; PRE-LEASE SITES. The Borrowers shall be permitted,
without Lender's consent, to release any Master Lease Site or Pre-Lease Sites
from a 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 Pre-Lease Site.
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 aggregate value of the Substituted Property as of the date immediately
preceding the Substitution.
(D) After giving effect to the Substitution, the Debt Service Coverage
Ratio of the Loan is at least equal to the Debt Service Coverage Ratio of the
Loan as of the date immediately preceding the Substitution.
(E) Lender shall have received 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 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 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 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 ▇▇▇▇▇▇ 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 the Loan (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 the Borrowers or any of their Affiliates (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 of the Loan is at least equal to the Debt
Service Coverage Ratio of the Loan 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 ▇▇▇▇▇▇ 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 the Loan (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
the Borrowers or any of their Affiliates (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 Obligations including but not
limited to the principal of and interest on the debt evidenced by the Note and
any other agreement evidencing the Borrowers' obligations under the Note 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, ▇▇▇ 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; and (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. 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 Note 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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lender:
[______________]
With a copy to:
[______________]
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 Loan hereunder and the
execution and delivery of the Note. 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 Loan 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 Note 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 Note 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
Note 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 Note 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 LOAN 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 the other 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 the other 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 Loan, 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 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 ▇▇▇ 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 ▇▇▇ 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 Note, 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 any 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 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. 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.
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 Loan to
each of the Borrowers upon the security of the Properties and the Other Company
Collateral 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 Note;
(ii) each Deed of Trust and the other security agreements given hereunder shall
constitute security for the Note as if a single blanket lien were placed on all
of the Properties and the Other Company Collateral as security for the Note; 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 Borrower's 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 Loan without any prior or different resort for collection or
of the right of Lender to the payment of the Loan 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.
[signatures follow on next page]
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
GLOBAL SIGNAL ACQUISITIONS II LLC
By:
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Name:
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Title:
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LENDER:
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By:
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Name:
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Title:
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