Exhibit 10.2
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MANAGEMENT AGREEMENT
between
GLOBAL SIGNAL ACQUISITIONS LLC
GLOBAL SIGNAL ACQUISITIONS II LLC
PINNACLE TOWERS LLC AND
THE OTHER ENTITIES LISTED ON THE SIGNATURE PAGES,
collectively, as Owners,
and
GLOBAL SIGNAL SERVICES LLC,
as Manager
Dated as of February 28, 2006
TABLE OF CONTENTS
SECTION 1. Definitions.................................................1
SECTION 2. Appointment.................................................3
SECTION 3. Site Management Services....................................3
SECTION 4. Administrative Services.....................................5
SECTION 5. Operation Standards.........................................5
SECTION 6. Authority of Manager........................................6
SECTION 7. Operating Account; Receipts.................................6
SECTION 8. Budgets.....................................................7
SECTION 9. Operating Expenses and Capital Expenditures.................7
SECTION 10. Compensation................................................8
SECTION 11. Employees...................................................9
SECTION 12. Books, Records and Inspections.............................10
SECTION 13. Insurance Requirements.....................................10
SECTION 14. Environmental..............................................11
SECTION 15. Cooperation................................................11
SECTION 16. Representations and Warranties of Manager..................12
SECTION 17. Representations and Warranties of Owners...................13
SECTION 18. Restrictions on Other Activities of Manager................14
SECTION 19. Removal or Substitution of Sites...........................14
SECTION 20. Term of Agreement..........................................14
SECTION 21. Duties Upon Termination....................................16
SECTION 22. Indemnities................................................16
SECTION 23. Miscellaneous..............................................17
LIST OF SCHEDULES AND EXHIBITS
Schedule I List of Sites
Exhibit A Initial Budget
Exhibit B Form of Manager Report
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT is entered into as of February 28, 2006 (the
"Effective Date") by and between each of the entities listed on the signature
pages hereto under the heading "Owners" (collectively, the "Owners") and Global
Signal Services LLC, a Delaware limited liability company (the "Manager").
SECTION 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings specified in the Loan Agreement (as
defined below). In addition, as used in this Agreement, the following terms
shall have the following meanings:
"Administrative Services" has the meaning specified in Section 4.
"Agreement" means this Management Agreement together with all
amendments hereof and supplements hereto.
"Budget" means the Operating Budget or the CapEx Budget.
"Depositor" means Towers ▇▇▇▇▇ III LLC, a Delaware limited liability
company.
"Effective Date" has the meaning specified in the first paragraph of
this Agreement, subject to any modification thereto specified in Section 10.
"Expiration Date" means March 28, 2006, as such date may be extended
from time to time pursuant to Section 20.
"Extension Notice" has the meaning specified in Section 20.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"Loan Agreement" means the Amended and Restated Loan and Security
Agreement dated as of February 28, 2006 among the Borrowers and the Depositor,
as initial lender thereunder.
"Managed Site" means a Site subject to a Site Management Agreement.
"Management Fee" has the meaning specified in Section 10.
"Manager" has the meaning specified in the first paragraph of this
Agreement.
"Operating Account" has the meaning specified in Section 7(a).
"Operation Standards" means the standards for the performance of the
Services set forth in Section 5.
"Other Management Agreements" has the meaning specified in Section 18.
"Owner Representative" has the meaning specified in Section 23(i).
"Owners" has the meaning specified in the first paragraph of this
Agreement.
"Permitted Operations" has the meaning specified in Section 18.
"Records" has the meaning specified in Section 12.
"Servicer" has the meaning specified in the Trust and Servicing
Agreement.
"Services" means, collectively, the Site Management Services and the
Administrative Services.
"Site Management Services" has the meaning specified in Section 3.
"Sites" means each tower, rooftop or other telecommunication site
listed on Schedule I hereto, as modified from time to time pursuant to Section
19.
"Tenant" means a tenant or licensee under a Lease, including any
ground lessee under a Lease where an Owner is the ground lessor.
"Term" has the meaning specified in Section 20.
"Trust and Servicing Agreement" means the Trust and Servicing
Agreement dated as of February 28, 2006, among the Trustee, the Depositor and
the Servicer.
"Trustee" means LaSalle Bank National Association, in its capacity as
trustee under the Trust and Servicing Agreement, and any successor thereto in
such capacity.
References to "Articles", "Sections", "Subsections", "Exhibits" and
"Schedules" shall be to Articles, Sections, Subsections, Exhibits and
Schedules, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in this Section 1 may, unless the context
otherwise requires, be used in the singular or the plural depending on the
reference. In this Agreement, "hereof", "herein", "hereto", "hereunder" and the
like mean and refer to this Agreement as a whole and not merely to the specific
article, section, subsection, paragraph or clause in which the respective word
appears; words importing any gender include the other genders; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible visible form; the words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation"; and
any reference to any statute or regulation may include any amendments of same
and any successor statutes and regulations. Further, (i) any reference to any
agreement or other document may include subsequent amendments, assignments, and
other modifications thereto, and (ii) any reference to any Person may include
such Person's respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
Persons.
SECTION 2. Appointment. On the terms and conditions set forth therein,
each Owner hereby engages the Manager to perform the Services described herein.
The Manager hereby accepts such engagement. The Manager is an independent
contractor, and nothing in this Agreement or in the relationship of any Owner
and the Manager shall constitute a partnership, joint venture or any other
similar relationship.
SECTION 3. Site Management Services. During the Term of this
Agreement, the Manager shall, subject to the terms hereof, perform those
functions reasonably necessary to maintain, market, operate, manage and
administer the Sites (collectively, the "Site Management Services"), all in
accordance with the Operation Standards. Without limiting the generality of the
foregoing, the Manager will have the following specific duties in relation to
the Sites:
(a) Marketing/Leasing of Sites. The Manager shall use commercially
reasonable efforts to market and procure Leases with third party customers for
the Sites, including locating potential Tenants, negotiating Leases with such
Tenants and executing and/or brokering Leases as agent for the Owners. The
Manager shall have complete authority to negotiate all of the terms of each
Lease, both economic and non-economic, as well as complete authority to
negotiate and execute amendments and other modifications thereto in the name of
or on behalf of the Owners; provided, however, that the terms of any Lease or
amendment or modification thereof shall be on commercially reasonable terms and
in accordance with the Operation Standards.
(b) Site Operations. The Manager shall monitor and manage each Owner's
property rights associated with the Sites, make periodic inspections of the
Sites for needed repairs, arrange for all such repairs determined to be
necessary or appropriate, and otherwise provide for the maintenance of the
Sites, including using commercially reasonable efforts to ensure that Tenants
install their equipment in accordance with the terms of the relevant Lease and
that all Sites are maintained in compliance in all material respects with any
applicable FAA and FCC regulations, the terms of any applicable Ground Lease or
Easement and any other applicable laws, rules and regulations. The Manager
shall arrange for all utilities, services, equipment and supplies necessary for
the management, operation, maintenance and servicing of the Sites in accordance
with the terms and conditions of the Leases, the Site Management Agreements and
applicable law. All utility contracts shall be in the name of the applicable
Owner with all notices to be addressed to such Owner in care of the Manager, at
the Manager's address. The Manager shall perform on behalf of each Owner any
obligation reasonably required of such Owner pursuant to any Site Management
Agreement, agency agreement, or other agreement related to the Sites (other
than the payment of amounts due from the Owners thereunder, which payments
shall be paid out of the Operating Account as provided herein). If any Owner is
obligated to or otherwise undertakes any alterations or improvements to a Site,
the Manager shall arrange for such alteration or improvement on the Owner's
behalf.
(c) Administration of Leases. The Manager shall, on behalf of the
Owners (i) maintain a database of the Leases indicating, for each Lease, the
amount of all payments due from the Tenant thereunder, the dates on which such
payments are due and, in the case of a Managed Site, the amount of all payments
due to or from the counterparty under the relevant Site Management Agreement,
(ii) invoice all rent and other amounts due under the Leases and use
commercially reasonable efforts to collect such rent and other amounts, (iii)
perform all services required to be performed by the Owners under the terms of
the Leases and the Site Management Agreements and (iv) otherwise use
commercially reasonable efforts to ensure compliance on the part of the Tenants
and the Owners with the terms of each Lease and Site Management Agreement, all
in accordance with the Operation Standards. Each Owner hereby authorizes the
Manager to take any action the Manager deems to be necessary or appropriate to
enforce the terms of each Lease and Site Management Agreement in accordance
with the Operation Standards, including the right to exercise (or not to
exercise) any right such Owner may have to collect rent and other amounts due
under the Leases (whether through judicial proceedings or otherwise), to
terminate any Lease and/or to evict any Tenant. The Manager shall also have the
right, in accordance with the Operation Standards, to compromise, settle, and
otherwise resolve claims and disputes with regard to Leases and Site Management
Agreements. The Manager may agree to any modification, waiver or amendment of
any term of, forgive any payment on, and permit the release of any Tenant on,
any Lease pertaining to the Sites as it may determine to be necessary or
appropriate in accordance with the Operation Standards.
(d) Compliance with Law, Etc. The Manager will take such actions
within its reasonable control as may be necessary to comply in all material
respects with any and all laws, ordinances, orders, rules, regulations,
requirements, permits, licenses, certificates of occupancy, statutes and deed
restrictions applicable to the Sites. Without limiting the generality of the
foregoing, the Manager shall use commercially reasonable efforts to apply for,
obtain and maintain, in the name of the respective Owners, or, if required, in
the name of the Manager, the licenses and permits reasonably required for the
operation of the Sites as telecommunications sites, or for the management,
marketing and operation of the Sites (including such licenses required to be
obtained from the FAA and the FCC). The cost of complying with this paragraph
shall be the responsibility of the Owners, shall be considered an Operating
Expense, shall be included in the Operating Budget and will be payable out of
the Operating Account.
(e) On each Payment Date, the Manager will furnish to the Owner
Representative and the Servicer a report (the "Manager Report") in
substantially the form attached as Exhibit B with respect to the periods
specified therein. In addition, the Manager will, from time to time upon
request, furnish to each Rating Agency such additional information pertaining
to the Sites as such Rating Agency may reasonably request.
SECTION 4. Administrative Services. During the Term of this Agreement,
the Manager shall, subject to the terms hereof, provide to each Owner the
following administrative services in accordance with the Operation Standards
(collectively, the "Administrative Services"):
(i) provide to the Owners clerical, bookkeeping and accounting
services, including maintenance of general records of the Owners and the
preparation of monthly financial statements, as necessary or appropriate
in light of the nature of the Owners' business and the requirements of the
Loan Documents to which they are a party;
(ii) maintain accurate books of account and records of the
transactions of each Owner, render statements or copies thereof from time
to time as reasonably requested by such Owner and assist in all audits of
such Owner;
(iii) prepare and file, or cause to be prepared and filed, all
franchise, withholding, income and other tax returns of such Owner
required to be filed by it and arrange for any taxes owing by such Owner
to be paid to the appropriate authorities out of funds of such Owner
available for such purpose, all on a timely basis and in accordance with
applicable law;
(iv) administer such Owner's performance under the Loan Documents to
which it is a party or by which it is bound, including (A) preparing and
delivering on behalf of such Owner such opinions of counsel, officers'
certificates, financial statements, reports, notices and other documents
as are required under such Loan Documents and (B) holding, maintaining and
preserving such Loan Documents and books and records relating to such Loan
Documents and the transactions contemplated or funded thereby, and making
such books and records available for inspection in accordance with the
terms of such Loan Documents;
(v) take all actions on behalf of such Owner as may be necessary or
appropriate in order for such Owner to remain duly organized and qualified
to carry out its business under applicable law, including making all
necessary or appropriate filings with federal, state and local authorities
under corporate and other applicable statutes; and
(vi) managing all litigation instituted by or against such Owner,
including retaining on behalf of and for the account of such Owner legal
counsel to perform such services as may be necessary or appropriate in
connection therewith and negotiating any settlements to be entered into in
connection therewith.
SECTION 5. Operation Standards. The Manager shall perform the Services
in accordance with the terms of the Loan Documents, the Leases, the Site
Management Agreements, the Ground Leases, the Easements and applicable law and,
to the extent consistent with the foregoing, (i) using the same degree of care,
skill, prudence and diligence that the Owners employed in the management of
their Sites and operations prior to the date hereof and that the Manager uses
for other sites it manages and (ii) with the objective of maximizing revenue
and minimizing expenses on the Sites. The Site Management Services shall be of
a scope and quality not less than those generally performed by first class,
professional managers of properties similar in type and quality to the Sites
and located in the same market areas as the Sites. The Manager hereby
acknowledges that it has received a copy of each Loan Agreement and agrees not
to take any action that would cause the Owners to be in default thereunder.
SECTION 6. Authority of Manager. During the Term hereof, the parties
recognize that Manager will be acting as the exclusive agent of the Owners with
regard to the Services described herein. Each Owner hereby grants to the
Manager the exclusive right and authority, and hereby appoints the Manager as
its true and lawful attorney-in-fact, with full authority in the place and
stead of such Owner and in the name of such Owner, to negotiate, execute,
implement or terminate, as circumstances dictate, for and on behalf of such
Owner, any and all Leases, Ground Leases, Site Management Agreements,
easements, contracts, permits, licenses, registrations, approvals, amendments
and other instruments, documents, and agreements as the Manager deems necessary
or advisable in accordance with the Operation Standards. In addition, the
Manager will have full discretion in determining whether to commence litigation
on behalf of an Owner, and will have full authority to act on behalf of each
Owner in any litigation proceedings or settlement discussions commenced by or
against any Owner. Each Owner shall promptly execute such other or further
documents as the Manager may from time to time reasonably request to more
completely effect or evidence the authority of the Manager hereunder, including
the delivery of such powers of attorney (or other similar authorizations) as
the Manager may reasonably request to enable it to carry out the Services
hereunder. Notwithstanding anything herein to the contrary, the Manager shall
not have the right or power, and in no event shall it have any obligation, to
institute, or to join any other Person in instituting, or to authorize a
trustee or other Person acting on its behalf or on behalf of others to
institute, any bankruptcy, reorganization, arrangement, insolvency, liquidation
or receivership proceedings under the laws of the United States of America or
any state thereof with respect to any Owner.
SECTION 7. Operating Account; Receipts.
(a) Operating Account. On or prior to the Effective Date, the Manager
shall establish, and at all times during the Term of this Agreement shall
maintain, one or more operating bank accounts in the name of an Owner and/or on
behalf of one or more Owners (such account or accounts being the "Operating
Account"). The Owners shall deposit funds into the Operating Account for the
payment of Capital Expenditures and Operating Expenses (other than Impositions
and Insurance Premiums that are to be paid directly out of the Impositions and
Insurance Reserve pursuant to the Loan Documents) in accordance with the
amounts and timing set forth in the Budgets. At all times during the Term of
this Agreement the Manager shall have full access to the Operating Account for
the purposes set forth herein, and all checks or disbursements from the
Operating Account will require only the signature of the Manager. Funds may be
withdrawn by Manager from the Operating Account only (i) to pay Operating
Expenses and Capital Expenditures in accordance with the terms hereof, (ii) to
withdraw amounts deposited in error and (iii) if the Manager determines, in
accordance with the Operation Standards, that the amount on deposit in the
Operating Account exceeds the amount required to pay the Operating Expenses and
Capital Expenditures as the same become due and payable, to make such other
distributions as the Owner Representative may direct. The Manager may direct
any institution maintaining the Operating Account to invest the funds held
therein in one or more Permitted Investments as the Manager may select in its
discretion. All interest and investment income realized on funds deposited
therein shall be deposited to the Operating Account.
(b) Receipts. The Manager shall cause all Receipts to be deposited
into the Deposit Account (or to the Lock Box Account or the appropriate
sub-account thereof, to the extent permitted or required by the Loan Documents)
as soon as practicable and in any event within two Business Days of the
Manager's receipt thereof. To the extent that the Manager holds any Receipts,
whether in accordance with this Agreement or otherwise, the Manager shall be
deemed to hold the same in trust for the applicable Owner and for the benefit
of the Lender.
SECTION 8. Budgets. Contemporaneously with the execution and delivery
of this Agreement, the Manager and the Owners have agreed on an initial
Operating Budget and CapEx Budget for the current calendar year, copies of
which are attached as Exhibit A. On or before February 15 of each year, the
Manager shall deliver to the Owner Representative an Operating Budget and CapEx
Budget for such year (in each case presented on a monthly and annual basis).
The Operating Budget shall identify and set forth the Managers' reasonable
estimate, after due consideration, of all Operating Expenses on a line-item
basis consistent with the form of Operating Budget attached as Exhibit A. Each
of the parties hereto acknowledges and agrees that the Operating Budget and the
CapEx Budget represent an estimate only, and that actual Operating Expenses and
Capital Expenditures may vary from those set forth in the applicable Budget. In
the event the Manager determines, in accordance with the Operation Standards,
that the actual Operating Expenses or Capital Expenditures for any year will
materially differ from those set forth in the applicable Budget for such year,
such Budget shall, at the request of the Manager and subject to the Loan
Documents, be modified or supplemented as appropriate to reflect such
differences. The Manager will furnish a copy of each Budget to the Servicer at
the times required by the Loan Documents.
SECTION 9. Operating Expenses and Capital Expenditures.
(a) The Manager is hereby authorized to incur Operating Expenses and
to make Capital Expenditures on behalf of the Owners, the necessity, nature and
amount of which may be determined in Manager's discretion in accordance with
the Operation Standards. The Manager shall use commercially reasonable efforts
to incur Operating Expenses and to make Capital Expenditures within the limits
prescribed by the Budgets; provided that the Manager may at any time incur
Operating Expenses and make Capital Expenditures in amounts that exceed the
Operating Expenses or Capital Expenditures, as the case may be, specified in
the applicable Budget if and to the extent that the Manager determines in
accordance with the Operation Standards that it is necessary or advisable to do
so.
(b) The Manager shall maintain accurate records with respect to each
Site reflecting the status of real estate and personal property taxes, ground
lease payments, insurance premiums and other Operating Expenses payable in
respect thereof and shall furnish to the Owner Representative and the Servicer
from time to time such information regarding the payment status of such items
as the Owner Representative or the Servicer may from time to time reasonably
request. The Manager shall arrange for the payment of all such real estate and
personal property taxes, ground lease payments, insurance premiums and other
Operating Expenses as the same become due and payable out of funds available
for that purpose in the Imposition and Insurance Reserve or the Operating
Account, as applicable. All Operating Expenses will be funded through the
Imposition and Insurance Reserve or the Operating Account, as applicable, and
the Manager shall have no obligation to subsidize, incur, or authorize any
Operating Expense that cannot, or will not be paid by or through the Imposition
and Insurance Reserve or the Operating Account. If the Manager determines that
the funds on deposit in the Imposition and Insurance Reserve and the Operating
Account are not sufficient to pay all Operating Expenses related to the Sites
as the same shall become due and payable, the Manager shall notify the Owner
Representative and the Lender of the amount of such deficiency and the Owners
shall deposit the amount of such deficiency therein as soon as practicable. In
the event of any such deficiency, the Manager may, in its sole discretion,
elect to pay such Operating Expenses out of its own funds, but shall have no
obligation to do so. The Owners, jointly and severally, shall be obligated to
pay or reimburse the Manager for all such Operating Expenses paid by the
Manager out of its own funds together with interest thereon at the Advance Rate
(as defined in the Trust and Servicing Agreement).
SECTION 10. Compensation. In consideration of the Manager's agreement
to perform the Services described herein, during the Term hereof, the Owners
hereby jointly and severally agree to pay to the Manager a fee (the "Management
Fee"), on each Payment Date, equal to 7.5% of the Operating Revenues for the
immediately preceding calendar month. On each Payment Date, the Manager shall
report to the Owners the Management Fee then due and payable based on the best
information regarding Operating Revenues for the immediately preceding calendar
month then available to it. If the Manager subsequently determines that
Management Fee so paid to it was less than what should have been paid (based on
a re-computation of the Operating Revenues for such calendar month), then the
Management Fee due on the next Payment Date following the date of such
determination shall be increased by the amount of the underpayment. If the
Manager subsequently determines that Management Fee so paid to it was higher
than what should have been paid (based on a re-computation of the Operating
Revenues for such calendar month), then the Management Fee due on the next
Payment Date following the date of such determination shall be reduced by the
amount of the overpayment Upon the expiration or earlier termination of this
Agreement as set forth in Section 20, the Manager shall be entitled to receive,
on the next succeeding Payment Date, the portion of the Management Fee which
was earned by the Manager through the effective date of such expiration or
termination (such earned portion being equal to the product at (a) the total
Management Fee that would have been payable for the month in which such
expiration or termination occurred had this Agreement remained in effect
multiplied by (b) a fraction, the numerator of which is the number of days in
such month through the effective of such expiration or termination, and the
denominator of which is the total number of days in such month). The Manager
shall be entitled to no other fees or payments from the Owners as a result of
the termination or expiration of this Agreement in accordance with the terms
hereof. All expenses necessary to the performance of the Manager's duties
(other than Operating Expenses and any capital expenditures, all of which are
payable by the Owners) will be paid from the Manager's own funds.
Notwithstanding the foregoing to the contrary, the Owners and Manager
acknowledge that this Agreement supercedes in its entirety any other management
agreement (each an "Existing Management Agreement") between any Owner or Owners
and Manager and, accordingly, as of the Effective Date, no Existing Management
Agreement shall be of any further force or effect, except that any amounts
required to be paid or reimbursed to Manager pursuant to the terms of any
Existing Management Agreement that were accrued prior to the Effective Date
shall continue to be due and owing to Manager (without duplication) pursuant to
the terms of this Agreement.
SECTION 11. Employees. The Manager shall employ, supervise and pay at
all times a sufficient number of capable employees as may be necessary for
Manager to perform the Services hereunder in accordance with the Operation
Standards. All employees of Manager will be employed at the sole cost of the
Manager. All matters pertaining to the employment, supervision, compensation,
promotion, and discharge of such employees are the sole responsibility of
Manager, who is, in all respects, the employer of such employees. To the extent
the Manager, its designee, or any subcontractor negotiates with any union
lawfully entitled to represent any such employees, it shall do so in its own
name and shall execute any collective bargaining agreements or labor contracts
resulting therefrom in its own name and not as an agent for any Owner. The
Manager shall comply in all material respects with all applicable laws and
regulations related to workers' compensation, social security, ERISA,
unemployment insurance, hours of labor, wages, working conditions, and other
employer-employee related subjects. The Manager is independently engaged in the
business of performing management and operation services as an independent
contractor. All employment arrangements are therefore solely Manager's concern
and responsibility, and the Owners shall have no liability with respect
thereto.
SECTION 12. Books, Records and Inspections. The Manager shall, on
behalf of the Owners, keep such materially accurate and complete books and
records pertaining to the Sites and the Services as may be necessary or
appropriate under the Operation Standards. Such books and records shall include
all Leases, Site Management Agreements, Ground Leases corporate records,
monthly summaries of all accounts receivable and accounts payable, maintenance
records, Insurance Policies, receipted bills and vouchers, and other documents
and papers pertaining to the Sites. All such books and records ("Records")
shall be kept in an organized fashion and in a secure location and separate
from records relating to Other Management Agreements. During the Term of this
Agreement, the Manager shall afford to the Owners and the Lender access to any
Records relating to the Sites and the Services within its control, except to
the extent it is prohibited from doing so by applicable law or the terms of any
applicable obligation of confidentiality or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Owners. Such access shall be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of the
Manager designated by it.
SECTION 13. Insurance Requirements.
(a) Owner Insurance. The Manager shall maintain, on behalf of the
Owners, all Insurance Policies required to be maintained by the Owners pursuant
to the Loan Documents and such other Insurance Policies as the Manager shall
determine to be necessary or appropriate in accordance with the Operation
Standards. The Manager shall prepare and present, on behalf of the Owners,
claims under any such insurance policy in a timely fashion in accordance with
the terms of such policy. Any payments on such policy shall be made to the
Manager as agent of and for the account of the Owners (and for the benefit of
the Lender to the extent provided in the Loan Documents), except as otherwise
required by the Loan Documents. All such payments shall be applied in
accordance with the Loan Documents or, if the Loan Documents do not specify an
application, shall be deposited into the Operating Account. The Manager shall
provide to the Lender on behalf of the Owners such evidence of insurance and
payments of the premiums thereof required by Section 5.4 of the Loan Agreement.
(b) Manager's Insurance. The Manager shall maintain, at its own
expense, a commercial crime policy and professional liability insurance policy.
Any such commercial crime policy and professional liability insurance shall
protect and insure the Manager against losses, including forgery, theft,
embezzlement, errors and omissions and negligent acts of the employees of the
Manager and shall be maintained in a form and amount consistent with customary
industry practices for managers of properties such as the Sites. The Manager
shall be deemed to have complied with this provision if one of its respective
Affiliates has such commercial crime policy and professional liability policy
and the coverage afforded thereunder extends to the Manager. Annually, upon
request of the Owner Representative, the Manager shall cause to be delivered to
the Owner Representative and the Lender a certification evidencing coverage
under such commercial crime policy and professional liability insurance policy.
Any such commercial crime policy or professional liability insurance policy
shall not be cancelled without 10 days' prior written notice to the Owner
Representative and the Lender. In cases where any Owner and Manager maintain
insurance policies that duplicate coverage, then the policies of such Owner
shall provide primary coverage and Manager's policies shall be excess and
non-contributory.
SECTION 14. Environmental.
(a) None of the Owners is aware of any material violations of
Environmental Laws at the Sites.
(b) The Manager shall not consent to the installation, use or
incorporation into the Sites of any Hazardous Materials in violation of
applicable Environmental Laws and shall not consent to the discharge,
dispersion, release, or storage, treatment, generation or disposal of any
pollutants or toxic or Hazardous Materials and covenants and agrees to take
reasonable steps to comply with the Environmental Laws.
(c) Manager covenants and agrees (i) that it shall advise the Owner
Representative and the Lender in writing of each notice of any material
violation of Environmental Law of which Manager has actual knowledge, promptly
after manager obtains actual knowledge thereof, and (ii) to deliver promptly to
the Owner Representative and the Lender copies of all communications from any
Federal, state and local governmental authorities received by Manager
concerning any such violation and Hazardous Material on, at or about the Sites.
SECTION 15. Cooperation. Each Owner and the Manager shall cooperate
with the other parties hereto in connection with the performance of any
responsibility required hereunder or otherwise related to the Sites or the
Services. In the case of the Owners, such cooperation shall include (i)
executing such documents and/or performing such acts as may be required to
protect, preserve, enhance, or maintain the Sites or the Operating Account,
(ii) executing such documents as may be reasonably required to accommodate a
Tenant or its installations, (iii) furnishing to the Manager, on or prior to
the Effective Date, all keys, key cards or access codes required in order to
obtain access to the Sites, (iv) furnishing to the Manager, on or prior to the
Effective Date, all books, records, files, abstracts, contracts, Leases, Site
Management Agreements, materials and supplies, budgets and other Records
relating to the Sites or the performance of the Services and (v) providing to
the Manager such other information as Manager considers reasonably necessary
for the effective performance of the Services. In the case of the Manager, such
cooperation shall include cooperating with the Lender, potential purchasers of
any of the Sites, appraisers, auditors and their respective agents and
representatives, with the view that such parties shall be able to perform their
duties efficiently and without interference.
SECTION 16. Representations and Warranties of Manager. The Manager
makes the following representations and warranties to the Owners all of which
shall survive the execution, delivery, performance or termination of this
Agreement:
(a) The Manager is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The Manager's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Manager's organizational
documents or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in a material
breach of, any material agreement or other material instrument to which it is a
party or by which it is bound.
(c) The Manager has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Manager, enforceable against the Manager in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law.
(e) The Manager is not in violation of, and its execution and delivery
of, performance under and compliance with this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Manager's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Manager to perform its obligations under this Agreement or the
financial condition of the Manager.
(f) The Manager's execution and delivery of, performance under and
compliance with, this Agreement do not breach or result in a violation of, or
default under, any material indenture, mortgage, deed of trust, agreement or
instrument to which the Manager is a party or by which the Manager is bound or
to which any of the property or assets of the Manager are subject.
(g) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation
by the Manager of the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
(h) No litigation is pending or, to the best of the Manager's
knowledge, threatened against the Manager that, if determined adversely to the
Manager, would prohibit the Manager from entering into this Agreement or that,
in the Manager's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Manager to perform its
obligations under this Agreement or the financial condition of the Manager.
SECTION 17. Representations and Warranties of Owners. Each Owner makes
the following representations and warranties to the Manager all of which shall
survive the execution, delivery, performance or termination of this Agreement:
(a) Such Owner is a limited liability company or corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
(b) Such Owner's execution and delivery of, performance under, and
compliance with this Agreement, will not violate such Owner's organizational
documents or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in a material
breach of, any material agreement or other material instrument to which it is a
party or by which it is bound.
(c) Such Owner has the full power and authority to own its properties,
to conduct its business as presently conducted by it and to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of such Owner, enforceable against such Owner in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(e) Such Owner is not in violation of, and its execution and delivery
of, performance under and compliance with this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in such Owner's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of such Owner to perform its obligations under this Agreement or the
financial condition of such Owner.
(f) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation
by such Owner of the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
(g) No litigation is pending or, to the best of such Owner's
knowledge, threatened against such Owner that, if determined adversely to such
Owner, would prohibit such Owner from entering into this Agreement or that, in
such Owner's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of such Owner to perform its obligations
under this Agreement or the financial condition of such Owner.
SECTION 18. Restrictions on Other Activities of Manager. The Manager
hereby covenants and agrees that (i) it shall not engage in any business except
as contemplated by this Agreement and other management agreements with
Affiliates of the Manager ("Other Management Agreements"), (ii) it shall not
acquire any assets other than office space, computer equipment and other assets
necessary or appropriate for the conduct of its operations as permitted under
this Agreement, the Other Management Agreements and its limited liability
company agreement (such operations, the "Permitted Operations"), (iii) it shall
not incur any indebtedness or other liabilities except for (A) obligations
hereunder and under the Other Management Agreements, (B) liabilities for the
salaries and benefits of its officers and employees and (C) other liabilities
incurred in the ordinary course of business in connection with its Permitted
Operations, (iv) it shall not consolidate with any other Person or merge with
or into any other Person, or sell its properties and assets as, or
substantially as, an entirety without the prior written consent of the Owner
Representative, (v) it shall comply in all material respects with the
provisions of its limited liability company agreement and (vi) it shall not
amend its limited liability company agreement in a manner that would require
the consent of the "independent director" thereunder without the prior written
consent of the Owner Representative.
SECTION 19. Removal or Substitution of Sites. If during the Term of
this Agreement an Owner assigns or otherwise transfers all of its right, title
and interest in and to any Site to a Person other than another Owner or the
Lender (whether pursuant to a taking under the power of eminent domain or
otherwise) or otherwise ceases to have an interest in a Site, this Agreement
shall terminate (as to that Site only) on the date of such assignment or
transfer and the Owners shall promptly deliver to Manager an amended Schedule I
reflecting the removal of such Site from the scope of this Agreement. Upon the
termination of this Agreement as to a particular Site, the Manager and the
respective Owner of such Site shall be released and discharged from all
liability hereunder with respect to such Site for the period from and after the
applicable termination date and the Manager shall have no further obligation to
perform any Site Management Services with respect thereto from and after such
date. In addition, the Owners may at any time add any additional Site to
Schedule I in connection with a substitution permitted under the terms of the
Loan Agreement. Upon such substitution, the Owners shall promptly deliver to
Manager an amended Schedule I reflecting the addition of such Site, whereupon
the Manager shall assume responsibility for the performance of the Site
Management Services hereunder with respect to such Site.
SECTION 20. Term of Agreement.
(a) Term. This Agreement shall be in effect during the period (the
"Term") commencing on the date hereof and ending at 5:00 p.m. (New York time)
on the Expiration Date, unless sooner terminated in accordance with the
provisions of this Section 20. The Expiration Date under this Agreement may be
extended from time to time at the option of the Owner Representative (or the
Lender on its behalf), acting in its sole and absolute discretion, for
successive 30-day periods by written notice to that effect to the Manager from
the Owner Representative (or the Lender on its behalf) delivered on or prior to
the then-current Expiration Date (an "Extension Notice"). Each of the Owners
and Manager agrees that if the Owner Representative fails to deliver an
Extension Notice to the Manager by the Expiration Date, the Manager shall, on
such Expiration Date, provide Lender with notice of such failure and Lender
shall have ten (10) Business Days following its receipt of such notice to
deliver an Extension Notice to the Manager, and upon delivery of such Extension
Notice the Expiration Date shall be extended to the date falling 30 days after
the Expiration Date as in effect immediately prior to such Extension Notice.
Upon delivery of an Extension Notice, the then-current Expiration Date shall be
automatically extended to the date specified therein without any further action
by any party.
(b) Termination for Cause The Owner Representative (or the Lender on
its behalf) shall have the right, upon notice to the Manager, to terminate this
Agreement: (i) upon the declaration of an "Event of Default" under (and as
defined in) the Loan Agreement, (ii) following the Maturity Date, (iii) if the
DSCR falls to less than 1.05x as of the end of any calendar quarter and the
Lender reasonably determines, pursuant to the Loan Agreement, that such decline
in the DSCR is primarily attributable to acts or omissions of the Manager
rather than factors affecting the Owners' industry generally, (iv) if the
Manager has engaged in fraud, gross negligence or willful misconduct arising
from or in connection with its performance under this Agreement or (v) if the
Manager defaults in the performance of its obligations hereunder and such
default (A) could reasonably be expected to have a Material Adverse Effect and
(B) remains unremedied for 30 days after the Manager receives written notice
thereof.
(c) Automatic Termination for Bankruptcy, Etc. If the Manager or any
Owner files a petition for bankruptcy, reorganization or arrangement, or makes
an assignment for the benefit of the creditors or takes advantage of any
insolvency or similar law, or if a receiver or trustee is appointed for the
assets or business of the Manager or any Owner and is not discharged within
ninety (90) days after such appointment, then this Agreement shall terminate
automatically; provided that if any such event shall occur with respect to less
than all of the Owners, then this Agreement will terminate solely with respect
to the Owner or Owners for which such event has occurred and the respective
Sites owned, leased or managed by such Owner(s). Upon the termination of this
Agreement as to a particular Owner, the Manager and such Owner shall be
released and discharged from all liability hereunder for the period from and
after the applicable termination date and the Manager shall have no further
obligation to perform any Services for such Owner or any Sites owned, leased or
managed by such Owner from and after such date.
(d) Resignation By Manager. Unless and until the Loan Agreement has
terminated in accordance with its terms and all loans thereunder have been paid
in full, the Manager shall not resign from the obligations and duties hereby
imposed on it hereunder except upon determination that (i) the performance of
its duties hereunder is no longer permissible under applicable law and (ii)
there is no reasonable action which can be taken to make the performance of its
duties hereunder permissible under applicable law. Any such determination under
clause (d)(i) above permitting the resignation of the Manager shall be
evidenced by an opinion of counsel (who is not an employee of the Manager) to
such effect delivered, and in form and substance reasonably satisfactory, to
the Owner Representative. From and after the date on which the Loan Agreement
has terminated in accordance with its terms and all loans thereunder have been
paid in full, the Manager shall have the right in its sole and absolute
discretion, upon 30 days' prior written notice to the Owner Representative, to
resign from the obligations and duties hereby imposed on it. This Agreement
shall terminate on the effective date of any resignation of the Manager
permitted under this paragraph (d).
SECTION 21. Duties Upon Termination. Upon the expiration or
termination of the Term, the Manager shall have no further right to act for any
Owner or to draw checks on the Operating Account and shall promptly (i) furnish
to the Owner Representative or its designee all keys, key cards or access codes
required in order to obtain access to the Sites, (ii) deliver to the Owner
Representative or its designee all rent, income, tenant security deposits and
other monies due or belonging to the Owners under this Agreement but received
after such termination, (iii) deliver to the Owner Representative or its
designee all books, files, abstracts, contracts, leases, materials and
supplies, budgets and other Records relating to the Sites or the performance of
the Services and (iv) upon request, assign, transfer, or convey, as required,
to the respective Owners all service contracts and personal property relating
to or used in the operation and maintenance of the Sites, except any personal
property which was paid for and is owned by Manager. The Manager shall also,
for a period of ninety (90) days after such expiration or termination, make
itself available to consult with and advise the Owners regarding the operation
and maintenance of the Sites or otherwise to facilitate an orderly transition
of management to a new manager of the Sites. This Section 21 shall survive the
expiration or earlier termination of this Agreement (whether in whole or part).
SECTION 22. Indemnities.
(a) Subject to Section 23(g), the Owners jointly and severally agree
to indemnify, defend and hold Manager harmless from and against, any and all
suits, liabilities, damages, or claims for damages (including any reasonable
attorneys' fees and other reasonable costs and expenses relating to any such
suits, liabilities or claims), in any way relating to the Sites, the Manager's
performance of the Services hereunder, or the exercise by the Manager of the
powers or authorities herein or hereafter granted to the Manager, except for
those actions, omissions and breaches of Manager in relation to which the
Manager has agreed to indemnify the Owners pursuant to Section 22(b).
(b) Subject to Section 23(g), the Manager agrees to indemnify, defend
and hold the Owners harmless from and against any and all suits, liabilities,
damages, or claims for damages (including any reasonable attorneys' fees and
other reasonable costs and expenses relating to any such suits, liabilities or
claims), in any way arising out of (i) any acts or omissions of the Manager or
its agents, officers or employees in the performance of the Services hereunder
constituting misfeasance, bad faith or negligence or (ii) any material breach
of any representation or warranty made by the Manager hereunder.
(c) "Indemnified Party" and "Indemnitor" shall mean the Manager and
Owners, respectively, as to Section 22(a) and shall mean the Owners and
Manager, respectively, as to Section 22(b). If any action or proceeding is
brought against an Indemnified Party with respect to which indemnity may be
sought under this Section 22, the Indemnitor, upon written notice from the
Indemnified Party, shall assume the investigation and defense thereof,
including the employment of counsel and payment of all expenses. The
Indemnified Party shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the
Indemnitor shall not be required to pay the fees and expenses of such separate
counsel unless such separate counsel is employed with the written approval and
consent of the Indemnitor, which shall not be unreasonably withheld or refused.
(d) The indemnities in this Section 22 shall survive the expiration or
termination of the Agreement.
SECTION 23. Miscellaneous.
(a) Amendments. No amendment, supplement, waiver or other modification
of this Agreement shall be effective unless in writing and executed and
delivered by the Manager and the Owner Representative; provided that, until the
Loan Agreement has been terminated in accordance with its terms and the loans
thereunder have been paid in full, any material amendment, supplement, waiver
or other modification of this Agreement shall also require the consent of the
Lender and Rating Confirmations from each Rating Agency. No failure by any
party hereto to insist on the strict performance of any obligation, covenant,
agreement, term or condition of this Agreement, or to exercise any right or
remedy available upon a breach of this Agreement, shall constitute a waiver of
any of the terms of this Agreement.
(b) Notices. Any notice or other communication required or permitted
hereunder shall be in writing and may be delivered personally or by commercial
overnight carrier, telecopied or mailed (postage prepaid via the US postal
service) to the applicable party at the following address (or at such other
address as the party may designate in writing from time to time); however, any
such notice or communication shall be deemed to be delivered only when actually
received by the party to whom it is addressed:
(1) To any Owner c/o Global Signal Acquisitions II LLC
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Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(2) To Manager: Global Signal Services LLC
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Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(c) Assignment, Etc. The provisions of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. None of the rights, interests,
duties, or obligations created by this Agreement may be assigned, transferred,
or delegated in whole or in part by the Manager or any Owner, and any such
purported assignment, transfer, or delegation shall be void; provided, however,
that (i) the Owners may assign this Agreement to the Lender and grant a
security interest in their rights and interests hereunder pursuant to the Loan
Documents and (ii) the Manager may, in accordance with the Operation Standards,
utilize the services of third-party service providers to perform all or any
portion of its Services hereunder; and provided, further, that Manager may not
use any third-party service providers (other than insurance agents) to prepare
any Manager Reports or to perform any Services described in Section 9(b) or
Section 13(a) without the consent of the Servicer (such consent not to be
unreasonably withheld). Notwithstanding the appointment of a third-party
service provider, the Manager shall remain primarily liable to the Owners to
the same extent as if the Manager were performing the Services alone, and the
Manager agrees that no additional compensation shall be required to be paid by
the Owners in connection with any such third-party service provider.
(d) Entire Agreement; Severability. This Agreement constitutes the
entire agreement between the parties hereto, and no oral statements or prior
written matter not specifically incorporated herein shall be of any force or
effect. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby.
(e) Limitations on Liability.
(i) Notwithstanding anything herein to the contrary, neither the
Manager nor any director, officer, employee or agent of the Manager shall
be under any liability to the Owners or any other Person for any action
taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgement; provided, however, that this provision shall not
protect the Manager against any liability to the Owners or the Lender for
the material breach of a representation or warranty made by the Manager
herein or against any liability which would otherwise be imposed on the
Manager by reason of misfeasance, bad faith or negligence in the
performance of the Services hereunder.
(ii) No party will be liable to any other for special, indirect,
incidental, exemplary, consequential or punitive damages, or loss of
profits, arising from the relationship of the parties or the conduct of
business under, or breach of, this Agreement, except where such damages or
loss of profits are claimed by or awarded to a third party in a claim or
action against which a party to this Agreement has a specific obligation
to indemnify another party to this Agreement.
(iii) Notwithstanding any other provision of this Agreement or any
rights which the Manager might otherwise have at law, in equity, or by
statute, any liability of an Owner to the Manager shall be satisfied only
from such Owner's interest in the Sites, the Leases, the Site Management
Agreements, the Insurance Policies and the proceeds thereof, and then only
to the extent that such Owner has funds available to satisfy such
liability in accordance with the Loan Documents (any such available funds
being hereinafter referred to as "Available Funds"). In the event the
Available Funds of an Owner are insufficient to pay in full any such
liabilities of an Owner, the excess of such liabilities over such
Available Funds shall not constitute a claim (as defined in the United
States Bankruptcy Code) against such Owner unless and until a proceeding
of the type described in Section 23(j) is commenced against such Owner by
a party other than the Manager.
(iv) No officer, director, employee, agent, shareholder, member or
Affiliate of any Owner or the Manager (except, in the case of an Owner,
for Affiliates that are also Owners hereunder) shall in any manner be
personally or individually liable for the obligations of any Owner or the
Manager hereunder or for any claim in any way related to this Agreement or
the performance of the Services.
(v) The provisions of this Section 23(e) shall survive the expiration
and termination of this Agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES).
(g) Litigation Costs. If any legal action or other proceeding of any
kind is brought for the enforcement of this Agreement or because of a default,
misrepresentation, or any other dispute in connection with any provision of
this Agreement or the Services, the successful or prevailing party shall be
entitled to recover all fees and other costs incurred in such action or
proceeding, in addition to any other relief to which it may be entitled.
(h) Confidentiality. Each party hereto agrees to keep confidential
(and (a) to cause its respective officers, directors and employees to keep
confidential and (b) to use its best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and
all copies thereof, extracts therefrom and analyses or other materials based
thereon, except that the parties hereto shall be permitted to disclose
Information (i) to the extent required by applicable laws and regulations or by
any subpoena or similar legal process, (ii) as requested by Rating Agencies,
(iii) to the extent provided in the Private Offering Memorandum (as defined in
the Trust and Servicing Agreement), (iv) to the parties to the Loan Documents
who are subject to the confidentiality provisions contained therein and (v) to
actual or prospective Tenants. For the purposes of this paragraph (h), the term
"Information" shall mean the terms and provisions of this Agreement and all
financial statements, certificates, reports, Records, agreements and
information (including the Leases, the Site Management Agreements and all
analyses, compilations and studies based on any of the foregoing) that relate
to the Sites or the Services, other than any of the foregoing that are or
become publicly available other than by a breach of the confidentiality
provisions contained herein.
(i) Owners' Representative and Agent. From time to time during the
Term, the Owners shall appoint one (1) Owner (the "Owner Representative") to
serve as the Owners' representative and agent to act, make decisions, and grant
any necessary consents or approvals hereunder, collectively, on behalf of all
of the Owners. Each Owner hereby appoints Global Signal Acquisitions II LLC as
the initial Owner Representative hereunder and hereby authorizes the Owner
Representative to take such action as agent on its behalf and to exercise such
powers as are delegated to the Owner Representative by the terms hereof,
together with such powers as are reasonably incidental thereto.
(j) No Petition. Prior to the date that is one year and one day after
the date on which (a) the Loan Agreement has been terminated in accordance with
its terms and (b) all loans thereunder have been repaid in full in accordance
with the terms thereof, the Manager shall not institute, or join any other
Person in instituting, or authorize a trustee or other Person acting on its
behalf or on behalf of others to institute, any bankruptcy, reorganization,
arrangement, insolvency, liquidation or receivership proceedings under the laws
of the United States of America or any state thereof against any Owner.
(k) Other Management Agreements. The Owners hereby acknowledge and
agree that the Manager may become a party to Other Management Agreements and,
as a result, the Manager may engage in business activities that are in
competition with the business of the Owners in respect of the Sites. Nothing in
this Agreement shall in any way preclude the Manager or its Affiliates,
subsidiaries, officers, employees and agents from engaging in any business
activity (including the operation, maintenance, leasing and/or marketing of
telecommunications sites for itself or for others), even if, by doing so, such
activities could be construed to be in competition with the business activities
of the Owners; provided that (i) if, pursuant to any Other Management
Agreement, the Manager arranges for a Lease of a telecommunication site with a
tenant that is also a Tenant under a Lease with an Owner, such new Lease will
be separate from and independent of the Lease(s) between the Tenant and such
Owner, (ii) unless a Site has been released pursuant to Article XI of the Loan
Agreement, the Manager will not solicit a tenant to transfer its Lease from a
Site owned, leased or managed by an Owner to a telecommunication site owned,
leased or managed by a Person that is not an Owner, (iii) if the Tenant with
respect to a Site is an Affiliate of the Manager, the Manager shall perform all
Services in respect of such Site in the same manner as if such Tenant were not
an Affiliate and (iv) in all cases the Manager shall perform its duties and
obligations hereunder in accordance with the Operation Standards
notwithstanding any potential conflicts of interest that may arise, including
any relationship that the Manager may have with any Tenant or any other owners
of telecommunication sites that it manages.
(l) Headings. Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are
not to effect the construction of, or to be taken into consideration in
interpreting, this Agreement.
(m) Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall
constitute an original, but all of which when taken together shall constitute
one contract. Delivery of an executed counterpart of this Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of
this Agreement.
[NO ADDITIONAL TEXT ON THIS PAGE]
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
Manager: GLOBAL SIGNAL SERVICES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Exec. Vice President, General Counsel
and Secretary
Owners: GLOBAL SIGNAL ACQUISITIONS LLC
GLOBAL SIGNAL ACQUISITIONS II LLC
PINNACLE TOWERS LLC
INTRACOASTAL CITY TOWERS LLC
TOWER SYSTEMS LLC
RADIO STATION WGLD LLC
HIGH POINT MANAGEMENT CO. LLC
INTERSTATE TOWER COMMUNICATIONS LLC
TOWER TECHNOLOGY COMPANY OF JACKSONVILLE LLC
ICB TOWERS, LLC
PINNACLE TOWERS III LLC
PINNACLE TOWERS V. INC.
▇▇▇▇▇▇▇ & ASSOCIATES, INC.
SIERRA TOWERS, INC.
AIRCOMM OF AVON, L.L.C.
COVERAGE PLUS ANTENNA SYSTEMS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel and Secretary