Exhibit 10.1
EXECUTION COPY
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ACQUISITION CREDIT AGREEMENT
by and among
GLOBAL SIGNAL ACQUISITIONS LLC,
as Borrower,
The Lenders from time to time party hereto,
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSET FUNDING INC.,
as Administrative Agent and Collateral Agent
Dated as of April 25, 2005
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TABLE OF CONTENTS
Page
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SECTION 1
DEFINITIONS
Section 1.1 Defined Terms.................................................................................1
Section 1.2 Other Definitional Provisions................................................................18
SECTION 2
AMOUNT AND TERMS OF ACQUISITION LOAN COMMITMENTS
Section 2.1 Acquisition Loan Commitments.................................................................18
Section 2.2 Procedure for Borrowing......................................................................19
Section 2.3 Termination or Reduction of Acquisition Loan Commitments.....................................20
SECTION 3
GENERAL PROVISIONS APPLICABLE TO ACQUISITION LOANS
Section 3.1 Interest Rates and Payment Dates.............................................................20
Section 3.2 Repayment of Acquisition Loans; Evidence of Debt.............................................21
Section 3.3 Optional Prepayments.........................................................................22
Section 3.4 Mandatory Prepayments........................................................................22
Section 3.5 Computation of Interest and Fees.............................................................23
Section 3.6 Inability to Determine Interest Rate.........................................................23
Section 3.7 Pro Rata Treatment and Payments..............................................................23
Section 3.8 Illegality...................................................................................24
Section 3.9 Requirements of Law..........................................................................24
Section 3.10 Taxes........................................................................................25
SECTION 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Financial Condition..........................................................................28
Section 4.2 No Change....................................................................................29
Section 4.3 Existence; Compliance with Law...............................................................29
Section 4.4 Power; Authorization; Enforceable Obligations................................................29
Section 4.5 No Legal Bar.................................................................................30
Section 4.6 No Material Litigation.......................................................................30
Section 4.7 No Default...................................................................................30
Section 4.8 Ownership of Property; Liens.................................................................30
Section 4.9 Intellectual Property........................................................................31
Section 4.10 No Burdensome Restrictions...................................................................31
Section 4.11 Taxes........................................................................................31
Section 4.12 Federal Regulations..........................................................................31
Section 4.13 ERISA........................................................................................31
Section 4.14 Investment Company Act; Other Regulations....................................................32
Section 4.15 Subsidiaries.................................................................................32
Section 4.16 Security Documents...........................................................................32
Section 4.17 True and Complete Disclosure.................................................................33
Section 4.18 Labor Relations..............................................................................33
Section 4.19 Insurance....................................................................................33
Section 4.20 Purpose of Acquisition Loans.................................................................33
Section 4.21 Environmental Matters........................................................................33
Section 4.22 Foreign Person...............................................................................35
Section 4.23 Leases; Agreements...........................................................................35
Section 4.24 Rent Roll, Disclosure........................................................................35
Section 4.25 Zoning; Compliance with Laws.................................................................35
Section 4.26 Condition of the Towers......................................................................36
Section 4.27 Separate Tax Lot.............................................................................36
Section 4.28 Ground Leases................................................................................36
Section 4.29 Easements....................................................................................38
Section 4.30 No Synthetic Leases..........................................................................38
Section 4.31 Limited Liability Company....................................................................38
SECTION 5
CONDITIONS PRECEDENT
Section 5.1 Conditions to Initial Acquisition Loans......................................................38
Section 5.2 Conditions to Each Acquisition Loan..........................................................41
SECTION 6
AFFIRMATIVE COVENANTS
Section 6.1 Financial Statements.........................................................................44
Section 6.2 Certificates; Other Information..............................................................45
Section 6.3 Payment of Obligations.......................................................................45
Section 6.4 Conduct of Business and Maintenance of Existence.............................................46
Section 6.5 Maintenance of Property; Insurance...........................................................46
Section 6.6 Inspection of Property; Books and Records; Discussions.......................................49
Section 6.7 Notices......................................................................................49
Section 6.8 Environmental Laws...........................................................................50
Section 6.9 Leases.......................................................................................50
Section 6.10 Additional Collateral; Guarantors............................................................51
Section 6.11 [Reserved]...................................................................................51
Section 6.12 Interest Rate Protection Agreement...........................................................52
Section 6.13 Global Signal................................................................................52
SECTION 7
NEGATIVE COVENANTS
Section 7.1 Limitation on Indebtedness...................................................................52
Section 7.2 Limitation on Liens..........................................................................52
Section 7.3 Limitation on Guarantee Obligations..........................................................53
Section 7.4 Limitation on Fundamental Changes............................................................53
Section 7.5 Limitation on Sale of Assets.................................................................54
Section 7.6 Limitation on Distributions..................................................................54
Section 7.7 Limitations on Amendments to Ground Leases...................................................55
Section 7.8 Limitation on Investments, Loans and Advances................................................55
Section 7.9 Limitation on Optional Payments and Modifications of Debt Instruments........................55
Section 7.10 Limitation on Transactions with Affiliates...................................................55
Section 7.11 Limitation on Synthetic Leases and Sale/Leaseback Transactions...............................56
Section 7.12 Limitation on Changes in Fiscal Year.........................................................56
Section 7.13 Limitation on Negative Pledge Clauses........................................................56
Section 7.14 Limitation on Lines of Business..............................................................56
Section 7.15 Governing Documents..........................................................................56
Section 7.16 Limitation on Subsidiary Formation...........................................................56
Section 7.17 Limitation on Securities Issuances...........................................................56
Section 7.18 Limitation on Acquiring Materially Impaired Excluded Properties..............................56
SECTION 8
EVENTS OF DEFAULT
SECTION 9
THE AGENTS
Section 9.1 Appointment..................................................................................60
Section 9.2 Delegation of Duties.........................................................................61
Section 9.3 Exculpatory Provisions.......................................................................61
Section 9.4 Reliance by Agents...........................................................................61
Section 9.5 Notice of Default............................................................................61
Section 9.6 Non-Reliance on Agents and Other Lenders.....................................................62
Section 9.7 Indemnification..............................................................................62
Section 9.8 Agents in Their Individual Capacity..........................................................62
Section 9.9 Successor Agents.............................................................................62
SECTION 10
MISCELLANEOUS
Section 10.1 Amendments and Waivers.......................................................................63
Section 10.2 Notices......................................................................................64
Section 10.3 No Waiver; Cumulative Remedies...............................................................65
Section 10.4 Survival of Representations and Warranties...................................................65
Section 10.5 Indemnification and Expenses.................................................................65
Section 10.6 Successors and Assigns; Participations and Assignments.......................................66
Section 10.7 Adjustments; Set-off.........................................................................68
Section 10.8 Counterparts.................................................................................69
Section 10.9 Severability.................................................................................69
Section 10.10 Integration..................................................................................69
Section 10.11 GOVERNING LAW................................................................................69
Section 10.12 Submission To Jurisdiction; Waivers..........................................................69
Section 10.13 Acknowledgements.............................................................................69
Section 10.14 WAIVERS OF JURY TRIAL........................................................................70
Section 10.15 Confidentiality..............................................................................70
SCHEDULES
Schedule 1.0 Applicable Lending Offices; Commitments
Schedule 4.8 Condemnation/Eminent Domain Proceedings
Schedule 4.15 Subsidiaries
Schedule 4.16 Filing Jurisdictions
Schedule 4.19 Insurance
Schedule 4.21 Environmental Claims
Schedule 4.25 Zoning Proceedings
Schedule 4.26 Damaged Improvements
Schedule 10.6 Direct Competitors
EXHIBITS
Exhibit A Form of Acquisition Note
Exhibit B Form of Pledge Agreement
Exhibit C Form of Security Agreement
Exhibit D Form of Secretary's Certificate
Exhibit E Form of Borrowing Base Certificate
Exhibit F Form of Opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Exhibit G Section 3.10 Exhibit
Exhibit H Form of Officer's Certificate
Exhibit I Form of Estoppel and Attornment Language
Exhibit J Form of Ground Lease
Exhibit K Valuation Methodology
Exhibit L-1 Form of Parent Guarantee
Exhibit L-2 Form of Subsidiary Guarantee
Exhibit M Form of Deed of Trust
Exhibit N Form of Environmental Indemnity Agreement
Exhibit O Title Endorsements
Exhibit P Form of Management Agreement
Exhibit Q Form of Real Estate Opinion
Exhibit R Form of Assignment and Acceptance
ANNEXES
Annex I Form of Notice of Borrowing
Annex II Form of Notice of Prepayment
ACQUISITION CREDIT AGREEMENT
ACQUISITION CREDIT AGREEMENT dated as of April 25, 2005 by and among
Global Signal Acquisitions LLC, a Delaware limited liability company (the
"Borrower"), the lenders from time to time parties to this Agreement (the
"Lenders"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSET FUNDING INC. ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as
administrative agent (together with any successor Administrative Agent appointed
pursuant to Section 9.9, in such capacity the "Administrative Agent") and
collateral agent (together with any successor Collateral Agent appointed
pursuant to Section 9.9, in such capacity the "Collateral Agent") for the
Lenders hereunder and under the other Loan Documents (as defined below).
RECITALS
The Borrower and the Lenders desire to enter into an acquisition
credit agreement for the sole purpose of financing the Cash Purchase Price (as
defined herein) of Acquisitions (as defined herein), as provided herein.
The parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Account Control Agreement": as defined in the Security Agreement.
"Acquisition": any acquisition by the Borrower or any Subsidiary of
the Borrower of Towers or of all of the Capital Stock of any Person that holds
Towers as a principal asset.
"Acquisition Loan": as defined in Section 2.1.
"Acquisition Loan Commitment": with respect to any Lender, the
obligation of such Lender to make one or more Acquisition Loans to the Borrower
hereunder from and after the Closing Date pursuant to Section 2.1 in a
principal amount equal to the amount set forth opposite such Lender's name on
Schedule 1.0 under the caption "Acquisition Loan Commitment", or, as the case
may be, in the assignment agreement pursuant to which such Lender became a
party hereto, as such amount may be changed from time to time in accordance
with the provisions of this Agreement. The original aggregate amount of the
Acquisition Loan Commitments is $200,000,000.
"Acquisition Loan Facility": the Acquisition Loan Commitments and the
Acquisition Loans made thereunder.
"Acquisition Note": as defined in Section 3.2(e).
"Acquisition Price": with respect to any Tower subject to an
Acquisition, the Cash Purchase Price of such Tower plus the value of any
non-cash consideration paid or to be paid by the Borrower or such Subsidiary,
including without limitation the assumption of Indebtedness, for such
Acquisition.
"Administrative Agent": as defined in the preamble to this Agreement.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition and the definition of Change
of Control, "control" of a Person (including, with its correlative meanings,
"controlled by" and "under common control with") means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": collectively, the Administrative Agent and the Collateral
Agent.
"Agreement": this Acquisition Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Lending Office": for each Lender, the lending office of
such Lender designated for each Type of Acquisition Loan on Schedule 1.0 hereto
(or any other lending office from time to time notified to the Administrative
Agent by such Lender) as the office at which its Acquisition Loans are to be
made and maintained.
"Applicable Margin": for any day with respect to all outstanding
Acquisition Loans hereunder, in the aggregate, of any Type, (a) if the
aggregate outstanding principal amount thereof on such day is less than or
equivalent to 68% of the Acquisition Price of the Towers in the aggregate,
1.50%, with respect to the Eurodollar Loans, and 1.24745%, with respect to the
Base Rate Loans, and (b) if the aggregate outstanding principal amount thereof
on such day is greater than 68% of the Acquisition Price of the Towers in the
aggregate, 2.00%, with respect to Eurodollar Loans, and 1.7475%, with respect
to Base Rate Loans.
"Approved Fund": (a) with respect to any Lender, any Bank CLO of such
Lender, and (b) with respect to any Lender that is a fund that invests in
commercial loans and similar extensions of credit, any other fund that invests
in commercial loans and similar extensions of credit and is managed by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Asset Sale": any sale, lease or other disposition of property or
series of related sales, leases or other dispositions of property (excluding
any such sale, lease or other disposition permitted by Sections 7.5(b), (c) and
(d)). "Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6(c).
"Attributable Indebtedness": on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease.
"Available Acquisition Loan Commitments": an amount equal to the
excess, if any, of (a) the aggregate amount of the Acquisition Loan Commitments
at such time over (b) the aggregate principal amount of Acquisition Loans
outstanding at such time.
"Availability": with respect to any Acquisition Loan borrowing, an
amount equal to the lesser of (a) the Available Acquisition Loan Commitments at
the time of such Acquisition Loan borrowing and (b) the Borrowing Base.
"Bank CLO": as to any Lender, any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business and is administered or managed by such
Lender or an Affiliate of such Lender.
"Bankruptcy Code": Title 11 of the United States Code, as amended
from time to time, and all rules and regulations promulgated thereunder.
"Base Rate": for any day, the rate per annum (rounded upward, if
necessary, to the next 1/16 of 1%) equal to the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%.
"Base Rate Loans": Acquisition Loans to which the applicable rate of
interest is based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble to this Agreement.
"Borrowing Base": at any time, an amount equal to 100% of the
aggregate Tower Value of all Towers (after giving effect to the Acquisition for
which the then current borrowing is requested); provided, however, that for
purposes of determining the aggregate Tower Value of all Towers, unless
otherwise expressly permitted by the Required Lenders, (i) no more than 20% of
such aggregate Tower Value may be attributable to Excluded Properties, and (ii)
no more than 2.5% of such aggregate Tower Value may be attributable to
Materially Impaired Excluded Properties.
"Borrowing Base Certificate": a certificate, substantially in the
form of Exhibit E, with appropriate insertions, showing the Borrowing Base as
of the date set forth therein, and executed on behalf of the Borrower by a duly
authorized officer thereof.
"Borrowing Date": any Business Day specified in a Notice of Borrowing
as a date on which the Borrower requests the Lenders to make Acquisition Loans
hereunder.
"Business": as defined in Section 4.21(b).
"Business Day": (i) for all purposes other than as covered by clause
(ii) of this definition, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close, and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day as described in clause (i) of this definition and which
is also a day on which dealings in Dollar deposits are carried out in the
interbank eurodollar market.
"Capital Expenditures": additions to property, plant and equipment
and other capital expenditures of an entity made during a period that are (or
would be) set forth as capital expenditures in a consolidated statement of cash
flows of such entity for such period prepared in accordance with GAAP.
"Capital Stock": 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 Equivalents": (a) securities with maturities of 90 days or less
from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of 90 days or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than seven days
with respect to securities issued or fully guaranteed or insured by the United
States Government, (d) commercial paper of a domestic issuer rated at least A-1
or the equivalent thereof by S&P or P-1 or the equivalent thereof by ▇▇▇▇▇'▇
and in either case maturing within 90 days after the day of acquisition, (e)
securities with maturities of 90 days or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by
S&P or A by ▇▇▇▇▇'▇, (f) securities with maturities of 90 days or less from the
date of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Cash Purchase Price": with respect to any Tower subject to an
Acquisition, the amount allocated by the Borrower in good faith and in a manner
consistent with the methodology set forth in Exhibit K to such Tower of the
aggregate cash consideration required to be paid by the Borrower or any
Subsidiary of the Borrower for such Acquisition (after giving effect to any
purchase price adjustments, any earnouts, holdbacks or prepaids which are
required to be paid (or put into escrow pursuant to the purchase agreement
related to such Acquisition) at or prior to such time in settlement of the
final purchase price therefor), together with reasonable and customary
transaction costs (including commissions), the amount of any deposits and
prepayments required to be made in connection therewith, the reasonable fees
and expenses of counsel to the Borrower or such Subsidiary of the Borrower for
services rendered in connection with the transaction and the amount of taxes
that are payable by the Borrower or such Subsidiary of the Borrower as a result
of such Acquisition.
"Change of Control": the occurrence of any of the following:
(a) the Equity Investors and/or any Person controlled by Fortress
Investment Group LLC or ▇▇▇▇▇▇▇▇▇ Capital Partners, L.P. or any of their
respective Affiliates shall collectively, directly or indirectly, cease to
own and/or control in the aggregate (i) at least 51% of the voting
interest in the Capital Stock of Global Signal or (ii) at least 51% of the
voting and economic interest (directly or indirectly) in the Capital Stock
of GSOP; or
(b) Global Signal shall cease to own at least 51% of the voting and
economic interest in the Capital Stock of GSOP; or
(c) GSOP shall cease to own at least 100% of the voting and economic
interest in the Capital Stock of the Borrower; or
(d) with respect to any direct or indirect Subsidiary of GSOP, an
event or series of events resulting in GSOP ceasing to own directly or
indirectly less than 100% of the Capital Stock of such Subsidiary (other
than pursuant to a dissolution of such Subsidiary); or
(e) an event or series of events by which during any period of 12
consecutive months, a majority of the members of the board of directors or
other equivalent governing body of Global Signal, GSOP and/or any
Subsidiary of GSOP cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the
case of both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or
more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of
directors); or
(f) if at any time, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or such replacement acceptable
to the Lenders, shall cease to be Chairman of the board of directors or
other equivalent governing body of Global Signal, and a replacement
Chairman has not been appointed within thirty (30) days following such
occurrence, or if a replacement Chairman has not been appointed, all of
the Obligations have not been paid in full within such thirty (30) day
period;
provided that in no event shall the merger of GSOP with or into Global Signal
or a Subsidiary of Global Signal be deemed a "Change of Control" so long as the
Required Lenders reasonably determine that such merger is not adverse to their
interests and provide written notice to the Borrower of the same.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall be satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property and interests in property of the Loan
Parties, now owned or hereinafter acquired, upon which a Lien is purported to
be created by any Security Document.
"Collateral Agent": ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Funding Inc., as collateral
agent under the Loan Documents.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with Global Signal or the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes Global
Signal or the Borrower and which is treated as a single employer under Section
414(b) or (c) of the Code or, for purposes of the Code, Section 414(m) or (o)
of the Code.
"Condemnation": a temporary or permanent taking by any Governmental
Authority, as the result, or in lieu, or in anticipation of the exercise of the
right of condemnation or eminent domain, of all or any part of any Mortgaged
Property, or any interest therein or right accruing thereto, including any
right of access thereto or any change of grade affecting such Mortgaged
Property or any part thereof.
"Consolidated Indebtedness": for any Person and its consolidated
Subsidiaries at such time, the aggregate Indebtedness of such Person and its
consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Contingent Liability": as to any Person and its consolidated
Subsidiaries, determined on a consolidated basis, any obligation or Guarantee
Obligation, contingent or otherwise, of such Person or any of its consolidated
Subsidiaries, having the effect of guaranteeing or having the economic effect
of guaranteeing any Indebtedness or obligation of any other Person in any
manner, whether directly or indirectly, including without limitation any
obligation of such Person or any of its consolidated Subsidiaries (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (b) to purchase
property or services for the purpose of assuring the owner of such Indebtedness
of its payment or (c) to maintain the solvency, working capital, equity, cash
flow, fixed charge or other coverage ratio, or any other financial condition of
the primary obligor so as to enable the primary obligor to pay any Indebtedness
or to comply with any agreement relating to any Indebtedness or obligation, but
excluding endorsement of checks, drafts and other instruments in the ordinary
course of business.
"Continue", "Continuation" and "Continued": the continuation of a
Eurodollar Loan from one day to the next day.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Convert", "Conversion" and "Converted": shall refer to a conversion
of Eurodollar Loans into Base Rate Loans, which may be accompanied by the
transfer by a Lender (at its sole discretion) of an Acquisition Loan from one
Applicable Lending Office to another.
"Credit Exposure": as to any Lender at any time, the sum of (a) its
unutilized Acquisition Loan Commitment, and (b) the unpaid principal amount of
its Acquisition Loans.
"Credit Exposure Percentage": as to any Lender at any time, the
fraction (expressed as a percentage), the numerator of which is the Credit
Exposure of such Lender at such time and the denominator of which is the
aggregate Credit Exposures of all of the Lenders at such time.
"Debt for Borrowed Money": with respect to any Person and its
consolidated Subsidiaries, determined on a consolidated basis, from time to
time, at any date, without duplication, (i) all indebtedness (including
principal, interest, fees and charges) of such Person or any of its
consolidated Subsidiaries for borrowed money or for the deferred purchase price
of property or services other than trade accounts payable and accrued expenses
incurred and paid in the ordinary course of business, (ii) the maximum amount
available to be drawn under all letters of credit, bankers' acceptances and
similar obligations issued for the account of such Person or any of its
consolidated Subsidiaries and all unpaid drawings in respect of such letters of
credit, banker's acceptances and similar obligations, (iii) all indebtedness of
the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person or any its
consolidated Subsidiaries, whether or not such indebtedness has been assumed by
such Person or any of its consolidated Subsidiaries, (iv) all Attributable
Indebtedness of such Person or its consolidated Subsidiaries, (v) all
obligations of such Person or its consolidated Subsidiaries to pay a specified
purchase price for goods or services, whether or not delivered or accepted,
i.e., take-or-pay and similar obligations, other than trade accounts payable
and accrued expenses incurred and paid in the ordinary course of business, (vi)
all Contingent Liabilities of such Person or its consolidated Subsidiaries that
are required to be disclosed and quantified in notes of financial statements in
accordance with GAAP, and (vii) all obligations of such Person or any of its
consolidated Subsidiaries under any Hedge Agreement or any similar type of
agreement; provided, however, that with respect to Global Signal or any of its
consolidated Subsidiaries, (A) Debt for Borrowed Money shall not include the
obligations of United Kingdom Subsidiaries, unless such obligations are
guaranteed by such Person or any of its consolidated Subsidiaries or any of
their respective assets are pledged to secure the United Kingdom Subsidiaries
obligations and (B) contracts to acquire Towers shall not constitute Debt for
Borrowed Money. The amount of any Debt for Borrowed Money at any time under (x)
clause (iii) shall be equal to the lesser of (A) the stated amount of the
relevant obligations, and (B) the fair market value of the property subject to
the relevant Lien at such time, and (y) clause (vii) shall be the net amount at
such time, including net termination payments, required to be paid to a
counterparty, rather than the notional amount of the applicable Hedge
Agreement.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Easement": individually and collectively, the easement interests
granted to the Borrower or any Subsidiary of the Borrower by the owner of the
applicable fee interest thereof on any Tower Property.
"Environmental Indemnity Agreement": an environmental indemnity
agreement delivered by the Borrower or its Subsidiaries pursuant to Section
5.2(d) or Section 6.10, substantially in the form of Exhibit N hereto, subject
to modifications reflecting the Mortgaged Property that is the subject thereof
and modifications reflecting the laws of the state in which the Mortgaged
Property is located, and otherwise in form and substance satisfactory to the
Collateral Agent.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, including any applicable
Historical Preservation Laws.
"Equity Investors": Fortress Pinnacle Acquisition LLC, FRIT PINN LLC
and ▇▇▇▇▇▇▇▇▇ Capital Partners, L.P., Greenhill Capital, L.P., ▇▇▇▇▇▇▇▇▇
Capital Partners (Executives), L.P. and ▇▇▇▇▇▇▇▇▇ Capital Partners (Cayman),
L.P. or any other Person reasonably acceptable to the Required Lenders.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Estoppel": as defined in Section 4.28(f).
"Estoppel and Attornment Language": estoppel and attornment language
substantially in the form of Exhibit I attached hereto, or such other language
as may reasonably be approved by the Collateral Agent.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements current on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto), as now and from time to time hereafter in
effect, dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of such
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": for any Eurodollar Loan, with respect to each
day such Eurodollar Loan is outstanding (or if such day is not a Business Day,
the next succeeding Business Day), the rate per annum equal to the rate
appearing at page 5 of the Telerate Screen as one-month LIBOR on such date, and
if such rate shall not be so quoted, the rate per annum at which the
Administrative Agent is offered Dollar deposits at or about 10:00 A.M., New
York City time, on such date by banks in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations in respect of any
Eurodollar Loans are then being conducted for delivery on such day for a period
of one month and in an amount comparable to the amount of such Eurodollar Loans
to be outstanding on such day.
"Eurodollar Loans": Acquisition Loans to which the applicable rate of
interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day a Eurodollar Loan is
outstanding, a rate per annum determined for such day in accordance with the
following formula (rounded upwards to the nearest 1/100th of 1%):
Eurodollar Base Rate
------------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8;
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Exception Certificate": as defined in Section 2.2(c).
"Excluded Property": each Managed Property and each Tower classified
as such in an Exception Certificate and not reclassified as a non-Excluded
Property pursuant to Section 2.2(c).
"Excluded Taxes": as defined in Section 3.10(f).
"Extraordinary Receipt": any cash received by or paid to or for the
account of any Person other than in the ordinary course of business in respect
of tax refunds, pension plan reversions, proceeds of insurance (other than
proceeds of Recovery Events, proceeds of business interruption insurance to the
extent such proceeds constitute compensation for lost earnings and proceeds
from reinsurance received in the ordinary course of business), indemnity
payments, purchase price adjustments received in connection with any purchase
agreement (or other similar agreement) and payments in respect of judgments or
settlements of claims, litigation or proceedings; provided that Extraordinary
Receipts shall not include cash receipts received from proceeds of indemnity
payments or payments in respect of judgments or settlements of claims,
litigation or proceedings to the extent that such proceeds, awards or payments
are received by any Person in respect of any third party claim against or loss
by such Person and promptly applied to pay (or to reimburse such Person for its
prior payment of) such claim or loss and the costs and expenses of such Person
with respect thereto so long as such application is commenced prior to or
within 90 days after the receipt of such proceeds, awards or payments and that
any such third party being so reimbursed shall not be a Loan Party or a
Subsidiary or Affiliate of a Loan Party.
"FAA": the Federal Aviation Administration of the United States, or
any governmental agency succeeding to the function thereof.
"FCC": the Federal Communications Commission of the United States, or
any governmental agency succeeding to the functions thereof.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fitch": Fitch, Inc.
"Frit Pinn Credit Agreement" means that certain Credit Agreement,
dated as of December 21, 2004, among Frit Pinn, LLC, as borrower, Bank of
America, as administrative agent, the lenders from time to time party thereto,
and Banc of America Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Funding Inc., as
joint lead arrangers and joint book runners, as the same may be amended,
amended and restated, supplemented, or otherwise modified from time to time.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time, consistently applied.
"Global Signal": Global Signal Inc., a Delaware corporation.
"Global Signal Default": as defined in the Parent Guarantee.
"Global Signal Guarantee Date": as defined in Section 6.13.
"Global Signal Public Filings": as defined in Section 6.2(d),
provided, however, that, in the case of Section 4.1 and Section 4.2, such
defined term shall only refer to such filings made on or after January 1, 2005
and before the Closing Date.
"Governing Documents": (i) with respect to any corporation, the
certificate or articles of incorporation and the bylaws; (ii) with respect to
any limited liability company, the certificate or articles of formation or
organization and operating agreement; and (iii) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Ground Lease": those certain leases for real property or rooftops
entered into or acquired by the Borrower or any of its Subsidiaries for the
lease of real property (including rooftops) which constitute a Tower or upon
which is located a Tower (or which will constitute a Tower or upon which will
be located a Tower) for the purpose of maintaining Tenant Leases (including,
without limitation, all amendments, modifications, consents, estoppels and/or
attornment agreements related thereto).
"Ground Leased Properties": the Towers that are subject to a Ground
Lease.
"Ground Lessee": with respect to any Ground Lease, the Borrower or
any Subsidiary of the Borrower that is the tenant under such Ground Lease.
"Ground Lessors": the landlords under the Ground Leases.
"GSOP": Global Signal Operating Partnership L.P., a Delaware limited
partnership and its successors and assigns.
"GSOP Credit Agreement": the Second Amended and Restated Credit
Agreement, dated as of April 15, 2005 between GSOP, as borrower, Bank of
America, N.A., as administrative agent and letter of credit issuer and the
lenders from time to time party thereto.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) the creation of which
induces the guaranteeing person to issue a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of
any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
terms "Guarantee" and "Guaranteed" used as a verb shall have a correlative
meaning. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made, and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Hedge Agreement": any interest rate or currency swap, cap or collar
agreement or similar arrangement or foreign exchange contract entered into by
any Person or its consolidated Subsidiaries providing for protection against
fluctuations in interest rates or currency exchange rates or the exchange of
nominal interest obligations, either generally or under specific contingencies.
"Historical Preservation Laws": the National Historic Preservation
Act of 1966 and each historic preservation program of any State under and in
conjunction with the National Historic Preservation Act of 1966 and any similar
foreign, Federal, state, local or municipal laws, rules or regulations, orders,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law).
"Improvements": all buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
of every kind and nature now or hereafter located on any Tower Property.
"Indebtedness": of any Person at any date, without duplication, (a)
all Debt for Borrowed Money of such Person, (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar instrument, (c)
all Attributable Indebtedness of such Person, (d) all liabilities referred to
in clauses (a), (b), (c) and (e) of this definition secured by (or for which
the holder of such obligations has an existing right, contingent or otherwise,
to be secured by) any Lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof,
and (e) all Guarantee Obligations of such Person in respect of obligations of
the kind referred to in clauses (a) through (d) above. The amount of any
Indebtedness under clause (d) shall be equal to the lesser of (i) the stated
amount of the relevant obligations, and (ii) the fair market value of the
property subject to the relevant Lien.
"Individual Property Material Adverse Effect": with respect to any
Property, any material adverse effect upon the value of, or cash flow from,
such Property or the operation thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": as to each Acquisition Loan, (a) the first
Business Day of each calendar month (commencing on the first Business Day of
the first calendar month following the Closing Date) immediately following
delivery of a written notice by the Administrative Agent to the Borrower
setting forth in reasonable detail the amount of accrued and unpaid interest
thereon at such time or (b) the date of any repayment or prepayment in respect
thereof.
"Investment Company Act": as defined in Section 4.14.
"Lease": any lease, tenancy, license, assignment and/or other rental
or occupancy agreement or other agreement or arrangement (including, without
limitation, any and all guarantees 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 Tower Properties or any portion
thereof, including any extensions, renewals, modifications or amendments
thereof.
"Leased Property": all real property that is leased or occupied
pursuant to an easement by the Borrower and its Subsidiaries, in each case,
together with all fixtures and appurtenances thereon.
"Lenders": the initial Lenders and any other lender that becomes a
party hereto pursuant to Section 10.6.
"License": with respect to any Person, any license, permit, consent,
certificate of need, authorization, certification, accreditation, franchise,
approval, or grant of rights by, or any filing or registration with, any
Governmental Authority or third Person (including without limitation the FCC
and the FAA) necessary for such Person to own, build, maintain or operate its
business or property.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Synthetic Lease or Financing Lease having substantially the same economic
effect as any of the foregoing), and the filing of any financing statement
under the Uniform Commercial Code or comparable law of any jurisdiction in
respect of any of the foregoing.
"Loan Documents": this Agreement, the Acquisition Notes, the Parent
Guarantee, the Subsidiary Guarantees, if any, the Security Documents and any
Environmental Indemnity Agreement.
"Loan Parties": the Borrower, Global Signal, GSOP and each Subsidiary
of the Borrower which is a party to any Loan Document.
"Maintenance Capital Expenditures": Capital Expenditures incurred
solely to maintain Towers owned or leased by the Borrower and its Subsidiaries
in their existing state.
"Managed Properties": the Towers that are subject to a Site
Management Agreement.
"Management Agreement": the Management Agreement between the Borrower
or any of its Subsidiaries and Global Signal Services LLC dated April 25, 2005,
a copy of which has been delivered to the Lenders, 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 Tower Properties (as such management agreement may be amended or
modified pursuant to a written instrument in form and substance reasonably
satisfactory to the Required Lenders).
"Manager": Global Signal Services LLC or another reputable management
company reasonably acceptable to the Required Lenders with experience managing
properties similar to the Towers.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or prospects of
Global Signal and its Subsidiaries, taken as a whole, or the Borrower and its
Subsidiaries, taken as a whole (provided, with respect to the Borrower an event
shall not be considered to have a Material Adverse Effect if it is likely to
result in a loss of $500,000 or less), respectively or (b) the validity or
enforceability of any of the Loan Documents or the rights and remedies of the
Agents or the Lenders thereunder except, for purposes of this clause (b) only,
with respect to any Mortgage to the extent of any Permitted Exceptions
specified by the Borrower for such Mortgage or the Property subject thereto.
"Material Agreement": the Site Management Agreements and any contract
or agreement, or series of related agreements, by the Borrower or any of its
Subsidiaries relating to the ownership, management, development, use,
operation, leasing, maintenance, repair or improvement of the Towers under
which there is an obligation of the Borrower or any Subsidiary of the Borrower,
in the aggregate, to pay, or under which any of the Borrower or any Subsidiary
of the Borrower receives in compensation, more than $250,000 per annum, other
than (i) the Management Agreement, and (ii) any agreement which is terminable
by the Borrower or any Subsidiary of the Borrower on not more than sixty (60)
days prior written notice without any fee or penalty.
"Material Lease": any Lease, or series of related Leases, by the
Borrower or any Subsidiary of the Borrower of space at one or more of the
Towers which (i)(a) either (x) provides for annual rent or other payments in an
amount equal to or greater than $250,000, or (y) (1) has a term (including all
extensions and renewals which are unilaterally exercisable by the tenant
thereunder) of more than ten (10) years, and (2) provides for annual rent or
other payments in an amount equal to or greater than $25,000, and (b) may not
be cancelled by the Borrower or such Subsidiary, as applicable, on thirty (30)
days' notice without payment of a termination fee, penalty or other
cancellation fee, or (ii) obligates the Borrower or such Subsidiary, as
applicable, to make any improvements to the Towers 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.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under, or which form the basis of liability under, any Environmental
Law, including, without limitation, asbestos, polychlorinated biphenyls and
urea formaldehyde insulation, medical waste, radioactive materials and
electromagnetic fields.
"Materially Impaired Excluded Properties": Excluded Properties which
have been designated as such by the Borrower because either (i) the
representations and warranties set forth in Section 4.6 and Section 4.21 would
not be true for such Excluded Properties (excluding any such representation and
warranty relating to Historical Preservation Laws) or (ii) the Borrower would
be unable to comply with Section 6.8 (other than the failure to comply with any
Historical Preservation Law) due to conditions existing on such Excluded
Properties at the time of acquisition by the Borrower.
"Maturity Date": April 24, 2006.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage": a mortgage delivered by the Borrower or its Subsidiaries
pursuant to Section 5.2(d) or Section 6.10, substantially in the form of
Exhibit M hereto, with respect to Tower Properties owned by the Borrower or any
of its Subsidiaries in fee, or Tower Properties in which the Borrower or any of
its Subsidiaries has a leasehold interest, subject to modifications reflecting
the Mortgaged Property that is the subject thereof and modifications reflecting
the laws of the state in which the Mortgaged Property is located, and otherwise
in form and substance reasonably satisfactory to the Collateral Agent.
"Mortgaged Property": any Tower Property that is subject to a
Mortgage.
"Multiemployer Plan": a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA and which is subject to Title IV of
ERISA.
"Net Cash Proceeds": the gross cash proceeds received by the Borrower
or any of its Subsidiaries in connection with or as a result of (a) any sale of
any assets, (b) the issuance of any Indebtedness, (c) the issuance of any
equity (other than equity issued to a Loan Party by another Loan Party), and
(d) the receipt of any capital contributions (other than by a Loan Party with
respect to capital contributions made by another Loan Party) or Extraordinary
Receipts, minus with respect to each of the foregoing (so long as each of the
following are estimated in good faith by the management of the Borrower and
certified to the Administrative Agent in reasonable detail by a Responsible
Officer) (i) actual taxes paid or payable with respect to such asset sale or
Recovery Event (if any) in an amount equal to the tax liability of the Borrower
or any of its Subsidiaries in respect of such sale or Recovery Event (taking
into account all tax benefits of each of the parties), (ii) reasonable and
customary transaction costs payable by the Borrower or any such Subsidiary of
the Borrower to any Person that is not an Affiliate or an Equity Investor or
Affiliate of an Equity Investor related to such transaction, (iii) Indebtedness
secured by the assets sold or otherwise subject to a Recovery Event that is
immediately repaid as a consequence of such sale, except Indebtedness that
constitutes any of the Obligations, (iv) with respect to clause (a), the
portion of such cash proceeds reserved for post-closing adjustments, including,
without limitation, indemnification payments and purchase price adjustments
which are held in a third-party escrow account or in a segregated deposit
account in which the Collateral Agent has a first priority perfect security
interest; provided that on the date all such post-closing adjustments have been
determined, the amount (if any) by which the reserved amount exceeds the actual
post-closing adjustments payable by the Borrower or any of its Subsidiaries
shall constitute Net Cash Proceeds on such date, and (v) with respect to clause
(a), an amount, not in excess of the taxable gain recognized on such asset
sale, necessary to meet the REIT Distribution Requirement with respect thereto.
"Non-Excluded Taxes": as defined in Section 3.10(a).
"Non-Exempt Lender": as defined in Section 3.10(f).
"Notice of Borrowing": as defined in Section 2.2.
"Obligations": the unpaid principal amount of, and interest
(including, without limitation, interest accruing after the maturity of the
Acquisition Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) on the Acquisition Loans,
and all other obligations and liabilities of the Loan Parties to the Agents and
the Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, or
out of or in connection with this Agreement, the Acquisition Notes, the Parent
Guarantee, each Subsidiary Guarantee and the Security Documents, and any other
document made, delivered or given in connection therewith or herewith, whether
on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Agents and the Lenders that are required to be
paid by a Loan Party pursuant to the terms of the Loan Documents) or otherwise.
"Oral Tenant Leases": those Tenant Leases which are oral and not
subject to any written agreement.
"Other Taxes": as defined in Section 3.10(b).
"Owned Property": all real estate owned in fee by the Borrower and
its Subsidiaries, together with any
fixtures and appurtenances thereon.
"Parent Guarantee": the Parent Guarantee dated as of the date hereof
made by Global Signal (as of the Global Signal Guarantee Date) and GSOP in
favor of the Collateral Agent for the benefit of the Agents and the Lenders,
substantially in the form of Exhibit L-1, as the same may be amended,
supplemented and otherwise modified from time to time.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Exceptions": with respect to any Tower, other than any
Materially Impaired Excluded Property to which the Required Lenders have not
given their consent pursuant to Section 7.18, each of the events,
circumstances, occurrences or conditions specified in the Exception Certificate
with respect to such Tower.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which Global Signal, the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement": the Pledge Agreement dated as of the date hereof
made by Global Signal (as of the Global Signal Guarantee Date), GSOP and any
Person that becomes a party thereto pursuant to Section 5(e) thereof in favor
of the Collateral Agent, substantially in the form of Exhibit B, as the same
may be amended, supplemented or otherwise modified from time to time.
"Prescribed Laws": collectively, (a) the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act), (b) Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001, and
relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism, (c) the International
Emergency Economic Power Act, 50 U.S.C. ss. 1701 et seq., and (d) all other
Legal Requirements relating to money laundering or terrorism.
"Properties": as defined in Section 4.21(a).
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"Register": as defined in Section 3.2(c).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"REIT Distribution Requirement": distributions in an amount
reasonably necessary to enable Global Signal to pay the dividends required to
maintain its REIT Status and not be subject to corporate level tax based on
income or to excise tax under Section 4981 of the Code.
"REIT Status": with respect to any Person, such Person's status as a
real estate investment trust, as defined in Section 856(a) of the Code, that
satisfies the conditions and limitations set forth in Section 856(b) and 856(c)
of the Code.
"Rents": as defined in the Mortgages.
"Rent Roll": individually, the rent roll for any Tower, and,
collectively, the rent rolls for all of the Towers, as updated on a monthly
basis pursuant to Section 6.2(c).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under Sections .21, .22, .23, .26, .27 or .28 of PBGC Reg. ss. 4043.
"Required Lenders": at any time, Lenders the Credit Exposure
Percentages of which aggregate more than 50%.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or Governing Documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
"Responsible Officer": as to any Loan Party or Global Signal, the
chief executive officer, the president and any vice-president of such entity
(or, if none, a direct or indirect parent company of such entity acting on
behalf of such entity) or, with respect to financial matters, the chief
financial officer or treasurer of such entity (or, if none, a direct or
indirect parent company of such entity acting on behalf of such entity) or any
individual performing the functions of the foregoing officers pursuant to a
Management Agreement.
"Restricted Payments": as defined in Section 7.6.
"Section 3.10 Certificate": as defined in Section 3.10(f)(2).
"Security Agreement": the Security Agreement dated as of the date
hereof made by the Borrower and any Person that becomes a party thereto
pursuant to Section 18 thereof in favor of the Collateral Agent, substantially
in the form of Exhibit C, as the same may be amended, supplemented or otherwise
modified from time to time.
"Security Documents": the collective reference to the Account Control
Agreements, the Pledge Agreement, the Security Agreement, the Mortgages and all
other security documents hereafter delivered to the Collateral Agent granting a
Lien on any asset or assets of any Person in favor of the Collateral Agent for
the benefit of the Agents and the Lenders to secure any of the Obligations or
to secure any guarantee of any such Obligations.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Site Management Agreements": those certain leases, management
agreements, or similar agreements pursuant to which the Borrower or any
Subsidiary of the Borrower is authorized to sublease or otherwise broker space
on any Tower Properties.
"S&P": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Subsidiary Guarantee": a Guarantee made by each Subsidiary of the
Borrower in favor of the Collateral Agent for the benefit of the Agents and the
Lenders, substantially in the form of Exhibit L-2, as the same may be amended,
supplemented or otherwise modified from time to time.
"Synthetic Lease": any lease entered into in connection with the
lease or acquisition of fixed assets which is treated under GAAP as an
operating lease but for tax purposes as a capital lease.
"Taxes": as defined in Section 3.10(a).
"Tenant Leases": each Lease of space by the Borrower or any
Subsidiary of the Borrower on any Tower.
"Termination Date": the earlier of (a) the Maturity Date and (b) the
date on which the Acquisition Loans shall become due and payable pursuant to
Section 8.
"Threshold Amount": with respect to Global Signal and its
Subsidiaries, $1,000,000, and with respect to the Borrower and its
Subsidiaries, $100,000.
"Title Company": either 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
the Collateral Agent.
"Title Policies": collectively, the ALTA mortgagee policies of title
insurance pertaining to the Mortgages issued by the Title Company to the
Collateral Agent.
"Towers": (i) any wireless communications towers owned, leased or
managed (or to be owned, leased or managed) by the Borrower or its
Subsidiaries, including any rooftop or other sites owned, leased or managed by
the Borrower or its Subsidiaries, together with any real estate interest,
fixtures and appurtenances that accompany the towers, rooftops or other sites,
and (ii) any fee simple interest or long-term easement (including, without
limitation, prepaid ground leases similar to long-term easements) in or on any
real property on which wireless communications towers are built.
"Tower Cash Flow": for any relevant period with respect to any Tower,
an amount equal to (i) the annualized amount of the rent then payable by all
lessees under Tenant Leases with respect to such Tower, or, in the case of a
Tower that is a Managed Property, the revenue received by the Borrower or any
of its Subsidiaries under the Site Management Agreement for such Tower (net of
any payments required to be remitted by the Borrower or its Subsidiaries to the
owner or lessor of such Tower), less (ii) the sum of (a) 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 such Tower; (b) trailing twelve-month
Maintenance Capital Expenditures and other expenses in respect of such Tower
for direct maintenance expenses, utilities, licensing and permitting (provided,
that in no event shall Maintenance Capital Expenditures be deducted in respect
of any Tower the maintenance of which is the obligation of a Person other than
the Borrower or one or more of its Subsidiaries); and (c) a management fee
equal to the greater of (x) 7.5% of the annualized amount of the rent then
payable by all lessees under Tenant Leases at such Tower, and (y) the actual
contractual management fees for such Tower. For purposes of clause (ii)(a) of
this definition, the amount of "current" expenses, taxes and other payments
shall be determined, at the time of the Acquisition of such Tower, in
accordance with the methodology set forth in Exhibit K, 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
trailing twelve-month Maintenance Capital Expenditures and other expenses shall
be based on (i) at the time of the Acquisition of such Tower and for three
months thereafter, (A) with respect to Maintenance Capital Expenditures, the
higher of (x) the sum of the actual annual budgeted Maintenance Capital
Expenditures and 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 Loan Parties, and (ii) at any time after the third month until the first
anniversary of the Acquisition of such Tower, the actual amount of such
Maintenance Capital Expenditures and other expenses, annualized based on the
number of months that have passed since the date of such Acquisition.
"Tower Property": any fee interest, leasehold interest or easement
interest in any real property that supports a Tower.
"Tower Value": for any Tower, the lesser of (a) the Acquisition Price
of such Tower and (b) an amount equal to the Tower Cash Flow of such Tower
multiplied by 15.
"Transferee": as defined in Section 10.6(e).
"Type": as to any Acquisition Loan, its nature as a Base Rate Loan or
a Eurodollar Loan.
"United Kingdom Subsidiaries": collectively, all direct or indirect
Subsidiaries of Global Signal organized under the laws of the United Kingdom,
including without limitation, Pinnacle Towers Ltd.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any Acquisition Notes or
any other Loan Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in any Acquisition Notes, any other Loan
Documents and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2
AMOUNT AND TERMS OF ACQUISITION LOAN COMMITMENTS
Section 2.1 Acquisition Loan Commitments.
(a) Subject to the terms and conditions hereof, each Lender agrees to
make revolving acquisition loans ("Acquisition Loans") to the Borrower from
time to time during the period from and including the Closing Date until but
excluding the Termination Date (the "Availability Period") in an aggregate
principal amount at any one time outstanding not to exceed its respective
Acquisition Loan Commitment. During the Availability Period the Borrower may
use the Acquisition Loan Commitments by borrowing, prepaying the Acquisition
Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.
(b) The Acquisition Loans shall be Eurodollar Loans unless and until
the Administrative Agent notifies the Borrower that it is converting, pursuant
to Section 3.1(c), Section 3.6 or Section 3.8, the Eurodollar Loans to Base
Rate Loans.
Section 2.2 Procedure for Borrowing.
(a) The Borrower may borrow under the Acquisition Loan Facility on
any Business Day prior to the Termination Date in an aggregate principal amount
not exceeding the Availability at such time; provided that the Borrower shall
give the Administrative Agent irrevocable notice substantially in the form of
Annex I (a "Notice of Borrowing") (which notice must be received by the
Administrative Agent prior to 11:00 a.m., New York City time, two Business Days
prior to the requested Borrowing Date), specifying:
(i) the amount to be borrowed;
(ii) the requested Borrowing Date;
(iii) wire instructions of the seller party or distribution
agent/title company to any Acquisition (or other Persons) to which any
portion of the Cash Purchase Price of any Acquisition to be financed with
such borrowing 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,
earnouts and escrows;
(iv) the amount specified in any Notice of Borrowing may be adjusted
upward or downward by up to 10% of such amount upon written notice to the
Administrative Agent no later than one Business day prior to the requested
Borrowing Date; provided that such adjustments shall not be deemed in any
way to limit or modify the conditions to borrowing set forth in Section
5.2 and shall be subject to the Availability for such Acquisition Loan
borrowing; and
(v) upon receipt of such notice the Administrative Agent shall
promptly notify each Lender thereof. Not later than 11:00 a.m. New York
City time on the Borrowing Date specified in the Notice of Borrowing for
any borrowing, each Lender shall make available to the Administrative
Agent at its office specified in Section 10.2 the amount of such Lender's
pro rata share of such borrowing in immediately available funds. The
Administrative Agent shall on such date credit the account of the Borrower
on the books of such office of the Administrative Agent with the aggregate
of the amounts made available to the Administrative Agent by the Lenders
and in like funds as received by the Administrative Agent.
(b) No later than three Business Days prior to the proposed Borrowing
Date, the Borrower shall also deliver to the Administrative Agent the following
(and the obligation of the Lenders to make the requested Acquisition Loan on
the proposed Borrowing Date is contingent on the timely receipt thereof):
(i) a calculation of the Availability, certified by a Responsible
Officer of the Borrower;
(ii) a Borrowing Base Certificate showing the Borrowing Base as of
such Borrowing Date after giving effect to such Acquisition Loan;
(iii) (A) a written instruction signed by a Responsible Officer of
the Borrower directing the Administrative Agent to wire the proceeds of
the Acquisition Loans to the accounts and Persons specified in such Notice
of Borrowing, and (B) a report specifying for each Tower being acquired
with such borrowing, (1) the "Tower Identifier" (name/ID) of such Tower,
(2) the latitude and longitude of such Tower, (3) the Acquisition Price of
such Tower, (4) the projected monthly Tower Cash Flow for such Tower, and
(5) whether the Tower will be owned in fee, or subject to a Ground Lease,
a Site Management Agreement or an Easement; and
(iv) (A) a statement certified by a Responsible Officer of the
Borrower of the internal valuation of each Tower being acquired with such
borrowing determined in accordance with the methodology set forth on
Exhibit K together with the calculation therefor shown in reasonable
detail, and (B) a database search environmental report prepared by ▇▇▇▇▇▇
and Associates or a consultant pre-approved and jointly retained by the
Borrower and the Collateral Agent on the property where each such Tower is
located.
(c) If any Tower to be acquired by the Borrower or any of its
Subsidiaries would, upon acquisition, result in a breach of any representation
and warranty set forth in this Agreement or in any other Loan Document, a
failure to comply with the covenant set forth in Section 6.8, or a failure to
comply with any of the conditions set forth in Section 5.2(d)(v) due to events,
circumstances, occurrences or conditions concerning such Tower, the Borrower
shall deliver a certificate to the Administrative Agent from a Responsible
Officer of the Borrower prior to the Acquisition of such Tower (and if being
acquired with a borrowing, no later than three Business Days prior to the
proposed Borrowing Date for such borrowing), specifying in reasonable detail by
Tower each such event, circumstance, occurrence or condition (an "Exception
Certificate"). The Borrower may at any time, including in a Notice of
Borrowing, reclassify (i) any Excluded Property as a non-Excluded Property,
(ii) any Materially Impaired Excluded Property as an Excluded Property or a
non-Excluded Property and (iii) any Tower (not so designated) as an Excluded
Property or a Materially Impaired Excluded Property.
(d) The Administrative Agent will make, subject to the satisfaction
of the conditions precedent set forth in Section 5, each such requested
borrowing available to the Borrower (as adjusted pursuant to Section
2.2(a)(iv)) by wiring, no later than 2:00 p.m. (provided there are not more
than three such wires), the funds to the accounts specified in such Notice of
Borrowing.
Section 2.3 Termination or Reduction of Acquisition Loan Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Acquisition Loan
Commitments or, from time to time, to reduce the amount of the Acquisition Loan
Commitments. Any such reduction shall be in an amount equal to $500,000 or a
whole multiple thereof and shall reduce permanently the Acquisition Loan
Commitments then in effect.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO ACQUISITION LOANS
Section 3.1 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest at a rate per annum
equal to the Eurodollar Rate determined for such day plus the Applicable
Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Acquisition Loan,
(ii) any interest payable thereon or (iii) any other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), (x) at the option of the Administrative Agent or the Required
Lenders and upon notice to the Borrower, each Eurodollar Loan shall convert to
a Base Rate Loan and shall not, during such time as such amounts remain unpaid,
be convertible into a Eurodollar Loan, and (y) the principal of all overdue
Acquisition Loans and any such overdue interest or other amount shall bear
interest at a rate per annum which is the rate that would otherwise be
applicable to the Acquisition Loans pursuant to the foregoing provisions of
this Section plus 5%, in each case from the date of such non-payment until such
overdue principal, interest or other amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date; provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
Section 3.2 Repayment of Acquisition Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Lender the principal
amount of each Acquisition Loan on the Termination Date. The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Acquisition Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 3.1. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing Indebtedness of the Borrower to such Lender
resulting from each Acquisition Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain a register (the
"Register") as agent for the Borrower in which shall be recorded (i) the name
and address of each Lender (including any Assignee, successor and
participants), (ii) the amount of each Acquisition Loan made hereunder and any
Acquisition Note evidencing such Acquisition Loan and the Type thereof, (iii)
the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, (iv) the amount of any sum
received by the Administrative Agent hereunder from the Borrower, and (v) each
assignment and participation of the Acquisition Loan or the Acquisition Loan
Commitment pursuant to Section 10.6.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 3.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded (absent manifest error); provided,
however, that the failure of the Administrative Agent to maintain the Register
or any Lender to maintain such account, or any error therein, shall not in any
manner affect the obligation of the Borrower to repay (with applicable
interest) the Acquisition Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement. Any assignment or transfer by any
Lender of its rights and obligations under this Agreement pursuant to and in
accordance with Section 10.6 that is not recorded in accordance with this
Section 3.2 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
Section 10.6.
(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Acquisition Loans of such
Lender, substantially in the form of Exhibit A, with appropriate insertions as
to date and principal amount (an "Acquisition Note").
Section 3.3 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Acquisition Loans, in whole or in part, without
premium or penalty, upon irrevocable notice to the Administrative Agent (in the
form of Annex II) prior to 12:00 noon, New York City time, at least three
Business Days prior thereto, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, Base Rate Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with
any accrued interest to such date on the amount prepaid. Partial prepayments
pursuant to this Section shall be in an aggregate principal amount of $500,000
or a whole multiple thereof.
Section 3.4 Mandatory Prepayments.
(a) If on any date on which a Borrowing Base Certificate is delivered
pursuant to Section 6.2(c), the aggregate amount of Acquisition Loans
outstanding exceeds the Borrowing Base, the Borrower shall prepay the
Acquisition Loans in an amount equal to the amount of such excess no later than
the Business Day immediately following the date of delivery of such Borrowing
Base Certificate.
(b) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from (i) any incurrence of Indebtedness by the
Borrower or any of its Subsidiaries, other than Indebtedness permitted pursuant
to Section 7.1, (ii) any Asset Sale or (iii) any Extraordinary Receipts, then
100% of such Net Cash Proceeds shall be applied on the third Business Day
following receipt of such Net Cash Proceeds (or in the case of clauses (ii) and
(iii), following receipt of Net Cash Proceeds from any individual event or
series of events in an aggregate amount of $50,000) toward the prepayment of
the Acquisition Loans.
(c) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Recovery Event, 100% of such Net Cash
Proceeds shall be applied on the third Business Day following receipt of such
Net Cash Proceeds toward the prepayment of the Acquisition Loans; provided that
such prepayment shall not be required if all of the following requirements are
satisfied: (i) the aggregate amount of all such Net Cash Proceeds is not
greater than $5,000,000, (ii) such Net Cash Proceeds are (A) reinvested in
other like assets within 270 days of the Recovery Event that gave rise to such
Net Cash Proceeds or (B) committed to be reinvested in other like assets within
270 days of such Recovery Event and reinvested in such assets within 365 days
of such Recovery Event, (iii) such Net Cash Proceeds are held in a segregated
deposit account that is subject to a perfected first priority security interest
in favor of Collateral Agent for the benefit of the Agents and the Lenders, and
(iv) the reinvestment or commitment to reinvest such Net Cash Proceeds pursuant
to clause (ii) above is pre-approved in writing by the Required Lenders in
their reasonable discretion.
(d) Any prepayment of Acquisition Loans and/or reduction of
Acquisition Loan Commitments pursuant to this Section, and the rights of the
Lenders in respect thereof, are subject to the provisions of Section 3.7.
Section 3.5 Computation of Interest and Fees.
(a) Interest shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower of each determination of a Eurodollar Rate. Any change in
the interest rate on an Acquisition Loan resulting from a change in the Base
Rate or the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower in the absence of manifest error.
Section 3.6 Inability to Determine Interest Rate. If on any day:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate; or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined on
such day will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
Eurodollar Loans,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower as soon as practicable thereafter. If such notice is given (x)
any Eurodollar Loans under the Acquisition Loan Facility requested to be made
on such day shall be made as Base Rate Loans, (y) any Base Rate Loans that were
to have been Converted on such day to Eurodollar Loans shall be Continued as
Base Rate Loans, and (z) any outstanding Eurodollar Loans shall be Converted on
such day to Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the Acquisition Loan
Facility shall be made or Continued as such. The Administrative Agent shall
withdraw any such notice pursuant to clause (a) above if the Administrative
Agent determines that the relevant circumstances have ceased to exist.
Section 3.7 Pro Rata Treatment and Payments(a) . (a) Each borrowing
by the Borrower from the Lenders hereunder and any reduction of the Acquisition
Loan of the Lenders shall be made pro rata according to the respective Credit
Exposure Percentages of the Lenders. Each payment (including each prepayment)
by the Borrower on account of principal of and interest on the Acquisition
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Acquisition Loans then held by the Lenders.
(b) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set-off or counterclaim and shall be made prior to 12:00 noon,
New York City time, on the due date thereof to the Administrative Agent at the
Administrative Agent's office specified in Section 10.2, in Dollars and in
immediately available funds. If any payment hereunder (other than payments on
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(c) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its pro rata share of such borrowing available to
the Administrative Agent in accordance with Section 2.2(a), the Administrative
Agent may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time
on the Borrowing Date therefor, such Lender shall pay to the Administrative
Agent, on demand, such amount with interest thereon at a rate equal to the
daily average Federal Funds Effective Rate for the period until such Lender
makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this Section shall be conclusive in the absence of
manifest error. If such Lender's pro rata share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans hereunder, on demand, from the Borrower.
Section 3.8 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the
interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans and Continue Eurodollar Loans as such
shall forthwith be cancelled, and (b) such Lender's Acquisition Loans then
outstanding as Eurodollar Loans, if any, shall be Converted automatically to
Base Rate Loans.
Section 3.9 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to (A) the date that such
Lender became a party to this Agreement, (B) with respect to a transfer or
assignment made pursuant to Section 10.6(b) or (c) hereof, the effective date
of such transfer or assignment, except to the extent that such Transferee's
predecessor was entitled to such amounts or (C) with respect to the designation
of a new lending office, the effective date of such designation:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Acquisition Note or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes resulting
from such Lender's failure to comply with the provisions of Section 3.10
hereof and changes in the rate or manner of determination of tax on the
overall net income of such Lender together with, in each case, any
interest, penalties or additions to such taxes);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, Continuing or
maintaining Eurodollar Loans or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Borrower shall promptly, after
receiving notice as specified in clause (c) of this Section, pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 3.9, it shall promptly notify the Borrower (with a
copy to the Administrative Agent) of the event by reason of which it has become
so entitled. A certificate as to any additional amounts payable pursuant to
this Section submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Acquisition Loans and all other amounts payable hereunder.
(d) Any Lender, if claiming any additional amounts payable pursuant
to this Section 3.9 or Section 3.10, shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions and so long as,
in its sole determination, such efforts would not be disadvantageous to it) to
file any certificate or document reasonably requested in writing by the
Borrower if the making of such a filing would avoid the need for or reduce the
amount of any such additional amounts.
Section 3.10 Taxes.
(a) Any and all payments by the Borrower under or in respect of this
Agreement or any other Loan Documents to which the Borrower is a party shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities (including penalties, interest and
additions to tax) with respect thereto, whether now or hereafter imposed,
levied, collected, withheld or assessed by any taxation authority or other
Governmental Authority (collectively, "Taxes"), unless required by law. If the
Borrower shall be required under any applicable Requirement of Law to deduct or
withhold any Taxes from or in respect of any sum payable under or in respect of
this Agreement or any of the other Loan Documents to any Lender, (i) Borrower
shall make all such deductions and withholdings in respect of Taxes, (ii)
Borrower shall pay the full amount deducted or withheld in respect of Taxes to
the relevant taxation authority or other Governmental Authority in accordance
with the applicable Requirement of Law, and (iii) the sum payable by Borrower
shall be increased as may be necessary so that after Borrower has made all
required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section 3.10) such Lender
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made in respect of Non-Excluded Taxes. For
purposes of this Agreement and except as otherwise provided in Section 3.10(f)
and Section 3.10(g), the term "Non-Excluded Taxes" are Taxes other than, in the
case of each Lender, Taxes that are imposed on or measured by its overall net
income (including franchise taxes imposed in lieu thereof and branch profit
taxes, and including penalties, interest and additions to Tax with respect
thereto), by the jurisdiction under the laws of which such Lender is organized
or of its Applicable Lending Office, or any political subdivision thereof,
unless Taxes are imposed as a result of a connection that arises solely from
such Lender having executed, delivered or performed its obligations or received
payments under, or enforced, this Agreement or any of the other Loan Documents
(in which case such Taxes will be treated as Non-Excluded Taxes).
(b) In addition, Borrower hereby agrees to pay any present or future
stamp, recording, documentary, excise, property or similar taxes, charges or
levies that arise from any payment made under or in respect of this Agreement
or any other Loan Document or from the execution, delivery or registration of,
any performance under, or otherwise with respect to, this Agreement or any
other Loan Document (collectively, "Other Taxes").
(c) Borrower hereby agrees to indemnify each Lender for, and to hold
each of them harmless against, the full amount of Non-Excluded Taxes and Other
Taxes, and the full amount of Taxes of any kind imposed on or paid by such
Lender, and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto, in each case, imposed by
any jurisdiction on amounts payable under this Section 3.10. The indemnity by
Borrower provided for in this Section 3.10(c) shall apply and be made whether
or not the Non-Excluded Taxes or Other Taxes for which indemnification
hereunder is sought have been correctly or legally asserted. Amounts payable by
Borrower under the indemnity set forth in this Section 3.10(c) shall be paid
within ten (10) days from the date on which the applicable Lender, as the case
may be, makes written demand therefor, and provides to Borrower any notice or
assessment made for such Non-Excluded Taxes or Other Taxes received by such
Lender from a Governmental Authority or tax authority.
(d) Any Lender that receives additional payments from the Borrower
pursuant to Sections 3.10(a), (b) or (c) shall take all reasonable actions
(consistent with its internal policy and legal and regulatory restrictions)
requested by Borrower to assist Borrower, as the case may be, at the sole
expense of Borrower, to recover from the relevant taxation authority or other
Governmental Authority any Taxes in respect of which amounts were paid by
Borrower pursuant to Sections 3.10(a), (b) or (c). However, such Lender will
not be required to take any action that would be, in the sole judgment of such
Lender, legally inadvisable, or commercially or otherwise disadvantageous to
such Lender in any respect, and in no event shall such Lender be required to
disclose any tax returns or any other information that, in the sole judgment of
such Lender is confidential.
(e) Within 30 days after the date of any payment of Taxes pursuant to
Section 3.10, Borrower (or any Person making such payment on behalf of
Borrower) shall furnish to the applicable Lender a certified copy of the
original official receipt evidencing payment thereof. In the case of any
payment under or in respect of this Agreement or any of the other Loan
Documents by or on behalf of Borrower through an account or branch outside the
United States, or on behalf of Borrower by a payor that is not a United States
person, if Borrower determines that no Taxes are payable in respect thereof,
Borrower shall furnish, or shall cause such payor to furnish, to the applicable
Lender an opinion of counsel reasonably acceptable to the applicable Lender
stating that such payment is exempt from Taxes. For purposes of this Section
3.10(e) and subsection (f) of this Section 3.10, the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(f) On or before the first payment date hereunder to which each
Lender (including any participant, assignee or successor) is entitled, and from
time to time thereafter if requested in writing by Borrower (but only so long
as such Lender remains lawfully able to do so), any Lender that either (i) is
not incorporated under the laws of the United States, any State thereof, or the
District of Columbia or (ii) whose name does not include "Incorporated,"
"Inc.," "Corporation," "Corp.," "P.C.," "insurance company," or "assurance
company" (a "Non-Exempt Lender"), shall deliver or cause to be delivered to
Borrower the following properly completed and duly executed documents:
(1) a complete and executed (x) U.S. Internal Revenue Form
W-8BEN with Part II completed in which a Lender claims the benefits
of a tax treaty with the United States providing for a reduced or
zero rate of withholding (or any successor forms thereto), including
all appropriate attachments or (y) a U.S. Internal Revenue Service
Form W-8ECI (or any successor form thereto); or
(2) in the case of an individual, (x) a complete and executed
U.S. Internal Revenue Service Form W-8BEN (or any successor forms
thereto) and a certificate substantially in the form of Exhibit G (a
"Section 3.10 Certificate") or (y) a complete and executed Internal
Revenue Service Form W-9 (or any successor form thereto); or
(3) in the case of a Non-Exempt Lender that is organized under
the laws of the United States, any State thereof, or the District of
Columbia, (x) a complete and executed Internal Revenue Service Form
W-9 (or any successor forms thereto), including all appropriate
attachments or (y) if such Non-Exempt Lender is disregarded for
federal income tax purposes, the documents that would be required by
clause (1), (2), (3), (4) or (5) with respect to its beneficial owner
if such beneficial owner were Lender; or
(4) in the case of a Non-Exempt Lender that (i) is not organized
under the laws of the United States, any State thereof, or the
District of Columbia, and (ii) is treated as a corporation for U.S.
federal income tax purposes, a complete and executed U.S. Internal
Revenue Service Form W-8BEN claiming a zero rate of withholding (or
any successor forms thereto) and a Section 3.10 Certificate; or
(5) in the case of a Non-Exempt Lender that (A) is treated as a
partnership or other non-corporate entity, or is disregarded for U.S.
federal income tax purposes, and (B) is not organized under the laws
of the United States, any State thereof, or the District of Columbia,
a (x) a complete and executed Internal Revenue Service Form W-8IMY
(including all required documents and attachments) (or any successor
form thereto), and (y)(i) a Section 3.10 Certificate, and (ii)
without duplication, with respect to each of its beneficial owners
and the beneficial owners of such beneficial owners looking through
chains of owners to individuals or entities that are treated as
corporations for U.S. federal income tax purposes (all such owners,
"beneficial owners"), the documents that would be required by clause
(1), (2), (3), (4) or this clause (5) with respect to each such
beneficial owner if such beneficial owner were a Lender; provided,
however, that no such documents will be required with respect to a
beneficial owner to the extent the actual Lender is determined to be
in compliance with the requirements for certification on behalf of
its beneficial owner as may be provided in applicable U.S. Treasury
regulations, or the requirements of this clause (5) are otherwise
determined to be unnecessary, all such determinations under this
clause (5) to be made in the sole discretion of Borrower.
If the forms referred to above in this Section 3.10(f) that are
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be treated as Taxes other than
"Non-Excluded Taxes" ("Excluded Taxes") and shall not qualify as Non-Excluded
Taxes unless and until such Lender provides the appropriate form certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate shall
be considered Excluded Taxes solely for the periods governed by such form. If,
however, on the date of the Assignment and Acceptance pursuant to which a
Lender assignee becomes a party to this Agreement, Lender assignor was entitled
to indemnification or increased amounts under this Section 3.10, then the
Lender assignee shall be entitled to indemnification or increased amounts to
the extent (and only to the extent) that the Lender assignor was entitled to
such indemnification or increased amounts for Non-Excluded Taxes, and the
Lender assignee shall be entitled to additional indemnification or increased
amounts for any other or additional Non-Excluded Taxes. Any additional Taxes in
respect of a Lender that result solely and directly from a change in the
Applicable Lending Office of such Lender shall be treated as Excluded Taxes
(and shall not qualify as Non-Excluded Taxes) (A) except for any additional
Non-Excluded Taxes imposed as a result of a change in the applicable
Requirement of Law, or in the interpretation or application thereof, occurring
after the date of such change or (B) unless such change is made at the request
of the Borrower for such Lender to change its Applicable Lending Office.
(g) For any period with respect to which any Lender has failed to
provide Borrower with the appropriate form, certificate or other document
described in subsection (f) of this Section 3.10 (other than (i) if such
failure is due to a change in any applicable Requirement of Law, or in the
interpretation or application thereof, occurring after the date on which a
form, certificate or other document originally was required to be provided,
(ii) if such form, certificate or other document otherwise is not required
under subsection (f) of this Section 3.10 or (iii) if it is legally inadvisable
or otherwise commercially disadvantageous for such Lender to deliver such form,
certificate or other document), such Lender shall not be entitled to
indemnification or additional amounts under subsection (a) or (c) of this
Section 3.10 with respect to Non-Excluded Taxes imposed by the United States by
reason of such failure; provided, however, that should a Lender become subject
to Non-Excluded Taxes because of its failure to deliver a form, certificate or
other document required hereunder, Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender in recovering such
Non-Excluded Taxes.
(h) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Acquisition Loans and all other amounts
payable hereunder.
SECTION 4
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to induce the Lenders to make the Acquisition Loans, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender
that:
Section 4.1 Financial Condition.
(a) The consolidated balance sheet of Global Signal and its
consolidated Subsidiaries as at December 31, 2004 and the related consolidated
statements of income and of cash flows for the fiscal period ended on such
date, audited by Ernst & Young LLP, copies of which have heretofore been
furnished to each Lender, are complete and correct in all material respects and
present fairly the consolidated financial condition of Global Signal and its
consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the fiscal period then
ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP (except for, in the case of
any unaudited financial statements, the absence of footnotes and year-end
adjustments) applied consistently throughout the periods involved (except as
approved by such accountants or Responsible Officer, as the case may be, and as
disclosed therein). Neither Global Signal nor any of its consolidated
Subsidiaries had, at the date of the most recent balance sheet referred to
above, any material Guarantee Obligation, Contingent Liability (other than
earnouts pursuant to an Acquisition) or liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other financial derivative, which is not reflected in the foregoing
statements or in the notes thereto, subject to normal year-end adjustments, or
in the Global Signal Public Filings. During the period from December 31, 2004
to and including the date hereof there has been no sale, transfer or other
disposition by Global Signal or any of its respective consolidated Subsidiaries
of any material part of its business or property (other than as permitted
hereunder) and no purchase or other acquisition of any business or property
(including any Capital Stock of any other Person), other than Acquisitions not
prohibited under this Agreement or the other Loan Documents, material in
relation to the consolidated financial condition of Global Signal and its
consolidated Subsidiaries at December 31, 2004.
(b) The unaudited opening balance sheet of the Borrower and its
consolidated Subsidiaries as of April 25, 2005, certified by a Responsible
Officer of the Borrower, copies of which have heretofore been furnished to the
Lender and the pro forma opening balance sheet of the Borrower and its
consolidated Subsidiaries as at April 25, 2005, certified by a Responsible
Officer of the Borrower (the "Pro Forma Balance Sheet"), a copy of which has
been provided to the Lender, is the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries, adjusted to give effect (as if such
events had occurred on such date) to (i) the making of the initial Acquisition
Loans anticipated to be made on April 29, 2005, (ii) the application of the
proceeds of the foregoing in accordance with the terms of the Loan Documents
and (iii) the payment of all fees and expenses related to the foregoing
transactions and the fees payable on the Closing Date, as estimated in good
faith as of the date of the Pro Forma Balance Sheet. The Pro Forma Balance
Sheet, together with the notes thereto, presents fairly, on a pro forma basis,
the consolidated financial position of the Borrower and its consolidated
Subsidiaries, respectively, as at April 25, 2005, assuming that the events
specified in the preceding sentence had actually occurred on such date.
Section 4.2 No Change. Since December 31, 2004, there has been no
development or event which has had or is reasonably expected to have a Material
Adverse Effect, excluding all matters set forth in the Global Signal Public
Filings.
Section 4.3 Existence; Compliance with Law. Each of the Borrower and
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the requisite
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a limited liability company
or corporation, as applicable, and is in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, and (d) is in compliance with all
Requirements of Law, except to the extent that the failure to comply with any
of the foregoing is not, in the aggregate, reasonably expected to have a
Material Adverse Effect.
Section 4.4 Power; Authorization; Enforceable Obligations. The
Borrower has the limited liability company power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party
and to borrow hereunder and has taken all necessary limited liability company
action to authorize the borrowings on the terms and conditions of this
Agreement and any Acquisition Notes and to authorize the execution, delivery
and performance of the Loan Documents to which it is a party. With respect to
each other Loan Party, such Loan Party has the limited liability company or
corporate (as applicable) power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and has taken all
necessary limited liability company or corporate action (as applicable) to
authorize the execution, delivery and performance of the Loan Documents to
which it is a party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to
which the Borrower is a party. This Agreement has been, and each other Loan
Document to which it is a party will be, duly executed and delivered on behalf
of the Borrower. This Agreement constitutes, and each other Loan Document to
which it is a party when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Section 4.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents to which each of the Borrower and its Subsidiaries is a
party, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or Contractual Obligation of the Borrower or of
any of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation (other than
Liens created by the Security Documents in favor of the Collateral Agent for
the benefit of the Agents and the Lenders).
Section 4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or (b) which is reasonably expected
to have a Material Adverse Effect or with respect to any Owned Property or
Leased Property, is reasonably expected to have an Individual Property Material
Adverse Effect.
Section 4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which is reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
Section 4.8 Ownership of Property; Liens. Each of the Borrower and
its Subsidiaries has good and marketable fee simple title (or, in the case of
the Ground Leased Properties, leasehold title) to the Tower Properties, other
than the Managed Properties, free and clear of all Liens except as permitted
under Section 7.2. Each of the Borrower and its Subsidiaries owns all personal
property on the Tower Properties (other than the Managed Properties and
personal property which is owned by tenants of such Tower Property, not used or
necessary for the operation of the applicable Tower Property, leased by the
Borrower or its Subsidiaries as permitted hereunder or which constitutes leased
temporary mobile antennas), subject only to Liens permitted under Section 7.2.
The Mortgages will create (i) valid, perfected first Liens on the applicable
Tower Properties, subject only to Liens permitted under Section 7.2, and (ii)
perfected first priority security interests in and to, and perfected collateral
assignments of, all personalty in connection therewith (including the Rents and
the Leases), all in accordance with the terms thereof, in each case subject
only to Liens permitted under Section 7.2. Except as set forth on Schedule 4.8,
there are no proceedings in condemnation or eminent domain affecting any of the
Tower Properties, and to the actual knowledge of the Borrower, none is
threatened. No Person has any option or other right to purchase all or any
portion of any of the Tower Properties owned by the Borrower or any of its
Subsidiaries or any interest therein. There are no mechanic's, materialman's or
other similar Liens or claims which have been filed for work, labor or
materials affecting the Tower Properties which are or will be Liens prior to,
or equal or coordinate with, the Liens of the applicable Mortgage except Liens
which are permitted under Section 7.2. The Liens permitted under Section 7.2,
in the aggregate, do not materially interfere with the benefits of the security
intended to be provided by the Mortgages and this Agreement, materially and
adversely affect the value of any of the Tower Properties taken as a whole,
impair the use or operations of the Tower Properties or impair the ability of
the Borrower and its Subsidiaries to pay their respective obligations in a
timely manner.
Section 4.9 Intellectual Property. Each of the Borrower and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those of which the failure to so own
or license are not reasonably expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, which, if
successful, would reasonably be expected to have a Material Adverse Effect, nor
does the Borrower know of any valid basis for any such claim. The use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, are not reasonably expected to have a Material Adverse Effect.
Section 4.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries has had or is
reasonably expected to have a Material Adverse Effect.
Section 4.11 Taxes.
(a) Each of the Borrower and its Subsidiaries has timely filed all
tax returns that are required to be filed by them and have timely paid all
taxes, except for any such taxes as are being appropriately contested in good
faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves have been provided.
(b) There are no Liens for Taxes, except for statutory Liens for
Taxes not yet due and payable and except as permitted by Section 7.2(a);
provided that, with respect to previously purchased Property, to the knowledge
of the Borrower, there are no Liens for Taxes, except for statutory Liens for
Taxes not yet due and payable and except as permitted by Section 7.2(a).
Section 4.12 Federal Regulations. No part of the proceeds of any
Acquisition Loans will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect, or for any purpose which violates, or
which would be inconsistent with, the provisions of the regulations of such
Board of Governors.
Section 4.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan, and each Plan (other than a Multiemployer Plan or a
multiemployer welfare plan maintained pursuant to a collective bargaining
agreement) has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and, to
the knowledge of the Borrower, the Borrower would not become subject to any
material liability under ERISA if Global Signal, the Borrower or any Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made. To the knowledge of the Borrower, no
such Multiemployer Plan is in Reorganization or Insolvent. Except to the extent
that any such excess could not have a Material Adverse Effect, the present
value (determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Borrower and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA)
other than such liability disclosed in the financial statements of Global
Signal or the Borrower does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits.
Section 4.14 Investment Company Act; Other Regulations. The Borrower
is not an "investment company" within the meaning of the Investment Company Act
of 1940 (as amended, the "Investment Company Act"), is not "controlled" by an
"investment company" within the meaning of the Investment Company Act that is
not registered thereunder, and is not required to register under the Investment
Company Act. The Borrower is not subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board of Governors
of the Federal Reserve System) which limits its ability to incur Indebtedness.
Section 4.15 Subsidiaries. Schedule 4.15 sets forth the name of each direct or
indirect Subsidiary of the Borrower, its form of organization, its jurisdiction
of organization, the total number of issued and outstanding shares or other
interests of Capital Stock thereof, the classes and number of issued and
outstanding shares or other interests of Capital Stock of each such class, the
name of each holder of Capital Stock thereof and the number of shares or other
interests of such Capital Stock held by each such holder and the percentage of
all outstanding shares or other interests of such class of Capital Stock held
by such holders.
Section 4.16 Security Documents.
(a) The provisions of each Security Document are effective to create
in favor of the Collateral Agent for the benefit of the Agents and the Lenders
a legal, valid and enforceable security interest in all right, title and
interest of the Loan Party thereto in the "Collateral" described therein.
(b) (i) When proper Uniform Commercial Code financing statements have
been filed in the offices in the jurisdictions listed in Schedule 4.16, the
security interest created by the Security Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title
and interest of the Borrower and each Subsidiary of the Borrower in the
"Collateral" described therein, which can be perfected by such filing.
(ii) When certificates representing the Pledged Interests (as defined
in the Pledge Agreement) are delivered to the Collateral Agent (or a
collateral trustee or agent for the Collateral Agent pursuant to any
intercreditor agreement referred to in Section 6.13), together with stock
powers endorsed in blank by a duly authorized officer of the pledgors
thereof the security interest created by the Pledge Agreement shall
constitute a fully perfected first priority Lien on, and security interest
in, all right, title and interest of the pledgors parties thereto in the
"Collateral" described therein.
(c) Neither the Borrower nor any Subsidiary owns any property, or has
any interest in any property, that is not subject to a fully perfected first
priority Lien on, or security interest in, such property in favor of the
Collateral Agent (for the benefit of the Agents and the Lenders), except for
such property or any such interest in property subject to the requirements of
Section 6.10(a), and subject only to Liens permitted under Section 7.2 which
have been adequately bonded and for which adequate reserves have been provided.
Section 4.17 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Loan Parties to the Administrative Agent or the Lenders (i)
pursuant to this Agreement in connection with any Acquisition or (ii) in
connection with the negotiation, preparation or delivery of this Agreement and
the other Loan Documents or included herein or therein or delivered pursuant
hereto or thereto, when taken as a whole, do not contain any untrue statement
of material fact or omit to state any material fact necessary to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished after the date
hereof by or on behalf of the Loan Parties to the Administrative Agent or the
Lenders in connection with this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby will be true, complete and
accurate in every material respect, or (in the case of projections) based on
reasonable estimates, on the date as of which such information is stated or
certified, it being understood that there is no assurance that any projections
will be obtained. There is no fact known to a Responsible Officer of the
Borrower, after due inquiry, that could reasonably be expected to have a
Material Adverse Effect that has not been disclosed herein, in the other Loan
Documents or in a report, financial statement, exhibit, schedule, disclosure
letter or other writing furnished to the Administrative Agent or the Lenders
for use in connection with the transactions contemplated hereby or thereby.
Section 4.18 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice which is reasonably
expected to have a Material Adverse Effect. There is (a) no unfair labor
practice complaint pending or, to the best knowledge of the Borrower,
threatened against the Borrower or any of their respective Subsidiaries before
the National Labor Relations Board which is reasonably expected to have a
Material Adverse Effect and no grievance or arbitration proceeding arising out
of or under a collective bargaining agreement is so pending or threatened; (b)
no strike, labor dispute, slowdown or stoppage pending or, to the best
knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries; and (c) no union representation question existing with respect to
the employees of the Borrower or any of its Subsidiaries and no union
organizing activities are taking place with respect to any thereof. The
Borrower and its Subsidiaries have no employees.
Section 4.19 Insurance. The Borrower and each of its Subsidiaries
have, with respect to their respective properties and businesses, insurance
covering the risks, in the amounts, with the deductible or other retention
amounts, and with the carriers, listed on Schedule 4.19, which insurance meets
the requirements of Section 6.5 hereof. No Person, including the Borrower, has
done, by act or omission, anything which would impair the coverage of such
policies.
Section 4.20 Purpose of Acquisition Loans. The proceeds of the
Acquisition Loans shall be used by the Borrower solely to finance the Cash
Purchase Price of Acquisitions.
Section 4.21 Environmental Matters.
(a) To the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower or any of its Subsidiaries
(the "Properties") that are not otherwise subject to an Environmental Indemnity
Agreement do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute or
constituted a violation of or (ii) could reasonably be expected to give rise to
liability under, any Environmental Law, except for any such violation or
liability, together with any other such violations or liabilities, which would
not reasonably be expected to have a Material Adverse Effect or, with respect
to any Property, an Individual Property Material Adverse Effect.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties (in each case, that are otherwise not subject to
an Environmental Indemnity Agreement) are in compliance in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to such Properties or the business operated by the Borrower or any of
its Subsidiaries (the "Business") except for such non-compliance, contamination
or violations, together with any other such non-compliance, contamination or
violations, which would not reasonably be expected to have a Material Adverse
Effect or, with respect to any Property, an Individual Property Material
Adverse Effect, or which could materially interfere with the continued
operation of such Properties or materially impair the fair saleable value
thereof.
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties (other than any Properties that are
subject to an Environmental Indemnity Agreement) or the Business, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened, except for any such violation, alleged
violation, non-compliance, liability or potential liability, together with all
other such violations, alleged violations, non-compliance, liabilities or
potential liabilities, which would not reasonably be expected to have a
Material Adverse Effect or, with respect to any Property, an Individual
Property Material Adverse Effect.
(d) To the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Properties (other
than any Properties that are subject to an Environmental Indemnity Agreement)
in violation of, or in a manner or to a location which could reasonably be
expected to give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any such Properties in violation of, or in a manner that
could reasonably be expected to give rise to liability under, any applicable
Environmental Law except, for such transportation, disposal, generation,
treatment or storage, together with all such other transportations, disposals,
generations, treatments or storage, which would not reasonably be expected to
have a Material Adverse Effect or, with respect to any Property, an Individual
Property Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any of its Subsidiaries is or will
be named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties (other
than any Properties subject to an Environmental Indemnity Agreement) or the
Business except for any such action, decree, order, other administrative or
judicial requirement, together with all such other actions, decrees, orders,
other administrative or judicial requirements, which would not reasonably be
expected to have a Material Adverse Effect or, with respect to any Property, an
Individual Property Material Adverse Effect.
(f) To the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Properties (other than those that are subject to an Environmental Indemnity
Agreement), or arising from or related to the operations of the Borrower or any
of its Subsidiaries in connection with such Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner that
could reasonably give rise to liability under Environmental Laws except for any
such release, together with all such other releases, which would not reasonably
be expected to have a Material Adverse Effect or, with respect to any Property,
an Individual Property Material Adverse Effect.
(g) Borrower and its Subsidiaries conduct in the ordinary course of
business a review of the claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties and the Environmental Laws related thereto, and as a
result thereof Borrower has reasonably concluded that, except as specifically
disclosed in Schedule 4.21, such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 4.22 Foreign Person. The Borrower is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Code.
Section 4.23 Leases; Agreements. The Borrower has delivered to
Administrative Agent true and complete copies (in all material respects) of all
(i) Ground Leases and any other Leases (as in effect on the Closing Date or at
the time of the creation or acquisition thereof) required to be delivered
pursuant to Section 5.2(d) or Section 6.10(a) and (ii) Material Agreements
affecting the operation and management of the Towers, and such Ground Leases
and Material Agreements have not been modified or amended except pursuant to
amendments or modifications delivered to Administrative Agent. Except for the
rights of the Manager pursuant to the Management Agreement, and the fee owners
of Managed Properties, no Person has any right or obligation to manage any of
the Towers or to receive compensation in connection with such management.
Except for the parties to any leasing brokerage agreement that has been
delivered to Administrative Agent or pursuant to a Management Agreement, no
Person has any right or obligation to lease or solicit tenants for the Towers,
or (except for cooperating outside brokers) to receive compensation in
connection with such leasing.
Section 4.24 Rent Roll, Disclosure. A true and correct copy of the
Rent Roll has been delivered to the Administrative Agent as required by Section
6.2(c). Except only as specified in the Rent Roll, or as otherwise disclosed to
Administrative Agent in the estoppel certificates delivered to Administrative
Agent from time to time, to the Borrower's knowledge, (i) the Leases are in
full force and effect; (ii) neither the Borrower nor any Subsidiary of the
Borrower has 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 in arrears in the payment of rent,
additional rent or any other charges whatsoever due under any Lease, or is
materially in default in the performance of any other obligations under such
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 (v) to be true with respect to Leases (other
than Material Leases) is not reasonably likely to have a Material Adverse
Effect. To the Borrower's knowledge, each of the Leases is valid and binding on
the parties thereto in accordance with its terms.
Section 4.25 Zoning; Compliance with Laws. The Towers 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 Towers, or any of them, including without
limitation the Americans with Disabilities Act, except to the extent the
failure to comply with any of the foregoing is not reasonably expected to have
an Individual Property Material Adverse Effect. All permits, licenses and
certificates for the lawful use, occupancy and operation of each component of
each of the Towers given as Collateral under the Loan Documents 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 the failure
to comply with any of the foregoing is not reasonably expected to have an
Individual Property Material Adverse Effect. To the Borrower's knowledge, (i)
except as set forth on Schedule 4.25 or as could reasonably be expected to
cause an Individual Property Material Adverse Effect, no legal proceedings are
pending or threatened with respect to the zoning of any Tower and (ii) except
as set forth in the Title Policies, neither the zoning nor any other right to
construct, use or operate any Tower Property is in any way dependent upon or
related to any real estate other than such Tower Property. All transfer taxes,
deed stamps, intangible taxes or other amounts in the nature of transfer taxes
required to be paid under applicable Requirements of Law in connection with the
transfer of each Owned Property or, to the extent applicable, Leased Property
to the Borrower or its Subsidiaries have been paid or are being paid
simultaneously with such transfer. All mortgage, mortgage recording, stamp,
intangible or other similar tax required to be paid under applicable
Requirements of Law in connection with the execution, delivery, recordation,
filing, registration, perfection or enforcement of any of the Loan Documents,
including, without limitation, the Mortgages, have been paid or are being paid
therewith. All taxes and governmental assessments due and owing in respect of
each Owned Property or, to the extent applicable, Leased Property have been
paid, or an escrow of funds in an amount sufficient to cover such payments has
been established hereunder or are insured against by the title insurance policy
to be issued in connection with the Mortgages.
Section 4.26 Condition of the Towers. Except as set forth on Schedule
4.26, all Improvements are in good repair and condition, ordinary wear and tear
excepted. Any damage to the Improvements identified on Schedule 4.26 are fully
covered by insurance (subject to the applicable deductible) and the required
repairs identified thereon are capable of being completed within the six (6)
month period following the Closing Date or, with respect to such Improvements
on a Tower acquired after the Closing Date, the date of Acquisition. The
Borrower is not aware of any material latent or patent structural or other
material defect or deficiency in the Towers 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 Towers 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 Towers as now used or
presently contemplated. To the Borrower's knowledge, none of the Improvements
create encroachments over, across or upon the boundary lines of the Tower
Property of such Tower, rights of way or easements of such Tower Property and
no building or other improvements on adjoining land create such an encroachment
which could reasonably be expected to have an Individual Property Material
Adverse Effect. Access has been insured by the Title Company for all Mortgaged
Properties that are also Ground Leased Properties and the Borrower or any
Subsidiary of the Borrower has access to each of the Mortgaged Properties that
are not Ground Leased Properties, except to the extent that a failure to have
such access would not be reasonably likely to have an Individual Property
Material Adverse Effect.
Section 4.27 Separate Tax Lot. Each of the Towers that is owned by
the Borrower and its Subsidiaries in fee constitutes one or more separate tax
parcels.
Section 4.28 Ground Leases. With respect to each Ground Lease:
(a) The Ground Lease contains the entire agreement of the Ground
Lessor and the Ground Lessee pertaining to the Ground Leased Property covered
thereby. Neither the Borrower nor any Subsidiary of the Borrower has any
estate, right, title or interest in or to the Ground Leased Property except
under and pursuant to the Ground Lease. The Ground Lessee has delivered or will
deliver a true and correct copy of the Ground Lease to Collateral Agent and the
Ground Lease has not been modified, amended or assigned except as set forth
therein.
(b) The Ground Lessor is the exclusive fee simple owner of its Ground
Leased Property or, if not, the fee owner/lessor and each sublessor of the
Ground Leased Property pertaining to such Ground Lease (other than the Ground
Lessor thereof) has entered into an agreement not to terminate the Borrower's
or its Subsidiary's, as the case may be, sub-leased interest in such Ground
Leased Property except upon notice to the Borrower and the Lenders and subject
to the right of the Collateral Agent or Lenders to cure any default giving rise
to such right to terminate.
(c) There are no rights to terminate the Ground Lease other than the
Ground Lessor's right to terminate by reason of default, casualty, condemnation
or other reasons, in each case as expressly set forth in the applicable Ground
Lease.
(d) 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 Ground Lessee or, to the Borrower's
knowledge, on the part of the Ground Lessor under the Ground Lease. Neither the
Borrower nor any Subsidiary of the Borrower has received any written notice
that a Ground Lease Default exists, or that the Ground Lessor or any third
party alleges the same to exist.
(e) The Ground Lessee under such Ground Lease is the exclusive owner
of the lessee's interest under and pursuant to the applicable Ground Lease and
has not assigned, transferred, or encumbered its interest in, to, or under the
Ground Lease (other than assignments that will terminate on or prior to the
Closing Date or, with respect to a Ground Lease acquired after the Closing
Date, the date of Acquisition), except in favor of Collateral Agent pursuant to
the Loan Documents.
(f) The Ground Lease or a memorandum thereof or other instrument
sufficient to permit recordation of a Mortgage has been recorded and the Ground
Lease (or a separate agreement with respect thereto (the "Estoppel")) permits
the interest of the Ground Lessee to be encumbered by the related Mortgage, if
any.
(g) Except for Liens permitted under Section 7.2, the Borrower's or
relevant Subsidiary's interests in the Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related Mortgage,
if any, unless a non-disturbance agreement has been obtained from the
applicable holder of such lien or encumbrance satisfactory in form and
substance to the Collateral Agent.
(h) The Ground Lease (or the applicable Estoppel) requires the Ground
Lessor to give notice of any default by the Ground Lessee to the Collateral
Agent which such notice must be delivered before the Ground Lessor may
terminate the Ground Lease, or the Ground Lease or the Estoppel provides that
notice of termination given under the Ground Lease is not effective against the
Collateral Agent unless a copy of the notice has been delivered to the
Collateral Agent in the manner described in the Ground Lease.
(i) The Collateral Agent is permitted to cure any default under the
Ground Lease that is curable after the receipt of notice of any default.
(j) The Ground Lease has a term that extends not less than 10 years
beyond the Maturity Date, after giving effect to any options to renew the
Ground Lease which may be exercised at the sole discretion of the Borrower or
its Subsidiaries.
(k) The Ground Lease does not impose restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial mortgage
lender.
(l) The Ground Lessee's interest in the Ground Lease is assignable to
the Collateral Agent upon notice to, but without the consent of, the Ground
Lessor (or, if any such consent is required, such consent has been obtained at
or prior to the closing of such Acquisition) or, in the event that it is so
assigned, it is further assignable by the Collateral Agent and its successors
and assigns upon notice to, but without a need to obtain the consent of, the
Ground Lessor.
(m) The Ground Lease (or the Estoppel) requires the Ground Lessor to
enter into a new lease with the Collateral Agent upon termination of the Ground
Lease following rejection of the Ground Lease in a bankruptcy proceeding under
the Bankruptcy Code; provided that the Collateral Agent cures any defaults that
are susceptible to being cured by the Collateral Agent.
Section 4.29 Easements.
(a) Each Easement contains the entire agreement pertaining to the
applicable Tower Property covered thereby. Neither the Borrower nor any
Subsidiary of the Borrower has any estate, right, title or interest in or to
such Tower Properties except under and pursuant to the Easements. The Borrower
has delivered true and correct copies of each of the Easements to Collateral
Agent and the Easements have not been modified, amended or assigned except as
set forth therein.
(b) The fee owner of each Tower Property subject to the Easements is
the exclusive fee simple owner of the fee estate with respect to such Tower
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 Borrower's
knowledge, no breach or default or event that with the giving of notice or
passage of time would constitute a breach or default under any Easement (an
"Easement Default") exists on the part of the Borrower or any Subsidiary of the
Borrower. Neither the Borrower nor any Subsidiary of the Borrower has received
any written notice that an Easement Default exists, or that any third party
alleges the same to exist.
(e) The Borrower or a Subsidiary of the Borrower is the exclusive
owner of the easement interest under and pursuant to each 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 the Closing Date or
the Acquisition of such Easement, as applicable), except in favor of Collateral
Agent pursuant to this Agreement and the other Loan Documents.
Section 4.30 No Synthetic Leases. Neither the Borrower nor any of its
Subsidiaries is a party to any Synthetic Lease.
Section 4.31 Limited Liability Company. The Borrower is a
single-member limited liability company organized under the laws of Delaware
and is wholly owned by GSOP and is disregarded as an entity separate from its
owner for U.S. federal income tax purposes.
SECTION 5
CONDITIONS PRECEDENT
Section 5.1 Conditions to Initial Acquisition Loans. The agreement of
each of the Lenders to make the initial Acquisition Loan requested to be made
by it is subject to the satisfaction, immediately prior to or concurrently with
the making of such Acquisition Loan on the Closing Date, of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower and the other Loan Parties in or pursuant to
the Loan Documents shall be true and correct in all material respects on and as
of the date of the effectiveness of this Agreement as if made on and as of such
date (except (i) to the extent such representation or warranty expressly
relates to an earlier date, in which case such representation or warranty shall
have been true and correct in all material respects as of such earlier date,
and (ii) any such representation and warranty which would be untrue as a result
of any event, circumstances occurrence or condition constituting a Permitted
Exception, unless such event, circumstances, occurrence or condition would
reasonably be expected to have a Material Adverse Effect).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on the date of the effectiveness of this Agreement (or after
giving effect to the effectiveness of this Agreement on such date).
(c) Loan Documents. The Administrative Agent shall have received:
(i) this Agreement, executed and delivered by each Lender and a duly
authorized officer of the Borrower, with a counterpart of each for the
Borrower and each Lender,
(ii) for the account of each Lender that has requested such a
promissory note, an Acquisition Note of the Borrower conforming to the
requirements hereof and executed by a duly authorized officer of the
Borrower,
(iii) Subject to Section 6.13, the Pledge Agreement, executed and
delivered by a duly authorized officer of each party thereto, with a
counterpart or conformed copy for each Lender,
(iv) the Security Agreement, executed and delivered by a duly
authorized officer of each party thereto, with a counterpart or conformed
copy for each Lender, and
(v) Subject to Section 6.13, the Parent Guarantee, executed and
delivered by a duly authorized officer of Global Signal and GSOP.
(d) Related Agreements. The Administrative Agent shall have received
true and correct copies of such documents or instruments as may be reasonably
requested by the Administrative Agent, including, without limitation, a copy of
any debt instrument, security agreement or other material contract to which the
Borrower, Global Signal or their respective Subsidiaries may be a party.
(e) Secretary's Certificates. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit D, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative Agent.
(f) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors or managing
member of each Loan Party authorizing (i) the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party, (ii) the borrowings contemplated hereunder, and (iii) if party to a
Security Document, the granting by it of the Liens created pursuant to the
Security Documents, certified pursuant to the certificate delivered in respect
of such Loan Party pursuant to Section 5.1(e), shall be in form and substance
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded.
(g) Incumbency Certificates. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each Loan Party,
dated the Closing Date, as to the incumbency and signature of the Responsible
Officers or other officers of such Loan Party executing any Loan Document,
which certificate shall be included in the certificate delivered in respect of
such Loan Party pursuant to Section 5.1(e) and shall be satisfactory in form
and substance to the Administrative Agent.
(h) Governing Documents. The Administrative Agent shall have received
true and complete copies of the Governing Documents of each Loan Party,
certified as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party, which certification
shall be included in the certificate delivered in respect of such Loan Party
pursuant to Section 5.1(e) and shall be in form and substance satisfactory to
the Administrative Agent.
(i) Good Standing Certificates. The Administrative Agent shall have
received certificates dated as of a recent date from the Secretary of State or
other appropriate authority, evidencing the good standing of each Loan Party
(i) in the jurisdiction of its organization, and (ii) in each other
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires it to qualify as a foreign Person except, as to this
subclause (ii), where the failure to so qualify could not have a Material
Adverse Effect.
(j) Consents, Licenses and Approvals. The Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of a
Responsible Officer of the Borrower as to the matters set forth in Section 4.4.
(k) Legal Opinions. The Administrative Agent shall have received the
executed legal opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York
counsel to the Loan Parties, substantially in the form of Exhibit F.
(l) Pledged Stock; Stock Powers; Pledged Interests; Pledged Notes;
Pledged Chattel Paper. Subject to Section 6.13, the Collateral Agent shall have
received:
(i) the certificates representing the shares or other equity
interests pledged pursuant to the Pledge Agreement, together with an
undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof;
(ii) all promissory notes and other instruments pledged pursuant to
the Security Agreement and the Pledge Agreement, each endorsed in blank by
a duly authorized officer of the pledgor thereof; and
(iii) the original counterpart of all chattel paper pledged pursuant
to the Security Agreement, duly endorsed in a manner satisfactory to the
Collateral Agent and containing a legend, if required by the Collateral
Agent, that it is the original counterpart of such chattel paper.
The Collateral Agent shall have received an acknowledgement of and
consent to the Pledge Agreement, executed by a duly authorized officer of each
"Issuer" (as defined therein) thereunder, in substantially the form appended to
the Pledge Agreement.
(m) Actions to Perfect Liens. The Collateral Agent shall have
received evidence in form and substance satisfactory to it that all filings,
recordings, registrations and other actions, including, without limitation,
with respect to the Borrower and each Subsidiary of the Borrower, the filing of
proper Uniform Commercial Code financing statements or amendments to previously
filed Uniform Commercial Code financing statements, necessary or, in the
opinion of the Collateral Agent, desirable to perfect the Liens created by the
Security Documents shall have been completed or duly provided for.
(n) Lien Searches. The Administrative Agent shall have received the
results of a recent search by a Person satisfactory to the Administrative
Agent, of the Uniform Commercial Code, judgment and tax lien filings which may
have been filed with respect to personal property of the Borrower, and the
results of such search shall be satisfactory to the Administrative Agent.
(o) Insurance. The Administrative Agent shall have received evidence
in form and substance satisfactory to it that all of the requirements of
Section 6.5 hereof, Section 5(m) of the Security Agreement and Section 2.1(e)
of the Mortgages shall have been satisfied.
(p) Officer's Certificate. The Administrative Agent shall have
received a certificate of a Responsible Officer of the Borrower, substantially
in the form of Exhibit H hereto, as to matters set forth in Section 5.2(a) and
(b).
(q) Manager. The Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that Global Signal Services LLC has
been retained by the Borrower and serves as Manager for the Borrower pursuant
to the Management Agreement attached hereto as Exhibit P.
Section 5.2 Conditions to Each Acquisition Loan. The agreement of
each Lender to make any Acquisition Loan requested to be made by it on any date
(including, without limitation, its initial Acquisition Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower and the other Loan Parties in or pursuant to
the Loan Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date (except (i) 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 (ii) any such representation and warranty
which would be untrue as a result of any event, circumstances occurrence or
condition constituting a Permitted Exception, unless such event, circumstances,
occurrence or condition would reasonably be expected to have a Material Adverse
Effect).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Acquisition Loans
requested to be made on such date.
(c) Borrowing Base. The Administrative Agent shall have timely
received a Borrowing Base Certificate showing that the aggregate outstanding
principal amount of Acquisition Loans, after giving effect to the Acquisition
Loans requested on such date, does not exceed the Borrowing Base at such time.
(d) Tower Acquisitions. In the case of an Acquisition Loan made to
finance an Acquisition of Owned Property or Leased Property, the Administrative
Agent shall have received the following, subject to Permitted Exceptions;
provided that the items referenced in this Section 5.2(d) (other than in clause
(i)) shall only be required to be provided with respect to any Owned Property
or Leased Property acquired in such Acquisition on or before the day that is
sixty (60) days following the date such Owned Property or Leased Property is
required to be mortgaged pursuant to Section 6.10, rather than on or prior to
such date and solely to the extent that the same would be required pursuant to
the proviso to Section 6.10(a) hereof:
(i) A Phase I or Phase II environment assessment report, if any
database search environmental report delivered by the Borrower to the
Administrative Agent pursuant to Section 2.2(b)(iv) reveals any condition
that in the Administrative Agent's reasonable judgment warrants such a
report;
(ii) a Mortgage with respect to each Tower and the associated real
property acquired in such Acquisition, each executed and delivered by a
duly authorized officer of the Borrower or, if such Acquisition is by a
Subsidiary of the Borrower, such Subsidiary;
(iii) an Environmental Indemnity Agreement with respect to each Tower
and the associated Tower Property acquired in such Acquisition, executed
and delivered by a duly authorized officer of the Borrower or, if such
Acquisition is by a Subsidiary of the Borrower, such Subsidiary (it being
understood that a single Environmental Indemnity Agreement shall be
permitted to cover all of the Towers and Tower Properties acquired in a
single Acquisition);
(iv) an ALTA mortgagee title insurance policy in form and substance
acceptable to the Collateral Agent issued with respect to each Mortgaged
Property acquired in such Acquisition and insuring the Lien of the related
Mortgage (or a marked, signed and redated commitment to issue such a title
insurance policy) encumbering the Mortgaged Property acquired in such
Acquisition, issued by a Title Company. Such title insurance policy shall
(1) provide coverage in an amount at least equal to the Cash Purchase
Price of the Mortgaged Property, in an amount equal to one hundred percent
(100%) of such value, or such other value as may be reasonably required by
the Collateral Agent, (2) insure the Collateral Agent that the relevant
Mortgage creates a valid first priority lien on the Mortgaged Property
encumbered thereby, free and clear of all exceptions from coverage other
than Liens permitted with respect thereto pursuant to Section 7.2 and
standard exceptions and exclusions from coverage (as modified by the terms
of any endorsements), (3) contain the endorsements set forth in Exhibit O
to the extent available in the applicable jurisdiction, and (4) name the
Collateral Agent and its successors and assigns as the insured;
(v) a current survey for each Mortgaged Property acquired in such
Acquisition, certified to the title company and the Collateral Agent and
its successors and assigns, prepared by a professional land surveyor
licensed in the state in which the Mortgaged Property is located and
reasonably acceptable to the Collateral Agent; provided, however, that
this condition shall be satisfied if the general survey exception in the
title insurance policy for such Mortgaged Property is deleted. Any current
survey shall reflect the same legal description contained in the title
insurance policy relating to such Mortgaged Property and shall include,
among other things, a legal description of the real property comprising
part of such Mortgaged Property. Each new survey shall certify whether the
surveyed property is located in a flood hazard area;
(vi) valid certificates of insurance indicating that the requirements
for the policies required for a Mortgaged Property hereunder have been
satisfied with respect to each Mortgaged Property acquired in such
Acquisition and evidence of the payment of all premiums payable for the
existing policy period by including such premium on the closing statement
for such Mortgaged Property;
(vii) if such Acquisition includes Mortgaged Property in a state not
previously subject to an opinion of counsel to the Borrower or a
Subsidiary of the Borrower delivered to the Collateral Agent in the
current calendar year, an opinion of counsel to the Borrower or, if such
Acquisition is by a Subsidiary of the Borrower, such Subsidiary
substantially in the form of Exhibit Q hereto or otherwise in form and
substance reasonably satisfactory to the Collateral Agent, from counsel
admitted to practice under the laws of the state in which the applicable
Mortgaged Property is located;
(viii) title insurance or other evidence satisfactory to the
Collateral Agent that there shall be no delinquent real estate and
personal property taxes, assessments, water rates or sewer rents, levied
or assessed or imposed against any Mortgaged Property acquired in such
Acquisition, or part thereof, or any interest and penalties thereon;
(ix) payment or reimbursement to the Collateral Agent to the extent
invoiced of all reasonable costs and expenses incurred by the Collateral
Agent (including, without limitation, reasonable attorneys fees and
disbursements) in connection with such Mortgages, 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;
(x) copies of all leases and any Ground Leases affecting any Towers
acquired in such Acquisition, certified, to the knowledge of the Borrower
as being true and correct;
(xi) title insurance or other evidence satisfactory to the Collateral
Agent that each Mortgaged Property that is an Owned Property acquired in
such Acquisition constitutes a separate tax lot;
(xii) a copy of each engineering report obtained by the Borrower or
its Subsidiaries with respect to any Mortgaged Property acquired in such
Acquisition, if any;
(xiii) a zoning report or such other evidence reasonably satisfactory
in form and substance to the Collateral Agent, in each case, indicating
that each Mortgaged Property acquired in such Acquisition and its use
comply in all material respects with all applicable material Requirements
of Law (including, without limitation, zoning, subdivision and building
laws and regulations);
(xiv) copies of all recorded contracts and agreements, all unrecorded
contracts and agreements of which the Borrower has knowledge and all Rent
Rolls, in each case, relating to the leasing and operation of each Tower
acquired in such Acquisition and all amendments thereto; and
(xv) such other and further approvals, opinions, documents and
information in connection with such Mortgaged Properties acquired in such
Acquisition and the granting of mortgage liens thereon in favor of the
Collateral Agent (for the benefit of the Agent and the Lenders) as the
Collateral Agent may reasonably request;
and each of the same shall be reasonably satisfactory to the Collateral Agent.
(e) Recovery Event Proceeds. Evidence reasonably satisfactory to the
Administrative Agent that all Net Cash Proceeds received by the Borrower or its
Subsidiaries and retained by the Borrower for reinvestment pursuant to Section
3.4(c) on or prior to such request have been reinvested in accordance
therewith.
(f) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be reasonably satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received each of the items required to
be delivered by the Borrower pursuant to Sections 2.2(b) and (c) in connection
with such borrowing and such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated hereby or thereby as
it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained
in this Section 5.2 have been satisfied.
SECTION 6
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the Acquisition
Loan Commitments remain in effect or any amount is owing to any Lender or the
Agents hereunder or under any other Loan Document, the Borrower shall, and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
Section 6.1 Financial Statements. Furnish to each Lender:
(a) as soon as practical, but in any event within 95 days after the
end of each fiscal year of the Borrower commencing with the year ending on
December 31, 2005, a copy of the consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and retained earnings and of cash flows for
such year, setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by Ernst &
Young LLP or other independent certified public accountants of nationally
recognized standing;
(b) as soon as practical, but in any event within 95 days after the
end of each fiscal year of Global Signal, a copy of the consolidated balance
sheet of Global Signal and its consolidated Subsidiaries as at the end of such
year and the related consolidated statements of income and retained earnings
and of cash flows for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope of
the audit, by Ernst & Young LLP or other independent registered public
accountants of nationally recognized standing;
(c) as soon as practical, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows of the Borrower and its consolidated Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth
in each case in comparative form the equivalent figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(d) as soon as practical, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal year
of Global Signal, the unaudited consolidated balance sheet of Global Signal and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows of the Borrower and its consolidated Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth
in each case in comparative form equivalent the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(e) as soon as practical, but in any event not later than 15 Business Days
after the end of each calendar month, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such month
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated Subsidiaries
for such month and the portion of the fiscal year through the end of such
month, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer of the Borrower as being
fairly stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(except for, in the case of any unaudited financial statements, the absence of
footnotes and normal year-end adjustments) applied consistently throughout the
periods reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
Section 6.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and (b), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a), (b), (c), (d) and (e), a certificate of a
Responsible Officer of the Borrower stating that, to the best of such
Responsible Officer's knowledge, the Borrower during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to be
observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate;
(c) within 15 Business Days following the end of each calendar month,
(i) a Borrowing Base Certificate showing the Borrowing Base as of the last day
of such calendar month, (ii) a report showing any changes to the report
required to be delivered by the Borrower pursuant to Section 2.2(b)(iii)(B)
(other than with respect to the information required pursuant to Section
2.2(b)(iii)(B)(4)), and (iii), a copy of the most recent Rent Roll for each
Tower;
(d) within five days after the same are sent, copies of all financial
statements and reports which Global Signal sends to its stockholders generally,
and within five days after the same are filed, copies of all financial
statements and reports which Global Signal may make to, or file with, the
Securities and Exchange Commission or any successor or analogous Governmental
Authority ("Global Signal Public Filings");
(e) on or before December 15 of each calendar year, a budget setting
forth in reasonable detail the anticipated costs and expenses directly related
to the use, operation, improvement and maintenance of the Towers, which budget
shall be reasonably satisfactory to the Administrative Agent; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
Section 6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
Section 6.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
as otherwise permitted pursuant to Section 7.4; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith is not, in the aggregate, reasonably expected to have a Material
Adverse Effect.
Section 6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
commercial general liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business, which insurance shall name the Collateral Agent as lender loss payee,
in the case of property insurance, and as an additional insured, in the case of
liability insurance; and furnish to the Collateral Agent, upon written request,
information in reasonable detail as to the insurance carried.
(b) Obtain and maintain, or cause to be maintained, insurance for
each Mortgaged Property providing at least the following coverages:
(i) comprehensive all risk insurance on the improvements and the
personal property at each Mortgaged Property, including contingent
liability from operation of building laws, demolition costs and increased
cost of construction endorsements, in each case (A) in an amount equal to
one hundred percent (100%) of the "Full Replacement Cost," which for
purposes of this Agreement shall mean actual replacement value (exclusive
of costs of excavations, foundations, underground utilities and footings)
with a waiver of depreciation; (B) containing an agreed amount endorsement
with respect to the improvements and personal property at the Mortgaged
Property waiving all co-insurance provisions; (C) providing for no
deductible in excess of $100,000 for all such insurance coverage; and (D)
containing an "Ordinance or Law Coverage" or "Enforcement" endorsement if
any of the improvements or the use of the Mortgaged Property shall at any
time constitute legal non-conforming structures or uses. In addition,
Borrower shall obtain: (y) flood insurance with an aggregate limit of at
least $2,500,000 per year, with no per occurrence limit providing for no
deductible in excess of (i) for Mortgaged Property located in a federally
designated "special flood hazard area," 5% of the insured value of such
Mortgaged Property, subject to a minimum of $1,000,000, (ii) for
occurrences with respect to named storms, 5% of the insured value of each
Mortgaged Property affected, subject to a minimum of $100,000 per
Mortgaged Property per occurrence, and (iii) for other flood loss, 5% of
the insured value of such Mortgaged Property subject to a minimum of
$25,000 per occurrence and a maximum of $100,000, as each may be amended
or such greater amount as the Collateral Agent shall require; and (z)
earthquake insurance in amounts and in form and substance satisfactory to
the Collateral, Agent in the event the Mortgaged Property is located in an
area with a high degree of seismic activity; provided that the insurance
pursuant to clauses (y) and (z) hereof shall be on terms consistent with
the comprehensive all risk insurance policy required under this sub-part
(i),
(ii) commercial general liability insurance against claims for
personal injury, bodily injury, death or property damage occurring upon,
in or about the Mortgaged Property, such insurance (A) to be on the
so-called "occurrence" form with a combined limit, excluding umbrella
coverage, of not less than $1,000,000; (B) to continue at not less than
the aforesaid limit until required to be changed by the Collateral Agent
by reason of changed economic conditions making such protection
inadequate; and (C) to cover at least the following hazards: (1) premises
and operations; (2) products and completed operations on an "if any"
basis; (3) independent contractors; (4) blanket contractual liability for
all legal contracts; and (5) contractual liability covering the
indemnities contained in the Mortgage to the extent the same is available,
(iii) business income insurance (A) with loss payable to the
Collateral Agent; (B) covering all risks required to be covered by the
insurance provided for in subsection (i) above for a period commencing at
the time of loss for such length of time as it takes to repair or replace
with the exercise of due diligence and dispatch; (C) containing an
extended period of indemnity endorsement which provides that after the
physical loss to the improvements and personal property has been repaired,
the continued loss of income will be insured until such income either
returns to the same level it was at prior to the loss, or the expiration
of six months from the date that the Mortgaged Property is physically
damaged, whichever first occurs, and notwithstanding that the policy may
expire prior to the end of such period; and (D) in an amount equal to one
hundred percent (100%) of the projected Tower Cash Flow plus continuing
cost of direct Tower operations from the Mortgaged Property for a period
from the date of loss to a date (assuming total destruction) which is six
months thereafter. The amount of such business income insurance shall be
determined prior to the date hereof and at least once each year thereafter
based on Borrower's reasonable estimate of the annualized Tower Cash Flow
plus continuing cost of direct Tower operations. All proceeds payable to
the Collateral Agent pursuant to this subsection shall be held by the
Collateral Agent and shall be applied to the Obligations from time to time
due and payable under the Loan Documents; provided, however, that nothing
herein contained shall be deemed to relieve Borrower of its obligations to
pay the Obligations on the respective dates of payment provided for in
this Agreement and the other Loan Documents except to the extent such
amounts are actually paid out of the proceeds of such business income
insurance,
(iv) at all times during which structural construction, repairs or
alterations are being made with respect to the improvements, and only if
the Mortgaged Property coverage form does not otherwise apply, (A) owner's
contingent or protective liability insurance covering claims not covered
by or under the terms or provisions of the above mentioned commercial
general liability insurance policy; and (B) the insurance provided for in
sub-part (i) above written in a so-called builder's risk completed value
form (1) on a non-reporting basis, (2) against all risks insured against
pursuant to sub-part (i) above, (3) including permission to occupy the
Mortgaged Property, and (4) with an agreed amount endorsement waiving
co-insurance provisions to the extent the Borrower and/or its Subsidiaries
perform construction, repairs or alterations to Towers,
(v) workers' compensation, subject to the statutory limits of the
state in which the Mortgaged Property is located, and employer's liability
insurance with a limit of at least $1,000,000 per accident and per disease
per employee, and $1,000,000 for disease aggregate in respect of any work
or operations on or about the Mortgaged Property, or in connection with
the Mortgaged Property or its operation (if applicable),
(vi) comprehensive boiler and machinery insurance, if applicable, in
amounts as shall be reasonably required by Collateral Agent on terms
consistent with the commercial property insurance policy required under
subsection (i) above,
(vii) umbrella liability insurance in addition to primary coverage in
an amount not less than $5,000,000 per occurrence on terms consistent with
the commercial general liability insurance policy required under sub-part
(ii) above and sub-part (viii) below,
(viii) motor vehicle liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits
per occurrence, including umbrella coverage, of $1,000,000 if applicable,
(ix) insurance against employee dishonesty in an amount not less than
one month of gross revenue from the Mortgaged Property and with a
deductible not greater than $10,000, and
(x) upon sixty (60) days' notice, such other reasonable insurance and
in such reasonable amounts as the Collateral Agent from time to time may
reasonably request against such other insurable hazards which at the time
are commonly insured against for property similar to the Mortgaged
Property located in or around the region in which the Mortgaged Property
is located.
All insurance provided for in Section 6.5(b) shall be obtained
under valid and enforceable policies (collectively, the "Policies" or, in the
singular, the "Policy") and, to the extent not specified above, shall be
subject to the approval of the Collateral Agent as to deductibles, loss payees
and insureds (other than landlords listed as additional insureds).
Notwithstanding the foregoing, if any Ground Lease, management agreement or
other agreement related to a Mortgaged Property requires lower deductibles than
those set forth above, the relevant insurance policy may be amended to lower
the deductible to the extent so required without the consent of the Collateral
Agent. Not less than ten (10) days prior to the expiration dates of the
Policies theretofore furnished to the Collateral Agent, certificates of
insurance evidencing the Policies accompanied by evidence satisfactory to the
Collateral Agent of payment of the premiums then due thereunder (the "Insurance
Premiums"), shall be delivered by Borrower to the Collateral Agent. Any blanket
insurance Policy shall specifically allocate to the Mortgaged Property the
amount of coverage from time to time required hereunder and shall otherwise
provide the same protection as would a separate Policy insuring only the
Mortgaged Property in compliance with the provisions of Section 6.5(b). All
Policies of insurance provided for or contemplated by Section 6.5(b) shall be
primary coverage and, except for the Policy referenced in Section 6.5(b)(v),
shall name Borrower as the insured and the Collateral Agent and its successors
and/or assigns as the additional insured, as its interests may appear. Borrower
shall not procure or permit any of its constituent entities to procure any
other insurance coverage which would be on the same level of payment as the
Policies or would adversely impact in any way the ability of the Collateral
Agent or Borrower to collect any proceeds under any of the Policies. All
Policies of insurance provided for in Section 6.5(b), except for the Policies
referenced in Sections 6.5(b)(v) and (b)(viii) shall contain clauses or
endorsements to the effect that:
(1) no act or negligence of Borrower, or anyone acting for
Borrower, or of any tenant or other occupant, or failure to comply
with the provisions of any Policy, which might otherwise result in a
forfeiture of the insurance or any part thereof, shall in any way
affect the validity or enforceability of the insurance insofar as the
Collateral Agent or any Lender is concerned;
(2) the Policy shall not be canceled or non-renewed without at
least thirty (30) days' written notice to the Collateral Agent and
any other party named therein as an additional insured and, if
obtainable by Borrower using commercially reasonable efforts, shall
not be materially changed (other than to increase the coverage
provided thereby) without such a thirty (30) day notice; and
(3) neither the Collateral Agent nor any Lender shall be liable
for any Insurance Premiums thereon or subject to any assessments
thereunder.
If at any time the Collateral Agent is not in receipt of written evidence that
all insurance required hereunder is in full force and effect, the Collateral
Agent shall have the right, with notice to Borrower, to take such action as the
Collateral Agent deems necessary to protect the interest of the Agents and the
Lenders in any property owned, leased or managed by the Borrower or its
Subsidiaries, including, without limitation, the obtaining of such insurance
coverage as the Collateral Agent in its sole discretion deems appropriate and
all premiums incurred by the Collateral Agent in connection with such action or
in obtaining such insurance and keeping it in effect shall be paid by Borrower
to the Collateral Agent upon demand and until paid shall be secured by the
applicable Mortgage (if such property is secured by a Mortgage) and shall bear
interest at the rate specified in Section 3.1(c). In the event of foreclosure
of a Mortgage or other transfer of title to a Mortgaged Property in
extinguishment in whole or in part of the Acquisition Loans, all right, title
and interest of Borrower in and to the Policies that are not blanket Policies
then in force concerning the applicable Mortgaged Property and all proceeds
payable thereunder shall thereupon vest in the purchaser at such foreclosure or
the Collateral Agent or such other transferee in the event of such other
transfer of title. The Policies shall be issued by financially sound and
responsible insurance companies authorized to do business in the state in which
the applicable property is located and having a claims paying ability rating of
"AA" or better by S&P and Fitch and an insurance financial strength rating of
"Aa2" by ▇▇▇▇▇'▇.
Section 6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Agent or Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
during business hours, upon advance notice and as often as may reasonably be
desired, at such Agent's or Lender's expense (unless a Default shall have
occurred and be continuing, in which case, at the Borrower's expense) and to
discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the
Borrower and its Subsidiaries and with its independent certified public
accountants.
Section 6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender upon any officer thereof obtaining knowledge of any of the
following:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, which in either case,
if not cured or if adversely determined, as the case may be, is reasonably
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $500,000 or more and not covered
by insurance or in which injunctive or similar relief is sought that, if
enforced, would be of similar impact;
(d) the acquisition by the Borrower or any of its Subsidiaries of any
property or interest in property (including, without limitation, real property)
with a value greater than $100,000 that is not subject to a perfected Lien in
favor of the Collateral Agent pursuant to the Security Documents;
(e) the occurrence of any transaction or occurrence referred to in
Sections 3.4(b), (c) and (d) triggering a mandatory prepayment;
(f) the following events, as soon as possible and in any event within
thirty (30) days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the creation
of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii)
the institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; and
(g) any development or event which has had or is reasonably expected
to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
Section 6.8 Environmental Laws. Comply with, and shall use its
commercially reasonable efforts to ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and use its commercially
reasonable efforts to ensure that all tenants and subtenants obtain and comply
in all material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws except to the extent that failure to do so could not be reasonably
expected to have a Material Adverse Effect.
Section 6.9 Leases.
(a) Tenant Leases. The Borrower shall, and shall cause each of its
Subsidiaries to, after the Closing Date, only enter into new Tenant Leases or
become party to any Tenant Leases which are not Oral Tenant Leases. The
Borrower covenants that it will use its commercially reasonable efforts to
ensure that each Tenant Lease (i) is not oral and is subject to written
agreement, (ii) does not prohibit or render unenforceable or void any Lien of
the Collateral Agent or any foreclosure and/or operation of the Tower on which
such Tenant Lease is located by the Collateral Agent, whether by contractual
provision, operation of law, or otherwise, (iii) does not have any provision
preventing, hindering or prohibiting the Collateral Agent from directly
receiving the rents, receivables or other revenues generated in respect of such
Tenant Lease from the lessee thereof (or the effect of which prevents, hinders
or prohibits such action by operation of Law), and (iv) is subject to a first
priority assignment of such Tenant Lease and all rents, issues and profits with
respect thereto to the Collateral Agent.
(b) Ground Leases. Only enter into new Ground Leases, or become party
to any Ground Leases on commercially reasonable terms, and on a monthly basis
provide written notice to the Collateral Agent of each such new Ground Lease,
detailing such new Ground Lease and providing information with respect thereto.
The Borrower and each Subsidiary of the Borrower shall use its commercially
reasonable efforts to only enter into new Ground Leases which contain the terms
that are substantially similar to those set forth on Exhibit J attached hereto.
The Borrower shall use commercially reasonable efforts to provide the
Collateral Agent with respect to each Ground Lease, Estoppel and Attornment
Language immediately after each creation or acquisition thereof by the Borrower
or any Subsidiary of the Borrower except to the extent that the protections
afforded thereby are provided under such Ground Lease; provided that this
requirement shall be met with respect to Excluded Properties if the Borrower
uses its commercially reasonable efforts to do so.
Section 6.10 Additional Collateral; Guarantors.
(a) In the event that the Borrower or any Subsidiary acquires any
property or interest in property (including, without limitation, real
property), that is not subject to a perfected Lien in favor of the Collateral
Agent (for the benefit of the Agents and the Lenders) pursuant to the Security
Documents, the Borrower shall, and shall cause such Subsidiary to, (i) with
respect to any Tower, deliver the items described in Section 5.2(d) within the
time period required thereunder, to the extent not previously delivered, and
(ii) take such other action as the Collateral Agent shall request in order to
create and/or perfect a Lien in favor of the Collateral Agent for the benefit
of the Agents and the Lenders on such property; provided that the Borrower
shall not be required to mortgage any Leased Property for which the Tower Cash
Flow of the Towers on such Leased Property for a twelve-month period is not in
excess of $40,000 unless the mortgaging of such Leased Property would be
necessary for compliance with securitization standards as determined by S&P or
▇▇▇▇▇'▇.
(b) In the event that the Borrower is permitted to acquire or form
any additional Subsidiary, such Subsidiary shall execute a guarantee
substantially in the form of Exhibit L-2 hereto and a supplement to the
Security Agreement in accordance with Section 18 thereof, and the Borrower
and/or any Subsidiary which is a holder of any Capital Stock of such Subsidiary
shall execute a supplement to the Pledge Agreement in accordance with Section
5(e) thereof, and shall take such other action as shall be necessary or
advisable (including, without limitation, the execution of Uniform Commercial
Code financing statements) in order to perfect the Liens granted by such
Subsidiary in favor of the Collateral Agent for the benefit of the Agents and
the Lenders and to effect and perfect the pledge of all of the Capital Stock of
such Subsidiary in favor of the Collateral Agent for the benefit of the Agents
and the Lenders. The Collateral Agent shall be entitled to receive legal
opinions of one or more counsel to the Borrower and such Subsidiary addressing
such matters as the Collateral Agent or its counsel may reasonably request,
including, without limitation, the enforceability of the guaranty, the Security
Agreement and the Pledge Agreement against such Subsidiary or the Borrower, as
applicable, and the creation, validity and perfection of the Liens so granted
by such Subsidiary and the Borrower and/or other Subsidiaries to the Collateral
Agent for the benefit of the Agents and the Lenders.
Section 6.11 [Reserved].
Section 6.12 Interest Rate Protection Agreement. The Borrower shall
maintain a Hedge Agreement, specifically for interest rate protection, in which
the counterparty (i) is a financial institution satisfactory to the Lenders and
(ii) has a "A+"/ "A1" rating. Such Hedge Agreement shall have a strike level
and term, and cover a notional amount of the Borrower's Indebtedness, mutually
satisfactory to the Lenders and Global Signal, it being acknowledged that the
Hedging Agreements set forth on Schedule 6.12 are satisfactory to the
Administrative Agent or the Lenders.
Section 6.13 Global Signal. The date on which the following items
shall be delivered to the Administrative Agent and the Lenders shall be
referred to as the "Global Signal Guarantee Date": (i) a certified copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of Global Signal authorizing the execution, delivery and
performance of the Parent Guarantee and the Pledge Agreement by Global Signal,
(ii) a counterpart of each of the Parent Guarantee and the Pledge Agreement,
duly executed and delivered by Global Signal, (iii) the certificates
representing the shares or other equity interests to be pledged by Global
Signal pursuant to the Pledge Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of
Global Signal thereof, (iv) all promissory notes and other instruments to be
pledged by Global Signal pursuant to the Pledge Agreement, each endorsed in
blank by a duly authorized officer of Global Signal and (v) a legal opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP satisfactory to the Administrative
Agent, as to the due authorization, execution, delivery by and enforceability
against Global Signal of the Parent Guarantee and the Pledge Agreement. The
Borrower shall use its reasonable efforts to cause the Global Signal Guarantee
Date to occur as soon as possible.
SECTION 7
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the Acquisition
Loan Commitments remain in effect or any amount is owing to any Lender or the
Agents hereunder or under any other Loan Document, the Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly:
Section 7.1 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness or issue any Capital Stock, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower or any Subsidiary of the Borrower to
the Borrower or any Subsidiary of the Borrower; provided that such Indebtedness
is pledged to the Collateral Agent for the benefit of the Agents and the
Lenders and subordinated to the Obligations on terms and conditions
satisfactory to the Required Lenders;
(c) any Guarantee Obligations permitted under Section 7.3;
(d) earnouts payable to the seller party in connection with, and, to
the extent the same constitutes Indebtedness, any escrowed holdbacks payable in
connection with, any Acquisition; and
(e) any Indebtedness, the aggregate principal amount of which shall
not exceed $2,500,000 at any time outstanding, assumed pursuant to an
Acquisition;
Section 7.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes, assessments, governmental charges, levies or
claims not yet due or which are being contested in good faith by appropriate
proceedings (excluding Liens arising under any Environmental Laws, Liens in
favor of the Internal Revenue Service of the United States, the PBGC or any
Plan); provided that adequate reserves with respect thereto are maintained on
the books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self insurance
arrangements;
(d) easements, rights-of-way, licenses, restrictions, encroachments
and other similar encumbrances incurred in the ordinary course of the business
of the Borrower or such Subsidiaries or, with respect to any Tower, existing on
the date of the Acquisition of such Tower, which, in the aggregate, do not
materially (1) interfere with the ordinary conduct of the business of the
Borrower and its Subsidiaries, taken as a whole, or (2) impair the use or
operations of the Tower Properties, taken as a whole;
(e) Liens created by lease agreements, statute or common law to
secure the payments of rental amounts and other sums not yet due thereunder;
(f) Liens on Leased Property created by an owner or lessor thereof;
(g) Licenses, sublicenses, leases or subleases granted by the
Borrower or its Subsidiaries in the ordinary course of their businesses and not
expressly prohibited by any provision of this Agreement or any other Loan
Document and not materially interfering with the conduct of the business of the
Borrower or any of its Subsidiaries;
(h) Liens created pursuant to the Security Documents;
(i) Liens in the ordinary course of business on (i) cash to secure
performance of statutory obligations, surety or appeal bonds, performance
bonds, bids or tenders or (ii) escrow deposits in connection with Acquisitions
permitted hereunder which secure an amount not to exceed at any time
$12,000,000 in the aggregate; and
(j) Liens securing the payment of judgments which do not result in an
Event of Default and which are being appealed and contested in good faith, have
been adequately bonded pending such appeal and with respect to which
enforcement has been stayed.
Section 7.3 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation, other than (i) Subsidiary
Guarantees, (ii) indemnities made by the Borrower in favor of the title company
in connection with the issuance of a title policy on a Mortgaged Property to
the extent that the liability thereunder does not exceed at any time (A) 5% of
the Tower Value of the Tower on such Mortgaged Property or (B) when aggregated
together with the liability under all other such indemnities provided by the
Borrower or any of its Subsidiaries, 2% of the aggregate Tower Value of Towers
included the Borrowing Base at such time, and (iii) Guarantee Obligations to
third parties in respect of liabilities (other than Indebtedness) of
Subsidiaries of the Borrower incurred in the ordinary course of business.
Section 7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
surviving entity) or with or into any one or more wholly owned Subsidiaries of
the Borrower (provided that the wholly owned Subsidiary or Subsidiaries shall
be the continuing or surviving entity);
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other wholly owned Subsidiary of the
Borrower;
(c) the merger of the Borrower or any Subsidiary of the Borrower with
or into Global Signal or a Subsidiary of Global Signal so long as each Lender
determines that such merger is not adverse to its interests and provides
written notice of the same to the Borrower; and
(d) the merger of any Subsidiary of the Borrower with or into another
Person pursuant to an Acquisition; provided that concurrently therewith the
requirements of Section 6.10(b) with respect thereto are satisfied.
Section 7.5 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person other
than the Borrower or any wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property in
the ordinary course of business; provided that the Net Cash Proceeds of each
such transaction are applied to the prepayment of the Acquisition Loans as
provided in Section 3.4(b);
(b) the sale or other disposition of any property in the ordinary
course of business; provided that (other than with respect to the lease of
Tower capacity) the aggregate book value of all assets so sold or disposed of
in any period of twelve consecutive months shall not exceed 3% of consolidated
total assets of the Borrower and its Subsidiaries as at the time of such sale
or disposition;
(c) the lease of Tower capacity in the ordinary course of business;
and
(d) as permitted by Section 7.4(b).
Section 7.6 Limitation on Distributions. (a) Make any distribution
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of the Borrower
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary, except, so long as no Event of Default then
exists or would result therefrom, (i) distributions in cash or other property
to the extent required to satisfy the REIT Distribution Requirement, (ii)
equity distributions as consideration for the transactions contemplated by
Section 7.4(c), (iii) distributions in cash to GSOP used exclusively to make
payments under the GSOP Credit Agreement and other distributions in an amount
not to exceed $7,500,000 in the aggregate during the term of this Agreement and
(iv) other distributions in cash to GSOP so long as, both immediately prior to
and after giving effect to such distribution, the aggregate outstanding
principal amount of Acquisition Loans would be less than 68% of the aggregate
Tower Value of all Towers owned by the Borrower plus any cash or Cash
Equivalents held by Borrower or its Subsidiaries; or
(b) Enter into any derivative or other transaction with any financial
institution, commodities or stock exchange or clearinghouse (a "Derivatives
Counterparty") obligating the Borrower or any Subsidiary to make payments to
such Derivatives Counterparty as a result of any change in market value of any
such Capital Stock;
(all such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions, and all
such transactions with any Derivatives Counterparties, all as described in
subsections (a) and (b) above, being herein called "Restricted Payments").
Section 7.7 Limitations on Amendments to Ground Leases. Each Ground
Lease may not, to the extent such action would adversely affect the protections
afforded to the Collateral Agent under such Ground Lease, be canceled,
terminated, surrendered or amended by the Borrower in any material manner
without the prior written consent of the Required Lenders; provided that such
consent shall not be unreasonably withheld, conditioned or delayed for any
amendment of the Ground Lease that, in the reasonable opinion of the Collateral
Agent, (i) does not materially increase the burden of the Borrower or such
Subsidiary under such Ground Lease, and (ii) does not adversely affect the
collateral for the Acquisition Loans; provided further, that no such consent
shall be required if the Borrower or a Subsidiary of the Borrower (i)
terminates such Ground Lease because it has acquired a fee simple or easement
interest in the property subject to such Ground Lease or (ii) amends such
Ground Lease solely to the extent that such amendment (A) adds additional
property to such Ground Lease or moves the location of any Easement related
thereto, or (B) extends the term of such Ground Lease or increases the rent
thereon at market rates, in each case so long as no Default or Event of Default
would otherwise result from such amendment.
Section 7.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) investments arising from transactions by the Borrower or any
Subsidiary with customers or suppliers in the ordinary course of business,
including endorsements of negotiable instruments, debt obligations and other
investments received in connection with the bankruptcy or reorganization of
customers and suppliers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers;
(d) investments by the Borrower in any Subsidiary and investments by
such Subsidiary in the Borrower and in other Subsidiaries of the Borrower;
(e) investments in a Person for the purpose of consummating an
Acquisition so long as such Person becomes a Subsidiary of the Borrower upon
the consummation of such Acquisition and the requirements of Section 6.10
hereto are satisfied; and
(f) any purchase in connection with an Acquisition of assets by the
Borrower constituting a business unit of any Person, provided that, the
requirements of Section 6.10 hereto are satisfied. Section 7.9 Limitation on
Optional Payments and Modifications of Debt Instruments. (a) Make any optional
payment or prepayment on or redemption or purchase of any Indebtedness (other
than the Acquisition Loans) or (b) amend, modify or change, or consent or agree
to any amendment, modification or change to any of the terms relating to the
payment or prepayment of, or principal of or interest on, any such Indebtedness
(other than any such amendment, modification or change which would extend the
maturity or reduce the amount of any payment of principal thereof or which
would reduce the rate or extend the date for payment of interest thereon).
Section 7.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than the Borrower or any Subsidiary of the Borrower) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of the
Borrower's or such Subsidiary's business, and (c) on fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's-length transaction with a Person which is
not an Affiliate; provided that the restriction set forth in this section shall
not apply to any Management Agreement, so long as such Management Agreement is
subordinated to the Obligations on terms satisfactory to the Administrative
Agent and shall be otherwise in form and substance reasonably satisfactory to
the Required Lenders.
Section 7.11 Limitation on Synthetic Leases and Sale/Leaseback
Transactions. Enter into any Synthetic Lease or any other arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of real or
personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
Section 7.12 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than December 31.
Section 7.13 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than this Agreement, or acquire any Ground
Lease which prohibits or limits the ability of the Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien on any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than any such prohibition or limitation with respect to the Leased Property
subject to such Ground Lease that constitutes a Permitted Exception.
Section 7.14 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for those
businesses in which the Borrower and its Subsidiaries are engaged (or proposed
to be engaged) on the date of this Agreement or which are directly related
thereto.
Section 7.15 Governing Documents. (a) With respect to the Borrower,
amend its Governing Documents in a manner which would have a Material Adverse
Effect and (b) with respect to any Subsidiary of the Borrower, amend its
Governing Documents in a manner that would adversely affect the interests of
any Lender under the Loan Documents without the prior written consent of the
Required Lenders, which shall not be unreasonably withheld or delayed.
Section 7.16 Limitation on Subsidiary Formation. Form any
Subsidiaries unless, immediately upon the formation of such Subsidiary, all
requirements of Section 6.10 shall have been satisfied.
Section 7.17 Limitation on Securities Issuances. (a) Issue or permit
any Subsidiary to issue any shares of Capital Stock that are not "certificated
securities" (as defined in ss. 8-102 of the Uniform Commercial Code as in
effect in the State of New York on the date hereof) and are not pledged to the
Collateral Agent for the benefit of the Agents and the Lenders pursuant to the
Pledge Agreement or (b) issue or permit any Subsidiary to issue any shares of
preferred stock other than to a Loan Party.
Section 7.18 Limitation on Acquiring Materially Impaired Excluded
Properties. Without the written consent of the Required Lenders (such consent
not to be unreasonably conditioned, withheld or delayed), acquire any
Materially Impaired Excluded Properties.
Section 7.19 Debt to Tower Cash Flow Ratio. Permit at any time the
ratio of (i) Debt for Borrowed Money of the Borrower and its Subsidiaries on a
consolidated basis at such time to (ii) the aggregate amount of Tower Cash Flow
of all Towers for the period of 12 consecutive calendar months ended at or most
recently prior to such time be greater than 15:1.00; provided that the
calculation of aggregate Tower Cash Flow shall be adjusted to annualize the
financial results of Towers owned, leased or managed by the Borrower and its
Subsidiaries for less than one year as follows: (i) the Tower Cash Flow
attributed to any Tower owned, leased or managed by the Borrower and its
Subsidiaries for less than one year but greater than or equal to one month
shall be the Tower Cash Flow attributed to such Tower for the period commencing
on the date of the Acquisition of such Tower through the last day of the most
recently completed month times a fraction, the numerator of which is 12 and the
denominator of which is the number of calendar months completed since the date
of such Acquisition, and (ii) the Tower Cash Flow for Towers owned for less
than one month shall be the estimated annual Tower Cash Flow for such Towers
based upon the budgeted annualized results of such Towers determined in a
manner consistent with the methodology set forth in Exhibit K and adjusted to
reflect the financial results of such Towers on a consolidated basis (as
opposed to a stand-alone per Tower basis).
SECTION 8
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Acquisition
Loan when due in accordance with the terms of this Agreement; or the Borrower
shall fail to pay any interest on any Acquisition Loan within five days after
it becomes due, or any other amount payable hereunder or under the other Loan
Documents;
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made. Notwithstanding anything
herein or elsewhere in this Agreement to the contrary, a breach of a
representation or warranty in this Agreement or any other Loan Document related
to a Tower shall not constitute an Event of Default solely to the extent that
the event, circumstance, occurrence or condition which resulted in such
representation or warranty being untrue would have an Individual Property
Material Adverse Effect as to such Tower (and not a Material Adverse Effect),
but such Tower shall be deemed to be an Excluded Property;
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 6.9, Section
6.10, Section 7 of this Agreement, Section 5 of the Pledge Agreement, Section
2.1(g) of the Mortgages, Section 11(f) of the Parent Guarantee or Sections
5(a), (b), (h), (i), (j), (k) and (p) of the Security Agreement, or shall fail
to observe any condition (in any material respect) in their respective
Governing Documents if such failure has a Material Adverse Effect;
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c)
of this Section and the failure to comply with Section 5.2(d)(v) or Section 6.8
with respect to any Excluded Property), and such default shall continue
unremedied for a period of 30 days;
(e) Global Signal, the Borrower or any of their respective
Subsidiaries shall (i) default in any payment of principal of or interest of
any Indebtedness (other than the Acquisition Loans) or in the payment of any
Guarantee Obligation, in excess of the Threshold Amount and beyond the period
of grace, if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
administrative agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable;
(f) (i) Global Signal, the Borrower or any of their respective
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or Global Signal, the Borrower or any of their
respective Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Global Signal, the Borrower
or any of their respective Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unstayed for a period of 30 days; or (iii) there
shall be commenced against Global Signal, the Borrower or any of their
respective Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) Global
Signal, the Borrower or any of their respective Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above;
or (v) Global Signal, the Borrower or any of their respective Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due;
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any Lien
in favor of the PBGC or a Plan shall arise on the assets of Global Signal, the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV
of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions, if
any, is reasonably expected to have a Material Adverse Effect;
(h) One or more judgments or decrees shall be entered against Global
Signal or any of its Subsidiaries involving in the aggregate a liability (to
the extent not paid or covered by insurance) of $50,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof;
(i) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability (to
the extent not paid or covered by insurance) of $1,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof;
(j) (i) Except as consented to by the Required Lenders, any of the
Security Documents shall cease, for any reason, to be in full force and effect
or the Borrower or any other Loan Party which is a party to any of the Security
Documents shall so assert or (ii) the Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and priority
purported to be created thereby; provided that the failure of any Mortgage to
be in full force and effect or to be enforceable and of the same effect and
priority purported to be created thereby shall not, in and of itself, be an
Event of Default, but the Tower subject to such Mortgage shall upon such
failure be deemed to be an Excluded Property;
(k) Any Change of Control shall occur; provided, however, that a
Change of Control resulting from a breach under clause (a) of the definition
thereof shall be deemed an Event of Default hereunder only in the event that
any of the following shall occur:
(A) the ownership percentages as set forth in subclauses (i) and
(ii) thereof decrease from 51% to less than 40% solely as the result of
any issuance of Capital Stock of Global Signal;
(B) the ownership percentages as set forth in subclauses (i) and
(ii) thereof fall below 51% as a result of the sale by the Equity
Investors and/or any Person controlled by Fortress Investment Group LLC or
▇▇▇▇▇▇▇▇▇ Capital Partners, L.P. or its Affiliates of its Capital Stock of
Global Signal to satisfy a margin call under the Frit Pinn Credit
Agreement and the same remains unremedied for a period of thirty (30) days
or all of the Obligations have not been paid in full within such thirty
(30) day period; or
(C) the ownership percentages as set forth in subclauses (i) and
(ii) thereof fall below 51% as a result of the sale by any Person
controlled by Fortress Investments Group LLC or ▇▇▇▇▇▇▇▇▇ Capital
Partners, L.P. or its Affiliates of its Capital Stock of Global Signal and
the same remains unremedied for a period of thirty (30) days or all of the
Obligations have not been paid in full within such thirty (30) day period;
provided, however, that an Event of Default shall occur immediately if
such ownership percentage ceases to be at least 40% immediately following
any such sale;
(l) The "manager" of the Borrower shall cease to be Global Signal
Services LLC or any other Person approved by the Required Lenders (such
approval not to be unreasonably withheld) pursuant to a management agreement
that is subordinated to the Obligations on terms satisfactory to the Required
Lenders and is otherwise in form and substance reasonably satisfactory to the
Required Lenders;
(m) Any Global Signal Default shall occur and such default shall
continue unremedied for a period of 30 days;
(n) The failure of Global Signal to at any time continue to be (i)
qualified as a real estate investment trust as defined in Section 856 of the
Code, and (ii) entitled to a dividend paid deduction under Section 857 of the
Code with respect to dividends paid by it with respect to each taxable year for
which it claims a deduction on its Form 1120 - REIT filed with the United
States Internal Revenue Service for such year, or the entering into by Global
Signal of any material "prohibited transactions" as defined in Sections 857(b)
and 856(c) of the Code;
(o) Either of the Parent Guarantee or any Subsidiary Guarantee for
any reason, other than the satisfaction in full of all Obligations, shall cease
to be in full force and effect (other than in accordance with its terms) or
shall be declared to be null and void or any guarantor shall repudiate its
obligations thereunder; or
(p) the Global Signal Guarantee Date shall not have occurred on or
prior to May 16, 2005, and the Administrative Agent shall have given notice to
the Borrower thereof; provided, however, that no such default shall be
considered to have occurred if the Agents and the collateral agent under the
GSOP Credit Agreement have failed to provide GSOP with a written waiver of
Section 5(b) of the Pledge Agreement (as defined in the GSOP Credit Agreement)
to permit the pledge of the GSOP equity interests, as contemplated under
Section 6.13 herein and the Parent Guarantee.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Acquisition Loan Commitments shall immediately
terminate and the Acquisition Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Acquisition Loan Commitments to be terminated forthwith, whereupon
the Acquisition Loan Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Acquisition Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable;
provided, however, that notwithstanding the foregoing, the Administrative Agent
shall not take any action described in this paragraph on account of any
"Specified Global Signal Non-Payment Default" (as defined below) for a period
of five days following the occurrence of such Specified Global Signal
Non-Payment Default. As used herein, the term "Specified Global Signal
Non-Payment Default" means an Event of Default arising under Section 8(e)(ii)
due to any default under any agreement governing indebtedness of Global Signal
or any of its Subsidiaries (other than the Borrower and its Subsidiaries) that
does not result from the non-payment of any monetary obligation under such
agreement (whether principal, interest or otherwise) or provide for any grace
period before which the obligee thereunder is not entitled to exercise
remedies.
SECTION 9
THE AGENTS
Section 9.1 Appointment. Each Lender hereby irrevocably designates
and appoints (a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Funding Inc. as the Administrative Agent
of such Lender under this Agreement and the other Loan Documents, and (b)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Funding Inc. as the Collateral Agent of such Lender under
this Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes each Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to such
Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, neither Agent shall
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agents.
Section 9.2 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
Section 9.3 Exculpatory Provisions. Neither Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by such Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations
hereunder or thereunder. Neither Agent shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
Section 9.4 Reliance by Agents. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any Acquisition Note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower or any other Loan Party), independent accountants and other experts
selected by such Agent. Each Agent may deem and treat the payee of any
Acquisition Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in accordance
with a request of the Required Lenders, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Acquisition Loans.
Section 9.5 Notice of Default. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that any Agent
receives such a notice, such Agent shall give notice thereof to the Lenders.
Each Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; provided that
unless and until such Agent shall have received such directions, such Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
Section 9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by an Agent
hereinafter taken, including any review of the affairs of the Borrower or any
other Loan Party, shall be deemed to constitute any representation or warranty
by such Agent to any Lender. Each Lender represents to each Agent that it has,
independently and without reliance upon such Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
other Loan Parties and made its own decision to make its Acquisition Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by an Agent
hereunder or under the other Loan Documents, such Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower or any other Loan
Party which may come into the possession of such Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section 9.7 Indemnification. The Lenders agree to indemnify each
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Credit Exposure Percentages in effect on the date on which
indemnification is sought, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Acquisition Loans) be imposed on, incurred by or asserted against such Agent in
any way relating to or arising out of, the Acquisition Loan Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Acquisition Loans
and all other amounts payable hereunder.
Section 9.8 Agents in Their Individual Capacity. Each Agent and its
respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower and the other Loan Parties as
though such Agent were not an Agent hereunder and under the other Loan
Documents. With respect to the Acquisition Loans made by it, each Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
Section 9.9 Successor Agents. Each Agent may resign as Agent upon ten
(10) days' notice to the Lenders. If an Agent shall resign as Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor Agent for the Lenders, which successor
Agent, in the absence of the occurrence and continuance of an Event of Default,
shall be approved by the Borrower, whereupon such successor Agent shall succeed
to the rights, powers and duties of the resigning Agent, and the term
"Administrative Agent" or the "Collateral Agent" shall mean such successor
Administrative Agent or Collateral Agent, as the case may be, effective upon
such appointment and approval, and the resigning Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or deed
on the part of such resigning Agent or any of the parties to this Agreement or
any holders of the Acquisition Loans. After any resigning Agent's resignation
as Agent, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement and the other Loan Documents. Prior to the effectiveness
of its resignation, the resigning Agent shall execute all documents reasonably
requested by the successor Agent or the Required Lenders, as the case may be,
to evidence the resignation of the resigning Agent and the transfer of its
office to a successor Agent and to otherwise protect the interests of the
Lenders under the Loan Documents in connection with such resignation.
SECTION 10
MISCELLANEOUS
Section 10.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights
of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Acquisition Loan, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Acquisition Loan Commitment, in each case, without the consent of each
Lender affected thereby,
(ii) amend, modify or waive any provision of this Section 10.1
or change the percentage specified in the definition of Required Lenders,
or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents
or release all or substantially all of the Collateral or release Global
Signal from all or substantially all of its obligations under the Parent
Guarantee or any Subsidiary of the Borrower from all or substantially all
of its obligations under its Subsidiary Guarantee, in each case, without
the written consent of all the Lenders, or
(iii) amend, modify or waive any provision of Section 9 without
the written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Agents and all future holders of the Acquisition Loans. In the
case of any waiver, the Borrower, the Lenders and the Agents shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 10.2 Notices. All notices, requests and demands to or upon
the respective parties hereto t0o be effective shall be in writing (including
by facsimile transmission) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made (a) in the case of delivery by
hand, when delivered, (b) in the case of delivery by mail, three Business Days
after being deposited in the mails, postage prepaid or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been
electronically confirmed, addressed as follows in the case of the Borrower and
the Agents, and as set forth in Schedule 1.0 in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
parties hereto:
The Borrower: Global Signal Acquisitions LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
with a copy to: Global Signal Services LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent and Collateral Agent:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Funding Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.2, 2.3 and 3.3 shall not be effective
until received.
Notwithstanding the foregoing, with respect to the delivery of any documents
required under Sections 4.23, 4.28, 5.2(d), 6.1, 6.2 and 6.10 hereof or Section
11(a) of the Parent Guarantee, such documents may be delivered to any Agent or
Lender, as applicable, electronically at its address specified above or at the
email address(es) notified by it to the Borrower from time to time or through a
digital workspace provided by "Intralinks" or such other digital workspace
provider reasonably satisfactory to the Administrative Agent and with respect
to which each of the Agents and the Lenders have access. Unless so delivered by
such Loan Party, the Agents shall promptly forward copies of all notices it
receives from any Loan Party to the Lenders (which delivery may be effected
electronically pursuant to the immediately preceding sentence).
Section 10.3 No Waiver; Cumulative Remedies. No failure to exercise,
and no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Acquisition Loans hereunder.
Section 10.5 Indemnification and Expenses.
(a) The Borrower agrees to hold each Agent and each Lender harmless
from and indemnify each Agent and each Lender against all liabilities, losses,
damages, judgments, reasonable costs and expenses of any kind which may be
imposed on, incurred by or asserted against any Agent or any Lender relating to
or arising out of this Agreement, the Acquisition Note, any other Loan Document
or any transaction contemplated hereby or thereby, or any amendment, supplement
or modification of, or any waiver or consent under or in respect of, this
Agreement, the Acquisition Note, any other Loan Document or any transaction
contemplated hereby or thereby (collectively, the "Costs"), that, in each case,
results from anything other than such Agent's or such Lender's gross negligence
or willful misconduct. Without limiting the generality of the foregoing the
Borrower agrees to hold each Agent and each Lender harmless from and indemnify
each Agent and each Lender against all Costs relating to or arising out of any
violation or alleged violation of any environmental law, rule or regulation
that, in each case, results from anything other than such Agent's or Lender's
gross negligence or willful misconduct or relating to or arising out of any
breach, violation or alleged breach or violation of any consumer credit laws,
including without limitation the "Truth in Lending Act" 15 U.S.C. ▇▇.▇▇. 1601
et. seq. and/or the "Real Estate Settlement Procedures Act" 12 U.S.C. ▇▇.▇▇.
2601 et. seq. In any suit, proceeding or action brought by any Agent or any
Lender in connection with any Loan Document or any Acquisition Loan for any sum
owing thereunder, or to enforce any provisions of any Loan Document, the
Borrower will save, indemnify and hold such Agent or such Lender harmless from
and against all expense, loss or damage suffered by reason of any defense,
set-off, counterclaim, recoupment or reduction or liability whatsoever of the
account debtor or obligor thereunder, arising out of a breach by the Borrower
of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such account
debtor or obligor or its successors from the Borrower. The Borrower also agrees
to reimburse each Agent and each Lender as and when billed by such Agent and
such Lender for all such Agent's and such Lender's costs and expenses incurred
in good faith in connection with the enforcement or the preservation of such
Agent's and such Lender's rights under this Agreement, the Acquisition Note,
any other Loan Document or any transaction contemplated hereby or thereby,
including without limitation the reasonable fees and disbursements of its
counsel. The Borrower hereby acknowledges that, notwithstanding the fact that
the Acquisition Notes are secured by the Collateral, the obligation of the
Borrower under the Acquisition Notes are recourse obligations of the Borrower.
(b) The Borrower agrees to pay as and when billed by each Agent all
of the out-of-pocket costs and expenses incurred by such Agent in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the Acquisition Notes, any other
Loan Document or any other documents prepared in connection herewith or
therewith. The Borrower agrees to pay as and when billed by each Agent all of
the reasonable out-of-pocket costs and expenses incurred in connection with the
consummation and administration of the transactions contemplated hereby, and
thereby including without limitation (i) all the reasonable fees, disbursements
and expenses of counsel, (ii) all the due diligence, inspection, testing and
review costs and expenses incurred with respect to Collateral under this
Agreement, including, but not limited to, those costs and expenses incurred
pursuant to Sections 10.5(a) hereof. In addition, the Borrower agrees to pay as
and when billed by each Lender as of the Closing Date that is not an Agent all
of its reasonable out-of-pocket costs and expenses incurred in connection with
development, preparation and execution of the Loan Documents, including without
limitation all the reasonable fees, disbursements and expenses of counsel.
Section 10.6 Successors and Assigns; Participations and Assignments.
(a) Subject to subsection (c) of this Section 10.6, this Agreement
shall be binding upon and inure to the benefit of the Borrower, the Lenders,
the Administrative Agent and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender (and any
purported such assignment or transfer by the Borrower without the consent of
each Lender shall be null and void); provided, that in connection with a
securitization transaction involving all of the Towers owned by the Borrower
and its Subsidiaries and resulting in the payment in full of all Acquisitions
Loans and Obligations then owing by the Borrower and its Subsidiaries under
this Agreement and the other Loan Documents to the Agents and the Lenders, the
Borrower may assign and delegate its rights and obligations under this
Agreement and the other Loan Documents to a newly-formed, wholly-owned direct
Subsidiary of GSOP (a "New Borrower"), having assets, liabilities and all other
characteristics similar to Borrower on date hereof, and in all respects,
pursuant to documentation satisfactory to each Agent and each Lender in its
sole discretion, and upon such assignment and delegation this Agreement shall
continue and the New Borrower shall become the "Borrower" for all purposes of
this Agreement and the other Loan Documents and the Borrower hereunder shall be
released of its obligations thereunder. The Borrower and New Borrower shall
execute and deliver all such other documents and instruments, and take all such
other actions, as any of the Agents or the Lenders shall request in connection
with such assignment and delegation.
(b) Any Lender may, in accordance with applicable law, at any time
sell to one or more banks, financial institutions or other entities
("Participants") participating interests in any Acquisition Loan owing to such
Lender, the Acquisition Loan Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents; provided that
notwithstanding the foregoing, such Lender may not sell any such participating
interest to a direct competitor of the Borrower listed on Schedule 10.6. In the
event of any such sale by such Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Acquisition Loan for all purposes under this Agreement and
the other Loan Documents, and the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event
shall any Participant under any such participation have any right to approve
any amendment to or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or the stated
rate of interest on, the Acquisition Loans or any fees payable hereunder, or
postpone the date of the final maturity of the Acquisition Loans or
Reimbursement Obligations, in each case to the extent subject to such
participation.
(c) Any Lender may, in accordance with applicable law, at any time
and from time to time assign to any of its Affiliates or an Approved Fund or,
with the consent of the Administrative Agent and, so long as no Default or
Event of Default has occurred and is continuing, Global Signal (which shall not
be unreasonably withheld), to an additional bank, financial institution or
other entity (an "Assignee") all or any part of its rights and obligations
under this Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit R, appropriately completed (an
"Assignment and Acceptance"), executed by such Assignee, such assigning Lender
(and, in the case of an Assignee that is not then a Lender or an Affiliate
thereof, by the Borrower (if no Default or Event of Default shall have occurred
and be continuing) and the Administrative Agent), and attaching the Assignee's
relevant tax forms, administrative details and wiring instructions, and
delivered to the Administrative Agent for its acceptance and recording in the
Register; provided that notwithstanding the foregoing, such Lender may not
assign any of its rights and obligations under this Agreement and the other
Loan Document to a direct competitor of the Borrower listed on Schedule 10.6;
provided further, that (i) no such assignment to an Assignee shall be in an
aggregate principal amount of less than $10,000,000 (other than in the case of
an assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Administrative Agent (such amount to be aggregated in
respect of assignments by any Lender and the Affiliates or Approved Funds
thereof), (ii) in the case of an assignment by a Lender to a Bank CLO managed
by such Lender or an Affiliate of such Lender, unless, during such time as no
Default or Event of Default has occurred and is continuing, such assignment to
such Bank CLO has been consented to by the Borrower (such consent not to be
unreasonably withheld or delayed), the assigning Lender shall retain the sole
right (and such Bank CLO shall have no such right) to approve any amendment,
waiver or other modification of this Agreement or any other Loan Document;
provided that the Assignment and Acceptance between such Lender and such Bank
CLO may provide that such Lender will not, without the consent of such Bank
CLO, agree to any amendment, modification or waiver that requires the consent
of each Lender directly affected thereby pursuant to Section 10.1, and (ii)
each Assignee which is not a US Person shall comply with the provisions of
Section 3.10(f) (and such Assignee shall not be entitled to the benefits of
Section 3.10 unless such Assignee complies with such Section 3.10(f)). Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with an Acquisition Loan Commitment as set forth therein, and (y) the
assigning Lender thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (d) of this Section, the consent
of the Borrower shall not be required, and, unless requested by the Assignee
and/or the assigning Lender, new Acquisition Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in Section 8(f) shall have occurred and
be continuing. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.6 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with clause (b) of
this Section 10.6.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate or Approved Fund thereof, by the Borrower (to the
extent required hereunder) and the Administrative Agent), together with payment
by the Assignee or the assigning Lender to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance, and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(e) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in the Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement; provided that such Transferee shall have agreed to be bound
by the provisions of Section 10.15 hereof.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Acquisition Loans
and Acquisition Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, (i) any pledge or assignment by a Lender of any Acquisition
Loan or Acquisition Note to any Federal Reserve Bank in accordance with
applicable law, and (ii) any pledge or assignment by a Lender which is a fund
to its trustee for the benefit of such trustee and/or its investors to secure
its obligations under any indenture or Governing Documents to which it is a
party; provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for a Lender as a party hereto.
Section 10.7 Adjustments; Set-off. (a) If any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or part of
its Acquisition Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Acquisition Loans, or
interest thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender's
Acquisition Loans, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by
this Agreement and by law, upon the occurrence and during the continuance of an
Event of Default, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any Affiliate thereof to
or for the credit or the account of the Borrower. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
Section 10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission of signature pages hereto), and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent.
Section 10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agents or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the other Loan Documents.
Section 10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at
its address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
Section 10.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) the Agents and Lenders have no fiduciary relationship with or
duty to the Borrower arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Borrower and the
other Loan Parties, on one hand, and the Agents and Lenders, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby between
the Borrower and the Lenders or between the Borrower and the Agents.
Section 10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
Section 10.15 Confidentiality. Each Lender agrees to keep
confidential any written or oral information (a) provided to it by or on behalf
of the Borrower or any of its Subsidiaries pursuant to or in connection with
this Agreement or (b) obtained by such Lender based on a review of the books
and records of the Borrower or any of its Subsidiaries; provided that nothing
herein shall prevent any Lender from disclosing any such information (i) to any
Transferee or Assignee, or to any actual or prospective counterparty (or its
advisors) to any swap, credit derivative or other derivative transaction
relating to the Borrower and its obligations, which has signed a
confidentiality agreement containing the terms of this Section 10.15, (ii) to
its employees, directors, agents, attorneys, accountants and other professional
advisors who reasonably need to know such information in connection with such
Lender's rights and obligations under the Loan Documents and who have a duty to
keep such information confidential, (iii) upon the request or demand of any
examiner or other Governmental Authority having jurisdiction over such Lender,
(iv) in response to any order of any court or other Governmental Authority or
as may otherwise be required pursuant to any Requirement of Law, (v) which has
been publicly disclosed other than in breach of this Agreement, (vi) in
connection with the exercise of any remedy hereunder or (vii) to the National
Association of Insurance Commissioners, any nationally recognized statistical
rating agency or any other similar organization. Notwithstanding anything to
the contrary contained in this Agreement or any other Loan Document, all
persons may disclose to any and all persons, without limitations of any kind,
the purported or claimed U.S. federal income tax treatment of the Acquisition
Loans and other Obligations, any fact that may be relevant to understanding the
purported or claimed U.S. federal income tax treatment of the Acquisition Loans
and other Obligations, and all materials of any kind (including opinions or
other tax analyses) relating to such U.S. federal income tax treatment or fact.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
GLOBAL SIGNAL ACQUISITIONS LLC, as
Borrower
by: GLOBAL SIGNAL OPERATING
PARTNERSHIP, L.P., its Sole Member
by: GLOBAL SIGNAL GP LLC,
its Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSET FUNDING INC.,
as Administrative Agent and Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
LENDERS
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSET FUNDING INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President