Tenant Leases Seller has attached hereto as Schedule 4.5 true, correct and complete descriptions of the Tenant Leases and has delivered to Purchaser true, correct and complete copies of the Tenant Leases described on the attached Schedule 4.5. Seller is the original lessor (or has validly succeeded to the rights of the original lessor) under each Tenant Lease. Seller will assign its interests in each Tenant Lease to Purchaser at Closing free and clear of all liens and encumbrances, excepting only the Permitted Exceptions. Except for the rights of each Tenant, as tenant only, pursuant to each Tenant Lease, no Person other than Purchaser will on the Closing Date be in, or have any right or claim to, possession of any of the Assets, except the Permitted Exceptions. Other than the Tenant Leases, there are no leases, subleases, licenses or other occupancy agreements (written or oral) which grant any possessory interest in or to any Tower or Tower Site, or which grant any other rights with respect to the use of any of the Assets, except the Permitted Exceptions. Furthermore, Seller represents and warrants that: (a) each Tenant Lease is in full force and effect and has not been modified, terminated or non-renewed; (b) each Tenant has accepted and remains in possession of its premises under its Tenant Lease (except as set forth on Schedule 4.5(b)); (c) Seller is collecting the rent and other charges set forth in each Tenant Lease on a current basis and there are no past due amounts thereunder (except as set forth on Schedule 4.5(c)); (d) no Tenant under any Tenant Lease is entitled to any rental concessions or abatements in rent for any period subsequent to the Closing Date (except as set forth on Schedule 4.5(d)); (e) Seller has not given notice to a Tenant claiming that a Tenant is in default under each Tenant Lease, and, to Seller’s Knowledge, there is no event which, with the giving of notice or the passage of time or both, would constitute such a default; (f) Seller has not received notice from a Tenant claiming that Seller is in default under the applicable Tenant Lease, which default or defect remains in any manner uncured; (g) Seller has not received notice from a Tenant asserting any Claims, offsets or defenses of any nature whatsoever to the performance of its obligations under any Tenant Lease and, to Seller’s Knowledge, there is no event which, with the giving of notice or the passage of time or both, would constitute the basis of such Claim, offset or defense; (h) except as expressly set forth in any Tenant Lease, there are no security deposits or prepaid rentals under each Tenant Lease; (i) no Tenant Lease provides for non-cash or in-kind rent or other consideration to the lessor; (j) no Tenant is an Affiliate of Seller; (k) no Tenant Lease has been transferred, assigned, encumbered or pledged as collateral by Seller, except for monetary liens that will be paid by Seller at Closing; and (l) Seller has no Knowledge of any facts which would prevent Purchaser from co-locating additional tenants on the Tower.
Ground Lease (a) Each Ground Lease contains the entire agreement of the Borrower or the applicable Subsidiary Guarantor and the applicable owner of the fee interest in such Unencumbered Property (the “Fee Owner”), pertaining to the Unencumbered Property covered thereby. With respect to Unencumbered Property subject to a Ground Lease, the Borrower and the applicable Subsidiary Guarantors have no estate, right, title or interest in or to the Unencumbered Property except under and pursuant to the Ground Lease or except as may be otherwise approved in writing by Agent. The Borrower has delivered a true and correct copy of the Ground Lease to the Agent and the Ground Lease has not been modified, amended or assigned, with the exception of written instruments that have been recorded in the applicable real estate records for such Unencumbered Property. (b) The applicable Fee Owner is the exclusive fee simple owner of the Unencumbered Property, subject only to the Ground Lease and all Liens and other matters disclosed in the applicable title policy for such Unencumbered Property subject to the Ground Lease, and the applicable Fee Owner is the sole owner of the lessor’s interest in the Ground Lease. (c) There are no rights to terminate the Ground Lease other than the applicable Fee Owner’s right to terminate by reason of default, casualty, condemnation or other reasons, in each case as expressly set forth in the Ground Lease. (d) Each Ground Lease is in full force and effect and, to 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 Ground Lease (a “Ground Lease Default”) exists or has occurred on the part of a Borrower or a Subsidiary Guarantor or on the part of a Fee Owner under any Ground Lease. All base rent and additional rent, if any, due and payable under each Ground Lease has been paid through the date hereof and neither Borrower nor any Subsidiary Guarantor is required to pay any deferred or accrued rent after the date hereof under any Ground Lease. Neither Borrower nor a Subsidiary Guarantor has received any written notice that a Ground Lease Default has occurred or exists, or that any Fee Owner or any third party alleges the same to have occurred or exist. (e) The Borrower or applicable Subsidiary Guarantor is the exclusive owner of the ground lessee’s interest under and pursuant to each Ground Lease and has not assigned, transferred or encumbered its interest in, to, or under the Ground Lease, except to Agent under the Loan Documents.