Exhibit 10.2
EXECUTION COPY
PARENT GUARANTEE
PARENT GUARANTEE, dated as of April 25, 2005, made among Global
Signal Inc., a Delaware corporation ("Global Signal") and Global Signal
Operating Partnership, L.P., a Delaware limited partnership ("GSOP", and
together with Global Signal, the "Guarantors"), and Xxxxxx Xxxxxxx Asset
Funding Inc., as collateral agent (the "Collateral Agent") for the lenders
under the Credit Agreement referred to below.
RECITALS
Pursuant to the Acquisition Credit Agreement, dated as of April 25,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Global Signal Acquisitions LLC
(the "Borrower"), Xxxxxx Xxxxxxx Asset Funding Inc., as administrative agent
and collateral agent, and the lenders from time to time parties to the Credit
Agreement (the "Lenders"), the Lenders have agreed to make loans to the
Borrower upon the terms and subject to the conditions set forth therein, such
loans to be evidenced by the Acquisition Notes issued by the Borrower
thereunder. As of the date hereof, the Guarantors own, directly or indirectly,
100% of the equity interests of the Borrower. The Guarantors will derive
substantial direct and indirect benefit from the making of the loans to the
Borrower under the Credit Agreement. It is a condition precedent to the
obligation of the Lenders to make loans to the Borrower under the Credit
Agreement that the Guarantors shall have executed and delivered this Parent
Guarantee to the Collateral Agent.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to enter into the Credit Agreement and to induce the Lenders to make
loans to the Borrower under the Credit Agreement, the Guarantors hereby agree
with the Collateral Agent for the benefit of the Agents and the Lenders as
follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement. In addition, the following terms shall have the following meaning:
"Xxxx Xxxxx" means Sprint Corporation, a Kansas
corporation, together with certain Subsidiaries thereof or one or
more newly formed Subsidiaries of Sprint Corporation to be party to
the Xxxx Xxxxx Transaction Agreement, as the context may require.
"Xxxx Xxxxx Indebtedness" means, as to any Person at any
date, Indebtedness of such Person incurred in connection with the
consummation of the Xxxx Xxxxx Transaction; provided, however, that
such Indebtedness is incurred under a financing or other financial
accommodation provided to such Person by Bank of America, N.A., or
any of its Affiliates, and Xxxxxx Xxxxxxx Asset Funding Inc., or any
of its Affiliates.
"Xxxx Xxxxx Transaction" means a transaction in which one
or more Subsidiaries of the Guarantors (as a designee of Global
Signal) acquires a 32-year master lease of, or right to operate,
approximately sixty-six hundred Towers (as that term is defined in
the Xxxx Xxxxx Transaction Agreement) and related co-location
agreements from Xxxx Xxxxx pursuant to the Xxxx Xxxxx Transaction
Agreement.
"Xxxx Xxxxx Transaction Agreement" means the Agreement to
Contribute, Lease and Sublease, dated February 14, 2005, between
Global Signal and Xxxx Xxxxx pursuant to which Global Signal and Xxxx
Xxxxx agree to consummate the Xxxx Xxxxx Transaction.
"Consolidated Indebtedness" means, for the definition of
Global Signal Default only, any Person and its consolidated
Subsidiaries at such time, the aggregate Indebtedness (as defined in
the GSOP Credit Agreement) of such Person and its consolidated
Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Consolidated EBITDA" means, for the definition of Global
Signal Default only, with respect to Global Signal and its
consolidated Subsidiaries for any period of determination, the sum
(determined on a consolidated basis), without duplication, of (a) net
income for such period, plus (b) amortization, accretion and
depreciation for such period, plus (c) interest expense (determined
in accordance with GAAP) for such period, plus (d) actual taxes based
on income for such period, plus (e) extraordinary losses for such
period, including losses on early extinguishment of debt, minus (f)
extraordinary gains for such period, plus (g) losses on foreign
currency exchange for such period, minus (h) gains on foreign
currency exchange for such period, plus (i) non-cash charges
associated with stock based compensation expense, plus (j) non-cash
accrued straight-line rent expense recorded under SFA 13. For
purposes of clauses (b) through (j) above, such amounts shall be
deducted from, or added to, net income, in each case only to the
extent such amounts were included in the calculation of net income.
"Excluded Subsidiary" means each of the Borrower, Global
Signal Acquisitions II LLC, Global Signal Holdings I LLC, Global
Signal Holdings II LLC, Global Signal Holdings III LLC, Global Signal
Services LLC, Towers Xxxxx LLC and Towers Xxxxx II LLC, Pinnacle
Towers and each of their respective Subsidiaries.
"Excluded Subsidiaries" means, collectively, each
Excluded Subsidiary.
"Global Signal Default" means any of the following:
(i) at any time, the Consolidated Indebtedness of Global
Signal and its consolidated Subsidiaries shall exceed $1,005,000,000, or
after taking into effect any Xxxx Xxxxx Indebtedness, $1,800,000,000;
provided that any such Xxxx Xxxxx Indebtedness is permitted pursuant to
the GSOP Credit Agreement, which amount shall be inclusive of all
Consolidated Indebtedness with respect to the securitization of any
Towers of Global Signal and/or its Subsidiaries;
(ii) at any time, the ratio of (1) Debt for Borrowed Money of
Global Signal and its Subsidiaries on a consolidated basis at such time
to (2) Consolidated EBITDA for the period of 12 consecutive calendar
months ended at or most recently prior to such time shall be greater than
7.00:1.00, or after taking into effect any Xxxx Xxxxx Indebtedness,
7.65:1.00; provided that any such Xxxx Xxxxx Indebtedness is permitted
pursuant to the GSOP Credit Agreement; provided, further that the
calculation of Consolidated EBITDA shall be adjusted to annualize the
financial results of Towers owned, leased or managed for less than one
year as follows: (A) the Consolidated EBITDA attributed to any Tower
owned, leased or managed for less than one year but greater than or equal
to one month shall be the Consolidated EBITDA 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 (B) the Consolidated EBITDA for Towers owned for less
than one month shall be the estimated annual Consolidated EBITDA for such
Towers based upon the budgeted annualized results of such Towers
determined in a manner reasonably acceptable to Xxxxxx Xxxxxxx Asset
Funding Inc., as administrative agent, and adjusted to reflect the
financial results of such Towers on a consolidated basis (as opposed to a
stand-alone per Tower basis); and
(iii) Global Signal or any of its Subsidiaries shall fail to
timely file all tax returns that are required to be filed by it or timely
pay all Taxes due, 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;
provided, however, that capitalized terms used in this definition (except
for Consolidated EBITDA and Consolidated Indebtedness) shall have the
meaning given to them in the GSOP Credit Agreement.
"GSOP Credit Agreement" means the GSOP Credit Agreement
as defined in the Credit Agreement as in effect as of the date
hereof, without giving effect to any amendment, waiver or other
modifications unless approved in writing by the Administrative Agent
or the Required Lenders.
"Guarantee Obligations" has the meaning given that term
in the GSOP Credit Agreement.
"Indebtedness" has the meaning given that term in the
GSOP Credit Agreement.
"Intercompany Note" means an intercompany note in favor
of a Guarantor in the amount equal to any loans made by a Guarantor
to any directly owned Subsidiary pursuant to Section 11(d), in each
case in form and substance reasonably satisfactory to the
Administrative Agent.
"Leased Property" means all real property that is leased
or occupied pursuant to an easement by a Guarantor and its respective
Subsidiaries, in each case, together with all fixtures and
appurtenances thereon.
"Pinnacle Towers" means Pinnacle Towers Acquisition
Holdings LLC, a Delaware limited liability company.
"Pinnacle Towers Securitization Agreement" means the
Amended and Restated Loan and Security Agreement dated as of December
7, 2004 by and among Pinnacle Towers, the other borrower parties and
Towers Xxxxx II LLC, as lender, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Tower" means (i) any wireless communication towers
owned, leased or managed (or to be owned, leased or managed) by a
Guarantor or its Subsidiaries, including any rooftop or other sites
owned, leased or managed by a Guarantor or its Subsidiaries, together
with any real estate, fixtures and appurtenances that accompany the
towers, rooftops or other sites, and (ii) any fee simple interest or
long-term easement in or on any real property on which wireless
communications are built.
"Tower Properties" mean any fee interest, leasehold
interest or easement interest in any real property that supports a
Tower.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Parent Guarantee shall refer to this Parent Guarantee
as a whole and not to any particular provision of this Parent Guarantee, and
section and paragraph references are to this Parent Guarantee unless otherwise
specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guarantee.
(a) Each Guarantor hereby jointly and severally, unconditionally and
irrevocably, guarantees to the Collateral Agent (on behalf of and for the
benefit of the Agents and the Lenders) and its successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by
the Borrower and each other Loan Party when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, including all such
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
ss.362(a), and the operation of Sections 502(b) and 506(b) (together with all
fees, costs and expenses described in Section 2(c) below being hereinafter
collectively called the "Guaranteed Liabilities")
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under
the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all reasonable
expenses (including, without limitation, all fees and disbursements of
counsel) which may be paid or incurred by the Collateral Agent in enforcing,
or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Guaranteed Liabilities and/or enforcing any
rights with respect to, or collecting against, such Guarantor under this
Parent Guarantee. This Parent Guarantee shall remain in full force and effect
until the Guaranteed Liabilities are paid in full and the Acquisition Loan
Commitment is terminated, notwithstanding that from time to time prior thereto
the Borrower may be free from any Guaranteed Liabilities.
(d) Each Guarantor agrees that the Guaranteed Liabilities may at any
time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing this Parent Guarantee or affecting the
rights and remedies of the Collateral Agent hereunder.
(e) No payment or payments made by the Borrower, any Guarantor, any
other Loan Party or any other guarantor or any other Person or received or
collected by the Collateral Agent from the Borrower, any Guarantor, any other
Loan Party or any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or
from time to time in reduction of or in payment of the Guaranteed Liabilities
shall be deemed to modify, reduce, release or otherwise affect the liability
of any Guarantor hereunder, which shall, notwithstanding any such payment or
payments other than payments received or collected from such Guarantor in
respect of the Guaranteed Liabilities, remain liable for the Guaranteed
Liabilities up to the maximum liability of such Guarantor hereunder until the
Guaranteed Liabilities are paid in full and the Acquisition Loan Commitment is
terminated.
3. Right of Set-off. Upon the occurrence and during the continuance
of any Event of Default, each Guarantor hereby irrevocably authorizes the
Collateral Agent at any time and from time to time without notice to such
Guarantor, any such notice being expressly waived by such Guarantor, to
set-off and appropriate and apply 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 the Collateral Agent to or for the credit or the account of such
Guarantor, or any part thereof in such amounts as the Collateral Agent may
elect, against and on account of the obligations and liabilities of such
Guarantor to the Collateral Agent hereunder and claims of every nature and
description of the Collateral Agent against such Guarantor, in any currency,
arising hereunder, under the Credit Agreement, the Acquisition Notes or any
other Loan Document, as the Collateral Agent may elect, whether or not the
Collateral Agent has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The
Collateral Agent shall notify the Guarantors promptly of any such set-off and
the application made by the Collateral Agent, provided that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of the Collateral Agent under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Collateral Agent may have.
4. No Subrogation. Notwithstanding any payment or payments made by
the Guarantors hereunder, no Guarantor shall be entitled to be subrogated to
any of the rights of the Collateral Agent or any Lender against the Borrower
or other guarantor or any collateral security or guarantee or right of offset
held by the Collateral Agent or any Lender for the payment of the Guaranteed
Liabilities, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Loan Party or any
guarantor in respect of payments made by such Guarantor hereunder, in each
case until all amounts owing to the Lenders and the Agents by the Borrower on
account of the Guaranteed Liabilities are paid in full and the Acquisition
Loan Commitments are terminated. If any amount shall be paid to any Guarantor
on account of such subrogation rights at any time when all of the Guaranteed
Liabilities shall not have been paid in full and the Acquisition Loan
Commitments shall not have terminated, such amount shall be held by such
Guarantor in trust for the Collateral Agent (on behalf of the Agents and the
Lenders), segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Collateral Agent in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Collateral Agent, if required), to be applied against the Guaranteed
Liabilities, whether matured or unmatured, in such order as the Collateral
Agent may determine.
5. Amendments, Etc. with Respect to the Guaranteed Liabilities;
Waiver of Rights. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against such Guarantor
and without notice to or further assent by such Guarantor, any demand for
payment of any of the Guaranteed Liabilities made by the Collateral Agent, the
Administrative Agent or any Lender may be rescinded by the Collateral Agent,
the Administrative Agent or such Lender, as the case may be, and any of the
Guaranteed Liabilities continued, and the Guaranteed Liabilities, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released by the
Collateral Agent, and the Credit Agreement, the Acquisition Notes and the
other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Collateral Agent, the Administrative Agent and/or the
Lenders may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Collateral Agent, the
Administrative Agent or any Lender for the payment of the Guaranteed
Liabilities may be sold, exchanged, waived, surrendered or released. The
Collateral Agent shall not have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Guaranteed
Liabilities or for this Parent Guarantee or any property subject thereto. When
making any demand hereunder against any Guarantor, the Collateral Agent may,
but shall be under no obligation to, make a similar demand on the Borrower or
any other Loan Party or guarantor, and any failure by the Collateral Agent to
make any such demand or to collect any payments from the Borrower or any such
other Loan Party or guarantor or any release of the Borrower or such other
Loan Party or guarantor shall not relieve such Guarantor of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Collateral Agent against
such Guarantor. For the purposes hereof, "demand" shall include the
commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Liabilities and notice of or proof of reliance by the Collateral
Agent, the Administrative Agent or any Lender upon this Parent Guarantee or
acceptance of this Parent Guarantee or the Guaranteed Liabilities, and any of
them shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Parent Guarantee; and all dealings between the Borrower, any Guarantor and/or
any other Loan Party, on the one hand, and the Collateral Agent, the
Administrative Agent and/or any Lender, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Parent Guarantee. Each Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the
Borrower, any Guarantor or any other Loan Party with respect to the Guaranteed
Liabilities. Each Guarantor understands and agrees that this Parent Guarantee
shall be construed as a continuing, absolute and unconditional guarantee of
payment, without regard to (a) the validity, regularity or enforceability of
the Credit Agreement, the Acquisition Notes or any other Loan Document, any of
the Guaranteed Liabilities or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Collateral Agent, the Administrative Agent or any Lender, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Loan Party against the Collateral Agent, the
Administrative Agent or any Lender or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower, any Guarantor or any
other Loan Party) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower or any other Loan Party for the
Guaranteed Liabilities, or of any Guarantor under this Parent Guarantee, in
bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against any Guarantor, the Collateral Agent may, but shall be under
no obligation to, pursue such rights and remedies as it may have against the
Borrower, any other Loan Party or any other Person or against any collateral
security or guarantee for the Guaranteed Liabilities or any right of offset
with respect thereto, and any failure by the Collateral Agent (or the
Administrative Agent or any Lender) to pursue such other rights or remedies or
to collect any payments from the Borrower, any other Loan Party or any such
other Person or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of the Borrower, any
other Loan Party or any such other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Collateral Agent
against any Guarantor. This Parent Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
each Guarantor and the successors and assigns thereof, and shall inure to be
benefit of the Collateral Agent and its successors, indorsees, transferees and
assigns, until all of the Guaranteed Liabilities shall have been satisfied by
payment in full and the Acquisition Loan Commitments shall have been
terminated, notwithstanding that from time to time during the term of the
Credit Agreement the Borrower and the other Loan Parties may be free from any
of the Guaranteed Liabilities.
7. Reinstatement. This Parent Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Guaranteed Liabilities is rescinded or must
otherwise be restored or returned by the Collateral Agent, the Administrative
Agent or the Lenders upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower, any other Loan Party, any Guarantor or any
other guarantor of the Guaranteed Liabilities, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower, any Loan Party or any Guarantor or any substantial
part of their respective property, or otherwise, all as though such payments
had not been made.
8. Not Affected by Bankruptcy. Notwithstanding any modification,
discharge or extension of the Guaranteed Liabilities or any amendment,
modification, stay or cure of the Collateral Agent's, the Administrative
Agent's or any Lender's rights which may occur in any bankruptcy or
reorganization case or proceeding against the Borrower, any other Loan Party
or any Guarantor or any other guarantor, whether permanent or temporary, and
whether or not assented to by the Collateral Agent, the Administrative Agent
or the Lenders, each Guarantor hereby agrees that it shall be obligated
hereunder to pay and perform all of its obligations under this Parent
Guarantee in accordance with its terms (without regard to any such
modification, discharge or extension of the Guaranteed Liabilities of the
Borrower or any other Loan Party or such other guarantor thereunder). Without
in any way limiting the generality of the foregoing, any subsequent
modification of the Guaranteed Liabilities in any reorganization case
concerning the Borrower or any other Loan Party (other than such Guarantor)
shall not affect the obligation of such Guarantor to pay and perform the
Guaranteed Liabilities in accordance with the original terms thereof.
9. Payments. Each Guarantor hereby agrees that payments hereunder
will be paid to the Collateral Agent without set-off or counterclaim in U.S.
Dollars at the office of the Collateral Agent specified in Section 10.2 of the
Credit Agreement.
10. Representations and Warranties. Each Guarantor hereby makes each
of the representations and warranties set forth in Sections 4.6, 4.7, 4.9,
4.10, 4.11, 4.13, 4.17 and 4.21(g) of the Credit Agreement with respect to
itself and its Subsidiaries (other than the Borrower and its Subsidiaries),
mutatis mutandis. Global Signal further makes the representations and
warranties set forth in Section 4.1(a) of the Credit Agreement. In addition,
each Guarantor hereby represents and warrants that:
(a) each of it and its consolidated Subsidiaries (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the requisite corporate, company or
partnership 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, (iii) is duly qualified as a
foreign corporation or limited liability company, 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 (iv) is in compliance with all Requirements of Law, except,
other than with respect to due organization and valid existence, 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;
(b) it has the corporate, limited liability company or partnership
power and authority, as the case may be, and the legal right, to make, deliver
and perform this Parent Guarantee and has taken all necessary corporate,
limited liability company or partnership action, as the case may be, to
authorize the execution, delivery and performance of this Parent Guarantee. 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 execution, delivery, performance, validity or
enforceability of this Parent Guarantee. This Parent Guarantee has been duly
executed and delivered on behalf of such Guarantor. This Parent Guarantee
constitutes a legal, valid and binding obligation of such Guarantor
enforceable against such Guarantor 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;
(c) the execution, delivery and performance of this Parent Guarantee
will not violate any Requirement of Law or Contractual Obligation of such
Guarantor 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);
(d) no consent or authorization of, filing with, notice to, or other
act by or in respect of, any Governmental Authority or any other Person
(including, without limitation, any stockholder or creditor of such Guarantor)
is required in connection with the execution, delivery, performance, validity
or enforceability of this Parent Guarantee;
(e) Global Signal has not engaged in any material "prohibited
transactions" as defined in Section 857(b)(6)(B)(iii) and (C) of the Code.
Global Signal is for its current "tax year" (as defined in the Code) and for
all prior tax years subsequent to its election to be a real estate investment
trust has been entitled to a dividends paid deduction under the requirements
of Section 857 of the Code with respect to any dividends paid by it with
respect to each such year for which it claims a deduction in its Form
1120-REIT filed with the United States Internal Revenue Service for such year;
(f) neither Global Signal, nor any other Guarantor nor any of their
respective 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 Guarantor,
threatened against Global Signal, any other Guarantor 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 the knowledge of each Guarantor,
threatened against Global Signal, any other Guarantor or any of their
respective Subsidiaries; and (c) no union representation question existing
with respect to employees of Global Signal, any other Guarantor or any of
their respective Subsidiaries and no union organizing activities are taking
place with respect to any thereof; and
(g) Global Signal, each other Guarantor and each of their respective
Subsidiaries have, with respect to their respective properties and businesses,
insurance maintained with financially sound and reputable insurance companies
in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
Each Guarantor agrees that the foregoing representations and warranties shall
be deemed to have been made by it on the date of each borrowing by the
Borrower under the Credit Agreement on and as of such date of borrowing as
though made hereunder on and as of such date (except to the extent that such
representations and warranties relate to an earlier date, in which case such
representations and warranties shall have been true as of such date).
11. Covenants. Each Guarantor hereby covenants and agrees with the
Collateral Agent that, from and after the date of this Parent Guarantee until
the Guaranteed Liabilities are paid in full and the Acquisition Loan
Commitments are terminated:
(a) Financial Information.
(i) Global Signal shall, as soon as practical, but in any
event within 95 days after the end of each fiscal year of Global Signal
commencing with the year ending on December 31, 2004, deliver to the
Agents and the Lenders 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;
(ii) Global Signal shall, 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 commencing with
the quarterly period ending on March 31, 2005, deliver to the Agents and
the Lenders 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 Global Signal 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);
(iii) Global Signal shall, concurrently with the delivery of
the financial statements referred to in clauses (i) and (ii) of this
Section, deliver to the Agents and the Lenders a certificate of a
Responsible Officer of Global Signal stating that, to the best of such
Responsible Officer's knowledge, each of the Loan Parties 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; and
(iv) Global Signal shall deliver to the Agents and the Lenders
(to the extent not available on Global Signal's website xxx.xxxxxxx.xxx)
(A) within five days after the same are sent, copies of all financial
statements and reports which Global Signal sends to its stockholders, (B)
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, and (C) such other additional financial
information that the Agents or any Lender may from time to time
reasonably request;
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). Neither Global Signal nor any of its Subsidiaries shall fail to
timely file all tax returns that are required to be filed by it or timely pay
all Taxes due, 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) Global Signal Default. Global Signal shall not, and shall not
permit any of its Subsidiaries to, cause, or permit to exist, a Global Signal
Default.
(c) Maintenance of Property; Insurance. Each Guarantor and its
Subsidiaries (other than Excluded Subsidiaries) shall (i) keep all of their
respective property that is material to the condition of their respective
businesses in good working order and condition, ordinary wear and tear
excepted, (ii) maintain with financially sound and reputable insurance
companies insurance on all of their respective property in at least such
amounts and against at least such risks (but including in any event public
liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar businesses,
and (iii) furnish to the Collateral Agent, upon written request, information
as to the insurance carried in reasonable detail.
(d) Notices. Each Guarantor shall, upon any officer thereof obtaining
knowledge of any of the following, promptly give the Collateral Agent notice
of:
(i) the occurrence of any Default or Event of Default;
(ii) any (A) default or event of default under any Contractual
Obligation of such Guarantor or any of their respective Subsidiaries, to
the extent known by such Guarantor or (B) litigation, investigation or
proceeding which may exist at any time between such Guarantor or any of
their respective 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;
(iii) any litigation or proceeding affecting such Guarantor or
any of its Subsidiaries in which the amount involved is $5,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought that, if enforced, would be of similar impact;
(iv) the following events, as soon as possible and in any
event within 30 days after such Guarantor knows or has reason to know
thereof: (A) 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 (B) the institution of
proceedings or the taking of any other action by the PBGC or such
Guarantor or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization
or Insolvency of, any Plan; and
(v) 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 of such Guarantor providing such notice
setting forth details of the occurrence referred to therein and stating what
action is proposed to be taken with respect thereto.
(e) Environmental Matters. Each Guarantor and its Subsidiaries shall
comply with all applicable Environmental Laws and 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 any of the foregoing could not be
reasonably expected to have a Material Adverse Effect.
(f) [reserved].
(g) Fundamental Changes of Global Signal. Global Signal shall not
convey, sell, lease, assign, transfer or otherwise dispose of, all or
substantially all of its property, business or assets.
(h) Fundamental Changes of GSOP. Neither GSOP nor any of its
Subsidiaries shall 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 enter
into any business, either directly or through any Subsidiary (except for those
businesses in which GSOP or any of its Subsidiaries are engaged, or proposed
to be engaged, on the date hereof or which are directly related hereto),
except:
(i) any such Subsidiary may be merged or consolidated
with or into GSOP (provided that the GSOP shall be the continuing or
surviving entity) or with or into any one or more wholly owned
Subsidiaries of GSOP (provided that such wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving entity);
(ii) any such Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to GSOP or any other wholly owned
Subsidiary of GSOP;
(iii) the merger of GSOP or any such Subsidiary of GSOP
with or into Global Signal or a Subsidiary of Global Signal so long
as each Lender determines (in its sole discretion) that such merger
is not adverse to its interests and provides written notice of the
same to GSOP;
(iv) the merger of any such Subsidiary with or into
another Person pursuant to an Acquisition, provided that concurrently
therewith the requirements of Section 6.11(b) of the GSOP Credit
Agreement with respect thereto are satisfied; and
(v) the dissolution of Concorde Swindon Limited.
(i) Limitation on Negative Pledges. GSOP shall not, and shall not
permit any of its Subsidiaries (other than Excluded Subsidiaries) to, enter
into with any Person any agreement, other than the Loan Documents, which
prohibits or limits the ability of GSOP or any of its Subsidiaries (other than
Excluded 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, except as required under the Pinnacle Towers Securitization
Agreement.
(j) Limitation on Guarantee Obligations. GSOP shall not, or shall not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Guarantee Obligation, other than (i) this Parent Guarantee, (ii) Guarantee
Obligations to third parties in respect of liabilities (other than
Indebtedness) of Subsidiaries of GSOP incurred in the ordinary course of
business, (iii) Guarantee Obligations of any Excluded Subsidiaries, (iv) any
Subsidiary Guarantee under the Credit Agreement and (v) Guarantee Obligations
in respect of any Xxxx Xxxxx Indebtedness.
(k) Limitation on Indebtedness. GSOP shall not, nor shall GSOP permit
any of its Subsidiaries (other than Excluded Subsidiaries) to, create, incur,
assume or suffer to exist any Indebtedness, except:
(i) Indebtedness of GSOP under this Parent Guarantee;
(ii) Indebtedness of GSOP under the GSOP Credit
Agreement;
(iii) Indebtedness of GSOP or any of its Subsidiaries to
GSOP or any of its Subsidiaries, provided that such Indebtedness of
any directly owned Subsidiary to GSOP is evidenced by an Intercompany
Note and pledged to the Collateral Agent and subordinated to the
Obligations on terms and conditions reasonably satisfactory to the
Required Lenders;
(iv) [reserved];
(v) [reserved];
(vi) any Guarantee Obligation permitted under Section
11(j);
(vii) earnouts payable to the seller party in connection
with any Acquisition; and
(viii) any Indebtedness of Pinnacle Towers Limited and
its Subsidiaries permitted under the Parent Guarantee (as defined in
the GSOP Credit Agreement).
(l) Liens. GSOP shall not, or shall not permit any of its
Subsidiaries (other than Excluded Subsidiaries) to, create, incur, assume or
suffer to exist any Lien upon any of its respective property, assets or
revenues, whether now owned or hereafter acquired, except for:
(i) 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 GSOP or
its Subsidiaries, as the case may be, in conformity with GAAP;
(ii) 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;
(iii) 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;
(iv) easements, rights-of-way, licenses, restrictions,
encroachments and other similar encumbrances incurred in the ordinary
course of the business of GSOP or any of its 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 GSOP and any of its
Subsidiaries, taken as a whole, or (2) impair the use or operations
of the Tower Properties, taken as a whole;
(v) Liens created by lease agreements, statute or common
law to secure the payments of rental amounts and other sums not yet
due thereunder;
(vi) Liens on Leased Property created by an owner or
lessor thereof;
(vii) Licenses, sublicenses, leases or subleases granted
by GSOP or any of its Subsidiaries in the ordinary course of each of
their respective businesses and not expressly prohibited by any
provision of this Parent Guarantee or any other Loan Document and not
materially interfering with the conduct of the business of GSOP or
any of its Subsidiaries;
(viii) Liens created pursuant to the Security Documents;
(ix) 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 by GSOP and/or any of its Subsidiaries
permitted under any Finance Agreement which secure an amount not to
exceed at any time $12,000,000 in the aggregate;
(x) Liens on Indebtedness of Pinnacle Towers Limited and
its Subsidiaries permitted pursuant to Section 11(k)(ix);
(xi) 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; and
(xii) Liens securing the payment of any Xxxx Xxxxx
Indebtedness.
(m) Limitation on Distributions.
(i) GSOP shall not, or shall not permit any of its
Subsidiaries (other than Excluded Subsidiaries) to, 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 GSOP or any of such
Subsidiaries 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 GSOP or a Subsidiary
thereof, except, (A) distributions in cash or other property to the
extent required to satisfy the REIT Distribution Requirement, and,
(B) so long as no Event of Default then exists or would result
therefrom, (1) equity distributions as consideration for the
transactions contemplated by Section 11(g) and Section 11(h), (2) in
addition to and without duplication of dividends paid under clause
(A) of this Section, ordinary quarterly dividends to the holders of
the Capital Stock of GSOP or any of its Subsidiaries in an amount
reasonably comparable to ordinary quarterly dividends customarily
declared (including increases in such dividends consistent, in terms
of the percentage of such increase, with past practices) by the Board
of Directors of Global Signal, and (3) distributions of cash to the
extent necessary to pay the ordinary operating expenses of Global
Signal, provided that the aggregate amount of such distributions made
pursuant to this subclause (3) from the Closing Date shall not exceed
$2,000,000; and
(ii) GSOP shall not enter into any derivative or other
transaction with any financial institution, commodities or stock
exchange or clearinghouse (a "Derivatives Counterparty") obligating
GSOP or any Subsidiary (other than Excluded Subsidiaries) thereof 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 (i) and (ii) above,
being herein called "Restricted Payments").
12. Global Signal Effectiveness. This Parent Guarantee shall not be
effective as to Global Signal until the Global Signal Guarantee Date
referenced in Section 6.13 of the Credit Agreement. Upon the Global Signal
Guarantee Date, this Parent Guarantee shall be effective as to Global Signal
as an original signatory hereto.
13. GSOP Effectiveness. This Parent Guarantee shall be effective
against Global Signal Operating Partnership. L.P. as of the date hereof,
without regard to the occurrence of the Global Signal Guarantee Date, or the
failure of Global Signal to execute and deliver this Parent Guarantee prior to
the Global Signal Guarantee Date.
14. Notices. All notices, requests and demands to or upon the
Collateral Agent or any Guarantor to be effective shall be in writing (or by
telex, fax or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (1) when delivered by hand, (2) if
given by mail, three Business Days after being deposited in the mails by
certified mail, return receipt requested or (3) if by telex, fax or similar
electronic transfer, when sent and receipt has been confirmed, addressed as
follows:
(a) if to the Collateral Agent, at its address or transmission number
for notices provided in Section 10.2 of the Credit Agreement; and
(b) if to a Guarantor, at its address or transmission number for
notices set forth under its signature below.
The Collateral Agent and any Guarantor may change its address and
transmission numbers for notices by notice in the manner provided in this
Section.
15. Severability. Any provision of this Parent Guarantee 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.
16. Integration. This Parent Guarantee represents the agreement of
the Guarantors with respect to the subject matter hereof and there are no
promises or representations by the Collateral Agent relative to the subject
matter hereof not reflected herein.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Parent Guarantee may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by each Guarantor and the Collateral Agent; provided that
any provision of this Parent Guarantee may be waived by the Collateral Agent
in a written instrument executed by the Collateral Agent.
(b) The Collateral Agent shall not by any act (except by a written
instrument pursuant to Section 17(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Agent of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The section headings used in this Parent
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
19. Successors and Assigns. This Parent Guarantee shall be binding
upon the successors and assigns of the Guarantors and shall inure to the
benefit of the Collateral Agent, the Administrative Agent, the Lenders and
their respective successors and assigns.
20. GOVERNING LAW. THIS PARENT GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
21. Submission To Jurisdiction; Waivers. Each Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Parent Guarantee, 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 such Guarantor at
its address set forth under its signature below or at such other address of
which the Collateral Agent shall have been notified pursuant hereto;
(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 xxx 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.
22. Acknowledgments. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Parent Guarantee;
(b) neither the Collateral Agent, the Administrative Agent, nor any
Lender have any fiduciary relationship with or duty to such Guarantor arising
out of or in connection with this Parent Guarantee or the other Loan
Documents, and the relationship between the Guarantors, the Borrower and the
other Loan Parties, on one hand, and Collateral Agent, the Administrative
Agent and the 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 any other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Guarantors, the Borrower, any of the other Loan Parties, the Collateral
Agent, the Administrative Agent or the Lenders.
23. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS PARENT GUARANTEE OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this Parent
Guarantee to be duly executed and delivered by its duly authorized officer as
of the day and year first above written.
[SIGNATURE PAGES FOLLOW]
GLOBAL SIGNAL OPERATING PARTNERSHIP, L.P.,
as Guarantor
by: Global Signal GP LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
Address for Notices:
--------------------
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
with a copy to: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
GLOBAL SIGNAL INC.,
as Guarantor
By:
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President of Corporate
Development and Operations
Address for Notices:
--------------------
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
with a copy to: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXXXX XXXXXXX ASSET FUNDING INC.,
as Collateral Agent
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: VP
Address for Notices:
--------------------
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Fax: (000) 000-0000
