Execution Version MANAGEMENT AGREEMENT among LMRK ISSUER CO. 2 LLC, LMRK PROPCO LLC and and LANDMARK INFRASTRUCTURE PARTNERS GP LLC, as Manager Dated as of November 30, 2017 Page
Exhibit 10.1
Execution Version
among
LMRK ISSUER CO. 2 LLC,
LMRK PROPCO LLC
and
LD TALL WALL III LLC
and
LANDMARK INFRASTRUCTURE PARTNERS GP LLC,
as Manager
Dated as of November 30, 2017
TABLE OF CONTENTS
Page | ||||||
SECTION 1. | Definitions | 1 | ||||
SECTION 2. | Appointment | 3 | ||||
SECTION 3. | Management Services | 3 | ||||
SECTION 4. | Administrative Services | 5 | ||||
SECTION 5. | Reporting | 6 | ||||
SECTION 6. | Other Services | 6 | ||||
SECTION 7. | Operation Standards | 7 | ||||
SECTION 8. | Authority of Manager | 7 | ||||
SECTION 9. | Operating Account; Receipts | 8 | ||||
SECTION 10. | Operating Budget and CapEx Budget | 9 | ||||
SECTION 11. | Operating Expenses and Capital Expenditures | 9 | ||||
SECTION 12. | Compensation | 10 | ||||
SECTION 13. | Employees | 11 | ||||
SECTION 14. | Books, Records, Inspections and Software | 11 | ||||
SECTION 15. | Insurance Requirements | 11 | ||||
SECTION 16. | Environmental | 12 | ||||
SECTION 17. | Cooperation | 12 | ||||
SECTION 18. | Representations and Warranties of Manager | 13 | ||||
SECTION 19. | Representations and Warranties of the Obligors | 15 | ||||
SECTION 20. | Permitted Activities; Limitation on Indebtedness | 16 | ||||
SECTION 21. | Removal or Substitution of Tenant Site Assets; Additional Asset Entities | 16 | ||||
SECTION 22. | Term of Agreement | 17 | ||||
SECTION 23. | Duties Upon Termination | 19 |
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SECTION 24. | [Reserved] | 19 | ||||
SECTION 25. | Indemnities | 19 | ||||
SECTION 26. | Miscellaneous | 20 |
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LIST OF SCHEDULES AND EXHIBITS | ||||
Schedule I | – | List of Tenant Site Assets | ||
Exhibit A | – | Initial Budget | ||
Exhibit B | – | Form of Manager Report | ||
Exhibit C | – | Form of Manager Extension Letter |
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THIS MANAGEMENT AGREEMENT (this “Agreement”) is entered into as of November 30, 2017 (the “Effective Date”) by and among LMRK Issuer Co. 2 LLC, a Delaware limited liability company (the “Issuer”), LMRK Propco LLC, a Delaware limited liability company (“Propco”) and LD Tall Wall III LLC, a Delaware limited liability company (“Tall Wall 3” and, together with Propco, the “Original Asset Entities” and, together with any entity that becomes a party hereto after the date hereof as an “Additional Asset Entity,” the “Asset Entities” and, the Asset Entities and the Issuer, collectively, the “Obligors”) and Landmark Infrastructure Partners GP LLC, a Delaware limited liability company (the “Manager”).
“Actual/360 Basis” shall mean the accrual of interest calculated on the basis of the actual number of days elapsed during the relevant period in a year assumed to consist of 360 days.
“Additional Asset Entity” shall have the meaning ascribed to it in the preamble hereto.
“Administrative Services” shall have the meaning specified in Section 4(a).
“Agreement” shall mean this Management Agreement, together with all amendments hereof and supplements hereto.
“Asset Entities” shall have the meaning ascribed to it in the preamble hereto.
“Available Funds” shall have the meaning specified in Section 26(f)(iii).
“Backup Manager” shall mean Wilmington Trust, National Association, and its successors and permitted assigns, pursuant to the Backup Management Agreement.
“Backup Management Agreement” shall mean the Backup Management Agreement, dated as of the date hereof, by and among the Issuer, the Manager, the Backup Manager and the Indenture Trustee.
“Budget” shall mean each of the Operating Budget and the CapEx Budget.
“Effective Date” shall have the meaning ascribed to it in the preamble hereto.
“Expiration Date” shall mean December 31, 2017, as such date may be extended from time to time pursuant to Section 22(a).
“Extension Notice” shall have the meaning specified in Section 22(a).
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“Indemnified Party” and “Indemnitor” shall mean the Manager (and its employees, directors, officers, agents, representatives and shareholders) and Obligors, respectively, as to Section 25(a) and shall mean the Obligors and Manager, respectively, as to Section 25(b).
“Indenture” shall mean the Indenture, dated as of the date hereof, among the Obligors and Wilmington Trust, National Association, as indenture trustee (the “Indenture Trustee”).
“Information” shall have the meaning specified in Section 26(h).
“Management Fee” shall have the meaning specified in Section 12.
“Management Services” shall have the meaning specified in Section 3.
“Manager” shall have the meaning ascribed to it in the preamble hereto.
“Manager Report” shall have the meaning specified in Section 3(e).
“Obligors” shall have the meaning ascribed to it in the preamble hereto.
“Operating Account” shall have the meaning specified in Section 9(a).
“Operation Standards” shall mean the standards for the performance of the Services set forth in Section 7.
“Original Asset Entities” shall have the meaning ascribed to it in the preamble hereto.
“Other Services” shall have the meaning specified in Section 6(a).
“Permitted Activities” shall have the meaning specified in Section 20.
“Permitted Investments” shall have the meaning specified in the Cash Management Agreement.
“Records” shall have the meaning specified in Section 14.
“Services” shall mean, collectively, the Management Services and the Administrative Services.
“Servicing Agreement” shall mean the Servicing Agreement, dated as of the date hereof, by and between the Indenture Trustee and Midland Loan Services, a division of PNC Bank, National Association (the “Servicer”).
“Sub-Manager” shall have the meaning specified in Section 26(d).
“Sub-Management Agreement” shall have the meaning specified in Section 26(d).
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“Successor Manager” shall have the meaning specified in Section 26(h).
“Term” shall have the meaning specified in Section 22.
(b) Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein and accounting terms partly defined herein, to the extent not defined, shall have the respective meanings given to them under GAAP as in effect from time to time;
(iii) “or” is not exclusive;
(iv) “including” means including without limitation;
(v) words in the singular include the plural and words in the plural include the singular;
(vi) all references to “$” are to United States dollars unless otherwise stated;
(vii) any agreement, instrument or statute defined or referred to in this Agreement or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein;
(viii) references to a Person are also to its permitted successors and assigns; and
(ix) 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.
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renewals of Tenant Leases on behalf of the Asset Entities in the ordinary course of business) and maintaining the Insurance Policies pursuant to Section 15 hereof. The Manager shall perform on behalf of each Asset Entity any obligation reasonably required of such Asset Entity pursuant to any Tenant Lease, Asset Agreement or other agreement related to the Tenant Site Assets (other than the payment of amounts due from the Asset Entities thereunder, which payments shall be paid out of the Operating Account as provided herein).
(d) Within two (2) Business Days of identification thereof, the Manager shall transfer all amounts deposited into the Lock Box Account and attributable to the Tenant Site Assets to the Collection Account.
(e) On the day that is four (4) Business Days prior to each Payment Date, the Manager shall furnish to the Issuer, the Servicer, the Indenture Trustee and the Backup Manager a report (the “Manager Report”) in substantially the form attached as Exhibit B with respect to the periods specified therein. In addition, the Manager shall provide to the Servicer an updated
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Tenant Lease database no less frequently than every six (6) months. The Manager shall, upon request, furnish such additional information pertaining to the Tenant Site Assets as each Rating Agency may reasonably request in writing, to the extent in the possession of the Manager or available to the Manager without undue burden or expense. The Manager shall, upon request in writing, furnish such additional information to the Servicer as the Servicer deems reasonably necessary to perform its duties under the Servicing Agreement, to the extent in the possession of the Manager or available to the Manager without undue burden or expense.
(f) In the event that the Manager has the right to terminate a Tenant Lease on the basis of a cross-default to a lease that is not a Tenant Lease, the Manager agrees not to terminate the related Tenant Lease unless the Manager reasonably believes (and certifies to the Servicer) that (1) there is a significant risk of the Tenant defaulting under the related Tenant Lease or (2) the Manager will be able to replace such Tenant Lease with a new Tenant Lease with an equal or greater term and after giving effect to such replacement, the pro forma Annualized Net Cash Flow with respect to the related Tenant Site Asset will be at least equal to the Annualized Net Cash Flow for such Tenant Site Asset immediately prior to the replacement.
SECTION 4. Administrative Services.
(a) During the Term of this Agreement, the Manager shall, subject to the terms hereof, provide to each Obligor the following administrative services in accordance with the Operation Standards (collectively, the “Administrative Services”):
(i) clerical, bookkeeping and accounting services, including maintenance of general records of the Obligors, as necessary or appropriate in light of the nature of the Obligors’ business and the requirements of the Indenture and the other Transaction Documents;
(ii) maintain accurate books of account and records of the transactions of each Obligor, render statements or copies thereof from time to time as reasonably requested by such Obligor;
(iii) prepare and file, or cause to be prepared and filed, all franchise, withholding, income and other tax returns of such Obligor required to be filed by it and arrange for any taxes owing by such Obligor to be paid to the appropriate authorities out of funds of such Obligor available for such purpose, all on a timely basis and in accordance with applicable law, rules or regulations;
(iv) administer such Obligor’s performance under the Indenture and the other Transaction Documents, including (A) preparing and delivering (or causing to be prepared and delivered) on behalf of such Obligor such Opinions of Counsel, Officers’ Certificates, reports, notices and other documents as are required under such Indenture and the other Transaction Documents and (B) holding, maintaining and preserving such Indenture and the other Transaction Documents and books and records relating to such Indenture and the other Transaction Documents and the transactions contemplated or funded thereby, and making such books and records available for inspection in accordance with the terms of such Indenture and the other Transaction Documents;
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(v) take all actions on behalf of such Obligor as may be necessary or appropriate in order for such Obligor to remain duly organized and qualified to carry out its business under applicable law, rules or regulations, including making all necessary or appropriate filings with federal, state and local authorities under corporate and other applicable statutes; and
(vi) manage all litigation instituted by or against such Obligor, including retaining on behalf of and for the account of such Obligor legal counsel to perform such services as may be necessary or appropriate in connection therewith and negotiating any settlements to be entered into in connection therewith; provided that, with respect to any such litigation that refers to any property interest of the Indenture Trustee, on behalf of the Noteholders, in litigation papers accompanying a summons as a result of the conveyance by an Asset Entity to the Indenture Trustee, the Manager shall act on behalf of the Indenture Trustee to manage such litigation and shall promptly advise the Indenture Trustee and the Servicer, what action, if any, the Manager is taking, or intends to take, in connection therewith; provided, further, the Manager shall answer and appear on the Indenture Trustee’s behalf, but in no event shall the Manager accept a default judgment to the extent the related proceeding asserts any personal or institutional claims against the Indenture Trustee without the consent of the Indenture Trustee; provided, further, that, during a Special Servicing Period, the Servicer shall be entitled to assume the rights and obligations of the Manager pursuant to this clause (vi).
(b) The Obligors acknowledge that, for tax purposes, the Manager will allocate the value of its services among the Obligors on a basis determined by the Manager in its reasonable discretion and the Obligors agree to be bound by such allocation and to file any required tax returns on a basis consistent with such allocation.
(a) The Manager may, subject to Section 6(b) below, provide to each Asset Entity marketing and leasing services in accordance with the Operation Standards (collectively, the “Other Services”). Such services may include marketing of Site Space, conducting diligence on potential new tenants and procuring Tenant Leases with third party customers for the Tenant Site Assets, including locating potential Tenants, negotiating Tenant Leases with such Tenants and executing or brokering Tenant Leases as agent and attorney-in-fact for the Asset Entities (including renewals, expansions, equipment changes, rental abatements, relocations, maintenance agreements, terminations and extensions of such Tenant Leases). To the extent that the Manager agrees to provide such services, the Manager shall have complete authority to negotiate all of the terms of each Tenant Lease, both economic and non-economic, as well as complete authority to negotiate and execute amendments and other modifications thereto in the
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name of or on behalf of the Asset Entities; provided, however, that the terms of any Tenant Lease or amendment or modification thereof shall be on commercially reasonable terms and in accordance with the Operation Standards. Notwithstanding the absence of an agreement to provide such services, the Asset Entities specifically authorize the Manager to develop, operate and maintain marketing materials, including an internet website, pursuant to which the Tenant Site Assets may be marketed as an integrated network (including other outdoor advertising sites owned or operated by the Manager or its Affiliates other than the Asset Entities), recognizing that such marketing efforts may not identify the particular Asset Entity related to a particular Tenant Site Asset.
(b) Any provision of Other Services to the Asset Entities by the Manager shall be subject to an additional agreement between the Manager and the Obligors, pursuant to which the Obligors shall agree to provide additional compensation to the Manager; provided that the obligation to pay any such additional compensation shall be limited to, and payable only from and to the extent of, funds otherwise available to the Obligors in accordance with Section 5.01(a)(xiv) of the Indenture.
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commenced by or against any Asset Entity. Each Asset Entity shall promptly execute such other or further documents as the Manager may from time to time reasonably request to more completely effect or evidence the authority of the Manager hereunder, including the delivery of such powers of attorney (or other similar authorizations) as the Manager may reasonably request to enable it to carry out the Services hereunder.
SECTION 9. Operating Account; Receipts.
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SECTION 11. Operating Expenses and Capital Expenditures.
(a) The Manager is hereby authorized to incur Operating Expenses and to make Capital Expenditures on behalf of the Asset Entities, the necessity, nature and amount of which may be determined in the Manager’s discretion in accordance with the Operation Standards. The Manager shall use commercially reasonable efforts to incur Operating Expenses and to make Capital Expenditures within the limits prescribed by the Budgets; provided that the Manager may at any time incur Operating Expenses and make Capital Expenditures in amounts that exceed the Operating Expenses or Capital Expenditures, as the case may be, specified in the applicable Budget if and to the extent that the Manager determines in accordance with the Operation Standards that it is necessary or advisable to do so.
(b) The Manager shall maintain accurate records with respect to each Tenant Site Asset reflecting the status of real estate and personal property taxes for Fee Sites, Insurance Premiums and other Operating Expenses payable in respect thereof and shall furnish to the Issuer and the Servicer from time to time such information regarding the payment status of such items as the Issuer or the Servicer may from time to time reasonably request. The Manager shall arrange for the payment of all such real estate and personal property taxes, Insurance Premiums and other Operating Expenses payable by the Asset Entities as the same become due and payable out of funds available for that purpose in the Impositions and Insurance Reserve Account (in the manner contemplated by Section 4.03 of the Indenture) or the Operating Account, as applicable. All Operating Expenses will be funded through the Impositions and Insurance Reserve Account or the Operating Account, as applicable, and the Manager shall have no obligation to subsidize, incur, or authorize any Operating Expense that cannot, or will not, be paid by or through the Impositions and Insurance Reserve Account or the Operating Account. If the Manager determines that the funds on deposit in the Impositions and Insurance Reserve Account and the Operating Account are not sufficient to pay all Operating Expenses related to the Tenant Site Assets as the same shall become due and payable, the Manager shall notify the Issuer, the
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Servicer and the Indenture Trustee of the amount of such deficiency and, subject to the applicable provisions of the Indenture and other Transaction Documents, the Obligors shall deposit the amount of such deficiency therein as soon as practicable. In the event of any such deficiency, the Manager may, in its sole discretion and in accordance with the Indenture, elect to pay such Operating Expenses out of its own funds, but shall have no obligation to do so. The Obligors, jointly and severally, shall be obligated to pay or reimburse the Manager for all such Operating Expenses paid by the Manager out of its own funds together with interest thereon at the Prime Rate (as such terms is defined in the Servicing Agreement) on an Actual/360 Basis, payable as an Additional Issuer Expense in accordance with Section 5.01(a)(iii) of the Indenture, and such reimbursement obligation shall survive the expiration of the termination of this Agreement.
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Indenture and other Transaction Documents. All such payments shall be applied in accordance with the Indenture and the other Transaction Documents or, if the Indenture and the other Transaction Documents do not specify an application, shall be deposited into the Operating Account. The Manager shall provide to the Indenture Trustee and the Servicer on behalf of the Obligors such evidence of insurance and payments of the premiums thereof required pursuant to the Obligors’ obligations under Section 7.05 of the Indenture.
(a) The Obligors hereby represent and warrant as to each Tenant Site Asset that none of the Obligors have Knowledge of any material violations of Environmental Laws at the related Tenant Site.
(b) The Manager shall not consent to the installation, use or incorporation into the Tenant Site Assets of any Hazardous Materials in violation of applicable Environmental Laws and shall not consent to the discharge, dispersion, release, storage, treatment, generation or disposal of any pollutants or toxic or Hazardous Materials in material violation of Environmental Law and covenants and agrees to take reasonable steps to comply in all material respects with the Environmental Laws.
(c) The Manager covenants and agrees (i) that it shall advise the Issuer, the Indenture Trustee, the Servicer and the Backup Manager in writing of each notice of any material violation of Environmental Law of which the Manager has Knowledge, promptly after the Manager obtains Knowledge thereof and (ii) to deliver promptly to the Issuer, the Indenture Trustee, the Servicer and the Backup Manager copies of all communications from any federal, state and local governmental authorities received by the Manager concerning any such violation and Hazardous Material on, at or about the Tenant Site Assets.
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(a) The Manager is a limited liability company, validly existing and in good standing under the laws of the State of Delaware.
(b) The Manager’s execution and delivery of, performance under, and compliance with this Agreement, will not violate the Manager’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a material breach of, any material agreement or other material instrument to which it is a party or by which it is bound.
(c) The Manager has the full power and authority to own its properties, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) Each Transaction Document to which the Manager is a party, assuming the due authorization, execution and delivery of such Transaction Document by each of the other parties thereto, constitutes a valid, legal and binding obligation of the Manager, enforceable against the Manager in accordance with the terms thereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) The Manager is not in violation of, and its execution and delivery of, performance under and compliance with each of the Transaction Documents to which it is a party will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Manager’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Manager to perform its obligations under the Transaction Documents to which it is a party or the financial condition of the Manager.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Manager of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained.
(g) No litigation is pending or, to the Manager’s Knowledge, threatened against the Manager that, if determined adversely to the Manager, would prohibit the Manager from entering into any of the Transaction Documents to which it is a party, or that, in the Manager’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of the Manager to perform its obligations under the Transaction Documents to which it is a party or the financial condition of the Manager.
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(i) The Manager (i) has not been found in violation of, charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act or any other United States law or regulation governing such activities (collectively, “Anti-Money Laundering Laws”) or any U.S. Economic Sanctions violations, (ii) is not, to the actual knowledge of the Manager, under investigation by any Governmental Authority for possible violation of Anti-Money Laundering Laws or any U.S. Economic Sanctions violations, (iii) has not been assessed civil penalties under any Anti-Money Laundering Laws or any U.S. Economic Sanctions, or (iv) has not had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.
(j)
(i) In the past five, years, the Manager (i) has not been charged with, or convicted of bribery or any other anti-corruption related offense under any applicable law or regulation in a U.S. or any non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Xxxxxxx Xxx 0000 (collectively, “Applicable Anti-Corruption Laws”), (ii) to the actual knowledge of the Manager, is not under investigation by any U.S. or non-U.S. Governmental Authority for possible violation of Applicable Anti-Corruption Laws, and (iii) has not been assessed civil or criminal penalties under any Applicable Anti-Corruption Laws.
(ii) To the actual knowledge of the Manager, the Manager has not, within the last five years, directly or indirectly offered, promised, given, paid, authorized, solicited, accepted, or received anything of value to or from any Person (including a Governmental Official or a commercial counterparty) for the purposes of: (i) improperly influencing any act, decision or failure to act, (ii) improperly inducing a Person to do or omit to do any act in violation of their duty, or (iii) improperly inducing a Person to use his or her influence to affect any act or decision; in each case in order to obtain, retain or direct business or to otherwise secure an improper advantage in material violation of any applicable law or regulation.
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(iii) The Manager has established policies and procedures which it reasonably believes are adequate to ensure that it will continue to be in material compliance with the Applicable Anti-Corruption Laws.
(a) Such Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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Additional Tenant Site Assets to an Asset Entity). Upon such substitution or property addition, the Obligors shall promptly deliver to the Manager (with a copy to the Servicer) an amended Schedule I reflecting the addition of such Tenant Site Assets. In addition, effective upon the accession to the Indenture of an Additional Asset Entity, such Additional Asset Entity shall become a party hereto as an Additional Asset Entity and the Additional Obligor Tenant Site Assets of such Additional Asset Entity shall become Tenant Site Assets managed hereunder. The Obligors shall promptly deliver to the Manager (with a copy to the Servicer) an amended Schedule I reflecting the addition of any such Tenant Site Assets, whereupon the Manager shall assume responsibility for the performance of the Management Services hereunder with respect to such Tenant Site Assets and Administrative Services with respect to such Additional Asset Entity.
SECTION 22. Term of Agreement.
(a) Term. This Agreement shall be in effect during the period (the “Term”) commencing on the date hereof and ending at 5:00 P.M. (New York time) on the Expiration Date, unless sooner terminated in accordance with the provisions of this Section 22. The Expiration Date under this Agreement may be extended from time to time at the option of the Issuer (or the Servicer on its behalf), acting in its sole and absolute discretion, for successive one (1) month periods (so that the Expiration Date is the last day of each calendar month) by written notice to that effect to the Manager (with a copy to the Indenture Trustee and the Backup Manager) from the Issuer (or the Servicer on its behalf), as the case may be, delivered on or prior to the then-current Expiration Date (an “Extension Notice”); provided that the Servicer shall not have the right to extend the Expiration Date after the payment in full of the Obligations. Each of the Obligors and the Manager agree that if the Issuer fails to deliver an Extension Notice to the Manager by the Expiration Date (or if such day is not a Business Day, on the following Business Day) the Manager shall, on such Expiration Date (or such subsequent Business Day), provide the Servicer (with a copy to the Indenture Trustee and the Backup Manager) with notice of such failure and the Servicer shall have ten (10) Business Days following its receipt of such notice to deliver an Extension Notice to the Manager, and notwithstanding the first sentence of this Section 22(a), this Agreement shall continue in effect for such ten (10) Business Days, unless the Servicer shall deliver a notice that it does not intend to deliver an Extension Notice. Upon the delivery of such Extension Notice, the Expiration Date shall be extended to the end of the month following the Expiration Date as in effect immediately prior to such Extension Notice. Upon delivery of an Extension Notice, the then-current Expiration Date shall be automatically extended to the date specified therein without any further action by any party.
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misconduct in connection with its performance hereunder or (iv) a default on the part of the Manager in the performance of its obligations hereunder, and with respect to clause (iv), such default could reasonably be expected to have a Material Adverse Effect and remains unremedied for thirty (30) days after the Manager receives written notice thereof from the Servicer (provided, however, if such default is reasonably susceptible of cure, but not within such thirty (30) day period, then the Manager may be permitted up to an additional ninety (90) days to cure such default provided that the Manager diligently and continuously pursues such cure).
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Manager, as the replacement Manager if the Backup Manager is then able to accept such appointment in accordance with the terms of the Backup Management Agreement. The Manager shall duly satisfy in all material respects all obligations hereunder and on its part to be fulfilled under or in connection with the Backup Management Agreement in connection with the appointment of the Backup Manager, including the performance of all obligations of the Manager until a replacement Manager’s appointment has become effective; provided that the Manager shall be entitled to the Management Fee during such period. If the Backup Manager is unable to act, and no Event of Default has occurred and is continuing, the Issuer shall require that the Manager be replaced with a Person chosen by the Issuer (or, if an Event of Default has occurred and is then continuing, the Servicer) and reasonably acceptable to the Servicer.
(f) The Issuer and the Manager each agree to give prompt written notice to the Backup Manager of the occurrence of any event or circumstance of which it has Knowledge that could reasonably be expected to lead to the Manager’s termination under Sections 21(b), (c) or (d) hereof.
SECTION 24. [Reserved]
(a) Each of the Obligors agrees to, jointly and severally, indemnify, defend and hold the Manager (including, for the avoidance of doubt, any replacement Manager) and its agents, officers and employees harmless from and against any and all suits, liabilities, damages, or claims (including any reasonable attorneys’ fees and other reasonable costs and expenses
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relating to any such suits, liabilities or claims), in any way relating to the Tenant Site Assets, the Manager’s performance of the Services hereunder, or the exercise by the Manager of the powers or authorities herein or hereafter granted to the Manager, except for those actions, omissions and breaches of Manager in relation to which the Manager has agreed to indemnify the Obligors pursuant to Section 25(b).
(b) The Manager agrees to indemnify, defend and hold the Obligors harmless from and against any and all suits, liabilities, damages, or claims for damages (including any reasonable attorneys’ fees and other reasonable costs and expenses relating to any such suits, liabilities or claims), in any way relating to (i) any acts or omissions of the Manager or its agents, officers or employees in the performance of the Services hereunder constituting fraud, gross negligence or willful misconduct or (ii) any material breach of any representation or warranty made by the Manager hereunder. If any legal action or other proceeding of any kind is brought for the enforcement of this Agreement or because of a default, misrepresentation, or any other dispute in connection with any provision of this Agreement or the Services, the successful or prevailing party shall be entitled to recover all fees and other costs incurred in such action or proceeding, in addition to any other relief to which it may be entitled.
(c) If any action or proceeding is brought against an Indemnified Party with respect to which indemnity may be sought under this Section 25, the Indemnitor, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel and payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in the defense thereof, but the Indemnitor shall not be required to pay the fees and expenses of such separate counsel unless such separate counsel is employed with the written approval and consent of the Indemnitor, which shall not be unreasonably withheld or refused.
(d) The indemnities in this Section 25 shall survive the expiration or termination of the Agreement.
(e) The indemnities payable under this Section 25 by the Obligors shall be subject to the availability of funds for such purpose in accordance with Section 5.01(a) of the Indenture.
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any amendment, supplement, or other modification to any other Transaction Document which is materially adverse to the Manager unless the Manager has consented thereto; however the Manager’s consent shall not otherwise be required as a condition for any such amendment, supplement, or other modification to be effective for all other purposes. No amendment, supplement, waiver or other modification of this Agreement which is or may reasonably be expected to be materially adverse to the Backup Manager shall be effective unless the Backup Manager has consented thereto; provided, however, that the Backup Manager’s consent shall not otherwise be required as a condition for any such amendment, supplement, or other modification to be effective for all other purposes.
(1) | To any Obligor: | c/o LMRK Issuer Co. 2 LLC | ||
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xx Xxxxxxx, XX 00000 | ||||
Attention: Xxxxxx Xxxxx | ||||
With copies to: | ||||
Landmark Infrastructure Partners LP | ||||
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
Attention: Legal Department | ||||
(2) | To Manager: | c/o Landmark Infrastructure Partners GP LLC | ||
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xx Xxxxxxx, XX 00000 | ||||
Attention: Xxxxxx Xxxxx | ||||
With copies to: | ||||
Landmark Infrastructure Partners LP | ||||
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xx Xxxxxxx, Xxxxxxxxxx 00000 | ||||
Attention: Legal Department |
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such purported assignment, transfer, or delegation shall be void; provided, however, that (i) the Obligors may assign this Agreement to the Indenture Trustee and grant a security interest in their rights and interests hereunder pursuant to the Indenture and the other Transaction Documents, (ii) the Manager may, in accordance with paragraph (d) below, delegate any of its obligations hereunder to one or more Sub-Managers pursuant to one or more Sub-Management Agreements and (iii) the Manager may, in accordance with the Operation Standards, utilize the services of third-party service providers , including Affiliates of the Manager, to perform all or any portion of its Services hereunder. Notwithstanding any such delegation or appointment of a third-party service provider, the Manager shall remain liable to the Obligors to the same extent as if the Manager were performing the Services alone, and the Manager agrees that no additional compensation shall be required to be paid by the Obligors in connection with any such delegation or third-party service provider. The Manager hereby acknowledges that all of the rights of the Obligors hereunder have been assigned to the Indenture Trustee as collateral security for the Obligations. The Indenture Trustee is an intended third party beneficiary of this Agreement.
(d) Sub-Management Agreements.
(i) The Manager may enter into one or more sub-management agreements (each, a “Sub-Management Agreement”) to provide for the performance by one or more third parties, including Affiliates of the Manager (each, a “Sub-Manager”) of any or all of its obligations hereunder, provided that any Sub-Management Agreement shall expressly or effectively provide that if the Manager shall for any reason no longer act in such capacity hereunder (including pursuant to Section 22(b)), any successor to the Manager hereunder (including the Backup Manager if the Backup Manager has become such successor pursuant to Section 22(e)) may thereupon either assume all of the rights and, except to the extent that they arose prior to the date of assumption, obligations of the Manager under such Sub-Management Agreement or alternatively, may terminate such rights and obligations, in either case without cause and without payment of any penalty or termination fee.
(ii) The Manager shall monitor the performance of its Sub-Managers under any Sub-Management Agreement.
(iii) The Manager will be solely liable for all fees owed by it to any Sub-Manager. Each Sub-Manager retained under the related Sub-Management Agreement will be reimbursed by the Manager for certain expenditures which it makes, generally to the same extent that the Manager would be reimbursed hereunder.
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(i) Notwithstanding anything herein to the contrary, neither the Manager nor any member, manager, director, officer, employee, shareholder or agent of the Manager shall be under any liability to the Obligors or any other Person for any action taken, or not taken, in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this provision shall not protect the Manager against any liability to the Obligors, the Servicer or the Indenture Trustee for the material breach of a representation or warranty made by the Manager herein or against any liability which would otherwise be imposed on the Manager solely attributable to the Manager’s fraud, gross negligence or willful misconduct in the performance of the Services hereunder.
(ii) Notwithstanding anything herein to the contrary, no party will be liable to any other for special, indirect, incidental, exemplary, consequential or punitive damages, or loss of profits, arising from the relationship of the parties or the conduct of business under, or breach of, this Agreement.
(iii) Notwithstanding any other provision of this Agreement or any rights which the Manager might otherwise have at law, in equity, or by statute, any liability of an Obligor to the Manager shall be satisfied only from such Obligor’s interest in the Tenant Site Assets, the Tenant Leases, the Asset Agreements, the Insurance Policies and the proceeds thereof, and then only to the extent that such Obligor has funds available to satisfy such liability in accordance with the Indenture, the Cash Management Agreement and the other Transaction Documents, (any such available funds being hereinafter referred to as “Available Funds”). In the event the Available Funds of an Obligor are insufficient to pay in full any such liabilities of an Obligor, the excess of such liabilities over such Available Funds shall not constitute a claim (as defined in the United States Bankruptcy Code) against such Obligor unless and until a proceeding of the type described in Section 26(j) is commenced against such Obligor by a party other than the Manager or any of its Affiliates.
(iv) No officer, director, employee, agent, shareholder, member, manager or Affiliate of any Obligor or the Manager (except, in the case of an Obligor, for Affiliates that are also Obligors hereunder) shall in any manner be personally or individually liable for the obligations of any Obligor or the Manager hereunder or for any claim in any way related to this Agreement or the performance of the Services.
(v) The provisions of this Section 26(f) shall survive the expiration or earlier termination of this Agreement (whether in whole or in part).
(g) Governing Law; Submission to Jurisdiction.
(i) THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(ii) EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF
23
MANHATTAN, THE CITY OF NEW YORK OR, IF SUCH FEDERAL COURTS DO NOT HAVE SUBJECT MATTER OR DIVERSITY JURISDICTION FOR A PARTICULAR PROCEEDING, IN THE STATE COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS AGREEMENT.
24
[SIGNATURE PAGES FOLLOW]
25
Manager: | ||||||
LANDMARK INFRASTRUCTURE PARTNERS GP LLC | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxxx X. Xxxxx | ||||||
Title: Authorized Representative | ||||||
Issuer and Obligor: | ||||||
LMRK ISSUER CO. 2 LLC | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxxx X. Xxxxx | ||||||
Title: Authorized Representative | ||||||
Original Asset Entities and Obligors: | ||||||
LMRK Propco LLC | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxxx X. Xxxxx | ||||||
Title: Authorized Representative | ||||||
LD Tall Wall III LLC | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxxx X. Xxxxx | ||||||
Title: Authorized Representative |
[Signature Page to Management Agreement]
SCHEDULE I
TENANT SITE ASSETS
[On file with Manager]
EXHIBIT B
FORM OF MANAGER REPORT
[See attached.]
Landmark Infrastructure Partners GP LLC — Monthly Report
Today’s Date (Date of Submission) | 11/29/2017 | |||
Beginning of Period | [ | ] | ||
End of Period | [ | ] |
PRINCIPAL NOTE BALANCE
Series 2017-1 | BOP Balance | Targeted Paydown | Unpaid Carryforward Amort from Previous | Actual Paydown | Unpaid Amort Amt | EOP Balance | Coupon | Interest Due | ||||||||||||||||||||||||
Series 2017-1 Class A | 62,000,000.00 | — | — | — | — | 62,000,000.00 | 4.100 | % | — | |||||||||||||||||||||||
Series 2017-1 Class B | 18,000,000.00 | — | — | — | — | 18,000,000.00 | 3.810 | % | — | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||||||||||||
Total | 80,000,000.00 | — | — | — | — | 80,000,000.00 | 4.035 | % | — | |||||||||||||||||||||||
TOTAL | 80,000,000.00 | — | — | — | — | 80,000,000.00 | 4.035 | % | — |
ACCOUNT BALANCES
Beginning of Period | End of Period | |||||||
Collection Account | — | — | ||||||
Impositions and Reserve Account | — | — | ||||||
Advance Rents Reserve Account | 1,208,100.00 | 1,208,100.00 | ||||||
Site Acquisition Account (if any) | 16,000,000.00 | 16,000,000.00 | ||||||
Yield Maintenance Reserve Account (if any) | 294,981.50 | 294,981.50 |
ANNUALIZED NET CASH FLOW
Current Period | ||||
Annualized Revenue (as defined in the Indenture) | — | |||
Annualized Net Cash Flow (=98.00% × Annualized Revenue) | — |
DSCR
DSCR = (a) over (b)
(a) Annualized Net Cash Flow | — | |||
(b) Sum of the following: | ||||
Next 12 months interest | — | |||
Per Annum Indenture Trustee Fee | — | |||
Per Annum Servicer Fee | — | |||
Less: Annualized Yield Maintenance Amount (if applicable) | — |
TRIGGERS
Requirement | Actual | Result | ||||||||||||||
Residual Cash Flow Partial Sweep (Class B Only) | DSCR | 1.75 | x | 0.00 | x | PASS/FAIL | ||||||||||
Residual Cash Flow Partial Sweep (Class A and B) | DSCR | 1.50 | x | 0.00 | x | PASS/FAIL | ||||||||||
Cash Trap Condition | DSCR | 1.30 | x | 0.00 | x | PASS/FAIL | ||||||||||
Amortization Period | DSCR | 1.15 | x | 0.00 | x | PASS/FAIL | ||||||||||
Manager Replacement | DSCR | 1.10 | x | 0.00 | x | PASS/FAIL |
SITE ACQUISITION ACCOUNT (if applicable)
Beginning of Period | Withdrawals | End of Period | ||||||||||
Site Acquisition Account (if any) | $ | 16,000,000 | $ | — | $ | 16,000,000 | ||||||
Yield Maintenance Account (if any) | $ | 294,977 | $ | — | $ | 294,977 | ||||||
Yield Maintenance Amount (current period) | $ | 294,977 | ||||||||||
Yield Maintenance Amount (remaining Site Acquisition Period) |
| $ | 294,977 | |||||||||
Weighted Average Note Rate | 4.03 | % | ||||||||||
Months left in Site Acquisition Period | 6 months | |||||||||||
Amount to be released to, or at discretion of Issuer | $ | — |
TENANT QUALITY TESTS
Requirement | Actual | Result | ||||
A.) Minimum Annualized Revenue for all Tenant Site Assets attributed to Mortgaged Tenant Site Assets | 90% | % | PASS/FAIL | |||
B.) Minimum Annualized Revenue for all Tenant Site Assets attributed to Tenant Sites for which all Tenant Site Assets would be senior to recorded mortgage or for which non-disturbance agreements have been obtained. | 85% | % | PASS/FAIL | |||
C.) Minimum weighted average annualized rent escalator for all Tenant Leases calculated on the basis of Annualized Revenues | 1.45% | % | PASS/FAIL | |||
D.) Maximum percentage of Annualized Revenue for all Tenant Site Assets that is attributed to Clear Channel | 39.50% | % | PASS/FAIL | |||
E.) Maximum percentage of Annualized Revenue for all Tenant Site Assets that is attributed to Outfront Media | 33.00% | % | PASS/FAIL | |||
F.) Maximum percentage of Annualized Revenue for all Tenant Site Assets that is attributed to Xxxxx Advertising Company | 15.00% | % | PASS/FAIL | |||
G.) Minimum weighted average Final Remaining Tenant Lease Term with respect to all Tenant Leases | 25.00 years | [ ] years | PASS/FAIL | |||
H.) Minimum weighted remaining term for all Tenant Site Assets (assuming that remaining term for all fee sites is equal to 99 years) | 75.00 years | [ ] years | PASS/FAIL | |||
I.) Minimum percentage of aggregate Annualized Revenue for all Tenant Sites that is attributable to Prepaid Sites | 80.00% | % | PASS/FAIL | |||
J.) Maximum percentage of aggregate Annualized Revenue for the top 5 Tenant Leases by annualized revenue under such Tenant Leases | 25.00% | % | PASS/FAIL | |||
K.) Minimum percentage of aggregate Annualized Revenue for all Tenant Site Assets that is attributable to Tenant Site Assets located in the largest 100 BTAs | 90.00% | % | PASS/FAIL |
EXHIBIT C
FORM OF MANAGER EXTENSION LETTER
[See attached.]
LMRK ISSUER CO. 2 LLC
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxxxx, XX 00000
LANDMARK INFRASTRUCTURE PARTNERS GP LLC
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxxxx, XX 00000
[ ], 2017
Re: | Extension of Management Agreement, dated as of November 30, 2017, by and among the LMRK |
Issuer Co. 2 LLC (the “Issuer”), the Asset Entities from time to time party thereto and Landmark
Infrastructure Partners GP LLC, as manager (the “Manager”)
Dear | [ ]: |
Reference is made to the Management Agreement, dated as of November 30, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Management Agreement”), by and among the LMRK Issuer Co. 2 LLC (the “Issuer”), the Asset Entities from time to time party thereto and Landmark Infrastructure Partners GP LLC, as manager (the “Manager”). Capitalized terms not defined herein shall have the meanings set forth in the Management Agreement.
Pursuant to Section 22(a) of the Management Agreement, the initial Term of the Management Agreement was scheduled to expire at 5:00 P.M. (New York time) on [ ] (the “Initial Expiration Date”), which Term may be extended from time to time at the option of the Issuer, for successive one (1) month periods by written notice by the Issuer to that effect to the Manager on or prior to the then-current Expiration Date (an “Extension Notice”).
Pursuant to Section 22(a) of the Management Agreement, the Issuer hereby notifies you that the Issuer has elected to extend the term of the Management for an additional one (1) month period (so that the Expiration Date is the last day of the calendar month following the date of the Initial Expiration Date). The new Expiration Date will be [ ].
[Remainder of Page Intentionally Blank; Signature Page Follows]
Very truly yours, | ||
LMRK ISSUER CO. 2 LLC | ||
By: |
| |
Name: | ||
Title: |
Copies to:
Wilmington Trust, National Association
0000 X. Xxxxxx Xx., 0xx Xxxxx
Xxxxxxxxxx, XX 00000
xxxxxxxx@xxxxxxxxxxxxxxx.xxx
Midland Loan Services, a divison of PNC Bank, National Association
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx XX 00000 XXX
Xxxxxx.Xxxxxxx@xxxxxxxxx.xxx
[Signature Page to Extension Notice]