MANAGEMENT AGREEMENT among LMRK ISSUER CO. LLC, LD ACQUISITION COMPANY 8 LLC, LD ACQUISITION COMPANY 9 LLC and LD ACQUISITION COMPANY 10 LLC and LANDMARK INFRASTRUCTURE PARTNERS GP LLC, as Manager Dated as of June 16, 2016

Exhibit 10.1

 

Execution Version

 

 

 

MANAGEMENT AGREEMENT

 

among

 

LMRK ISSUER CO. LLC,

 

LD ACQUISITION COMPANY 8 LLC,

 

LD ACQUISITION COMPANY 9 LLC

 

and

 

LD ACQUISITION COMPANY 10 LLC

 

and

 

LANDMARK INFRASTRUCTURE PARTNERS GP LLC,

 

as Manager

 

Dated as of June 16, 2016

 

 

 


 

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

 

8

 

 

 

 

SECTION 11.

Operating Expenses and Capital Expenditures

 

9

 

 

 

 

SECTION 12.

Compensation

 

10

 

 

 

 

SECTION 13.

Employees

 

10

 

 

 

 

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

 

12

 

 

 

 

SECTION 19.

Representations and Warranties of the Obligors

 

13

 

 

 

 

SECTION 20.

Permitted Activities; Limitation on Indebtedness

 

14

 

 

 

 

SECTION 21.

Removal or Substitution of Tenant Site Assets; Additional Asset Entities

 

15

 

 

 

 

SECTION 22.

Term of Agreement

 

16

 

 

 

 

SECTION 23.

Duties Upon Termination

 

17

 

i


 

SECTION 24.

[Reserved]

 

18

 

 

 

 

SECTION 25.

Indemnities

 

18

 

 

 

 

SECTION 26.

Miscellaneous

 

19

 

ii


 

LIST OF SCHEDULES AND EXHIBITS

 

Schedule I – List of Tenant Site Assets

 

Exhibit A – Initial Budget

 

Exhibit B – Form of Manager Report

 

iii


 

MANAGEMENT AGREEMENT

 

THIS MANAGEMENT AGREEMENT (this “Agreement”) is entered into as of June 16, 2016 (the “Effective Date”) by and among LMRK Issuer Co. LLC, a Delaware limited liability company (the “Issuer”), LD Acquisition Company 8 LLC, a Delaware limited liability company (“LDAC 8”), LD Acquisition Company 9 LLC, a Delaware limited liability company (“LDAC 9”) and LD Acquisition Company 10 LLC, a Delaware limited liability company (“LDAC 10” and, together with LDAC 8 and LDAC 9, 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”).

 

SECTION 1.                            Definitions.

 

(a)                                 Defined Terms.  All capitalized terms used in this Agreement and not defined herein shall have the meanings ascribed to them in the Indenture.  As used in this Agreement, the following terms shall have the following meanings:

 

“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 Deutsche Bank Trust Company Americas, 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 July 31, 2016, as such date may be extended from time to time pursuant to Section 22(a).

 

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“Extension Notice” shall have the meaning specified in Section 22(a).

 

“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 Deutsche Bank Trust Company Americas, 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).

 

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“Sub-Management Agreement” shall have the meaning specified in Section 26(d).

 

“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; references to a Person are also to its permitted successors and assigns; and

 

(viii)                        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.

 

SECTION 2.                            Appointment.  On the terms and conditions set forth herein, each Obligor hereby engages the Manager to perform the Services as described herein.  The Manager hereby accepts such engagement.  The Manager is an independent contractor, and nothing in this Agreement or in the relationship of any Obligor with the Manager shall constitute a partnership, joint venture or any other similar relationship.

 

SECTION 3.                            Management Services.  During the Term, the Manager shall, subject to the terms hereof, perform those functions reasonably necessary to maintain, manage and administer the Tenant Site Assets (collectively, the “Management Services”), all in accordance with the Operation Standards.  Without limiting the generality of the foregoing, the Manager will have the following specific duties in relation to the Tenant Site Assets:

 

3


 

(a)                                 Tenant Site Asset Operations.  The Manager shall monitor and manage each Asset Entity’s property rights associated with the Tenant Site Assets (including negotiating 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).

 

(b)                                 Administration of Tenant Leases.  The Manager shall, on behalf of the Asset Entities, (i) maintain a database of the Tenant Leases indicating, for each Tenant Lease, the amount of all payments due from the Tenant thereunder and the dates on which such payments are due, (ii)  invoice all Rents and Receipts due under the Tenant Leases and otherwise with respect to the Tenant Site Assets, in each case to the extent required by such agreements and licenses, and use commercially reasonable efforts to collect all such Receipts and Rents and other amounts due under the Tenant Leases and otherwise, (iii) managing delinquencies and defaults under the Tenant Leases, (iv) perform all services required to be performed by the Asset Entities under the terms of the Tenant Leases and (v) otherwise use commercially reasonable efforts to ensure compliance on the part of the Asset Entities with the terms of the Transaction Documents and each Asset Agreement and Tenant Lease, all in accordance with the Operation Standards.  Each Asset Entity hereby authorizes the Manager to take any action the Manager deems to be necessary or appropriate to enforce the terms of the Transaction Documents and each Asset Agreement and Tenant Lease in accordance with the Operation Standards, including the right to exercise (or not to exercise) any right such Asset Entity may have to collect Rent and other amounts due under the Asset Agreements or Tenant Leases (whether through judicial proceedings or otherwise), to terminate any Tenant Lease, Asset Agreement or to evict any Tenant.  The Manager shall also have the right, in accordance with the Operation Standards, to compromise, settle and otherwise resolve claims and disputes with regard to the Asset Agreements and Tenant Leases.  The Manager may agree to any modification, waiver or amendment of any term of, forgive any payment on, and permit the release of any Tenant on, any Asset Agreement or Tenant Lease pertaining to the Tenant Site Assets as it may determine to be necessary or appropriate in accordance with the Operation Standards.

 

(c)                                  Compliance with Law, Etc.  The Manager will take such actions within its reasonable control as may be necessary to comply in all material respects with any and all laws, ordinances, orders, rules, regulations, requirements, permits, licenses, certificates of occupancy, statutes and deed restrictions applicable to the Tenant Site Assets.  The cost of complying with this paragraph shall be the responsibility of the Asset Entities, shall be considered an Operating Expense, shall be included in the Operating Budget and shall be payable out of the Operating Account.

 

(d)                                 Within two (2) Business Days of receipt, the Manager shall transfer all amounts deposited into the Lock Box Account and attributable to the Tenant Site Assets (other than Shared Rent, which will be transferred at the direction of the Manager to the applicable party entitled thereto) to the Collection Account.

 

4


 

(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 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.

 

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;

 

(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

 

5


 

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.

 

SECTION 5.                            Reporting.  The Manager shall maintain full and accurate books of accounts and other records reflecting the results of the operations of the Tenant Site Assets on a consolidated basis and shall deliver to the Indenture Trustee and the Servicer (in a form reasonably satisfactory to the Servicer) within forty-five (45) days after the end of each calendar month, commencing with the month of June, reports of Operating Expenses (presented on a monthly and year to date basis).

 

SECTION 6.                            Other Services.

 

(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 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

 

6


 

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 telecommunication facilities 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.

 

SECTION 7.                            Operation Standards.  The Manager shall perform the Services in accordance with and subject to the terms of the Indenture and the other Transaction Documents, the Tenant Leases, the Asset Agreements and applicable law, rules or regulations and, to the extent consistent with the foregoing, (i) using the same degree of care, skill, prudence and diligence that the Manager employed in the management of Tenant Site Assets prior to the date hereof and, to the extent applicable, that the Manager uses for other similar assets it manages and (ii) with the objective of timely collections of Rents under the Tenant Leases.  The Manager hereby acknowledges that it has received a copy of the Indenture and the other Transaction Documents and agrees not to take any action or fail to take any action within its control that would cause the Obligors to be in default thereunder.  The services performed in relation to the Tenant Site Assets shall be of a scope and quality not less than those generally performed by professional managers performing services consistent with those required of the Manager under this Agreement for assets similar in type and quality to the Tenant Site Assets that are located in the same geographical market areas as the Tenant Site Assets.

 

SECTION 8.                            Authority of Manager.  During the Term, the parties recognize that the Manager will be acting as the exclusive agent of the Obligors with regard to the Services described herein.  Each Asset Entity hereby grants to the Manager the exclusive right and authority, and hereby appoints the Manager as its true and lawful attorney-in-fact, with full authority in the place and stead of such Asset Entity and in the name of such Asset Entity, to negotiate, execute, implement, amend or terminate, as circumstances dictate, for and on behalf of such Asset Entity, any and all Tenant Leases, Asset Agreements, contracts, permits, licenses, registrations, approvals, amendments and other instruments, documents and agreements as the Manager deems necessary or advisable in accordance with the Operation Standards.  The Manager will also have the authority to enforce, terminate and compromise disputes under all Tenant Leases, Asset Agreements and all other agreements and documents, as the Manager deems necessary and desirable.  In addition, the Manager will have full discretion in determining (subject to the Operation Standards and subject to the limitations set forth in Section 4(a)(vi)) whether to commence litigation on behalf of an Asset Entity, and will have full authority to act on behalf of each Asset Entity in any litigation proceedings or settlement discussions 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

 

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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.

 

(a)                                 Operating Account.  On or prior to the Effective Date, the Manager shall establish, and at all times during the Term of this Agreement shall maintain, one or more operating bank accounts in the name of an Asset Entity or on behalf of one or more Asset Entities (such account or accounts being the “Operating Account”).  The Asset Entities shall deposit or cause to be deposited funds received in accordance with Sections 5.01(a)(v) and 5.01(a)(vii) of the Indenture into the Operating Account for the payment of Capital Expenditures and Operating Expenses (other than Impositions and Insurance Premiums that are to be paid from (and to the extent of) available cash on deposit in the Impositions and Insurance Reserve Account pursuant to the Indenture) in accordance with the amounts and timing set forth in the Budget.  At all times during the Term of this Agreement the Manager shall have full access to the Operating Account for the purposes set forth herein, and all checks or disbursements from the Operating Account will require only the signature of the Manager.  Funds may be withdrawn by the Manager from the Operating Account only (i) to pay Operating Expenses and Capital Expenditures in accordance with the terms hereof, (ii) to withdraw amounts deposited in error and (iii) if the Manager determines, in accordance with the Operation Standards, that the amount on deposit in the Operating Account exceeds the amount required to pay the Operating Expenses and Capital Expenditures as the same become due and payable, to make such other distributions as the Issuer may direct.  The Manager may direct any institution maintaining the Operating Account to invest the funds held therein in one or more Permitted Investments as the Manager may select in its discretion.  All interest and investment income realized on funds deposited therein shall be deposited to the Operating Account.

 

(b)                                 Receipts.  The Manager shall cause all Receipts to be deposited directly into the applicable Lock Box Account as required by the Indenture and the other Transaction Documents.  The Manager acknowledges that the Obligors are obligated under the Transaction Documents to direct all Tenants and other Persons obligated to pay any Rents and Receipts directly to the applicable Lock Box Account for deposit into the Collection Account.  The Manager agrees to comply (and to cooperate with the Asset Entities in complying) with such requirements and directions, and the Manager agrees to give no direction to any Tenant or other Person in contravention of such requirements or directions, nor otherwise to cause any Rents or Receipts to be paid to the Asset Entities, the Manager or any other Person, whether at the direction of the Asset Entities or otherwise.  In the event the Manager shall for any reason receive any Receipts, the Manager shall deposit the same within four (4) Business Days of receipt into the applicable Lock Box Account.  The Manager hereby disclaims any and all interests in each of the Accounts and in any of the Receipts.  Upon written notice from the Indenture Trustee or the Servicer that an Event of Default has occurred under the Indenture or the other Transaction Documents, the Manager agrees to apply Receipts as instructed by the Servicer.

 

SECTION 10.                     Operating Budget and CapEx Budget.  Contemporaneously with the execution and delivery of this Agreement, the Manager and the Obligors have agreed on an initial Operating Budget and CapEx Budget for the period beginning on May 1, 2016 through the

 

8


 

end of calendar year 2016, copies of which are attached as Exhibit A.  On or before December 15 of each year, commencing in 2017, the Manager shall deliver to the Issuer and the Servicer (and if so requested by the Indenture Trustee promptly upon the Indenture Trustee’s request) an Operating Budget and CapEx Budget for the following calendar year (in each case presented on a monthly and annual basis).  The Operating Budget shall identify and set forth the Manager’s reasonable estimate of all Operating Expenses on a line-item basis consistent with the form of Operating Budget attached as Exhibit A subject to the limitations set forth in Section 7.02(b) of the Indenture.  Each of the parties hereto acknowledges and agrees that the Operating Budget and the CapEx Budget represent estimates only, and that actual Operating Expenses and Capital Expenditures may vary from those set forth in the applicable Budget.  In the event the Manager determines, in accordance with the Operation Standards, that the actual Operating Expenses or Capital Expenditures for any year will materially differ from those set forth in the applicable Budget for such year, the Manager may, subject to the Indenture and the other Transaction Documents, modify or supplement such Budget in its discretion to reflect such differences.

 

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 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

 

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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.

 

SECTION 12.                     Compensation.  In consideration of the Manager’s agreement to perform the Services during the Term hereof, the Obligors hereby jointly and severally agree to pay to the Manager a fee (the “Management Fee”), for each Collection Period, equal to 1.5% of the Operating Revenues of the Obligors for such Collection Period.  Such fee in respect of each Collection Period shall be payable to the Manager by the Indenture Trustee, solely from the Collection Account (subject to the availability of funds for such purpose in accordance with Section 5.01(a)(vi) of the Indenture) on each Payment Date.  On the day that is three (3) Business Days prior to each Payment Date, the Manager shall report to the Obligors and the Servicer the Management Fee then due and payable based on the information regarding Operating Revenues for the immediately preceding Collection Period then available to it.  If the Manager subsequently determines that the Management Fee so paid to it for any Collection Period was less than what should have been paid (based on a re-computation of the Operating Revenues for such Collection Period), then the Management Fee for the next Collection Period shall be increased by the amount of the underpayment.  If the Manager subsequently determines that the Management Fee so paid to it for any Collection Period was higher than what should have been paid (based on a re-computation of the Operating Revenues for such Collection Period), then the Management Fee for the next Collection Period shall be reduced by the amount of the overpayment.  Upon the expiration or earlier termination of this Agreement as set forth in Section 22, the Manager shall be entitled to receive, on the next succeeding Payment Date, the portion of the Management Fee which was earned by the Manager through the effective date of such expiration or termination (such earned portion being equal to the product of (a) the total Management Fee that would have been payable for the Collection Period in which such expiration or termination occurred had this Agreement remained in effect and (b) a fraction, the numerator of which is the number of days in such month through the effective date of such expiration or termination and the denominator of which is the total number of days in such month).  Notwithstanding anything to the contrary in this Section 12, the Management Fee for the first Payment Date following the Closing Date shall be based on Operating Revenues for the period beginning on the Closing Date and ending on the last day of the initial Collection Period.  The Manager shall be entitled to no other fees or payments from the Obligors as a result of the termination or expiration of this Agreement in accordance with the terms hereof.  None of the expenses necessary to the performance of the Manager’s duties (other than Operating Expenses, Capital Expenditures, the indemnities described in Section 24 and the Other Services described in Section 6) will be paid by the Obligors.

 

SECTION 13.                     Employees.  The Manager shall employ, supervise and pay at all times a sufficient number of capable employees as may be necessary for the Manager to perform the Services hereunder in accordance with the Operation Standards.  All employees of the Manager will be employed at the sole cost of the Manager.  All matters pertaining to the employment, supervision, compensation, promotion and discharge of such employees are the

 

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sole responsibility of the Manager, who is, in all respects, the employer of such employees.  To the extent the Manager, its designee, or any subcontractor negotiates with any union lawfully entitled to represent any such employees, it shall do so in its own name and shall execute any collective bargaining agreements or labor contracts resulting therefrom in its own name and not as an agent for any Obligor.  The Manager shall comply in all material respects with all applicable laws and regulations related to workers’ compensation, social security, ERISA, unemployment insurance, hours of labor, wages, working conditions and other employer-employee related subjects.  The Manager is independently engaged in the business of performing management and operation services as an independent contractor.  All employment arrangements in connection with the Manager’s performance of the Services hereunder are therefore solely the Manager’s concern and responsibility, and the Obligors shall have no liability with respect thereto.

 

SECTION 14.                     Books, Records, Inspections and Software.  The Manager shall, on behalf of the Obligors, keep such materially accurate and complete books and other records pertaining to the Tenant Site Assets and the Services as may be necessary or appropriate under the Operation Standards. Such books and records shall include all Tenant Leases, Asset Agreements, corporate records, monthly summaries of all accounts receivable and accounts payable, maintenance records, Insurance Policies, receipted bills and vouchers (including tax receipts, vouchers and invoices) and other documents and papers pertaining to the Tenant Site Assets.  All such books and records (“Records”) shall be kept in an organized fashion and in a secure location.  During the Term, the Manager shall afford to the Obligors, the Servicer, the Indenture Trustee and the Backup Manager reasonable access to any Records relating to the Tenant Site Assets and the Services within its control, except to the extent it is prohibited from doing so by applicable law or the terms of any applicable obligation of confidentiality or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of the Obligors.  Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Manager designated by it.  The Manager will provide to the Backup Manager such licenses for software and access to the Manager’s computers as the Backup Manager shall reasonably require for the performance of its duties hereunder and under the Backup Management Agreement.

 

SECTION 15.                     Insurance Requirements.  The Manager shall maintain, on behalf of the Obligors, all Insurance Policies required to be maintained by the Obligors pursuant to the Indenture and other Transaction Documents and such other Insurance Policies as the Manager shall determine to be necessary or appropriate in accordance with the Operation Standards.  The Manager shall prepare and present, on behalf of the Obligors, claims under any such insurance policy in a timely fashion in accordance with the terms of such policy.  Any payments on such policies shall be made to the Manager as agent of and for the account of the Obligors (and on behalf of the Obligors, for the benefit of and to be held in trust for the Indenture Trustee to the extent provided in the Indenture), except as otherwise required by the 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.

 

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SECTION 16.                     Environmental.

 

(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.

 

SECTION 17.                     Cooperation.  Each Obligor and the Manager shall cooperate with the other parties hereto in connection with the performance of any responsibility required hereunder, under the Transaction Documents, or otherwise related to the Tenant Site Assets or the Services.  In the case of the Obligors, such cooperation shall include (i) executing such documents or performing such acts as may be required to protect, preserve, enhance, or maintain the Tenant Site Assets or the Operating Account, (ii) executing such documents as may be reasonably required to accommodate a Tenant or its installations, (iii) furnishing to the Manager, on or prior to the Effective Date, all keys, key cards or access codes required in order to obtain access to the Tenant Site Assets, (iv) furnishing to the Manager, on or prior to the Effective Date, all books, records, files, abstracts, contracts, Tenant Leases, Asset Agreements, materials and supplies, Budgets and other Records relating to the Tenant Site Assets or the performance of the Services and (v) providing to the Manager such other information as the Manager considers reasonably necessary for the effective performance of the Services.  In the case of the Manager, such cooperation shall include cooperating with the Indenture Trustee, the Servicer, the Backup Manager, potential purchasers of any of the Tenant Site Assets, appraisers, sellers of sites or related Tenant Site Assets, auditors and their respective agents and representatives, with the view that such parties shall be able to perform their duties efficiently and without interference.

 

SECTION 18.                     Representations and Warranties of Manager.  The initial Manager makes the following representations and warranties to the Obligors all of which shall survive the execution, delivery, performance or termination of this Agreement:

 

(a)                                 The Manager is a limited liability company, validly existing and in good standing under the laws of the State of Delaware.

 

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(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.

 

SECTION 19.                     Representations and Warranties of the Obligors.  Each Obligor makes the following representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination of this Agreement:

 

(a)                                 Such Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

 

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(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.

 

(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.

 

SECTION 20.                     Permitted Activities.  For the avoidance of doubt, it is understood and agreed that nothing contained in this Agreement shall restrict the Manager, its employees, its agents or its Affiliates (or impose a duty on the Manager or any such other Person to refrain) from engaging in any business relating to managing, for itself, its Affiliates or others, similar

 

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assets (including the ownership, operation, maintenance, leasing or marketing of wireless site assets for itself or for others) without regard to any conflicts which may arise in connection therewith and even if, by doing so, such activities could be construed to be in competition with the business activities of the Obligors, subject only to the restrictions set forth below in items (i), (ii) and (iii) (“Permitted Activities”).  In the conduct of Permitted Activities the Manager agrees that (i) if the Manager arranges for a lease of a wireless site asset with a tenant that is also a Tenant under a Tenant Lease, such new lease will be separate from and independent of the Tenant Lease(s) between the Tenant and the related Asset Entity, (ii) unless a Tenant Site Asset has been disposed of or terminated by an Asset Entity in accordance with the Indenture and the other Transaction Documents, the Manager will not solicit a Tenant to terminate a Tenant Lease for a Tenant Site Asset and replace such Tenant Lease with a wireless site asset owned, leased or managed by a Person that is not an Asset Entity and (iii) in all cases the Manager shall perform its duties and obligations hereunder in accordance with the Operation Standards notwithstanding any potential conflicts of interest that may arise, including any relationship that the Manager may have with any other owners of wireless site assets that it manages.

 

SECTION 21.                     Removal or Substitution of Tenant Site Assets; Additional Asset Entities.  If, during the Term of this Agreement, an Asset Entity assigns or otherwise transfers all of its right, title and interest in and to any Tenant Site Asset to a Person other than another Asset Entity, the Indenture Trustee or a designee of the Indenture Trustee (whether pursuant to a taking under the power of eminent domain or otherwise) or otherwise ceases to have an interest in a Tenant Site Asset, this Agreement shall terminate (as to that Tenant Site Asset only) on the date of such assignment or transfer or other event and the Obligors shall promptly deliver to the Manager  (with  a copy to the Servicer) an amended Schedule I reflecting the removal of such Tenant Site Asset from the scope of this Agreement.  Upon the termination of this Agreement as to a particular Tenant Site Asset, the Manager and the respective Asset Entity that owns such Tenant Site Asset shall be released and discharged from all liability hereunder with respect to such Tenant Site Asset for the period from and after the applicable termination date (except for rights and obligations hereunder that are expressly stated to survive such termination).  In addition, the Obligors may at any time add any additional Tenant Site Asset to Schedule I in connection with a substitution or property addition (including addition by use of a Site Acquisition Account) permitted under the terms of the Indenture and the other Transaction Documents (excluding, for the avoidance of doubt, the addition of any Deferred 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 and the Rating Agencies) 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.

 

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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, 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.

 

(b)                                 Termination for Cause.  The Issuer or the Indenture Trustee (or the Servicer on its behalf) shall renew this Agreement, unless otherwise directed by the Servicer, which direction may be given only following the occurrence of one or more of the following events:  (i) the declaration of an Event of Default, (ii) the DSCR falls to less than 1.10 to 1.0 as of the end of any calendar month and the Servicer reasonably determines that such decline in the DSCR is primarily attributable to acts or omissions of the Manager rather than factors affecting the Obligors’ industry generally, (iii) the Manager has engaged in fraud, gross negligence or willful 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).

 

(c)                                  Automatic Termination for Bankruptcy, Etc.  If the Manager or any Obligor files a petition for bankruptcy, reorganization or arrangement, or makes an assignment for the benefit of the creditors or takes advantage of any insolvency or similar law, or if a receiver or trustee is appointed for the assets or business of the Manager or any Obligor and is not discharged within ninety (90) days after such appointment, then this Agreement shall terminate automatically; provided that if any such event shall occur with respect to less than all of the Obligors, then this Agreement will terminate solely with respect to the Obligor or Obligors for which such event has occurred and the respective Tenant Site Assets owned, leased or managed by such Obligor(s).  Upon the termination of this Agreement as to a particular Obligor, the Manager and such Obligor shall be released and discharged from all liability hereunder for the period from and after the applicable termination date (except for rights and obligations

 

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hereunder that are expressly stated to survive any termination) and the Manager shall have no further obligation to perform any Services for such Obligor or any Tenant Site Assets owned, leased or managed by such Obligor from and after such date.

 

(d)                                 Resignation by Manager.  Unless and until the Indenture has terminated in accordance with its terms and all Obligations due and owing thereunder and under the other Transaction Documents have been fully satisfied, the Manager shall not resign from the obligations and duties hereby imposed on it hereunder except upon determination that (i) the performance of its duties hereunder is no longer permissible under applicable law and (ii) there is no reasonable action which can be taken to make the performance of its duties hereunder permissible under applicable law.  Any such determination under clause (d)(i) above permitting the resignation of the Manager shall be evidenced by an Opinion of Counsel (who is not an employee of the Manager) to such effect delivered, and in form and substance reasonably satisfactory, to the Issuer, the Servicer, the Indenture Trustee and the Backup Manager.  From and after the date on which the Indenture has terminated in accordance with its terms and all Obligations due and owing thereunder and under the other Transaction Documents have been fully satisfied, the Manager shall have the right in its sole and absolute discretion, upon thirty (30) days prior written notice to the Issuer, the Indenture Trustee, the Backup Manager and the Servicer, to resign at any time from the obligations and duties hereby imposed on it.  This Agreement shall terminate with respect to the resigning Manager on the effective date of any resignation of the Manager permitted under this paragraph (d).

 

(e)                                  Backup Manager to Act.  On and after the termination of the Manager pursuant to paragraphs (b) and (c) or upon a resignation by the Manager pursuant to paragraph (d) above (other than a resignation by the Manager after all Obligations due and owing under the Transaction Documents have been fully satisfied pursuant to Section 22(d)), the Issuer shall appoint (or if the Issuer fails to so appoint, the Indenture Trustee shall appoint) the Backup Manager, by providing written notice of such appointment to the Backup 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 23.                     Duties Upon Termination.  Upon the expiration or termination of the Term, the Manager shall have no further right to act for any Obligor or to draw checks on the Operating Account and shall promptly (i) furnish to the Issuer or its designee or any replacement

 

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Manager all keys, key cards or access codes required in order to obtain access to the Tenant Site Assets, (ii) deliver to the Issuer or its designee or any replacement Manager (x) all Receipts received after such termination or (y) any monies or reserves held by the Manager on behalf of the Indenture Trustee, (iii) deliver to the Issuer or its designee or any replacement Manager all books, files, abstracts, contracts, Tenant Leases, Asset Agreements, materials and supplies, Budgets and other Records relating to the Tenant Site Assets or the performance of the Services and (iv) upon request, assign, transfer, or convey, as required, to the respective Obligors all service contracts and personal property relating to or used in the operation and maintenance of the Tenant Site Assets, except any personal property which was paid for and is owned by the Manager.  The Manager shall also, for a period of six (6) months after such expiration or termination, make itself available to consult with and advise the Obligors, the Servicer and any replacement Manager regarding the operation and maintenance of the Tenant Site Assets or otherwise to facilitate an orderly transition of management to a new manager of the Tenant Site Assets; provided, that during such period, the Manager shall be entitled to be compensated by the Obligors for its out-of-pocket costs and expenses (such expenses to be deemed Additional Issuer Expenses).  Nothing in this Section 23 shall prohibit the Manager, the Obligors or any of their respective Affiliates from retaining copies of any document or instrument delivered in accordance with clauses (i), (iii) or (iv) above.  This Section 23 shall survive the expiration or earlier termination of this Agreement (whether in whole or part).

 

SECTION 24.                     [Reserved]

 

SECTION 25.                     Indemnities.

 

(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 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.

 

(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

 

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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.

 

SECTION 26.                     Miscellaneous.

 

(a)                                 Amendments.  No amendment, supplement, waiver or other modification of this Agreement shall be effective unless in writing and executed and delivered by the Manager and the Obligor sought to be bound thereby; provided that, until the Indenture has been terminated in accordance with its terms and all Obligations due and owing thereunder and under the other Transaction Documents have been fully satisfied, any material amendment, supplement, waiver or other modification of this Agreement shall also require the consent of the Servicer, the Indenture Trustee and a Rating Agency Confirmation (it being understood that none of the foregoing shall require the consent of any Noteholder).  No failure by any party hereto to insist on the strict performance of any obligation, covenant, agreement, term or condition of this Agreement, or to exercise any right or remedy available upon a breach of this Agreement, shall constitute a waiver of any of the terms of this Agreement.  The Manager shall not be bound by 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.

 

(b)                                 Notices.  Any notice or other communication required or permitted hereunder shall be in writing and may be delivered personally or by commercial overnight carrier, telecopied or mailed (postage prepaid via the US postal service) to the applicable party at the following address (or at such other address as the party may designate in writing from time to time); provided, however, any such notice or communication shall be deemed to be delivered only when actually received by the party to whom it is addressed:

 

(1)                                 To any Obligor:                                                           c/o LMRK Issuer Co. LLC
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxxxx, XX 00000

Attention: Xxxxxx Xxxxx

 

With copies to:

 

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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

 

(c)                                  Assignment, Etc.  The provisions of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns.  None of the rights, interests, duties, or obligations created by this Agreement may be assigned, transferred, or delegated in whole or in part by the Manager or any Obligor, and any 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

 

20


 

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.

 

(e)                                  Entire Agreement; Severability.  This Agreement constitutes the entire agreement between the parties hereto, and no oral statements or prior written matter not specifically incorporated herein shall be of any force or effect.  In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.

 

(f)                                   Limitations on Liability.

 

(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

 

21


 

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 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.

 

(h)                                 Confidentiality.  The Backup Manager, or any other party succeeding to the duties of the Manager named herein (a “Successor Manager”) agrees to keep confidential (and (a) to cause its respective officers, directors and employees to keep confidential and (b) to use its best efforts to cause its respective agents and representatives to keep confidential) the Information (as defined below) and all copies thereof, extracts therefrom and analyses or other materials based thereon, except that such Successor Manager shall be permitted to disclose Information (i) to the extent required by the Transaction Documents, (ii) as requested by the Rating Agencies, (iii) to the extent such Successor Manager reasonably determines disclosure is necessary or advisable to perform services contemplated by this Agreement, (iv) to the extent provided in any Offering Memorandum, (v) the parties to the Indenture who are subject to the confidentiality provisions contained therein, (vi) to actual or prospective Tenants, (vii) if required to do so by any applicable statute, law, rule or regulation, or in working with any taxing authorities or other governmental agencies, (viii) to any government agency or regulatory body having or claiming authority to regulate or oversee any aspects of such Successor Manager’s

 

22


 

business or that of its Affiliates, (ix) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which such Successor Manager or an Affiliate or an officer, director, employer or shareholder thereof is a party, (x) to any Affiliate, independent or internal auditor, agent, employee or attorney of such Successor Manager provided that the Manager advises such recipient of the confidential nature of the Information being disclosed and obtains confirmation in such form as may be acceptable to the Manager to the effect that such Person will keep such Information confidential and (xi) any other disclosure authorized by such Successor Manager.  For the purposes of this paragraph (g), the term “Information” shall mean the terms and provisions of this Agreement and all financial statements, certificates, reports, Records, agreements and information (including the Tenant Leases, Asset Agreements and all analyses, compilations and studies based on any of the foregoing) that relate to the Tenant Site Assets or the Services, other than any of the foregoing that are or become publicly available other than by a breach of the confidentiality provisions contained herein.

 

(i)                                     Issuer as Agent.  Each of the Obligors hereby appoints the Issuer to serve as its representative and agent to act, make decisions, and grant any necessary consents or approvals hereunder, collectively, on behalf of such Obligor.  Each Obligor hereby authorizes the Issuer to take such action as agent on its behalf and to exercise such powers as are delegated to the Issuer by the terms hereof, together with such powers as are reasonably incidental thereto.

 

(j)                                    No Petition.  Prior to the date that is one year and one day after the date on which the Indenture has been terminated in accordance with its terms, all Obligations under the Indenture and under the other Transaction Documents have been fully satisfied, the Manager shall not institute, or join any other Person in instituting, or authorize a trustee or other Person acting on its behalf or on behalf of others to institute, any bankruptcy, reorganization, arrangement, insolvency, liquidation or receivership proceedings under the laws of the United States of America or any state thereof against any Obligor or the Guarantor.

 

(k)                                 Headings.  Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to effect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

(l)                                     Counterparts.  This Agreement may be executed in any number of counterparts (including by facsimile or other electronic means, including telecopy, email or otherwise), each of which when so executed shall be deemed to be an original, but all such respective counterparts shall together constitute but one and the same instrument.  Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission (including, without limitation, via Portable Document Format or “PDF”) shall be as effective as delivery of a manually executed counterpart hereof.

 

[SIGNATURE PAGES FOLLOW]

 

23


 

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.

 

Manager:

 

 

 

 

LANDMARK INFRASTRUCTURE PARTNERS GP LLC

 

 

 

 

 

By:

/ s / Xxxxxx X. Xxxxx

 

 

Name: Xxxxxx X. Xxxxx

 

 

Title: Authorized Officer

 

 

 

 

 

 

Issuer and Obligor:

 

 

 

 

LMRK ISSUER CO. LLC

 

 

 

 

 

By:

/ s / Xxxxxx X. Xxxxx

 

 

Name: Xxxxxx X. Xxxxx

 

 

Title: Authorized Officer

 

 

 

 

 

 

Original Asset Entities and Obligors:

 

 

 

 

LD ACQUISITION COMPANY 8 LLC

 

 

 

 

 

By:

/ s / Xxxxxx X. Xxxxx

 

 

Name: Xxxxxx X. Xxxxx

 

 

Title: Authorized Officer

 

 

 

 

 

 

 

LD ACQUISITION COMPANY 9 LLC

 

 

 

 

 

By:

/ s / Xxxxxx X. Xxxxx

 

 

Name: Xxxxxx X. Xxxxx

 

 

Title: Authorized Officer

 

[Signature Page to Management Agreement]

 


 

 

LD ACQUISITION COMPANY 10 LLC

 

 

 

 

 

By:

/ s / Xxxxxx X. Xxxxx

 

 

Name: Xxxxxx X. Xxxxx

 

 

Title: Authorized Officer

 

[Signature Page to Management Agreement]

 


 

SCHEDULE I

 

TENANT SITE ASSETS

 


 

LD Asset ID

 

Xxxxx

 

Xxx

XX000000

 

XX

 

00000

TC120932

 

NY

 

11949

TC120931

 

NY

 

11949

TC120930

 

NY

 

11949

TC120933

 

NY

 

11949

TC110531

 

NY

 

11747

TC110530

 

NY

 

11747

TC121697

 

CA

 

90016

TC120822

 

IL

 

61068

TC110426

 

NJ

 

07701

XX000000

 

XX

 

00000

TC110496

 

MA

 

01906

TC110560

 

CT

 

06108

TC120925

 

NM

 

87505

TC121077

 

CA

 

93550

TC121079

 

CA

 

93550

TC121076

 

CA

 

93550

TC120942

 

NY

 

11419

TC120924

 

NY

 

12983

TC121755

 

PA

 

19149

TC121734

 

NY

 

10456

TC121863

 

CT

 

06755

TC121811

 

NY

 

10468

TC131989

 

NY

 

11356

TC132216

 

MA

 

02038

TC132223

 

DC

 

20032

TC132282

 

NJ

 

08046

TC142859

 

NJ

 

07105

TC153870

 

NY

 

10004

TC154079

 

FL

 

33161

TC154140

 

NY

 

11225

TC154126

 

NY

 

11225

TC154147

 

NY

 

11213

TC154144

 

NY

 

10977

TC154130

 

NY

 

11226

TC154132

 

NY

 

11203

TC110470

 

CA

 

90001

TC121067

 

NJ

 

07416

TC121066

 

NJ

 

07416

TC132053

 

MS

 

39629

TC153871

 

NY

 

10001

TC100081

 

NJ

 

07514

TC110311

 

IL

 

60637

TC110450

 

TX

 

76016

TC120660

 

FL

 

33436

 


 

TC110489

 

NY

 

11004

TC120817

 

IL

 

60099

TC120818

 

IL

 

60099

TC120988

 

NJ

 

08701

TC120989

 

NJ

 

08701

TC120993

 

MI

 

48867

TC121034

 

MI

 

48867

TC110234

 

NV

 

89146

TC121718

 

AL

 

36877

TC121750

 

IL

 

60630

TC121751

 

IL

 

60630

TC121735

 

NY

 

10030

TC121745

 

KS

 

66062

TC121747

 

KS

 

66062

TC121746

 

KS

 

66062

TC121797

 

NY

 

13601

TC121875

 

NC

 

27944

TC121785

 

XX

 

00000

TC121858

 

LA

 

70115

TC132052

 

IL

 

60633

TC132061

 

TX

 

76009

TC121817

 

CA

 

95823

TC121819

 

CA

 

95823

TC132175

 

NC

 

28320

TC132164

 

CA

 

92365

TC110139

 

MA

 

01852

TC143397

 

MI

 

49668

TC143677

 

PA

 

19147

TC143800

 

WI

 

53029

TC143799

 

WI

 

53029

TC143702

 

CA

 

94566

TC154034

 

OH

 

44706

TC153869

 

FL

 

33020

TC120647

 

PA

 

17104

TC121800

 

AR

 

72433

TC132249

 

CA

 

91780

TC132250

 

CA

 

91780

TC110349

 

NJ

 

08873

TC110348

 

NJ

 

08873

TC110481

 

IL

 

60148

TC121025

 

NY

 

10464

TC120694

 

NV

 

00000

TC120689

 

NV

 

00000

TC120678

 

NV

 

00000

TC120687

 

NV

 

00000

TC120691

 

NV

 

89316

TC120682

 

NV

 

00000

 


 

TC120681

 

NV

 

00000

TC120690

 

NV

 

00000

TC120680

 

NV

 

00000

TC120692

 

NV

 

00000

TC120747

 

NJ

 

07306

TC120736

 

NJ

 

07206

TC120898

 

VT

 

05751

TC120896

 

VT

 

05751

TC120940

 

CA

 

91324

TC120939

 

XX

 

00000

XX000000

 

XX

 

00000

TC120894

 

NJ

 

07114

TC120893

 

NJ

 

07114

TC120892

 

NJ

 

07114

TC120967

 

NJ

 

07104

TC120952

 

MN

 

55128

TC120951

 

MN

 

55128

TC120944

 

OR

 

97702

TC120946

 

OR

 

97702

TC120970

 

PA

 

18640

TC121096

 

AZ

 

85016

TC121036

 

NV

 

89014

TC121687

 

NJ

 

07011

TC121102

 

WI

 

54301

TC121690

 

CO

 

80122

TC121689

 

NJ

 

07050

TC121768

 

TX

 

78201

TC121767

 

TX

 

78201

TC120785

 

FL

 

33129

TC120784

 

FL

 

33129

TC121688

 

NJ

 

07070

TC121876

 

NC

 

27944

TC131908

 

SD

 

57472

TC121824

 

CO

 

81073

TC131938

 

NV

 

89436

TC131939

 

NV

 

89436

TC131980

 

CA

 

92596

TC131978

 

CA

 

92596

TC131979

 

CA

 

92596

TC131975

 

TX

 

77591

TC132016

 

CA

 

95202

TC132018

 

CA

 

95202

TC132017

 

CA

 

95202

TC132176

 

CA

 

95678

TC132136

 

SD

 

57104

TC132306

 

NY

 

11559

TC132308

 

NY

 

11559

 


 

TC132307

 

NY

 

11559

TC132309

 

NY

 

11559

TC132417

 

NY

 

11042

TC132415

 

NY

 

11042

TC132387

 

IA

 

51103

TC132372

 

CA

 

91737

TC132338

 

PA

 

19122

TC132821

 

UT

 

84604

TC142935

 

CA

 

90731

TC142936

 

CA

 

90731

TC132687

 

NJ

 

07002

TC143110

 

NY

 

11226

TC143109

 

NY

 

11212

TC131968

 

FL

 

33169

TC154288

 

NJ

 

07103

TC154287

 

NJ

 

07103

TC143089

 

AZ

 

85268

TC143017

 

GA

 

30103

TC132750

 

NJ

 

7108

TC143683

 

CA

 

95821

TC153835

 

MI

 

48634

TC153886

 

MI

 

49085

TC153864

 

OH

 

44137

TC153933

 

FL

 

32220

TC143196

 

CA

 

91402

TC154063

 

FL

 

32724

TC154006

 

FL

 

33162

TC154005

 

FL

 

33162

TC154115

 

TX

 

75206

TC154160

 

MI

 

49835

TC154106

 

MO

 

63119

TC154093

 

AL

 

36604

TC154165

 

MD

 

20832

TC154202

 

XX

 

00000

TC131976

 

IL

 

60085

TC132015

 

SD

 

57748

TC120630

 

CA

 

92405

TC120631

 

CA

 

92405

TC110237

 

CO

 

80102

TC143786

 

SD

 

57103

TC131936

 

NJ

 

07018

TC110413

 

NJ

 

07840

TC110440

 

OR

 

97301

TC110504

 

CA

 

90505

TC110505

 

CA

 

90505

TC110586

 

CA

 

90755

TC121075

 

AK

 

99623

 


 

TC121722

 

IL

 

61604

TC121792

 

IL

 

60090

TC121793

 

IL

 

60090

TC121794

 

IL

 

60090

TC131990

 

NJ

 

07087

TC132340

 

GA

 

31305

TC132084

 

OK

 

73030

TC132173

 

NJ

 

07304

TC132443

 

NJ

 

07305

TC132445

 

NJ

 

07093

TC132330

 

TX

 

77384

TC132331

 

TX

 

77384

TC132500

 

AZ

 

85711

TC132499

 

AZ

 

85711

TC142927

 

AR

 

72034

TC142926

 

AR

 

72034

TC110228

 

KS

 

67202

TC110448

 

NV

 

89002

TC110412

 

AZ

 

85711

TC120957

 

AZ

 

85383

TC120958

 

AZ

 

85383

TC110597

 

MA

 

01760

TC110598

 

MA

 

01760

TC110596

 

MA

 

01760

TC110600

 

MA

 

01760

TC121709

 

TN

 

37872

TC132066

 

FL

 

33401

TC132072

 

IA

 

52254

TC132090

 

TX

 

78209

TC132109

 

SD

 

57063

TC132123

 

CA

 

93455

TC132125

 

CA

 

93455

TC132087

 

PA

 

16870

TC132182

 

MO

 

63383

TC132166

 

UT

 

84032

TC132041

 

MN

 

55305

TC132227

 

MO

 

65401

TC110526

 

CA

 

92311

TC132178

 

NJ

 

07503

TC132179

 

NJ

 

07503

TC132168

 

OR

 

97140

TC132167

 

OR

 

97140

TC132163

 

KS

 

66748

TC132086

 

LA

 

70601

TC132210

 

MA

 

01118

TC132212

 

MA

 

01118

TC132213

 

MA

 

01118

 


 

TC132211

 

MA

 

01118

TC132284

 

SD

 

57601

TC132244

 

TX

 

78606

TC121004

 

OH

 

45373

TC132138

 

LA

 

71001

TC132366

 

MI

 

49955

TC132115

 

MI

 

48204

TC132221

 

MI

 

48044

TC132219

 

MI

 

48044

TC132352

 

CA

 

91789

TC132283

 

FL

 

34237

TC132285

 

IL

 

60459

TC132286

 

IL

 

60459

TC132204

 

WI

 

54130

TC132303

 

LA

 

70578

TC132312

 

NY

 

10468

TC132326

 

NY

 

10467

TC132347

 

MA

 

02135

TC132206

 

IL

 

60643

TC132248

 

CA

 

94559

TC132242

 

MS

 

38655

TC132245

 

TX

 

78582

TC132165

 

TX

 

76108

TC132351

 

MO

 

63136

TC132246

 

AR

 

72422

TC132302

 

AR

 

72032

TC132194

 

NY

 

11203

TC132507

 

AZ

 

85048

TC132541

 

KS

 

66061

TC132355

 

TX

 

77071

TC132489

 

MO

 

65233

TC132702

 

MA

 

02121

TC132766

 

ID

 

83350

TC132760

 

NM

 

88044

TC132609

 

NY

 

10452

TC132610

 

NY

 

10452

TC132777

 

MS

 

38614

TC132556

 

KS

 

66850

TC132823

 

VA

 

24529

TC142872

 

OK

 

74363

TC142975

 

FL

 

33327

TC143083

 

NJ

 

07054

TC143084

 

NJ

 

07054

TC142856

 

CA

 

92270

TC142959

 

TX

 

77327

TC121842

 

IL

 

60631

TC121843

 

IL

 

60631

 


 

TC143003

 

IL

 

62544

TC142911

 

KS

 

67301

TC143008

 

NJ

 

07107

TC132824

 

XX

 

00000

TC142985

 

OK

 

74133

TC132803

 

CA

 

95046

TC143115

 

CA

 

95407

TC143116

 

CA

 

95407

TC143043

 

MO

 

63011

TC143187

 

UT

 

84746

TC143232

 

OH

 

45324

TC143136

 

MS

 

39654

TC143024

 

TX

 

79414

TC143036

 

PA

 

17111

TC143261

 

NJ

 

7093

TC143637

 

UT

 

84020

TC143791

 

NJ

 

8611

TC143732

 

OH

 

43206

TC143803

 

NY

 

10280

TC143675

 

XX

 

00000

TC143669

 

TN

 

38501

TC143386

 

FL

 

32817

TC143742

 

XX

 

00000

TC143717

 

CA

 

92507

TC143722

 

NM

 

87114

TC153843

 

NY

 

11210

TC153872

 

CO

 

81064

TC143760

 

VA

 

22192

TC143774

 

IL

 

61603

TC143773

 

IL

 

61603

TC143671

 

CO

 

80535

TC143672

 

CO

 

80535

TC143670

 

CO

 

80535

TC143796

 

TX

 

77359

TC143706

 

CA

 

94530

TC143793

 

TX

 

77535

TC153818

 

TX

 

77414

TC143635

 

WI

 

53225

TC143784

 

PA

 

18458

TC143776

 

WI

 

53211

TC153907

 

TN

 

37820

TC153887

 

TX

 

77041

TC153855

 

TX

 

77026

TC153816

 

NE

 

68137

TC153943

 

NY

 

11717

TC153881

 

IL

 

61486

TC153891

 

NY

 

11236

 


 

TC153889

 

NY

 

11236

TC153890

 

NY

 

11236

TC153867

 

XX

 

00000

TC153866

 

XX

 

00000

TC143259

 

NY

 

14847

TC153967

 

UT

 

84770

TC153923

 

NJ

 

07650

TC153925

 

NJ

 

07650

TC153924

 

NJ

 

07650

TC153922

 

NY

 

10466

TC153930

 

TX

 

78382

TC153918

 

OK

 

74364

TC153931

 

NY

 

11204

TC153932

 

NY

 

11204

TC153976

 

TX

 

77845

TC153942

 

NC

 

27804

TC153959

 

TX

 

78596

TC154035

 

NJ

 

07050

TC153852

 

CA

 

91744

TC154014

 

TX

 

77320

TC153808

 

NJ

 

07657

TC153809

 

NJ

 

07657

TC153811

 

NJ

 

07621

TC153812

 

NJ

 

07621

TC153813

 

NJ

 

07022

TC153814

 

NJ

 

07093

TC153937

 

FL

 

33770

TC153936

 

FL

 

33770

TC153938

 

FL

 

33770

TC154059

 

NY

 

12304

TC154057

 

NY

 

12304

TC154058

 

NY

 

12304

TC154056

 

NY

 

12304

TC153945

 

MO

 

65201

TC154068

 

CA

 

92630

TC154015

 

NY

 

10469

TC153984

 

CA

 

95407

TC154103

 

NV

 

89117

TC154044

 

WI

 

54436

TC154159

 

NY

 

10032

TC154148

 

NY

 

11226

TC154133

 

NY

 

11226

TC154091

 

NY

 

11233

TC154146

 

NY

 

10453

TC154143

 

NY

 

10453

TC154135

 

NY

 

11225

TC154125

 

NY

 

11225

 


 

TC154124

 

NY

 

10034

TC154158

 

NY

 

10034

TC154112

 

CA

 

92029

TC154083

 

TX

 

76904

TC154111

 

CA

 

92029

TC153861

 

CT

 

06704

TC153860

 

CT

 

06704

TC154016

 

XX

 

00000

TC154097

 

MO

 

65803

TC154157

 

TX

 

79766

TC154164

 

MI

 

48228

TC154208

 

TX

 

77535

TC153950

 

LA

 

70127

TC154199

 

WV

 

25661

TC154316

 

MS

 

38637

TC154262

 

TX

 

77338

TC154266

 

TX

 

77354

TC154260

 

NY

 

10032

TC154259

 

NY

 

10032

TC154257

 

NY

 

10032

TC154261

 

NY

 

10032

TC121760

 

IL

 

60033

TC154024

 

SC

 

29579

TC120773

 

AZ

 

85638

TC120774

 

AZ

 

85638

TC120775

 

AZ

 

85638

TC120928

 

TX

 

77302

TC110436

 

TX

 

75069

TC120653

 

CA

 

92040

TC132010

 

TX

 

79924

TC132397

 

FL

 

34743

TC121082

 

OR

 

97850

TC121081

 

OR

 

97850

TC121080

 

OR

 

97850

TC110555

 

CA

 

91104

TC154107

 

IL

 

60060

TC121710

 

CA

 

90280

TC131909

 

TX

 

75460

TC121883

 

TX

 

76638

TC143159

 

NC

 

27203

TC132013

 

CO

 

80302

TC120803

 

GA

 

30338

TC121790

 

MS

 

39503

TC120992

 

TX

 

75203

TC120639

 

PA

 

15238

TC120807

 

TX

 

78209

TC120983

 

AR

 

72734

 


 

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XX

 

00000

TC120883

 

PA

 

19104

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CA

 

93615

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CA

 

93615

TC154172

 

MO

 

64093

TC154173

 

MO

 

64093

TC132045

 

TX

 

77859

TC121741

 

TX

 

78216

TC121781

 

TX

 

76664

TC153895

 

VA

 

22192

TC132003

 

TX

 

77630

TC120671

 

NJ

 

08034

TC154150

 

SC

 

29601

TC120895

 

NV

 

89123

TC110432

 

CA

 

91331

TC110433

 

CA

 

91331

TC120742

 

CA

 

95482

TC154089

 

MD

 

21023

TC121859

 

CO

 

80904

TC154078

 

CO

 

80014

TC110363

 

AZ

 

85040

TC110444

 

CA

 

92243

TC143114

 

CA

 

95407

TC143117

 

CA

 

95407

TC120764

 

NY

 

10453

TC110419

 

XX

 

00000

TC131969

 

GA

 

30253

TC153815

 

NJ

 

07087

TC154026

 

CO

 

80012

TC110499

 

AZ

 

85268

TC154036

 

XX

 

00000

TC120972

 

LA

 

71107

TC120920

 

NJ

 

08302

TC110359

 

NV

 

89074

TC110360

 

NV

 

89074

TC132088

 

LA

 

71281

TC154033

 

WI

 

54914

TC121071

 

AZ

 

85020

TC121070

 

AZ

 

85020

TC121072

 

AZ

 

85020

TC110325

 

CA

 

92084

TC110327

 

XX

 

00000

XX000000

 

XX

 

00000

TC132006

 

MA

 

01610

TC132008

 

MA

 

01610

TC132009

 

MA

 

01610

TC143054

 

CA

 

94506

 


 

TC143062

 

CA

 

94506

TC143057

 

CA

 

94506

TC131995

 

FL

 

32073

TC131956

 

TX

 

75217

TC153939

 

IL

 

62966

TC154018

 

MS

 

39154

TC154032

 

CA

 

91306

TC131918

 

ND

 

58301

TC121774

 

TX

 

75662

TC131953

 

WI

 

53704

TC143713

 

IA

 

50325

TC153875

 

CA

 

95128

TC121021

 

LA

 

71108

TC120996

 

TX

 

75605

TC121684

 

CO

 

80907

TC121744

 

TX

 

78628

TC154031

 

CA

 

95124

TC132287

 

NJ

 

07051

TC120820

 

TX

 

78130

TC154030

 

CO

 

80907

TC120740

 

TN

 

38106

TC132217

 

MI

 

49509

TC143746

 

NY

 

12401

TC143747

 

NY

 

12401

TC121727

 

PA

 

19133

TC120986

 

CA

 

92105

TC154271

 

WI

 

53212

TC154273

 

WI

 

53212

TC154272

 

WI

 

53212

TC110418

 

TN

 

37862

TC120922

 

CO

 

80634

TC120921

 

CO

 

80634

TC110558

 

CA

 

92584

TC110557

 

CA

 

92584

TC110556

 

CA

 

92584

TC120708

 

CO

 

80137

TC120707

 

CO

 

80137

TC131943

 

MO

 

64124

TC154193

 

TX

 

79938

TC121733

 

FL

 

33135

TC110400

 

FL

 

33018

TC131907

 

WI

 

53215

TC120997

 

TX

 

76657

TC120752

 

CA

 

90745

TC120751

 

CA

 

90745

TC153957

 

NV

 

89015

TC120948

 

PA

 

15213

 


 

TC110588

 

NJ

 

07017

TC110591

 

NJ

 

07017

TC110589

 

NJ

 

07017

TC110514

 

FL

 

32583

TC121103

 

TX

 

76705

TC110395

 

TX

 

75229

TC132106

 

TX

 

78214

TC153952

 

FL

 

34208

TC132236

 

CA

 

90010

TC120779

 

IL

 

60445

TC120780

 

IL

 

60445

TC120783

 

IL

 

60445

TC120781

 

IL

 

60445

TC121795

 

ND

 

58366

TC121098

 

CT

 

06378

TC121097

 

CT

 

06378

TC154104

 

MI

 

49713

TC120778

 

TX

 

76527

TC110528

 

IL

 

60651

TC110527

 

IL

 

60651

TC120973

 

IL

 

60002

TC121878

 

UT

 

84005

TC121788

 

OH

 

44512

TC120935

 

CA

 

92315

TC120936

 

CA

 

92315

TC121694

 

TN

 

37912

TC154017

 

IL

 

61108

TC121810

 

XX

 

00000

TC110342

 

NV

 

89121

TC132588

 

GA

 

31907

TC120987

 

FL

 

32210

TC121007

 

CA

 

90022

TC121008

 

CA

 

90022

TC110454

 

PA

 

19140

TC110455

 

PA

 

19140

TC121104

 

TX

 

78132

TC120672

 

AZ

 

85031

TC153916

 

CA

 

90058

TC110238

 

MA

 

02124

TC121001

 

AL

 

36303

TC131898

 

NY

 

11233

TC121701

 

OK

 

74145

TC121703

 

OK

 

74145

TC121700

 

OK

 

74145

TC142971

 

FL

 

32805

TC142973

 

FL

 

32805

TC142972

 

FL

 

32805

 


 

TC110498

 

LA

 

70668

TC110420

 

GA

 

30294

TC153992

 

CA

 

92345

TC154155

 

CA

 

93620

TC153977

 

CA

 

95688

TC121782

 

TX

 

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TC154161

 

AZ

 

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CT

 

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TC110374

 

CT

 

06010

TC110377

 

CT

 

06010

TC120976

 

TN

 

37640

TC154000

 

OR

 

97213

TC131948

 

AR

 

71923

TC121000

 

TX

 

76137

TC131958

 

FL

 

32608

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XX

 

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TC121683

 

IL

 

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TC110550

 

NV

 

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TC120984

 

TX

 

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TC120954

 

TX

 

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TC121798

 

UT

 

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TC132028

 

AZ

 

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AL

 

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TC110502

 

NV

 

89706

TC154020

 

NM

 

87120

TC121759

 

TX

 

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MO

 

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TC110577

 

AZ

 

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TC110578

 

AZ

 

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TX

 

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TX

 

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TC132292

 

IL

 

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IL

 

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TC154114

 

FL

 

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MO

 

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AL

 

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OR

 

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CA

 

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CO

 

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CO

 

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CO

 

80112

TC153820

 

KS

 

66207

TC121762

 

NC

 

27537

TC120971

 

MT

 

59801

TC120985

 

FL

 

32746

TC153873

 

IL

 

60176

TC110605

 

TX

 

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XX

 

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TC132137

 

CA

 

95460

TC121866

 

FL

 

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SC

 

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TX

 

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TC154023

 

TX

 

78550

TC132000

 

TX

 

76120

TC153934

 

FL

 

32569

TC121020

 

OH

 

45345

TC131910

 

SD

 

57243

TC131959

 

OK

 

74469

TC121696

 

OR

 

97601

TC121056

 

CA

 

93635

TC121055

 

CA

 

93635

TC121871

 

MN

 

56652

TC110570

 

OR

 

97123

TC110569

 

OR

 

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OR

 

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OR

 

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WI

 

53922

 


 

EXHIBIT A

 

INITIAL BUDGET

 

$22,500 Operating Expense through December 31, 2016

 


 

EXHIBIT B

 

FORM OF MANAGER REPORT

 


 

Landmark Infrastructure Partners GP LLC — Monthly Report

 

Today’s Date (Date of Submission)

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Beginning of Period

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

End of Period

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PRINCIPAL NOTE BALANCE

 

 

 

 

 

 

 

Unpaid
Carryforward

 

 

 

 

 

 

 

 

 

 

 

Series 2016-1

 

BOP
Balance

 

Targeted
Paydown

 

Amort from
Previous

 

Actual
Paydown

 

Unpaid
Amort Amt

 

EOP
Balance

 

Coupon

 

Interest
Due

 

Series 2016-1 Class A

 

[   ]

 

—

 

—

 

—

 

—

 

[   ]

 

[   ]

%

—

 

Series 2016-1 Class B

 

[   ]

 

—

 

—

 

—

 

—

 

[   ]

 

[   ]

%

—

 

Total

 

[   ]

 

—

 

—

 

—

 

—

 

[   ]

 

[   ]

%

—

 

TOTAL

 

[   ]

 

—

 

—

 

—

 

—

 

[   ]

 

[   ]

%

—

 

 

ACCOUNT BALANCES

 

 

 

Beginning Period

 

End
Period

 

 

 

 

 

 

 

 

 

 

 

 

 

Collection Account

 

[   ]

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

Impositions and Reserve Account

 

[   ]

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

Advance Rents Reserve Account

 

[   ]

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

Site Acquisition Account (if any)

 

[   ]

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

Yield Maintenance Reserve Account (if any)

 

[   ]

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNUALIZED NET CASH FLOW

 

 

 

 

 

 

 

Current Period

 

 

 

 

 

 

 

 

 

 

 

Scheduled NTM Rent (based on the minimum Rent payable by Tenants during such 12 month period)

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

Average Contingent Rent paid by Tenants during past 12 months

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

Annualized Revenue

 

—

 

 

 

 

 

 

 

 

 

 

 

Annualized Net Cash Flow (=98.25% x Annualized Revenue)

 

—

 

 

 

 

 

 

 

 

 

 

 

 

DSCR

 

DSCR = (a) over (b)

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)   Annualized Net Cash Flow

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

Less: 12 months Class A Monthly Amortization Amounts

 

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(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

 

 

 

 

 

Cash Trap Condition

 

 

 

 

 

DSCR

 

[1.30]x

 

[   ]x

 

 

 

 

 

 

 

Amortization Period

 

 

 

 

 

DSCR

 

[1.15]x

 

[   ]x

 

 

 

 

 

 

 

Manager Replacement

 

 

 

 

 

DSCR

 

[1.10]x

 

[   ]x

 

 

 

 

 

 

 

 

SITE ACQUISITION ACCOUNT (if applicable)

 

 

 

Beginning Period

 

Withdrawals

 

End Period

 

 

 

 

 

 

 

 

 

 

 

Site Acquisition Account (if any)

 

$

[   ]

 

$

[   ]

 

$

[   ]

 

 

 

 

 

 

 

 

 

 

 

Yield Maintenance Account (if any)

 

$

[   ]

 

$

[   ]

 

$

[   ]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yield Maintenance Amount (current period)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yield Maintenance Amount (remaining Site Acquisition Period)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted Average Note Rate

 

 

 

 

 

$

[   ]

%

 

 

 

 

 

 

 

 

 

 

Months left in Site Acquisition Period

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Amount to be released to, or at discretion of Issuer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TENANT QUALITY TESTS

 

 

 

Requirement

 

Actual

 

Result

 

 

 

 

 

 

 

% of Annualized Revenues for All Tenant Sites from all Tenants (taken together) other than Non-Telephony Tenants

 

[   ]

%

[   ]

%

 

 

 

 

 

 

 

 

% Annualized Revenues for all Additional Tenant Site Assets and Additional Obligor Tenant Site Assets

 

[   ]

%

[   ]

%

 

 

 

 

 

 

 

 

 

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Filed: June 22nd, 2016
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