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EXHIBIT 10.32
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SECURITY AND SUBORDINATION AGREEMENT
AMONG
TOWER ASSET SUB, INC.
as Assignor
THE OTHER ASSIGNORS NAMED HEREIN
as Assignors
AND
TOWER PARENT CORP.
as Secured Party
Dated as of April 20, 1999
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SECURITY AND SUBORDINATION AGREEMENT
This Security and Subordination Agreement, dated as of April 20,
1999 (as amended, modified, or supplemented from time to time, this
"Agreement"), is made by and among Tower Asset Sub, Inc., a Delaware
corporation ("Tower Sub"), each other person becoming a Subsidiary of Tower Sub
and an assignor hereunder as provided for herein (collectively with Tower Sub,
the "Assignors," and each an "Assignor"), and Tower Parent Corp., a Delaware
corporation ("Parent Co.," together with its successors and assigns, the
"Secured Party") for and on behalf of Nextel Communications of Mid-Atlantic,
Inc., a Delaware corporation, Nextel of California, Inc., a Delaware
corporation, Nextel of New York, Inc., a Delaware corporation, Nextel South
Corp., a Georgia corporation, Nextel of Texas, Inc., a Texas corporation, and
Nextel West Corp., a Delaware corporation, all of which are wholly owned
Subsidiaries of Nextel Communications, Inc., a Delaware corporation ("Nextel"),
and any other entity designated by Nextel in writing as a Transferring
Subsidiary after the date of the Merger Agreement and prior to the Closing Date
(collectively, excluding Nextel, the "Transferring Subsidiaries").
RECITALS
A. This Agreement is made pursuant to the Agreement and Plan of
Merger, dated as of February 10, 1999 (herein, as amended or otherwise modified
from time to time, the "Merger Agreement"), among Nextel, the Secured Party,
Tower Merger Vehicle, Inc., a Delaware corporation ("Merger Sub"), the
Transferring Subsidiaries party thereto, SpectraSite Holdings, Inc., a Delaware
corporation ("Tower Aggregator"), SpectraSite Communications, Inc., a Delaware
corporation, and SHI Merger Sub, Inc., a Delaware corporation ("SHI Merger
Sub"), pursuant to which, among other things, (a) the Transferring Subsidiaries
are transferring certain Tower Assets (as hereinafter defined) to Parent Co.,
which will in turn transfer all of such Tower Assets to Tower Sub and (b) SHI
Merger Sub will be merged with and into Merger Sub (the "Merger"), with Merger
Sub being the surviving corporation of such Merger. After the Merger, Tower Sub
will be an indirect, wholly-owned subsidiary of Tower Aggregator.
B. Tower Sub and the Transferring Subsidiaries are parties to a
Master Site Lease Agreement (the "Nextel Master Site Lease Agreement") , Tower
Sub, Parent Co., and Partner (as defined herein) are or may become parties to a
Partner Master Site Lease Agreement (the "Partner Master Site Lease Agreement")
and Tower Aggregator, Tower Sub, Nextel and the Transferring Subsidiaries are
parties to a Master Site Commitment Agreement (the "Master Site Commitment
Agreement"), pursuant to which Tower Assets (in addition to those transferred
pursuant to the Merger Agreement) will be constructed or acquired by Tower Sub
or another Assignor.
C. At the date of execution and delivery hereof, Tower Sub has no
Subsidiaries and Tower Sub is the only Assignor party hereto. Subsequent to the
date hereof, in the event that Tower Sub has any Subsidiary, to which any
existing or future Tower Assets or
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any portion thereof are sold, assigned, conveyed or otherwise transferred,
pursuant to the Nextel Master Site Lease Agreement, the Partner Master Site
Lease Agreement (if executed) or the Master Site Commitment Agreement, each
such Subsidiary will join in this Agreement as an Assignor hereunder as
provided for herein.
D. It is a condition precedent to the Closing under the Merger
Agreement that Tower Sub and any other Assignors shall have executed and
delivered this Agreement to the Secured Party.
E. Tower Sub, as the only Assignor hereunder on the date hereof,
desires to execute this Agreement to satisfy the condition described in the
preceding paragraph.
NOW, THEREFORE, in consideration of the benefits accruing to Tower
Sub and which may in the future accrue to each additional Assignor (if any)
pursuant to the transactions described in the recitals, the receipt and
sufficiency of which are hereby acknowledged, Tower Sub and each additional
Assignor (if any) by means of the joinder arrangement provided for herein
hereby makes the following representations and warranties and hereby covenants
and agrees as follows:
1. DEFINITIONS
As used in this Agreement, the capitalized terms below have the
meanings hereinafter specified. Other capitalized terms used herein and not
defined shall have the meanings set forth in the Merger Agreement. Whenever
used in this Agreement, any noun or pronoun will be deemed to include both the
singular and plural and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
will not affect the interpretation or construction hereof. Unless otherwise
specified, the terms "hereof," "herein" and similar terms refer to this
Agreement as a whole, and references herein to Sections refer to Sections of
this Agreement.
"Agreement" has the meaning specified in the Preamble of this
Agreement.
"Assignor" has the meaning specified in the Preamble of this
Agreement.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as amended from time to time, and any successor statute or
statutes.
"Bankruptcy Event" means (i) the commencement by any Assignor of a
voluntary case concerning itself under the Bankruptcy Code, (ii) the
commencement of an involuntary case against an Assignor which petition is not
controverted within 10 days or not dismissed within 60 days after the
commencement of the case, (iii) a custodian (as defined in the Bankruptcy Code)
is appointed for, or takes charge of, all or substantially all of the property
of any Assignor or any Assignor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency, or liquidation or similar law of any jurisdiction or there is
commenced against any Assignor any such proceeding which remains undismissed
for a period of 60 days, (iv) any order of relief or other order approving of
any such case or proceeding is entered, (v) any Assignor is adjudicated
insolvent or bankrupt, (vi) any Assignor
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suffers the appointment of a custodian or the like for it or any substantial
portion of its property to continue undischarged or unstayed for a period of 60
days, (vii) any Assignor makes a general assignment for the benefit of its
creditors, (viii) any Assignor shall fail to pay or state that it shall be
unable to pay its debts as they become due, (ix) any Assignor shall call a
meeting of its creditors with a view to arranging a composition or adjustment
of its debts, (x) any Assignor shall, by any act or failure to act, consent to,
approve of or acquiesce in any of the foregoing, or (xi) any corporate action
is taken by any Assignor for the purpose of effecting any of the foregoing.
"Beneficiaries" means the Secured Party and each Affiliate (other
than the Surviving Corporation) of the Secured Party who is a Transferring
Subsidiary having rights under the Master Site Lease Agreement and, if Partner
executes the Partner Master Site Lease Agreement, Partner.
"Business Day" means any day on which there is trading on the New
York Stock Exchange or which constitutes a business day pursuant to the
Intercreditor Agreement.
"Chattel Paper" has the meaning assigned that term under the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Collateral" has the meaning provided in Section 2.1 of this
Agreement.
"Contract Rights" means all rights of Tower Sub or any other
Assignor (including, without limitation, all rights to payment) under each
Contract.
"Contracts" has the meaning assigned that term under the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Documents" has the meaning assigned that term under the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Equipment" means any "equipment," as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by Tower Sub or any Assignor and, in any event,
shall include, but shall not be limited to, all machinery, equipment,
furnishings and fixtures now or hereafter owned by Tower Sub or any Assignor
and any and all additions, substitutions and replacements of any of the
foregoing, wherever located, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
"Event of Default" means the occurrence of (i) any material default
or event of default of any covenant or agreement by Tower Sub or any Assignor
under the Nextel Master Site Lease Agreement or under the Partner Master Site
Lease Agreement, not cured within any grace or cure period provided therein,
(ii) any noncompliance (other than by the Secured Party or any of its
Transferring Subsidiaries) with Sections 6.2 of this Agreement, (iii) any
Bankruptcy Event with respect to Tower Sub or any Assignor, or (iv) any event of
default that results in an acceleration of the Senior Secured Obligations.
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"General Intangibles" has the meaning assigned that term under the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Goods" has the meaning assigned that term under the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Instrument" has the meaning assigned that term under the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Intercreditor Agreement" has the meaning provided in Section 6.1
of this Agreement.
"Lien" means any mortgage, lien, pledge, security interest,
easement, claim, charge, option, conditional sale or other title retention
agreement or other legal or equitable encumbrance.
"Master Site Commitment Agreement" has the meaning specified in
Recital B of this Agreement.
"Merger" has the meaning provided in Recital A of this Agreement.
"Merger Agreement" has the meaning provided in Recital A of this
Agreement.
"Nextel Master Site Lease Agreement" has the meaning specified in
Recital A of this Agreement.
"Obligations" means (i) the obligations of Tower Sub under the
Nextel Master Site Lease Agreement and/or the Partner Master Site Lease
Agreement and all other obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due) of
each Assignor to the Secured Party or any of the Beneficiaries, whether now
existing or hereafter incurred, under, arising out of or in connection with the
Nextel Master Site Lease Agreement and/or the Partner Master Site Lease
Agreement and the due performance and compliance by each Assignor with all of
the terms, conditions, agreements, representations, and warranties contained
therein; (ii) any and all sums advanced by the Secured Party or the Transferring
Subsidiaries in order to preserve the Collateral or preserve its security
interest in the Collateral; and (iii) in the event of any proceeding for the
collection or enforcement of any obligation, or liabilities of Tower Sub or any
Assignor referred to in clause (i) above, after an Event of Default shall have
occurred and be continuing, the reasonable expenses of re-taking, curing,
maintaining, restoring, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral, or of any exercise by the
Secured Party of its rights or remedies hereunder or under applicable law,
together with reasonable attorneys' fees and court costs.
"Partner" means Nextel Partners Operating Corp., a Delaware
corporation and its permitted successors and assigns under the terms of the
Partner Master Site Lease Agreement.
"Partner Master Site Lease Agreement" has the meaning provided in
Recital B of this Agreement.
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"Permits" means, to the extent permitted to be assigned by the
terms thereof or by applicable law, all licenses, permits, rights, orders,
variances, franchises or authorizations of or from any governmental authority
or agency.
"Permitted Liens" means (i) Liens for taxes and assessments or
governmental charges, (ii) levies not at the time due or which are being
contested in good faith by appropriate proceedings, (iii) mechanics',
materialmen's, repairmen's or other like liens arising in the ordinary course
of business and which are not overdue for a period of more than 30 days or are
being contested in good faith, (iv) Liens securing debt for borrowed money of
the underlying fee owner when Tower Sub or the Assignor is a lessee of
Property, (v) easements or restrictions and other similar encumbrances that do
not materially detract from the utility or value of the property subject
thereof, (vi) Liens securing Senior Secured Obligations, and (vii) leasehold
interests granted to tenants in connection with the lease of space on the Tower
Assets.
"Proceeds" has the meaning assigned that term under the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Secured Party or an Assignor from time to time with respect to
any of the Collateral, (ii) any and all payments (in any form whatsoever) made
or due and payable to an Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Property" means interests in the real property which comprise or
constitute part of the Tower Assets or on which any of the Tower Assets are
located.
"Secured Party" has the meaning specified in the Preamble of this
Agreement.
"Senior Lender" means each holder, at any time, of any Senior
Secured Obligations.
"Senior Secured Obligations" means, with respect to Tower Sub or any
Assignor, (i) any indebtedness or other obligations (including, without
limitation, obligations which, but for the automatic stay under Section 362(a)
of the Bankruptcy Code, would become due and any expenses recoverable under such
credit facilities) now or hereafter owed by such Assignor to any Person under
any revolving or term loan credit facility or any other facility for borrowed
money, letters of credit or bankers acceptance, or any obligation evidenced by
bonds, debenture, notes or similar obligations, or any guarantees of any of the
foregoing, which indebtedness or obligation is secured by the Collateral in
whole or in part; (ii) any and all sums advanced by a Senior Lender in order to
preserve the Collateral securing such Senior Secured Obligations or preserve its
security interest therein; and (iii) in the event of any proceeding for the
collection or enforcement of any obligation, or liabilities of Tower Sub or any
Assignor referred to in clause (i) above, after an event of default in respect
of such Senior Secured Obligations shall have occurred and be continuing, the
reasonable expenses of re-taking, curing, maintaining, restoring, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on
the Collateral securing such Senior Secured Obligations, or of any exercise by a
Senior Lender
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of its rights or remedies under any agreement or applicable law in respect of
Senior Secured Obligations, together with reasonable attorney's fees and court
costs; provided, however, that Senior Secured Obligations will not include any
indebtedness or other obligations which are by the terms thereof expressly
subordinated to the Obligations.
"Tower Assets" means (i) communications tower or monopole
structures ("Tower Structures"), tower lighting, grounding systems and fencing,
(ii) all real property and real property leasehold interests (including
easements and rights of way with respect to access roads) that are owned or
held by Tower Sub or any Assignor at the site locations of the Tower
Structures, (iii) all Permits that are necessary for, or were otherwise
obtained in connection with, the construction, use, or operation of a Tower
Structure, and (iv) all documents and records in possession of Tower Sub or any
Assignor relating to the foregoing, provided that such term does not include
Communication Equipment (as defined in the Master Site Commitment Agreement).
2. SECURITY INTERESTS
2.1 GRANT OF SECURITY INTERESTS. As security for the prompt and
complete performance when due of all of the Obligations, Tower Sub and each
Assignor does hereby sell, assign and transfer unto the Secured Party (for
itself and on behalf of the other Beneficiaries), and does hereby grant to the
Secured Party (for itself and on behalf of the other Beneficiaries) a
continuing security interest in, all of the right, title and interest of Tower
Sub and such Assignor in, to and under the assets described in items (i) - (v)
below that constitute part of the Tower Assets acquired by Tower Sub or any
other Assignor pursuant to the Merger Agreement or constructed or acquired by
Tower Sub or any other Assignor pursuant to the Master Site Commitment
Agreement, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(i) all Contracts (other than those Contracts in respect of which
the grant of a security interest by Tower Sub or an Assignor in favor of
the Secured Party would result in a default by the Assignor thereunder;
provided, however, that Tower Sub and each Assignor shall use
commercially reasonable efforts to obtain the consent of the parties to
the Contracts referred to in this Section 2.1(i) to the Lien in favor of
the Secured Party contemplated and granted by this Agreement), together
with all Contract Rights arising thereunder,
(ii) all Equipment,
(iii) all Permits,
(iv) all other Goods, General Intangibles, Chattel Paper,
Documents and Instruments, and
(v) all Proceeds and products of any and all of the foregoing.
(vi) The security interest of the Secured Party under this Agreement
extends to all Collateral of the kind which is the subject of this
Agreement which Tower Sub or any
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Assignor may acquire at any time during the continuation of this
Agreement and any transfer, purchase, conveyance or assignment by Tower
Sub or any Assignor of the Tower Assets which constitute the Collateral
shall be subject to the lien and security interest of Secured Party
provided for herein.
3. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Tower Sub and each Assignor represents, warrants and covenants,
which representations, warranties and covenants shall survive execution and
delivery of this Agreement, as follows:
3.1 SUBSIDIARY ASSIGNORS; JOINDER AGREEMENT. Each Assignor shall be
and remain at all times for the duration of this Agreement a wholly owned
Subsidiary of Tower Sub. At the time each Assignor becomes a wholly owned
Subsidiary of Tower Sub and obtains any right, title or interest in, to or
under the Collateral or any part thereof, then Tower Sub and such Assignor
shall promptly notify the Secured Party thereof and Assignor shall become a
party to this Agreement by execution of a Joinder Agreement in substantially
the form of Schedule 2 hereto and deliver the Joinder Agreement with supporting
resolutions, incumbency certificates, corporate formation and organizational
documentation as the Secured Party may reasonably request. Each Assignor shall
also execute and deliver all financing statements, filings, registrations and
recordings necessary in the opinion of Secured Party to comply with the
requirements of Section 4.3 hereof.
3.2 NECESSARY FILINGS. Assuming (a) the filing in the appropriate
filing offices of those UCC-1 financing statements listed on Schedule 1 hereto
and (b) the completion of those other actions listed on Schedule 1 hereto, all
filings, registrations, and recordings and actions necessary or appropriate to
create, preserve, protect and perfect the security interest granted by Tower
Sub and any such Assignor to the Secured Party hereby in respect of the
Collateral have been accomplished and the security interest granted to the
Secured Party pursuant to this Agreement in and to the Collateral constitutes a
perfected security interest therein and is entitled to all the rights,
priorities and benefits afforded by the Uniform Commercial Code or other
relevant law as enacted in any relevant jurisdiction to perfected security
interests.
3.3 NO LIENS. Tower Sub and each Assignor is, and as to Collateral
acquired by it from time to time after the date hereof Tower Sub or such
Assignor will be, the owner of all Collateral free from any Lien, security
interest, encumbrance or other right, title or interest of any person (other
than as permitted by Section 3.4 or other Permitted Liens) and Tower Sub and
such Assignor shall defend the Collateral against all claims and demands of all
persons at any time claiming the same or any interest therein adverse to the
Secured Party.
3.4 OTHER FINANCING STATEMENTS. There is no financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) securing obligations of Tower Sub or any Assignor covering or
purporting to cover any interest of any kind in the Collateral except as
disclosed on Annex A hereto and so long as any of the Master Site Commitment
Agreement, the Nextel Master Site Lease Agreement and the Partner Master Site
Lease Agreement remains in effect, Tower Sub and each Assignor will not execute
or authorize
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to be filed in any public office any financing statement (or similar statement
or instrument of registration under the law of any jurisdiction) or statements
relating to the Collateral, except financing statements filed or to be filed in
respect of or covering the security interests (i) granted hereby by Tower Sub
or by such Assignor or (ii) granted by an Assignor in respect of any Permitted
Liens.
3.5 CHIEF EXECUTIVE OFFICE, ETC.; RECORDS. The chief executive
office of Tower Sub and each Assignor is located at the address indicated on
Annex B hereto. Tower Sub and each Assignor will not move its chief executive
office except to such new location as Tower Sub or such Assignor may establish
in accordance with the last sentence of this Section 3.5. The originals of all
documents evidencing all Contract Rights in respect of the Collateral of Tower
Sub or such Assignor are, and will continue to be, kept at such chief executive
office, or at such new locations as Tower Sub or such Assignor may establish in
accordance with the last sentence of this Section 3.5. Tower Sub or any
Assignor shall not establish new locations for such offices until (i) it shall
have given to the Secured Party not less than 30 days' prior written notice (or
such lesser notice as shall be acceptable to the Secured Party in the case of a
new record location to be established in connection with newly acquired
Contracts) of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Secured Party
may reasonably request, and (ii) with respect to such new location, it shall
have taken all action, satisfactory to the Secured Party, to maintain the
security interest of the Secured Party in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect.
3.6 LOCATION OF EQUIPMENT. All Equipment in respect of the
Collateral held on the date hereof by Tower Sub and each Assignor is located at
one of the locations shown on Annex C attached hereto. Tower Sub and each
Assignor agrees that all Equipment in respect of the Collateral now held or
subsequently acquired by it shall be kept at (or shall be in transport to or
from) any one of the locations shown on Annex C hereto, or such new location as
Tower Sub and such Assignor may establish in accordance with the last sentence
of this Section 3.6. Tower Sub and any Assignor may establish a new location
for Equipment in respect of the Collateral only if it shall have given to the
Secured Party not less than 30 days' prior written notice of its intention so
to do, clearly describing such new location and providing such other
information in connection therewith as the Secured Party may reasonably
request, and with respect to such new location, it shall have taken all action
reasonably satisfactory to the Secured Party to maintain the security interest
of the Secured Party in the Collateral intended to be granted hereby at all
times in fully perfected and in full force and effect.
3.7 RECOURSE. This Agreement is made with full recourse to Tower
Sub and the relevant Assignor and pursuant to and upon all the warranties,
representations, covenants, and agreements on the part of Tower Sub and each
such Assignor contained in this Agreement, in the Nextel Master Site Lease
Agreement or in the Partner Master Site Lease Agreement and otherwise made in
writing by Tower Sub and each such Assignor in connection herewith or
therewith.
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4. PROVISIONS CONCERNING COLLATERAL
4.1 MAINTENANCE OF RECORDS. Tower Sub and each Assignor will keep
and maintain at its own cost and expense satisfactory and complete records of
the Collateral, including, but not limited to, the originals of all
documentation (including each Contract constituting Collateral, but subject to
the requirements of the Senior Lenders) with respect thereto, records of all
payments received, all credits granted thereon and all other dealings
therewith, and Tower Sub and each such Assignor will make the same available to
the Secured Party for inspection, at the Secured Party's own cost and expense,
at any and all reasonable times during normal business hours upon demand and
upon reasonable advance notice.
4.2 PROTECTION OF SECURED PARTY'S SECURITY. Except for the grant of
Permitted Liens, Tower Sub and each Assignor will not do anything or take any
action to impair the rights of the Secured Party in the Collateral.
4.3 FINANCING STATEMENTS. Tower Sub and each Assignor agrees to
sign and deliver to the Secured Party such financing statements, in form
acceptable to the Secured Party, as the Secured Party may from time to time
reasonably request or as are necessary or desirable in the opinion of the
Secured Party to establish and maintain a valid and enforceable security
interest in the Collateral as provided herein and the other rights and security
contemplated hereby all in accordance with the Uniform Commercial Code as
enacted in any and all relevant jurisdictions or any other relevant law. Tower
Sub and each Assignor will pay any applicable filing fees and related expenses.
Tower Sub and each Assignor authorizes the Secured Party to file any such
financing statements without the signature of Tower Sub or such Assignor.
4.4 FURTHER ACTIONS. Subject to the rights of holders of Permitted
Liens, Tower Sub and each Assignor will, at its own expense, make, execute,
endorse, acknowledge, file and/or deliver to the Secured Party from time to
time such lists, descriptions and designations of its Collateral, warehouse
receipts, receipts in the nature of warehouse receipts, bills of lading,
documents of title, vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to the Collateral and other property or rights covered by the
security interest hereby granted, which the Secured Party deems reasonably
appropriate or advisable to perfect, preserve or protect its security interest
in the Collateral.
5. REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
5.1 REMEDIES; OBTAINING THE COLLATERAL UPON DEFAULT. Tower Sub and
each Assignor agrees that, if any Event of Default shall have occurred and be
continuing, then and in every such case, subject to any mandatory requirements
of applicable law then in effect, the Secured Party, in addition to any rights
now or hereafter existing under applicable law, shall have all rights as a
secured creditor under the Uniform Commercial Code in all relevant
jurisdictions and may, except as otherwise provided in Section 6 hereof:
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(i) personally, or by agents or attorneys, immediately retake
possession of the Collateral or any part thereof, from Tower Sub or such
Assignor or any other person who then has possession of any part thereof
with or without notice or process of law, and for that purpose may enter
upon Tower Sub's or such Assignor's premises where any of the Collateral
is located and assume operation of the assets constituting the Collateral
or remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of Tower Sub or such
Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument
or other obligation constituting the Collateral to make any payment
required by the terms of such instrument or agreement directly to the
Secured Party; or
(iii) sell, assign or otherwise liquidate, or direct such Assignor
to sell, assign or otherwise liquidate, any or all of the Collateral or
any part thereof, and direct that the proceeds therefrom be paid directly
to the Secured Party or otherwise take possession of the proceeds of any
such sale or liquidation, it being understood and agreed that to the
extent such Assignor receives any proceeds from the sale or liquidation
of the Collateral, that such proceeds shall be held in trust by such
Assignor for the benefit of the Secured Party;
it being further understood that Tower Sub's and such Assignor's obligation so
to deliver the Collateral (and possession of the sites and communication towers
where such Collateral is located) is of the essence of this Agreement and that,
accordingly, upon application to a court of equity having jurisdiction, the
Secured Party shall be entitled to a decree requiring specific performance by
the Assignor of said obligation.
5.2 REMEDIES; DISPOSITION OF THE COLLATERAL. Upon the occurrence
and continuance of an Event of Default, any Collateral repossessed by the
Secured Party pursuant to Section 5.1 and any other Collateral (whether or not
so repossessed by the Secured Party), except as otherwise provided in Section 6
hereof, may be sold, assigned, leased or otherwise disposed of under one or
more contracts or as an entirety, and without the necessity of gathering at the
place of sale of the property to be sold, and in such manner, at such time or
times, at such place or places and on such terms as may, in compliance with any
mandatory requirements of applicable law, be commercially reasonable. Any of
the Collateral may be sold, leased or otherwise disposed of in any public or
private sale or other proceeding. The Secured Party shall give Tower Sub or the
Assignor at least 10 days' prior written notice of any such private disposition
specifying the time of such proposed disposition and the intended sale price or
other consideration, and shall be subject, for the 10 days' after the giving of
such notice, to the right of Tower Sub or the relevant Assignor or any nominee
to acquire the Collateral involved at a price or for such other consideration
at least equal to such intended sale price or other consideration so specified.
The Secured Party shall give Tower Sub or the Assignor at least 10 days' prior
written notice of any such public disposition specifying the time and place of
such proposed sale and, in the absence of applicable requirements of law, shall
be by public auction (which may, at the Secured Party's option, be subject to
reserve), after publication of notice of such auction not less than 10 days
prior thereto in two newspapers in general circulation in the city where such
Collateral is located. To the extent permitted by any such requirement of law,
the Secured Party on behalf of the Beneficiaries may bid for and become the
purchaser of the Collateral or any item thereof, offered for sale in accordance
with this Section without accountability to Tower
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Sub or the relevant Assignor. If, under mandatory requirements of applicable
law, the Secured Party is required to make disposition of the Collateral within
a period of time which does not permit the giving of notice to Tower Sub or the
Assignor as specified, the Secured Party need give Tower Sub or the relevant
Assignor only such notice of disposition as shall be reasonably practicable in
view of such mandatory requirements of applicable law.
5.3 WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, TOWER SUB AND EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE SECURED
PARTY'S TAKING POSSESSION OR THE SECURED PARTY'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH TOWER SUB OR
THE ASSIGNOR WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE
UNITED STATES OR OF ANY STATE, and Tower Sub and each Assignor hereby further
waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Secured Party's gross
negligence or wilful misconduct;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Secured
Party's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and Tower Sub and
each Assignor, for itself and all who may claim under it, insofar as it
or they now or hereafter lawfully may, hereby waives the benefit of all
such laws.
Any sale of, or the grant of options to purchase, or any other realization
upon, any Collateral shall operate to divest all right, title, interest, claim
and demand, either at law or in equity, of Tower Sub or the relevant Assignor
therein and thereto, and shall be a perpetual bar both at law and in equity
against Tower Sub and the relevant Assignor and against any and all persons
claiming or attempting to claim the Collateral so sold, optioned or realized
upon, or any part thereof, from, through and under Tower Sub or the relevant
Assignor.
5.4 APPLICATION OF PROCEEDS. (a) Subject to Section 6, the proceeds
of any Collateral obtained pursuant to Section 5.1 or disposed of pursuant to
Section 5.2 shall be used to satisfy such of the outstanding Obligations as are
monetary Obligations.
(b) It is understood that Tower Sub and the Assignors shall remain
jointly and severally liable to the extent of any deficiency between (x) the
amount of the proceeds of the Collateral applied as provided in Section 5.4(a)
and (y) the aggregate outstanding amount of such of the Obligations as are
monetary Obligations.
5.5 REMEDIES CUMULATIVE. Each and every right, power and
remedy hereby specifically given to the Secured Party shall be in addition to
every other right, power and
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remedy specifically given under this Agreement, the Master Site
Commitment Agreement, the Partner Master Site Lease Agreement or the Nextel
Master Site Lease Agreement or now or hereafter existing at law or in equity,
or by statute and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time or
simultaneously and as often and in such order as may be deemed expedient by the
Secured Party or any Beneficiary entitled to exercise such right, power or
remedy. All such rights, powers and remedies shall be cumulative and the
exercise or the beginning of exercise of one shall not be deemed a waiver of
the right to exercise of any other or others. No delay or omission of the
Secured Party or any Beneficiary in the exercise any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any default
or Event of Default or an acquiescence therein. In the event that the Secured
Party shall bring any suit to enforce any of its rights hereunder and shall be
entitled to judgment, then in such suit the Secured Party may recover
reasonable expenses, including attorneys' fees, and the amounts thereof shall
be included in such judgment.
5.6 SECURED PARTY TO ACT ON BEHALF OF TRANSFERRING SUBSIDIARIES.
The Transferring Subsidiaries and Partner agree by their acceptance of the
benefits hereof that this Agreement may be enforced on their behalf only by the
action of the Secured Party.
6. SUBORDINATION
6.1 SUBORDINATION. Subject to the rights of quiet enjoyment as
enjoyed by the Beneficiaries and certain set off rights of the Secured Party
and/or the Beneficiaries, the rights of first refusal on the communication
tower sites under the Nextel Master Site Lease Agreement and the Partner Master
Site Lease Agreement in favor of Secured Party or the Transferring
Subsidiaries, and the remaining provisions of this Section 6, so long as any
Senior Secured Obligations are outstanding, the rights of the Secured Party
with respect to any of the Collateral shall at all times be wholly subordinate
and junior to the Senior Secured Obligations, all to the extent set forth in
that certain Intercreditor and Subordination Agreement dated as of even date
herewith, between the Secured Party and the Senior Lenders as the same may be
amended from time to time (the "Intercreditor Agreement"). Upon the request of
Tower Sub or any other Assignor, the Secured Party shall enter into any other
intercreditor or subordination agreement with any Senior Lender or Senior
Lenders so long as the terms of any such agreement are not more onerous in the
aggregate to the Secured Party than those contained in the Intercreditor
Agreement.
6.2 NON-DISTURBANCE. Subject to the terms of the Intercreditor
Agreement, if any action or proceeding is commenced by any Senior Lender for
foreclosure on any item of Collateral, then any sale of Collateral in such
action or proceeding shall be made expressly subject to the rights of the
Secured Party and of the relevant Beneficiaries under the Subordination,
Non-Disturbance and Attornment Agreement in the form attached as Exhibit C to
the Nextel Master Site Lease Agreement or the Partner Master Site Lease
Agreement, as appropriate.
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7. MISCELLANEOUS
7.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be delivered or mailed by first class mail, postage
prepaid, addressed:
(i) if to Tower Sub or any Assignor at:
Tower Asset Sub, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
and (ii) if to the Secured Party, at:
Nextel Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
or at such other address as shall have been furnished in writing by any person
described above to the party required to give notice hereunder.
7.2 WAIVER; AMENDMENT. (a) None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by Tower Sub, each Assignor and the
Secured Party.
(b) No delay on the part of the Secured Party in exercising any of
its rights, remedies, powers and privileges hereunder or partial or single
exercise thereof, shall constitute a waiver thereof. No notice to or demand on
Tower Sub or any Assignor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
any of the rights of the Secured Party hereunder to any other or further action
in any circumstances without notice or demand.
7.3 OBLIGATIONS ABSOLUTE. The obligations of Tower Sub and each
Assignor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation:
(i) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from the Merger Agreement, the
Master Site Commitment Agreement, the Partner Master Site Lease
Agreement, or the Nextel Master Site Lease Agreement or any other
instrument or agreement referred to therein, or any assignment or
transfer of any thereof;
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(ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument or this
Agreement except as expressly provided in such renewal, extension,
amendment, modification, addition, supplement, assignment or transfer;
(iii) any furnishing of any additional security to the Secured
Party or its assignee or any acceptance thereof or any release of any
security by the Secured Party or its assignee;
(iv) any limitation on any person's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability,
in whole or in part, of any such instrument or agreement or any term
thereof; or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Tower Sub or an Assignor or any Subsidiary of Tower Sub or an Assignor,
or any action taken with respect to this Agreement by any trustee or
receiver, or by any court, in any such proceeding, whether or not Tower
Sub or an Assignor shall have notice or knowledge of any of the
foregoing.
7.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Tower Sub and each Assignor and its successors and assigns and shall inure to
the benefit of the Secured Party and its successors and assigns, but neither
Tower Sub nor any Assignor may transfer or assign any or all of its rights or
obligations hereunder without the written consent of the Secured Party. All
agreements, statements, representations and warranties made by Tower Sub and
each Assignor herein or in any certificate or other instrument delivered by
Tower Sub or such Assignor or on its behalf under this Agreement shall be
considered to have been relied upon by the Transferring Subsidiaries and shall
survive the execution and delivery of this Agreement regardless of any
investigation made by the Transferring Subsidiaries on their behalf.
7.5 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.6 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS THEREOF EXCEPT TO THE EXTENT THAT THE LAW OF ANOTHER JURISDICTION IS
MANDATORY.
7.7 DUTIES OF TOWER SUB AND THE ASSIGNORS. It is expressly agreed,
anything herein contained to the contrary notwithstanding, that Tower Sub and
each Assignor shall remain liable to perform all of the obligations, if any,
assumed by it with respect to the Collateral and the Secured Party shall not
have any obligations or liabilities with respect to any Collateral by reason of
or arising out of this Agreement, nor shall the Secured Party be required or
obligated in
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any manner to perform or fulfill any of the obligations of Tower Sub or any
Assignor under or with respect to any Collateral.
7.8 TERMINATION; RELEASE. After the termination of the Nextel
Master Site Lease Agreement in its entirety and when no obligations of Tower
Sub and the other Assignors are outstanding thereunder, this Agreement shall
terminate, and the Secured Party, at the request and expense of Tower Sub and
the other Assignors, will execute and deliver to Tower Sub or the relevant
Assignor a proper instrument or instruments (including Uniform Commercial Code
termination statements on form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
the relevant Assignor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Secured
Party and as has not theretofore been sold or otherwise applied or released
pursuant to this Agreement.
8. WAIVER OF JURY TRIAL
Each Assignor and the Secured Party each hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties as of the date first above written.
TOWER ASSET SUB, INC., for itself and each
Assignor
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx, President
TOWER PARENT CORP.
as Secured Party
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Xxxxxx X. Xxxxxx, Vice President
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