Exhibit 10.2
Execution Copy
CASH MANAGEMENT
AGREEMENT
Dated as of April 30,
2009
among
CC HOLDINGS GS V LLC
as Issuer,
PINNACLE TOWERS LLC AND THE DIRECT
AND INDIRECT SUBSIDIARIES
SIGNATORY HERETO, GLOBAL SIGNAL ACQUISITIONS
LLC, GLOBAL SIGNAL
ACQUISITIONS II LLC AND ANY OTHER GUARANTOR
OR GUARANTORS THAT ARE
OR MAY BECOME A PARTY HERETO
as The Guarantors,
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee and as Bank,
and
CROWN CASTLE USA, INC.,
as Manager
CASH MANAGEMENT
AGREEMENT
CASH MANAGEMENT
AGREEMENT (this “
Agreement ”), dated as of April 30, 2009,
among CC HOLDINGS GS V LLC , a Delaware limited liability
company (“ CCL ”), the Guarantors
signatory hereto (collectively, the “
Guarantors ”), THE BANK OF NEW YORK MELLON
TRUST COMPANY , N.A., a National Association, as trustee
(in such capacity “ Trustee ”) and as
bank (in such capacity “ Bank ”), and
Crown Castle USA, Inc. , a Delaware corporation (“
Manager ”). This Agreement replaces the Cash
Management Agreement, dated as of February 28, 2006, by and
among each of the entities listed on the signature pages thereto
under the heading “Borrowers”, Towers Finco III LLC,
LaSalle Bank National Association and Global Signal Services
LLC.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of
that certain indenture by and among CCL, Crown Castle GS III Corp.,
as co-issuer, the Guarantors and Trustee dated as of the date of
this Agreement (together with all amendments and supplements
thereto, the “ Indenture ”) the
Guarantors have guarantied the repayment of certain
obligations;
WHEREAS, the Notes are secured by,
among other things, (i) the pledge of the personal property of
CCL and each of the Guarantors pursuant to the Pledge and Security
Agreement and the Security Agreement and (ii) the pledge and
delivery of the equity interests by CCL in certain Guarantors and
by certain Guarantors in their subsidiaries pursuant to the Pledge
and Security Agreements (such pledge and all extensions, renewals,
modifications, substitutions and amendments thereof, collectively,
the “ Security Instruments ”);
WHEREAS, pursuant to the Security
Instruments each of the Guarantors have granted to Trustee a
security interest in all of such Guarantor’s right, title and
interest in, to and under the Receipts (as defined in the herein),
due and to become due to such Guarantor or to which the respective
Guarantor is now or may hereafter become entitled, arising out of
the Properties or the Collateral or any part or parts
thereof;
WHEREAS, each of CCL, the Guarantors
and Manager have entered into a Management Agreement with respect
to the Properties, dated as of the date hereof, pursuant to which
Manager has agreed to manage the Properties operated by each
respective Guarantor;
WHEREAS, in order to fulfill all of
CCL’s and the Guarantors’ Obligations, CCL, the
Guarantors and Manager have agreed that all Receipts will be
deposited directly into a Deposit Account (as defined herein)
established by CCL and the Guarantors, transferred to a Lock Box
Account (as defined herein) established hereunder by CCL and the
Guarantors with Bank and allocated and/or disbursed in accordance
with the terms and conditions hereof.
NOW, THEREFORE, in consideration of
the covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Indenture.
As used herein, the following terms shall have the following
definitions:
“ Accounts
” means, collectively, the Deposit Account, the Lock Box
Account and the Sub-Accounts.
“ Advance Rents Reserve
Deposit ” means, collectively, the Annual Advance
Rents Reserve Deposit and the Quarterly Advance Rents Reserve
Deposit.
“ Advance Rents Reserve
Sub-Account ” as defined in
Section 2.1(c).
“ Agreement
” means this Cash Management Agreement among CCL, the
Guarantors, Manager, Bank and Trustee, as amended, supplemented or
otherwise modified from time to time.
“ Annual Advance Rents
Reserve Deposit ” means eleven-twelfths
(11/12ths) of the amount of rent due and paid pursuant to
Leases which require that annual rent due thereunder be paid in
advance; provided , however , if rents which are
required to be delivered as Annual Advance Rents Reserve Deposits
are received late, appropriate adjustments shall be made taking
into consideration amounts which, but for such late payment of
rent, would have previously been distributed from the Advance Rents
Reserve Sub-Account had such rents not been paid late. Manager, CCL
and the Guarantors shall provide Trustee with bills or a statement
of amounts due for such calendar year pursuant to such Leases on or
before the fifteenth (15th) day prior to the commencement of
the applicable calendar year which shall be accompanied by an
Officer’s Certificate and such other documents as may be
reasonably required by Trustee to establish the amounts required to
be deposited into the Advance Rents Reserve Sub-Account.
“ Asset Sales
Sub-Account ” as defined in
Section 2.1(c).
“ Cash Trap Reserve
Sub-Account ” as defined in
Section 2.1(c).
“ Collateral
” as defined in Section 5.1.
“ Debt Service
Sub-Account ” as defined in
Section 2.1(c).
“ Deposit
Account ” as defined in
Section 2.1(a).
“ Deposit Account
Control Agreement ” as defined in
Section 2.1(a).
“ Deposit Bank
” as defined in Section 2.1(a).
“ Eligible
Account ” means a separate and identifiable account
from all other funds held by the holding institution, which account
is either (i) an account maintained with an Eligible Bank or
(ii) a segregated trust account maintained by a corporate
trust department of a federal depository institution or a state
chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of
Federal Regulation §9.10(b), which, in either case, has
corporate trust powers and is acting in its fiduciary capacity or
is otherwise acceptable to the Rating Agencies.
2
“ Eligible Bank
” means a bank that (i) satisfies the Rating Criteria
and (ii) insures the deposits thereunder through the Federal
Deposit Insurance Corporation.
“ Excess Cash
Flow ” means all funds remaining in the Lock Box
Account after the distributions and allocations of all amounts
required to be allocated or distributed pursuant to clause
(i) through (v) of Section 3.3(a).
“ Extraordinary
Receipts ” means any receipts of the Guarantors not
included within the definition of Operating Revenues under the
Indenture, including, without limitation, receipts from litigation
proceedings and tax certiorari proceedings.
“ Impositions and
Insurance Reserve Sub-Account ” as defined in
Section 2.1(c).
“ Interest Payment
Date ” means each
February 1, May 1, August 1 or
November 1 on which interest on the Notes is due and
payable.
“ Lock Box
Account ” as defined in
Section 2.1(b).
“ Monthly Debt Service
Payment Amount ” means an amount equal to one third
(1/3rd) of the interest due on the Notes on the next Interest
Payment Date during the term of the Notes.
“ Monthly Impositions
and Insurance Amount ” means an amount equal to one
twelfth (1/12th) of the annual Impositions and Insurance
Premiums that Manager reasonably estimates will be payable with
respect to (or if covered by blanket insurance policies, allocated
to) the Properties during the next twelve months, plus any
additional amounts related to deficiencies pursuant to
Section 2.1(c)(ii).
“ Monthly Payment
Date ” means the first (1st) day of each
calendar month or, if any such first (1st) day is not a
Business Day, the next succeeding Business Day, beginning in
June 1, 2009.
“ Permitted
Investments ” means any one or more of the following
obligations or securities acquired at a purchase price of not
greater than par (unless cash is deposited into the applicable
Sub-Account in the amount by which the purchase price exceeds par),
payable on demand or having a maturity date not later than the
business day immediately prior to the date on which the invested
sums are required for payment of an obligation for which the
related Sub-Account was created and meeting one of the appropriate
standards set forth below:
|
|
(i)
|
obligations of, or obligations
fully guaranteed as to payment of principal and interest by, the
United States or any agency or instrumentality thereof, provided
such obligations are backed by the full faith and credit of the
United States of America including, without limitation, obligations
of: the U.S. Treasury (all
|
3
|
|
direct or fully guaranteed
obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration
(participation certificates), the U.S. Maritime Administration
(guaranteed Title XI financing), the Small Business Administration
(guaranteed participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban Development
(local authority bonds) and the Washington Metropolitan Area
Transit Authority (guaranteed transit bonds); provided, however,
that the Investments described in this clause (i) must
(A) have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change, (B) if rated by
S&P, not have an “r” highlighter affixed to their
rating, (C) if such Investments have a variable rate of
interest, have an interest rate tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately
with that index, and (D) not be subject to liquidation prior
to their maturity;
|
|
|
(ii)
|
Federal Housing
Administration debentures;
|
|
|
(iii)
|
obligations of
the following United States government sponsored agencies: Federal
Home Loan Mortgage Corp. (debt obligations), the Farm Credit System
(consolidated systemwide bonds and notes), the Federal Home Loan
Banks (consolidated debt obligations), the Federal National
Mortgage Association (debt obligations), the Student Loan Marketing
Association (debt obligations), the Financing Corp. (debt
obligations), and the Resolution Funding Corp. (debt obligations);
provided, however , that the Investments described in this
clause (iii) must (A) have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change,
(B) if rated by S&P, not have an “r”
highlighter affixed to their rating, (C) if such Investments
have a variable rate of interest, have an interest rate tied to a
single interest rate index plus a fixed spread (if any) and must
move proportionately with that index, and (D) not be subject
to liquidation prior to their maturity;
|
|
|
(iv)
|
federal funds,
unsecured certificates of deposit, time deposits, bankers’
acceptances and repurchase agreements with maturities of not more
than 365 days of any bank, the short term obligations of which at
all times are rated in the highest short term rating category by
each Rating Agency (or, if not rated by all Rating Agencies, rated
by at least one Rating Agency in the highest short term rating
category and otherwise acceptable to each other Rating Agency;
provided, however , that the Investments described in this
clause (iv) must (A) have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change,
(B) if rated by S&P, not have an “r”
highlighter affixed to their rating, (C) if such Investments
have a variable rate of interest, have an interest rate tied to a
single interest rate index plus a fixed spread (if any) and must
move proportionately with that index, and (D) not be subject
to liquidation prior to their maturity;
|
4
|
|
(v)
|
fully Federal
Deposit Insurance Corporation-insured demand and time deposits in,
or certificates of deposit of, or bankers’ acceptances issued
by, any bank or trust company, savings and loan association or
savings bank, the short term obligations of which at all times are
rated in the highest short term rating category by each Rating
Agency (or, if not rated by all Rating Agencies, rated by at least
one Rating Agency in the highest short term rating category and
otherwise acceptable to each other Rating Agency); provided,
however , that the Investments described in this clause
(v) must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if
rated by S&P, not have a “r” highlighter affixed to
their rating, (C) if such Investments have a variable rate of
interest, have an interest rate tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately
with that index, and (D) not be subject to liquidation prior
to their maturity;
|
|
|
(vi)
|
debt
obligations with maturities of not more than 365 days and at all
times rated by each Rating Agency (or, if not rated by all Rating
Agencies, rated by at least one Rating Agency and otherwise
acceptable to each other Rating Agency) in its highest long-term
unsecured debt rating category; provided, however, that the
Investments described in this clause (vi) must (A) have a
predetermined fixed dollar amount of principal due at maturity that
cannot vary or change, (B) if rated by S&P, not have an
“r” highlighter affixed to their rating, (C) if
such Investments have a variable rate of interest, have an interest
rate tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and
(D) not be subject to liquidation prior to their
maturity;
|
|
|
(vii)
|
commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof)
with maturities of not more than 365 days and that at all times is
rated by each Rating Agency (or, if not rated by all Rating
Agencies, rated by at least one Rating Agency and otherwise
acceptable to each other Rating Agency,) in its highest short-term
unsecured debt rating; provided , however , that the
Investments described in this clause (vii) must (A) have
a predetermined fixed dollar amount of principal due at maturity
that cannot vary or change, (B) if rated by S&P, not have
a “r” highlighter affixed to their rating, (C) if
such Investments have a variable rate of interest, have an interest
rate tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and
(D) not be subject to liquidation prior to their
maturity;
|
|
|
(viii)
|
units of
taxable money market funds or mutual funds, which funds are
regulated investment companies, seek to maintain a constant net
asset value per share and have the highest rating from each Rating
Agency (or, if not rated by all Rating Agencies, rated by at least
one Rating Agency and otherwise acceptable to each other Rating
Agency) for money market funds or mutual funds; and
|
5
|
|
(ix)
|
any other
security, obligation or investment which has been approved as a
Permitted Investment in writing by each Rating Agency, as evidenced
by a written confirmation that the designation of such security,
obligation or investment as a Permitted Investment will not, in and
of itself, result in a downgrade, qualification or withdrawal of
the initial or, if higher, then current ratings assigned to the
Notes by such Rating Agency;
|
provided, however
, that such instrument continues to
qualify as a “cash flow investment” pursuant to Code
Section 860G(a)(6) earning a passive return in the nature of
interest and no obligation or security shall be a Permitted
Investment if (A) such obligation or security evidences a
right to receive only interest payments or (B) the right to
receive principal and interest payments on such obligation or
security are derived from an underlying investment that provides a
yield to maturity in excess of 120% of the yield to maturity at par
of such underlying investment; and provided, further , no
obligation or security, other than an obligation or security
constituting real estate assets, cash, cash items or Government
Securities pursuant to Code Section 856(c)(4)(A), shall be a
Permitted Investment if the value of such obligation or security
exceeds ten percent (10%) of the total value of the
outstanding securities of any one issuer.
“ Pledge and Security
Agreement ” means the Pledge and Security Agreement
dated as of the date hereof, made by CCL, Pinnacle Towers LLC,
Pinnacle Towers III LLC and Pinnacle Towers V Inc., in favor of
Trustee.
“
Quarterly Advance Rents Reserve Deposit ” means
two-thirds (2/3rds) of the amount of rent due and paid
pursuant to Leases which require that quarterly rent due thereunder
be paid in advance during the first (1 st ) month of each calendar
quarter (i.e., January, April, July and October); provided,
however , if rents which are required to be delivered as
Quarterly Advance Rents Reserve Deposits are received late,
appropriate adjustments shall be made taking into consideration
amounts which, but for such late payment of rent, would have
previously been distributed from the Advance Rents Reserve
Sub-Account had such rents not been paid late. Manager, CCL and the
Guarantors shall provide Trustee with bills or a statement of
amounts due for such calendar quarter pursuant to such Leases on or
before the fifteenth (15th) day prior to the commencement of
the applicable calendar quarter which shall be accompanied by an
Officer’s Certificate and such other documents as may be
reasonably required by Trustee to establish the amounts required to
be deposited into the Advance Rents Reserve Sub-Account.
“ Rating
Criteria ”, with respect to any Person, means that
(i) the short-term unsecured debt obligations of such Person
are rated at least “A-1” by S&P, “P-1”
by Moody’s and “F-I” by Fitch, if deposits are
held by such Person for a period of less than one month, or
(ii) the long-term unsecured debt obligations of such Person
are rated at least “AA-” by S&P (or
“A&