Exhibit 10.2
CONFORMED COPY
CASH MANAGEMENT
AGREEMENT
Dated as of July 31,
2009
among
PINNACLE TOWERS ACQUISITION HOLDINGS
LLC
PINNACLE TOWERS ACQUISITION LLC
GS SAVINGS INC.
GOLDENSTATE TOWERS, LLC
TOWER VENTURES III, LLC
TVHT, LLC
as Issuers,
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Indenture Trustee and as Central Account
Bank,
and
CROWN CASTLE USA INC.,
as Manager
CASH MANAGEMENT
AGREEMENT
CASH MANAGEMENT
AGREEMENT (this “
Agreement ”), dated as of July 31, 2009,
among the Issuers signatory hereto (together with the direct and
indirect subsidiaries of such Issuers, if any, collectively, the
“ Issuers ”), THE BANK OF NEW YORK
MELLON TRUST COMPANY , N.A., a national banking
association, as indenture trustee (in such capacity, the “
Indenture Trustee ”) and as bank (in such
capacity, the “ Central Account Bank ”),
and CROWN CASTLE USA INC., a Pennsylvania corporation (the
“ Manager ”). This Agreement replaces the
Cash Management Agreement, dated as of December 7, 2004, 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 that certain
indenture by and among the Issuers, the Guarantor and the Indenture
Trustee dated as of the date of this Agreement (together with all
amendments and supplements thereto, the “
Indenture ”) the Issuers issued Notes upon the
terms and subject to the conditions set forth therein (the “
Notes ”);
WHEREAS the Notes are secured by,
among other things, (i) the pledge of certain equity interests
of the Issuers set forth in the Pledge and Security Agreement (as
defined in the Indenture), (ii) the pledge of certain accounts
and reserves of the Issuers set forth in the Indenture and
(iii) the pledge of certain personal property of the Issuers
set forth in the Security Agreement (as defined in the Indenture)
(such pledges and all extensions, renewals, modifications,
substitutions and amendments thereof, collectively, the “
Security Instruments ”), in favor of the
Indenture Trustee for the benefit of Noteholders and the other
Secured Parties (as defined in the Pledge Agreement);
WHEREAS, pursuant to the Security
Instruments, the Issuers have granted to the Indenture Trustee a
security interest in all of the Issuers’ right, title and
interest in, to and under the Receipts (as defined in the
Indenture), due and to become due to the Issuers or to which the
Issuers are now or may hereafter become entitled, arising out of
the Tower Sites or any part or parts thereof;
WHEREAS, the Issuers and the Manager
have entered into a Management Agreement with respect to the Tower
Sites, dated as of the date hereof, pursuant to which the Manager
has agreed to manage the Tower Sites;
WHEREAS, in order to fulfill all of
the Issuers’ obligations under the Indenture, the Issuers and
the Manager have agreed that all Receipts will be deposited
directly into a Lock Box Account (as defined in the Indenture)
established by the Issuers, transferred to the Central Account (as
defined in the Indenture) established under the Indenture by the
Issuers with the Indenture Trustee and allocated and/or disbursed
in accordance with the terms and conditions hereof and of the
Indenture.
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:
I. DEFINITIONS
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:
“ Advance Rents Reserve
Deposit ” means, collectively, the Annual Advance
Rents Reserve Deposit, the Semi-Annual Advance Rents Reserve
Deposit and the Quarterly Advance Rents Reserve Deposit.
“ Agreement
” means this Cash Management Agreement among the Issuers, the
Manager and the Indenture Trustee, as amended, supplemented or
otherwise modified from time to time.
“ Annual Advance Rents
Reserve Deposit ” means eleven-twelfths (11/12
ths ) of the amount of Rent due and paid
pursuant to Leases which require that annual Rent due thereunder be
paid in advance during the month of January in each calendar year;
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.
“ Collateral
” shall have the meaning ascribed to it in
Section 5.1.
“ Deposit Account
Control Agreement ” shall mean a deposit account
control agreement executed by the Issuers for benefit of the
Indenture Trustee with respect to the Lock Box Account.
“ Extraordinary
Receipts ” means any receipts of the Issuers not
included within the definition of Operating Revenues under the
Indenture, including, without limitation, receipts from litigation
proceedings and tax certiorari proceedings.
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“ Manager Report
” shall have the meaning ascribed to it in the Management
Agreement.
“ Permitted
Investments ” means any one or more of the following
obligations or securities acquired at a purchase price of not
greater than par (unless the Issuers deposit into the applicable
Sub-Account cash in the amount by which the purchase price exceeds
par), including those issued by any Servicer, the trustee for any
financing of Crown International or any of its Subsidiaries or any
of their respective Affiliates, 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 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
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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, as confirmed in
writing that such investment would not, in and of itself, result in
a downgrade, qualification or withdrawal of the initial or, if
higher, then current ratings assigned to any class of Notes);
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;
(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, as confirmed in writing
that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the initial or, if
higher, then current ratings assigned to any class of Notes);
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, as confirmed in writing that such investments would
not, in and of itself, result in a downgrade,
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qualification or withdrawal of the
initial or, if higher, then current ratings assigned to any class
of Notes) 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, as confirmed in writing that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal
of the initial or, if higher, then current ratings assigned to any
class of Notes) 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, as confirmed
in writing that such investment would not, in and of itself, result
in a downgrade, qualification or withdrawal of the initial or, if
higher, then current ratings assigned to any class of Notes) for
money market funds or mutual funds; and
(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 any class of Notes
by such Rating Agency;
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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.
“ Quarterly Advance
Rents Reserve Deposit ” means two-thirds (2/3
rds ) 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