0001193125-13-167677.txt : 20130423 0001193125-13-167677.hdr.sgml : 20130423 20130423171749 ACCESSION NUMBER: 0001193125-13-167677 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20130404 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20130423 DATE AS OF CHANGE: 20130423 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SBA COMMUNICATIONS CORP CENTRAL INDEX KEY: 0001034054 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 650716501 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-30110 FILM NUMBER: 13777210 BUSINESS ADDRESS: STREET 1: 5900 BROKEN SOUND PARKWAY CITY: BOCA RATON STATE: FL ZIP: 33487 BUSINESS PHONE: 5619957670 MAIL ADDRESS: STREET 1: 5900 BROKEN SOUND PARKWAY CITY: BOCA RATON STATE: FL ZIP: 33487 8-K 1 d526073d8k.htm 8-K 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported) April 4, 2013

 

 

SBA Communications Corporation

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Florida   000-30110   65-0716501

(State or Other Jurisdiction

of Incorporation)

  

(Commission

File Number)

  

(IRS Employer

Identification No.)

 

5900 Broken Sound Parkway N.W.

Boca Raton, FL

   33487
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (561) 995-7670

 

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

Purchase Agreement

On April 4, 2013, SBA Senior Finance, LLC (“SBA Senior Finance”), an indirect subsidiary of SBA Communications Corporation (the “Company”), entered into a Purchase Agreement (the “Purchase Agreement”) among SBA Senior Finance, Deutsche Bank Trust Company Americas, as trustee, and Barclays Capital Inc. and Deutsche Bank Securities Inc., as representatives of the several initial purchasers named on Schedule I thereto, pursuant to which SBA Tower Trust (the “Trust”), a New York common law trust established by an indirect subsidiary of the Company, agreed to sell $1.33 billion aggregate principal amount of Secured Tower Revenue Securities, consisting of $425 million aggregate principal amount of Secured Tower Revenue Securities Series 2013-1C (the “2013-1C Tower Securities”), $330 million aggregate principal amount of Secured Tower Revenue Securities Series 2013-1D (the “2013-1D Tower Securities”), and $575 million aggregate principal amount of Secured Tower Revenue Securities Series 2013-2C (the “2013-2C Tower Securities,” and together with the 2013-1C Tower Securities and the 2013-1D Tower Securities, the “Tower Securities”) to the initial purchasers. The Purchase Agreement contained customary representations, warranties, conditions to closing, indemnification rights and obligations of the parties.

On April 18, 2013, pursuant to the terms of the Purchase Agreement, the Trust issued, and the initial purchasers purchased, the Tower Securities. The 2013-1C Tower Securities have an anticipated repayment date of April 2018 and a final maturity date of April 2043. The 2013-1C Tower Securities bear interest at 2.240 % per annum, payable monthly. The 2013-1D Tower Securities have an anticipated repayment date of April 2018 and a final maturity date of April 2043. The 2013-1D Tower Securities bear interest at 3.598% per annum, payable monthly. The 2013-2C Tower Securities have an anticipated repayment date of April 2023 and a final maturity date of April 2048. The 2013-2C Tower Securities bear interest at 3.722% per annum, payable monthly. The Tower Securities are guaranteed by SBA Guarantor LLC and SBA Holdings LLC, each an indirect subsidiary of the Company.

The net proceeds from this offering were approximately $1.31 billion, after deducting initial purchasers’ discounts and expenses. Net proceeds from this offering will be used to make a cash distribution to SBA Senior Finance which will further distribute or contribute such amount to one or more other SBA entities, directly or indirectly, to be used (1) to satisfy any unhedged obligations required to be satisfied in connection with the conversion or maturity of the Company’s 1.875% Convertible Senior Notes due 2013, (2) to repay the $100 million outstanding balance under the Company’s Revolving Credit Facility, and (3) to repay certain balances under term loans currently outstanding under the Company’s Senior Credit Agreement.

Sixth Loan and Security Agreement Supplement and Amendment

In connection with the issuance of the 2013-1C Tower Securities and the 2013-1D Tower Securities the parties entered into the Sixth Loan and Security Agreement Supplement and Amendment, dated as of April 18, 2013 (the “Sixth Loan Supplement”), which amended and supplemented the Amended and Restated Loan and Security Agreement, dated as of November 18, 2005. The Sixth Loan Supplement was executed by and among SBA Properties, LLC (successor to SBA Properties, Inc.), SBA Sites, LLC (successor to SBA Sites, Inc.), SBA Structures, LLC (successor to SBA Structures, Inc.), SBA Infrastructure, LLC, SBA Monarch Towers III, LLC, SBA Towers USVI II, Inc., SBA 2012 TC Assets PR, LLC, SBA 2012 TC Assets, LLC, SBA Towers IV, LLC, SBA Monarch Towers I, LLC, and SBA Towers USVI, Inc. (the “Borrowers”) and Midland Loan Services, a Division of PNC Bank, National Association, as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee. Pursuant to the Sixth Loan Supplement, the Borrowers, jointly and severally, borrowed an additional $425 million

under the mortgage loan with the same terms and conditions as the 2013-1C Tower Securities and $330 million under the mortgage loan with the same terms and conditions as the 2013-1D Tower Securities. In addition, the Sixth Loan Supplement modified certain requirements regarding the substitution and/or sale of towers and tower sites held by the Trust. Except as set forth herein, all other material terms and conditions of the mortgage loan remain unchanged.

Seventh Loan and Security Agreement Supplement and Amendment

In connection with the issuance of the 2013-2C Tower Securities, the parties entered into the Seventh Loan and Security Agreement Supplement and Amendment, dated as of April 18, 2013 (the “Seventh Loan Supplement”), which amended and supplemented the Amended and Restated Loan and Security Agreement, dated as of November 18, 2005. The Seventh Loan Supplement was executed by and among the Borrowers and Midland Loan Services, a Division of PNC Bank, National Association, as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee. Pursuant to the Seventh Loan Supplement, the Borrowers, jointly and severally, borrowed an additional $575 million under the mortgage loan with the same terms and conditions as the 2013-2C Tower Securities. In addition, the Seventh Loan Supplement modified certain requirements regarding the substitution and/or sale of towers and tower sites held by the Trust. Except as set forth herein, all other material terms and conditions of the mortgage loan remain unchanged.

The Mortgage Loan

The mortgage loan is the sole asset of the Trust. The aggregate principal amount of the loans outstanding under the mortgage loan is $3.17 billion, comprised of the $680 million loan component with the same terms and conditions as the 2010-1 Tower Securities, the $550 million loan component with the same terms and conditions as the 2010-2 Tower Securities, the $610 million loan component with the same terms and conditions as the 2012-1 Tower Securities, the $425 million loan component with the same terms and conditions as the 2013-1C Tower Securities, the $330 million loan component with the same terms and conditions as the 2013-1D Tower Securities, and the $575 million loan component with the same terms and conditions as the 2013-2C Tower Securities.

The mortgage loan underlying each of the 2013-1C Tower Securities, the 2013-1D Tower Securities and the 2013-2C Tower Securities is to be repaid from the operating cash flows from the aggregate 8,830 tower sites owned by the Borrowers, each of which is a special purpose entity that exists solely to hold the towers which are subject to the securitization. The mortgage loan is secured by (i) mortgages, deeds of trust and deeds to secure debt creating a first priority mortgage lien on the Borrowers’ interests in tower sites representing not less than 95% of the aggregate tower cash flow of the Borrowers’ tower sites, (ii) a security interest in the towers and substantially all of the Borrowers’ personal property and fixtures, (iii) the Borrowers’ rights under the management agreement and specified tenant leases and (iv) all of the proceeds of the foregoing.

The Borrowers may prepay the components of the mortgage loan corresponding to the Tower Securities, with no prepayment consideration, (i) within (a) twelve months, in the case of the components of the mortgage loan corresponding to the 2013-1C Tower Securities and the 2013-1D Tower Securities, and (b) eighteen months, in the case of the component of the mortgage loan corresponding to the 2013-2C Tower Securities, of the anticipated repayment date of the mortgage loan for such component, (ii) with proceeds received as a result of any condemnation or casualty of any of the 8,830 tower sites or (iii) during an amortization period. In all other circumstances the Borrowers may prepay, in whole or in part, the components of the mortgage loan corresponding to the Tower Securities upon payment of the applicable prepayment consideration.

The prepayment consideration for the 2013-1C Tower Securities, the 2013-1D Tower Securities and 2013-2C Tower Securities consists of an amount equal to the excess, if any, of (1) the present value, calculated in accordance with the formula set forth in the mortgage loan, on the date of prepayment of all future installments of principal and interest required to be paid from the date of prepayment to and

including the first due date that is twelve months, in the case of the 2013-1C Tower Securities and the 2013-1D Tower Securities, and eighteen months, in the case of the 2013-2C Tower Securities, prior to the anticipated repayment date of such component over (2) that portion of the principal balance of such component prepaid on the date of such prepayment.

To the extent that the full amount of the mortgage loan component corresponding to the 2013-1C Tower Securities, 2013-1D Tower Securities or 2013-2C Tower Securities is not fully repaid by its anticipated repayment date, the interest rate would increase by the greater of (i) 5% and (ii) the amount, if any, by which the sum of (x) the ten-year U.S. treasury rate plus (y) the credit-based spread (as set forth in the Mortgage Loan Agreement) plus (z) 5%, exceeds the original interest rate of the 2013-1C Tower Securities, 2013-1D Tower Securities or 2013-2C Tower Securities, as applicable.

Pursuant to the Management Agreement previously executed by the Borrowers, SBA Network Management, Inc., an indirect subsidiary of the Company, is entitled to receive a management fee equal to 7.5% of the Borrowers’ operating revenues for the immediately preceding calendar month and pursuant to the Cash Management Agreement, all rents and other sums due on the 8,830 tower sites are directly deposited by the lessees and are held, and subsequently distributed, by the trustee pursuant to the terms of the mortgage loan agreement. The material terms and conditions of these agreements were not amended.

The Company and certain of its affiliates have previously entered into commercial financial arrangements with each of the initial purchasers, and/or their respective affiliates, and each of these entities and/or its affiliates has in the past provided financial, advisory, investment banking and other services to the Company and its affiliates. Specifically, (1) J.P. Morgan Chase Bank N.A (“JPMorgan”), Barclays Bank PLC (“Barclays”), Citibank N.A. (“Citibank”), Deutsche Bank Securities Inc., Wells Fargo Bank, The Royal Bank of Scotland plc and Toronto Dominion (Texas) LLC serve as lenders in connection with amounts borrowed under the Senior Credit Agreement, (2) JPMorgan and Barclays served as lenders under the Company’s Mobilitie Bridge Loan, (3) Citigroup Global Markets Inc. and J.P. Morgan Securities LLC acted as underwriters in connection with the Company’s issuance of Class A common stock in March 2012, (4) each of the initial purchasers acted as underwriters in connection with SBA Telecommunications, LLC’s issuance of the 5.75% Senior Notes due 2020, the Company’s issuance of the 5.625% Senior Notes due 2019 and SBA Tower Trust’s issuance of the 2012-1 Tower Securities, and (5) JPMorgan, Barclays and Citibank provided financing commitments in connection with the TowerCo acquisition. In addition, Barclays Capital Inc. and J.P. Morgan Securities LLC acted as the Company’s financial advisors in connection with the Mobilitie acquisition and J.P. Morgan Securities LLC acted as the Company’s financial advisor in connection with the TowerCo acquisition.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 is incorporated by reference herein.

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit
No.

   

Description

10.4    Purchase Agreement, dated April 4, 2013, among SBA Senior Finance, LLC, Deutsche Bank Trust Company Americas, as trustee, and the several initial purchasers listed on Schedule I thereto.
10.5    Sixth Loan and Security Agreement Supplement and Amendment, dated as of April 18, 2013, by and among the Borrowers, and Midland Loan Services, a Division of PNC Bank, National Association, as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee.
10.6    Seventh Loan and Security Agreement Supplement and Amendment, dated as of April 18, 2013, by and among the Borrowers, and Midland Loan Services, a Division of PNC Bank, National Association, as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

SBA COMMUNICATIONS CORPORATION
By:  

/s/ Brendan T. Cavanagh

  Brendan T. Cavanagh
  Senior Vice President and Chief Financial Officer

Date: April 23, 2013

EX-10.4 2 d526073dex104.htm EX-10.4 EX-10.4

Exhibit 10.4

Execution Version

SBA TOWER TRUST

U.S. $425,000,000 Secured Tower Revenue Securities, Series 2013-1C

U.S. $330,000,000 Secured Tower Revenue Securities, Series 2013-1D

U.S. $575,000,000 Secured Tower Revenue Securities, Series 2013-2C

PURCHASE AGREEMENT

April 4, 2013

Barclays Capital Inc.

Deutsche Bank Securities Inc.

as Representatives of the several Initial

Purchasers listed in Schedule I hereto

c/o Barclays Capital Inc.

745 Seventh Avenue

New York, New York 10019

Ladies and Gentlemen:

SBA Tower Trust (the “Trust”), a New York common law trust formed pursuant to the Trust and Servicing Agreement (the “Initial Trust Agreement”), dated as of November 18, 2005 (the “Initial Closing Date”), among SBA Depositor LLC, a Delaware limited liability company (the “Depositor”), Midland Loan Services, a division of PNC Bank, National Association, as servicer (the “Servicer”), and Deutsche Bank Trust Company Americas, as successor in interest to Bank of America, N.A., successor by merger to LaSalle Bank National Association, as trustee (the “Trustee”), as supplemented by the First Trust Agreement Supplement (the “First Trust Agreement Supplement”), dated as of November 6, 2006 (the “2006 Closing Date”), the Second Trust Agreement Supplement (the “Second Trust Agreement Supplement”), dated as of April 16, 2010 (the “2010 Closing Date”), the Third Trust Agreement Supplement (the “Third Trust Agreement Supplement”), dated as of the 2010 Closing Date, and the Fourth Trust Agreement Supplement (the “Fourth Trust Agreement Supplement”), dated as of August 9, 2012 (the “2012 Closing Date”) (the Initial Trust Agreement, as so supplemented, the “Existing Trust Agreement”), and as further supplemented by the Fifth Trust Agreement Supplement (the “Fifth Trust Agreement Supplement”) and the Sixth Trust Agreement Supplement (the “Sixth Trust Agreement Supplement” and, together with the Fifth Trust Agreement Supplement, the “Closing Date Trust Agreement Supplements”), each to be dated as of the Closing Date (as hereinafter defined), in each case, between the Servicer and the Trustee (the Existing Trust Agreement as so supplemented, the “Trust Agreement”), proposes to issue U.S.$425,000,000 principal amount of its Secured Tower

Revenue Securities, Series 2013-1, 2.240% Subclass 2013-1C (the “2013-1C Certificates”), U.S.$330,000,000 principal amount of its Secured Tower Revenue Securities, Series 2013-1, 3.598% Subclass 2013-1D (the “2013-1D Certificates”) and U.S.$575,000,000 principal amount of its Secured Tower Revenue Securities, Series 2013-2, 3.722% Subclass 2013-2C (the “2013-2C Certificates” and, together with the 2013-1C Certificates and the 2013-1D Certificates, the “Offered Certificates”), representing a fractional undivided interest in the Trust. Capitalized terms used herein and not otherwise herein defined shall have the meanings assigned to such terms in the Trust Agreement.

The assets of the Trust currently consist primarily of a monthly pay, nonrecourse mortgage loan (the “Existing Mortgage Loan”) in an aggregate principal amount of $1,840,000,000, evidenced by two promissory notes issued on the 2010 Closing Date (the “2010 Notes”) and one promissory note issued on the 2012 Closing Date (the “2012 Note” and together with the 2010 Notes, the “Existing Notes”), in respect of which each of (x) SBA Properties, LLC, a Delaware limited liability company and successor to SBA Properties, Inc. (“SBA Properties” or the “Initial Borrower”), (y) SBA Sites, LLC, a Delaware limited liability company and successor to SBA Sites, Inc. (“SBA Sites”) and SBA Structures, LLC a Delaware limited liability company and successor to SBA Sites, Inc. (“SBA Structures”) (each a “SBA II Borrower” and collectively, the “SBA II Borrowers”) and (z) SBA Infrastructure, LLC, a Delaware limited liability company (“SBA Infrastructure”), SBA Towers USVI II, Inc., a Florida corporation (“SBA USVI II”), and SBA Monarch Towers III, LLC, a Delaware limited liability company (“SBA Monarch III”) (each a “SBA III Borrower” and collectively, the “SBA III Borrowers,” the SBA III Borrowers together with the Initial Borrower and the SBA II Borrowers, the “Existing Borrowers” and each an “Existing Borrower”) is currently jointly and severally liable pursuant to the Amended and Restated Loan and Security Agreement dated as of the Initial Closing Date, between the Depositor and the Initial Borrower, as amended and supplemented by the Second Loan and Security Agreement Supplement and Amendment, dated as of the 2006 Closing Date, the Third Loan and Security Agreement Supplement and Amendment, dated as of the 2010 Closing Date, the Fourth Loan and Security Agreement Supplement and Amendment, dated as of the 2010 Closing Date and the Fifth Loan and Security Agreement Supplement and Amendment, dated as of the 2012 Closing Date (as so amended and supplemented, the “Existing Loan Agreement”), in each case, between the Servicer on behalf of the Trustee and the Borrowers then party thereto. The Trust issued Certificates in two subclasses on the 2010 Closing Date (the “2010 Certificates”) and issued Certificates in one subclass on the 2012 Closing Date (the “2012 Certificates” and together with the 2010 Certificates, the “Existing Certificates”).

On the Closing Date, (a) SBA 2012 TC Assets PR, LLC, a Delaware limited liability company (“SBA TC PR”), SBA 2012 TC Assets, LLC, a Delaware limited liability company (“SBA TC”), SBA Towers IV, LLC, a Delaware limited liability company (“SBA Towers IV”), SBA Monarch Towers I, LLC, a Delaware limited liability company (“SBA Monarch I”) and SBA Towers USVI, Inc., a U.S. Virgin Islands corporation (“SBA USVI”) (each a “SBA IV Borrower” and collectively, the “SBA IV Borrowers”), will become additional borrowers under the Existing Loan Agreement, as

 

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supplemented by the Sixth Loan and Security Agreement Supplement and Amendment, to be dated as of the Closing Date (the “Sixth Loan Supplement”), among the Existing Borrowers, the SBA IV Borrowers and the Servicer on behalf of the Trustee, pursuant to which the Existing Mortgage Loan will be increased by $755,000,000 (the “Fifth Mortgage Loan Increase”), which Fifth Mortgage Loan Increase will be evidenced by two promissory notes, one promissory note evidencing the 2013-1C component of the Mortgage Loan (the “2013-1C Note”) and the other promissory note evidencing the 2013-1D component of the Mortgage Loan (the “2013-1D Note”), and the Seventh Loan and Security Agreement Supplement and Amendment, to be dated as of the Closing Date (the “Seventh Loan Supplement” and, together with the Sixth Loan Supplement, the “Closing Date Loan Supplements”), among the Existing Borrowers, the SBA IV Borrowers and the Servicer on behalf of the Trustee, pursuant to which the Existing Mortgage Loan will be increased by $575,000,000 (the “Sixth Mortgage Loan Increase” and, together with the Fifth Mortgage Loan Increase, the “Closing Date Mortgage Loan Increases”), which Sixth Mortgage Loan Increase will be evidenced by one promissory note evidencing the 2013-2C component of the Mortgage Loan (the “2013-2C Note”), and the obligations of the Closing Date Borrowers in respect of the outstanding components of the Existing Mortgage Loan will be evidenced by two promissory notes amending and restating the 2010 Notes (the “Amended and Restated 2010 Notes”) and one promissory note amending and restating the 2012 Note (the “Amended and Restated 2012 Note”), and (b) pursuant to Section 3.25 of the Trust Agreement, upon the execution of the Closing Date Loan Supplements, the Trustee will execute the Closing Date Trust Agreement Supplements and cause the Trust to issue the Offered Certificates. The Existing Loan Agreement as supplemented by the Closing Date Loan Supplements is herein referred to as the “Loan Agreement.” The Closing Date Mortgage Loan Increases (together with the Existing Mortgage Loan and any additional mortgage loan increase after the Closing Date, the “Mortgage Loan”) and the other obligations of the Existing Borrowers and the SBA IV Borrowers (collectively, the “Closing Date Borrowers”) under the Loan Agreement will be secured in part by mortgages on certain of the Closing Date Borrowers’ interests in certain of their wireless communications tower sites (the “Closing Date Sites”) on which space is leased to wireless communications companies and other users (the “Lessees”) pursuant to leases or licenses (the “Leases”) for placement of transmission equipment and other purposes.

Repayment of the Mortgage Loan is guaranteed by SBA Guarantor LLC, a Delaware limited liability company (the “Guarantor”), which is or will be the direct parent of the Closing Date Borrowers, pursuant to the Guaranty, dated as of the Initial Closing Date, which will be ratified as of the Closing Date pursuant to the Ratification of the Guaranty, to be dated as of the Closing Date (the “Ratification of the Guaranty”), and by SBA Holdings LLC, a Delaware limited liability company (“SBA Holdings”), which is the direct parent of the Guarantor, pursuant to the Parent Guaranty, dated as of the Initial Closing Date, which will be ratified as of the Closing Date pursuant to the Ratification of the Parent Guaranty, to be dated as of the Closing Date (the “Ratification of the Parent Guaranty”). On the Initial Closing Date, the Guarantor had pledged all of the equity interests of the Initial Borrower as security in support of its obligations under the Guaranty pursuant to the Pledge and Security Agreement, dated as of the Initial

 

3

Closing Date (the “Initial Guarantor Pledge Agreement”), between the Guarantor and the Trustee, and SBA Holdings pledged all of the equity interests of the Guarantor as security in support of its obligations under the Parent Guaranty pursuant to the Parent Pledge Agreement. On the 2006 Closing Date, the Guarantor pledged all of the equity interests of the SBA II Borrowers and SBA Towers, Inc. (“SBA Towers”), SBA Puerto Rico, Inc. (“SBA Puerto Rico”) and SBA USVI; in such capacity, together with SBA Towers and SBA Puerto Rico, the “Released Borrowers”), as security in support of its obligations under the Guaranty pursuant to the Pledge and Security Agreement, dated as of the 2006 Closing Date (the “Second Guarantor Pledge Agreement”), between the Guarantor and the Trustee. On the 2012 Closing Date, the Guarantor pledged all of the equity interests of the SBA III Borrowers as security in support of its obligations under the Guaranty pursuant to the Pledge and Security Agreement, dated as of the 2012 Closing Date (the “Third Guarantor Pledge Agreement”), between the Guarantor and the Trustee. On the Closing Date, the Guarantor will re-affirm its pledge of all of the equity interests of the Initial Borrower under the Initial Guarantor Pledge Agreement pursuant to the Ratification of Pledge, to be dated as of the Closing Date (the “Ratification of the Initial Pledge”), re-affirm its pledge of all of the equity interests of the SBA II Borrowers under the Second Guarantor Pledge Agreement pursuant to the Ratification of Pledge, to be dated as of the Closing Date (the “Ratification of the Second Pledge”), re-affirm its pledge of all of the equity interests of the SBA III Borrowers under the Third Guarantor Pledge Agreement pursuant to the Ratification of Pledge, to be dated as of the Closing Date (the “Ratification of the Third Pledge”), and will pledge all of the equity interests of each of the SBA IV Borrowers as security in support of its obligations under the Guaranty pursuant to a Pledge and Security Agreement, to be dated as of the Closing Date, between the Guarantor and the Trustee (the “SBA IV Borrower Guarantor Pledge Agreement”), and SBA Holdings will re-affirm its pledge of all of the equity interests of the Guarantor as security in support of its obligations under the Parent Guaranty pursuant to the Ratification of Parent Pledge, to be dated as of the Closing Date (the “Ratification of Parent Pledge”). SBA Holdings is a wholly-owned subsidiary of SBA Senior Finance, LLC, a Florida limited liability company (“SBA Finance”), and an indirect subsidiary of SBA Communications Corporation (“SBA Parent”). On July 28, 2009, the Released Borrowers entered into a Pay-Off, Release and Termination Agreement with, among others, the Initial Borrower, the SBA II Borrowers, the Servicer and the Trustee, pursuant to which the Released Borrowers were released from their obligations under the Loan Documents.

SBA Network Management, Inc. (the “Manager”), a Florida corporation and an indirect subsidiary of SBA Parent, will manage the Closing Date Sites on behalf of the Closing Date Borrowers pursuant to a Management Agreement, dated as of the Initial Closing Date, as amended as of the 2006 Closing Date, as of the 2012 Closing Date and as of the Closing Date (the “Management Agreement”), among the Manager, the Closing Date Borrowers and any Additional Borrower that becomes a party thereto. The Manager has delegated its duties under the Management Agreement to SBA Network Services, LLC pursuant to a Sub-Management Agreement (the “Sub-Management Agreement”), dated as of the 2010 Closing Date, between the Manager and SBA Network Services, LLC (the “Sub-Manager”).

 

4

The following agreements are referred to herein as the “Existing Transaction Documents”:

(a) the Existing Trust Agreement;

(b) the Existing Certificates;

(c) the Existing Loan Agreement;

(d) the Existing Notes;

(e) the Assignment, Acceptance and Consent Agreement, dated as of the Initial Closing Date, among the Depositor and the existing lenders party thereto;

(f) the Assumption and Release Agreement, dated as of the Initial Closing Date, between Lehman Commercial Paper Inc., the Depositor, the Initial Borrower, SBA Finance, SBA Towers and Tampa Towers, Inc.;

(g) the Contribution Agreement dated as of the 2006 Closing Date between SBA Finance and SBA Holdings;

(h) the Contribution Agreement dated as of the 2006 Closing Date between SBA Holdings and the Guarantor;

(i) the Contribution and Subrogation Agreement, dated as of the 2006 Closing Date, among the Initial Borrower, the SBA II Borrowers and the Released Borrowers;

(j) the Contribution and Subrogation Agreement, dated as of the 2010 Closing Date, among the Initial Borrower and the SBA II Borrowers;

(k) the Contribution Agreement dated as of the 2012 Closing Date between SBA Finance and SBA Holdings;

(l) the Contribution Agreement dated as of the 2012 Closing Date between SBA Holdings and the Guarantor;

(m) the Contribution and Subrogation Agreement dated as of the 2012 Closing Date among the Existing Borrowers;

(n) the Guaranty;

(o) the Parent Guaranty;

(p) the Initial Guarantor Pledge Agreement;

 

5

(q) the Second Guarantor Pledge Agreement;

(r) the Third Guarantor Pledge Agreement;

(s) the Parent Pledge Agreement;

(t) the Cash Management Agreement, as supplemented and amended by the Joinder and Amendment to Cash Management Agreement dated as of the 2006 Closing Date among the Initial Borrower, the SBA II Borrowers, the Released Borrowers, the Servicer, Deutsche Bank Trust Services America, as agent, and the Manager, the First Cash Management Agreement Supplement and Amendment dated as of the 2010 Closing Date among the Initial Borrower, the SBA II Borrowers, the Servicer, Deutsche Bank Trust Services America, as agent, and the Manager, and the Joinder and Amendment to Cash Management Agreement dated as of the 2012 Closing Date among the Existing Borrowers, the Servicer, Deutsche Bank Trust Services America, as agent, and the Manager;

(u) the Deposit Account Control Agreements relating to the Existing Borrowers;

(v) the Environmental Indemnity, including the Joinder to Environmental Indemnity dated as of the 2006 Closing Date among the Initial Borrower, the SBA II Borrowers, the Released Borrowers, the Guarantor and the Servicer and the Joinder to Environmental Indemnity dated as of the 2012 Closing Date among the Existing Borrowers, the Guarantor and the Servicer;

(w) the Management Agreement, including the Joinder and Amendment to Management Agreement dated as of the 2006 Closing Date among the Initial Borrower, the SBA II Borrowers, the Released Borrowers, the Servicer and the Manager and the Joinder and Amendment to Management Agreement dated as of the 2012 Closing Date among the Existing Borrowers, the Guarantor and the Servicer;

(x) the Sub-Management Agreement;

(y) the Assignment and Subordination of Management Agreement, including the Joinder to Assignment and Subordination of Management Agreement dated as of the 2006 Closing Date among the Initial Borrower, the SBA II Borrowers, the Released Borrowers and the Manager, and the Joinder to Assignment and Subordination of Management Agreement dated as of the 2012 Closing Date among the Existing Borrowers and the Manager; and

(z) the Advance Reimbursement Agreement, including the Joinder to Advance Reimbursement dated as of the 2006 Closing Date among the Initial Borrower, the SBA II Borrowers, the Released Borrowers, the Servicer and the Trustee and the Joinder to Advance Reimbursement dated as of the 2012 Closing Date among the Existing Borrowers, the Servicer and the Trustee.

 

6

The following agreements are referred to herein as the “Closing Date Transaction Documents”:

(a) this Agreement;

(b) the Closing Date Trust Agreement Supplements;

(c) the Offered Certificates;

(d) the Closing Date Loan Supplements;

(e) the 2013-1C Note;

(f) the 2013-1D Note;

(g) the 2013-2C Note;

(h) the Amended and Restated 2010 Notes;

(i) the Amended and Restated 2012 Note;

(j) the Contribution Agreement dated as of the Closing Date between SBA Finance and SBA Holdings;

(k) the Contribution Agreement dated as of the Closing Date between SBA Holdings and the Guarantor;

(l) the Contribution and Subrogation Agreement dated as of the Closing Date among the Closing Date Borrowers;

(m) the Ratification of the Guaranty;

(n) the Ratification of the Parent Guaranty;

(o) the Ratification of Initial Pledge;

(p) the Ratification of Second Pledge;

(q) the Ratification of Third Pledge;

(r) the SBA IV Borrower Guarantor Pledge Agreement;

(s) the Ratification of Parent Pledge;

 

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(t) the Joinder and Amendment to Cash Management Agreement dated as of the Closing Date among the Closing Date Borrowers, the Servicer, Deutsche Bank Trust Services Americas, as agent, and the Manager;

(u) the Deposit Account Control Agreements relating to the SBA IV Borrowers;

(v) the Joinder to Environmental Indemnity dated as of the Closing Date among the Closing Date Borrowers, the Guarantor and the Servicer;

(w) the Joinder and Amendment to Management Agreement dated as of the Closing Date among the Closing Date Borrowers, the Servicer and the Manager;

(x) the Joinder to Assignment and Subordination of Management Agreement dated as of the Closing Date among the Closing Date Borrowers and the Manager;

(y) the Joinder to Advance Reimbursement Agreement dated as of the Closing Date among the Closing Date Borrowers, the Servicer and the Trustee; and

(z) the Indemnification Agreement dated as of the Closing Date among the Servicer, SBA Finance and the Representatives, as representatives of the several Initial Purchasers listed in Schedule I hereto.

The Existing Transaction Documents and the Closing Date Transaction Documents are referred to herein as the “Transaction Documents.” The Closing Date Borrowers, the Depositor, the Guarantor, SBA Holdings, the Manager and the Sub-Manager are referred to herein as the “Transaction Parties.”

The Offered Certificates will be offered and sold to the initial purchasers named in Schedule I annexed hereto (the “Initial Purchasers”) for whom Barclays Capital Inc. and Deutsche Bank Securities Inc. are acting as representatives (the “Representatives”) without being registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption therefrom. In consultation with the Representatives, SBA Finance has prepared a preliminary offering memorandum, dated April 1, 2013, as amended by the First Supplement thereto dated April 4, 2013 (the “Preliminary Offering Memorandum”), a pricing term sheet substantially in the form attached hereto as Schedule II (the “Pricing Term Sheet”) setting forth the terms of the Offered Certificates omitted from the Preliminary Offering Memorandum and a final offering memorandum, dated April 4, 2013 (the “Offering Memorandum”), setting forth information concerning the Closing Date Borrowers, the Manager, SBA Finance, SBA Parent and certain affiliated and unaffiliated entities, the Closing Date Sites, the Leases, the Lessees and the Offered Certificates. The Preliminary Offering Memorandum, together with the Pricing Term Sheet and the documents listed on Schedule III hereto are

 

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collectively referred to as the “Pricing Disclosure Package.” “Applicable Time” means 1:35 p.m. (New York City time) on the date of this Agreement. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by SBA Finance to the Initial Purchasers pursuant to the terms of this Agreement. Any references herein to the Offering Memorandum shall be deemed to include all amendments and supplements thereto. SBA Finance hereby confirms that it has authorized the use of the Pricing Disclosure Package and the Offering Memorandum in connection with the offering and resale of the Offered Certificates by the Initial Purchasers in accordance with Section 2.

SBA Finance and the Trustee hereby confirm their agreement with the Initial Purchasers concerning the purchase of the Offered Certificates from the Trustee by the Initial Purchasers.

 

  1. Representations, Warranties and Agreements of SBA Finance.

SBA Finance represents and warrants to, and agrees with, the Initial Purchasers on and as of the date hereof and the Closing Date (as defined in Section 3) that:

(i) The Preliminary Offering Memorandum and the Marketing Materials (as hereinafter defined) (when read together with the Preliminary Offering Memorandum) as of their respective dates, did not, the Pricing Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date, will not, and the Offering Memorandum, as of its date and as of the Closing Date, will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Pricing Disclosure Package or the Offering Memorandum made in reliance upon and in conformity with the Initial Purchasers’ Information (as defined in Section 7(e)) or the Servicer Information (as defined in Section 7(a)).

(ii) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of its respective date, contained or contains all of the information that, if requested by a prospective purchaser of the Offered Certificates, would be required to be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act;

(iii) Assuming the accuracy of the representations and warranties of the Initial Purchasers contained in Section 2 and their compliance with the agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Offered Certificates to the Initial Purchasers and the offer, resale and delivery of the Offered Certificates by the Initial Purchasers in the manner contemplated by this Agreement, the Preliminary Offering Memorandum and the Offering Memorandum, to register the Offered Certificates under the Securities Act;

(iv) Each of the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC

 

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PR, SBA TC, SBA Towers IV and SBA Monarch I has been duly formed as a limited liability company and is validly existing and in good standing under the laws of the State of Delaware, is qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to be duly registered or qualified would not have caused a Material Adverse Effect, and has the requisite power and authority to own or hold its properties and to conduct the business in which it is engaged as described in the Preliminary Offering Memorandum and the Offering Memorandum;

(v) Each of SBA Senior Finance and the Sub-Manager has been duly formed as a limited liability company and is validly existing and in good standing under the laws of the State of Florida, is qualified to do business and is in good standing as a foreign limited liability company in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to be duly registered or qualified would not have caused a Material Adverse Effect, and has the requisite power and authority to own or hold its properties and to conduct the business in which it is engaged as described in the Preliminary Offering Memorandum and the Offering Memorandum;

(vi) Each of SBA USVI II and the Manager is duly incorporated and is validly existing and in good standing under the laws of the State of Florida, is qualified to do business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to be duly registered or qualified would not have caused a Material Adverse Effect, and has all the requisite corporate power and authority to own, lease and operate its properties and to conduct the business in which it is engaged as described in the Preliminary Offering Memorandum and the Offering Memorandum;

(vii) SBA USVI is duly incorporated and is validly existing and in good standing under the laws of the U.S. Virgin Islands, is qualified to do business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to be duly registered or qualified would not have caused a Material Adverse Effect, and has all the requisite corporate power and authority to own, lease and operate its properties and to conduct the business in which it is engaged as described in the Preliminary Offering Memorandum and the Offering Memorandum;

(viii) Each of the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV, SBA Monarch I and the Sub-Manager has all requisite limited liability company power and authority to execute, deliver and perform its obligations under the Transaction Documents to which it is a party;

 

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(ix) Each of SBA USVI II, SBA USVI and the Manager has all requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents to which it is a party;

(x) SBA Finance has all requisite limited liability company power and authority to execute, deliver and perform its obligations under this Agreement;

(xi) This Agreement has been duly authorized, executed and delivered by SBA Finance;

(xii) On the Closing Date, the Offered Certificates will have been duly and validly authorized and, when the Offered Certificates are duly and validly executed by or on behalf of the Trustee, authenticated by the Certificate Registrar and delivered in accordance with the Trust Agreement and delivered and paid for as provided herein, will be validly issued and outstanding and entitled to the benefits and security afforded by the Trust Agreement.

(xiii) Each of the Existing Transaction Documents to which each Transaction Party is a party has been duly authorized, executed and delivered by such Transaction Party and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the legal, valid and binding obligation of such Transaction Party enforceable against such Transaction Party in accordance with its terms (subject to applicable bankruptcy, insolvency reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing);

(xiv) Each of the Closing Date Transaction Documents (other than this Agreement) to which each Transaction Party will be a party will be duly authorized, executed and delivered by such Transaction Party on or prior to the Closing Date and, assuming due authorization, execution and delivery by the other parties thereto, will constitute the legal, valid and binding obligation of such Transaction Party enforceable against such Transaction Party in accordance with its terms (subject to applicable bankruptcy, insolvency reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing);

(xv) The execution, delivery and performance of this Agreement by SBA Finance and the consummation of the transactions contemplated hereby and by the Transaction Documents, including the sale of the Offered Certificates by the Trustee, will not conflict with, or result in a breach or violation of any of the terms or provisions of, or (including with the giving of notice or the lapse of time or both) constitute a default under (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which SBA Finance is a party or by which SBA Finance is bound or to which any of the properties or assets of SBA Finance is subject, (ii) the provisions of the operating agreement of SBA Finance or (iii) any statute or any order, rule or regulation of

 

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any court or governmental agency or body having jurisdiction over SBA Finance or any of its properties or assets, except in the cases of clause (i) or (iii), such breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect;

(xvi) The execution, delivery and performance of the Existing Transaction Documents to which each Transaction Party is a party by such Transaction Party and the consummation of the transactions contemplated thereby do not and will not conflict with, or result in a breach or violation of any of the terms or provisions of, or (including with the giving of notice or the lapse of time or both) constitute a default under (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Transaction Party is a party or by which such Transaction Party is bound or to which any of the properties or assets of such Transaction Party is subject, (ii) the provisions of the operating agreement, certificate of incorporation and by-laws or other constitutive documents of such Transaction Party or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Transaction Party or any of its properties or assets, except in the cases of clause (i) or (iii), such breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect;

(xvii) The execution, delivery and performance of the Closing Date Transaction Documents to which each Transaction Party will be a party by such Transaction Party and the consummation of the transactions contemplated thereby will not conflict with, or result in a breach or violation of any of the terms or provisions of, or (including with the giving of notice or the lapse of time or both) constitute a default under (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Transaction Party is a party or by which such Transaction Party is bound or to which any of the properties or assets of such Transaction Party is subject, (ii) the provisions of the operating agreement, certificate of incorporation and by-laws or other constitutive documents of such Transaction Party or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Transaction Party or any of its properties or assets, except in the cases of clause (i) or (iii), such breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect;

(xviii) No consent, approval, authorization or order of, or filing or registration with, any court or any regulatory authority or other governmental agency or body is required for the execution, delivery and performance by SBA Finance of this Agreement and the sale of the Offered Certificates by the Trustee and the consummation of the transactions contemplated hereby except as may be required by the securities or Blue Sky laws of any state of the United States or any foreign jurisdiction in connection with the sale of the Offered Certificates;

(xix) No consent, approval, authorization or order of, or filing or registration with, any court or any regulatory authority or other governmental agency or body is required for the execution, delivery and performance of the Transaction Documents to which each Transaction Party is or will be a party by such Transaction Party and the consummation by such Transaction Party of the transactions contemplated by such Transaction Documents;

 

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(xx) There are no legal or governmental proceedings pending or, to the knowledge of SBA Finance, threatened against any Transaction Party or to which any of the respective properties of the Transaction Parties is subject, that are not disclosed in the Preliminary Offering Memorandum and the Offering Memorandum and which are reasonably likely to have a Material Adverse Effect or to materially affect the issuance or sale of the Offered Certificates or the consummation of any of the other transactions contemplated by the Transaction Documents.

(xxi) None of the Transaction Parties is (i) in violation of its operating agreement, certificate of incorporation and by-laws or other constitutive documents, (ii) in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it, other than, a default or violation described in clauses (ii) and (iii) which is not reasonably likely to have a Material Adverse Effect;

(xxii) The Guarantor is the sole holder of the capital stock or the sole member, as applicable, of each of the Closing Date Borrowers and owns such stock or membership interests therein, as applicable, free and clear of Liens, other than Liens created under the Transaction Documents;

(xxiii) SBA Holdings is the sole member of the Guarantor and owns its membership interests therein free and clear of Liens, other than Liens created under the Transaction Documents;

(xxiv) SBA Finance is the sole member of each of SBA Holdings and the Depositor and owns its membership interests in SBA Holdings and the Depositor free and clear of Liens;

(xxv) SBA Finance has provided a written representation (the “17g-5 Representation”) to each nationally recognized statistical rating organization hired by SBA Finance to rate the Offered Certificates (collectively, the “Hired NRSROs”), which satisfies the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Rule 17g-5”), a copy of which has been delivered to each Initial Purchaser, and SBA Finance has complied with the 17g-5 Representation;

(xxvi) Ernst & Young LLP (“E&Y”), whose review reports are included or incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum and who has delivered the initial letter referred to in Section 5(d) hereof, are independent public accountants as required by the Securities Act and the rules

 

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and regulations promulgated thereunder (the “Rules and Regulations”) and were independent accountants as required by the Securities Act and the Rules and Regulations during the periods covered by the financial statements on which they reported included or incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum;

(xxvii) The historical financial statements (including the related notes) included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles (“GAAP”) consistently applied throughout such periods. The unaudited pro forma condensed consolidated financial statements, together with the related notes thereto, included in the Pricing Disclosure Package and the Offering Memorandum comply as to form in all material respects with the requirements of Regulation S-X under the Securities Act. Such financial statements fairly present the financial position of the Borrowers at the respective dates indicated and the results of operations for the respective periods indicated, in each case in accordance with GAAP consistently applied throughout such periods. The other financial information and data included in the Pricing Disclosure Package and the Offering Memorandum are, in all material respects, accurately presented and prepared on a basis consistent with such financial statements and the books and records of the Closing Date Borrowers;

(xxviii) Since the date as of which information is given in the Pricing Disclosure Package, there has not occurred a Material Adverse Effect or an event which has had a material adverse effect on the general affairs, management, consolidated financial position, stockholders’ equity, results of operations, business or prospects of SBA Parent and its subsidiaries taken as a whole (a “SBA Parent Material Adverse Effect”), nor to SBA Finance’s knowledge, after due inquiry, has there occurred any development or event involving a prospective Material Adverse Effect or a prospective SBA Parent Material Adverse Effect;

(xxix) None of SBA Finance or the Transaction Parties is currently or will be, upon sale of the Offered Certificates in accordance herewith and the application of the net proceeds therefrom as described in the Preliminary Offering Memorandum and the Offering Memorandum under the caption “Use of Proceeds,” an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “1940 Act”);

(xxx) The Trust Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”);

(xxxi) No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Pricing Disclosure Package or the Offering Memorandum has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith;

 

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(xxxii) The statements in the Preliminary Offering Memorandum and the Offering Memorandum under the headings “Description of the Mortgage Loan,” “The Guaranties,” “The Management Agreement,” “Description of the Securities” and “Description of the Trust Agreement” to the extent such statements summarize material terms of the Transaction Documents, are accurate in all material respects;

(xxxiii) The industry-related, tower-related and customer-related data and estimates included in the Pricing Disclosure Package and the Offering Memorandum are based on or derived from sources which SBA Finance believes to be reliable and accurate;

(xxxiv) Neither SBA Finance nor any affiliate (as defined in Rule 501(b) of Regulation D (“Regulation D”) under the Securities Act) of SBA Finance has directly, or through any agent (provided that no representation is made as to the Initial Purchasers or any person acting on their behalf), (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or could be integrated with the offering and sale of the Offered Certificates in a manner that would require the registration of the Offered Certificates under the Securities Act or (ii) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine, or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising) in connection with the offering of the Offered Certificates;

(xxxv) When the Offered Certificates are issued and delivered pursuant to this Agreement, the Offered Certificates will not be of the same class (within the meaning of Rule 144A under the Securities Act) as securities that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;

(xxxvi) Neither SBA Finance nor any of affiliate of SBA Finance or any person acting on their behalf has engaged or will engage during the applicable restricted period in any directed selling efforts within the meaning of Rule 902(b) of Regulation S with respect to the Offered Certificates, and SBA Finance and the affiliates of SBA Finance and all persons acting on their behalf have complied with and will comply with the offering restriction requirements of Regulation S in connection with the offering of the Offered Certificates outside the United States; provided that no representation is made as to the Initial Purchasers or any person, acting on their behalf;

(xxxvii) The sale of the Offered Certificates pursuant to Regulation S are “offshore transactions” and, to the knowledge of SBA Finance, are not part of a plan or scheme to evade the registration provisions of the Securities Act;

(xxxviii) Neither SBA Finance nor any affiliate of SBA Finance has taken or may take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Offered Certificates to facilitate the sale or resale of the Offered Certificates;

 

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(xxxix) On and immediately after the Closing Date, each of the Transaction Parties (after giving effect to the Closing Date Mortgage Loan Increases, the issuance of the Offered Certificates and to the other transactions related thereto as described in the Preliminary Offering Memorandum and the Offering Memorandum) will not be insolvent within the meaning of the Bankruptcy Code and none of the Transaction Parties is the subject of any voluntary or involuntary case or proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy or insolvency law and no Event of Bankruptcy has occurred with respect to any Transaction Party; and

(xl) As of the Closing Date, the representations and warranties of each Transaction Party contained in the Transaction Documents to which such Transaction Party is a party will be true and correct and are repeated herein as though fully set forth herein.

 

  2. Purchase and Resale of the Offered Certificates.

(a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein, the Trustee, on behalf of the Certificateholders, agrees to sell to the Initial Purchasers, and each of the Initial Purchasers, severally and not jointly, agrees to purchase from the Trustee, the principal amount of Offered Certificates set forth opposite the name of such Initial Purchaser on Schedule I hereto at a purchase price equal to, in the case of the 2013-1C Certificates, 99.0% of the principal amount thereof, in the case of the 2013-1D Certificates, 99.0% of the principal amount thereof and, in the case of the 2013-2C Certificates, 99.0% of the principal amount thereof. The Trustee shall not be obligated to deliver any of the Offered Certificates except upon payment for all of the Offered Certificates to be purchased as provided herein.

(b) The Initial Purchasers have advised the Trustee that they propose to offer the Offered Certificates for resale upon the terms and subject to the conditions set forth herein and in the Pricing Disclosure Package. Each of the Initial Purchasers represents and warrants to, and agrees with, SBA Finance and the Trustee that (i) it is purchasing the Offered Certificates pursuant to a private sale exempt from registration under the Securities Act and in compliance with any applicable state or foreign securities laws, (ii) neither it nor any of its affiliates, nor any person acting on its behalf, has solicited offers for, or offered or sold, and neither it, nor any of its affiliates, nor any person acting on its behalf, will solicit offers for, or offer or sell, the Offered Certificates by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act, (iii) it has solicited and will solicit offers for the Offered Certificates only from, and has offered or sold and will offer, sell or deliver the Offered Certificates, as part of its initial offering, only to (A) persons whom it reasonably believes to be qualified institutional buyers (“Qualified Institutional Buyers”) as defined in Rule

 

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144A under the Securities Act (“Rule 144A”), or if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such account is a Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and, in each case in transactions in accordance with Rule 144A, (B) a limited number of other entities that qualify as “accredited investors”, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (“IAIs”), that make certain representations and agreements to the Trustee and the Initial Purchasers and (C) to certain non-“U.S. Persons” in “Offshore Transactions” as defined in, and in reliance on, Regulation S under the Securities Act, and (iv) (A) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 (the “FSMA”) with respect to anything done by it in relation to the Offered Certificates in, from, or otherwise involving the United Kingdom, and it has only communicated or caused to be communicated and it will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of any Offered Certificates, in circumstances in which section 21(1) of the FSMA does not apply to the Trustee, and (B) in relation to each Member State of the European Economic Area (each, a “Relevant Member State”) with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State, it has not made and will not make an offer of the Offered Certificates to the public in that Relevant Member State other than:

(1) to any legal entity which is a qualified investor as defined in the Prospectus Directive;

(2) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant dealer or dealers nominated by SBA Finance for any such offer; or

(3) in any other circumstances falling within Article 3(2) of the Prospectus Directive.

For the purposes of the representation in clause (iv)(B) above, the expression an “offer of Offered Certificates to the public” in relation to any Offered Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Offered Certificates so as to enable an investor to decide to purchase or subscribe for the Offered Certificates, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and all amendments thereto, including Directive 2010/73/EU, and any relevant implementing measure adopted by a Relevant Member State. The Initial Purchasers agree that prior to or on the Closing Date the Initial Purchasers shall furnish to each purchaser of any of the Offered Certificates a copy of the Offering Memorandum. In addition to the foregoing, the Initial Purchasers acknowledge and agree that SBA Finance, the Trustee and, for purposes of the opinions to be delivered

 

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to the Initial Purchasers pursuant to Section 5, counsel for SBA Finance and for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers and their compliance with their agreements contained in this Section 2 (except clause (i) of this subsection (b)), and the Initial Purchasers hereby consent to such reliance.

(c) The Trustee acknowledges and agrees that the Initial Purchasers may sell Offered Certificates to any affiliate of the Initial Purchasers and that any such affiliate may sell Offered Certificates purchased by it to the Initial Purchasers.

 

  3. Delivery of and Payment for the Offered Certificates.

(a) Delivery of and payment for the Offered Certificates shall be made at the offices of Cadwalader, Wickersham & Taft LLP, New York, New York, or at such other place as shall be agreed upon by the Representatives, SBA Finance and the Trustee, at 10:00 A.M., New York City time, on April 18, 2013, or at such other time or date, not later than seven full business days thereafter, as shall be agreed upon by the Representatives, SBA Finance and the Trustee (such date and time of payment and delivery being referred to herein as the “Closing Date”).

(b) On the Closing Date, payment of the purchase price for the Offered Certificates shall be made to the Trustee by wire or book-entry transfer of same-day funds to such account or accounts as the Trustee shall specify prior to the Closing Date or by such other means as the parties hereto shall agree prior to the Closing Date against delivery to Barclays Capital Inc. on behalf of the Initial Purchasers of the Offered Certificates as described herein. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of the Initial Purchasers hereunder. Upon delivery, the Offered Certificates shall be in definitive form, registered in such names and in such denominations as the Representatives shall have requested in writing not less than two full business days prior to the Closing Date, in the case of any Offered Certificates being resold to IAIs on the Closing Date, and otherwise in global form, registered in the name of The Depository Trust Company (“DTC”) or its nominee and delivered through the facilities of DTC. SBA Finance agrees to make the definitive certificates and one or more global certificates evidencing the Offered Certificates available for inspection by the Representatives in New York, New York at least 24 hours prior to the Closing Date.

 

  4. Further Agreements of SBA Finance

SBA Finance agrees with the Initial Purchasers:

(a) (i) to advise the Representatives promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Pricing Disclosure Package or the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) to advise the Representatives promptly of any order

 

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preventing or suspending the use of the Pricing Disclosure Package or the Offering Memorandum, of any suspension of the qualification of the Offered Certificates for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose and (iii) to use commercially reasonable efforts to prevent the issuance of any such order preventing or suspending the use of the Pricing Disclosure Package or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;

(b) to prepare the Offering Memorandum in a form reasonably acceptable to the Initial Purchasers and to furnish promptly to the Initial Purchasers and counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested;

(c) not to amend or supplement the Offering Memorandum unless the Initial Purchasers shall previously have been advised of, and shall not have reasonably objected to, such amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished a copy of such amendment or supplement;

(d) if, at any time prior to completion of the resale of the Offered Certificates by the Initial Purchasers, any event shall occur that, in the judgment of SBA Finance or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements in the Offering Memorandum, in light of the circumstances at the time that the Offering Memorandum is delivered to prospective investors, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, to promptly notify the Representatives of such event and prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum as amended or supplemented will, in light of the circumstances at the time that the Offering Memorandum is delivered to prospective investors, not be misleading and (ii) the Offering Memorandum will comply with applicable law;

(e) for so long as the Offered Certificates are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Offered Certificates and prospective purchasers of the Offered Certificates designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act (the foregoing agreement being for the benefit of the holders from time to time of the Offered Certificates and prospective purchasers of the Offered Certificates designated by such holders);

(f) to promptly take from time to time such actions as the Representatives may reasonably request to qualify the Offered Certificates for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may designate and to continue such qualifications in effect for so long as required for the resale of the Offered Certificates; and to arrange for the determination of the eligibility for investment

 

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of the Offered Certificates under the laws of such jurisdictions as the Representatives may request; provided that none of the Closing Date Borrowers or the Trustee on behalf of the holders of the Certificates shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any jurisdiction in which it is not now so subject;

(g) to use its reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Offered Certificates;

(h) to assist the Representatives in arranging for the Offered Certificates to be eligible for clearance and settlement through DTC;

(i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) that would be integrated with the sale of the Offered Certificates in a manner which would require the registration under the Securities Act of the sale to the Initial Purchasers or the resale to investors hereunder of the Offered Certificates;

(j) not to, and to use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons, offer or sell the Offered Certificates by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act to cease to be applicable to the offering and sale of the Offered Certificates as contemplated by this Agreement and the Preliminary Offering Memorandum;

(k) with respect to any Offered Certificates sold in reliance on Rule 903 under the Securities Act, not to, and to use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons, offer or sell the Offered Certificates in the United States by means of any directed selling effort within the meaning of Rule 902 or otherwise in violation of the offering restriction requirements of Regulation S under the Securities Act;

(l) for a period of 60 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any securities issued by the Trust or any other securities backed by wireless communications sites and related leases and licenses owned by SBA Parent or any of its affiliates, except with the prior written consent of the Initial Purchasers;

(m) in connection with the offering of the Offered Certificates, until the Representatives shall have notified SBA Finance of the completion of the resale of the Offered Certificates, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other

 

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persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Offered Certificates, or attempt to induce any person to purchase any Offered Certificates; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Offered Certificates;

(n) in connection with the offering of the Offered Certificates, until the Representatives shall have notified SBA Finance of the completion of the initial resale of the Offered Certificates by the Initial Purchasers, to extend to each prospective investor, at the request of the Initial Purchasers, the reasonable opportunity to discuss with, and obtain information from, SBA Finance and its affiliates concerning their businesses, management and financial affairs, the Offered Certificates and the terms and conditions of the offering thereof, to the extent SBA Finance and its affiliates possess the same or can acquire it without unreasonable effort or expense;

(o) to cause the net proceeds from the sale of the Offered Certificates to be applied as set forth in the Preliminary Offering Memorandum and the Offering Memorandum under the heading “Use of Proceeds”, including to the payment of all fees owing to the Initial Purchasers and the fees and expenses set forth in Section 9 hereof;

(p) to the extent that the ratings to be provided with respect to the Offered Certificates as set forth in the Pricing Disclosure Package and the Offering Memorandum by Fitch, Inc. (“Fitch”) and Moody’s Investors Service, Inc. (“Moody’s”) are conditional upon the furnishing of documents or the taking of any other actions by SBA Finance or any of its affiliates, to furnish such documents and take any such other action;

(q) to comply with the 17g-5 Representation in all material respects; and

(r) for a period from the date of this Agreement until the retirement of the Offered Certificates, to cause to be furnished to the Initial Purchasers, as soon as practicable after becoming available, copies of (i) (A) the annual statement of compliance delivered by the Servicer to the Trustee under the Trust Agreement, (B) the annual independent public accountants’ servicing report furnished to the Trustee pursuant to the Trust Agreement, (C) any reports distributed by the Servicer pursuant to Section 4.02(a) or (e) of the Trust Agreement and (D) from time to time, such other information concerning the Offered Certificates which may be furnished by the Servicer to the extent SBA Finance possesses the same or can acquire it without unreasonable effort or expense and (ii) (A) all annual and periodic financial reports furnished to the Servicer or the Trustee by any of the Transaction Parties or SBA Parent and (B) all material reports, information and correspondence sent to holders of the Offered Certificates.

 

  5. Conditions to Obligations of Initial Purchasers and Trust.

The obligations of the Initial Purchasers hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations and warranties of SBA Finance contained herein, to the accuracy of the statements of the other Transaction Parties and their respective officers made in any certificates delivered pursuant hereto, to the performance by SBA Finance of its obligations hereunder and to each of the following additional terms and conditions:

(a) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchasers not later than 11:00 a.m., New York City time, on the fourth business day following the date of this Agreement, or at such later date and time as the Representatives may approve in writing; and no stop order suspending the sale of the Offered Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened;

 

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(b) The Initial Purchasers shall not have discovered and disclosed to SBA Finance on or prior to the Closing Date that (i) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a fact which, in the opinion of counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary to make the statements therein, in light of the circumstances existing as of the Applicable Time, not misleading or (ii) the Pricing Disclosure Package or the Offering Memorandum, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents and the transactions contemplated thereby, shall be reasonably satisfactory in all material respects to the Initial Purchasers, and SBA Finance and the Transaction Parties shall have furnished to the Initial Purchasers all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters;

(d) On the date hereof, SBA Finance shall have furnished to the Representatives a letter from E&Y (the “Initial Letter”), addressed to the Initial Purchasers and dated the date hereof concerning the accounting and financial information with respect to SBA Parent and its subsidiaries included or incorporated by reference in the Preliminary Offering Memorandum and certain statistical information with respect to the Closing Date Borrowers set forth in the Preliminary Offering Memorandum;

(e) SBA Finance shall have furnished to the Representatives a letter from E&Y (the “Bring-Down Letter”), addressed to the Initial Purchasers and dated the Closing Date concerning the accounting and financial information with respect to SBA Parent and its subsidiaries included or incorporated by reference in the Offering Memorandum and certain statistical information with respect to the Closing Date Borrowers set forth in the Offering Memorandum and (i) confirming

 

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that they are independent public accountants with respect to SBA Parent and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder, (ii) stating, as of the date of the Bring-Down Letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is included or incorporated by reference in the Offering Memorandum, as of a date not more than three business days prior to the date of the Bring-Down Letter), that the conclusions and findings of such accountants with respect to the financial information and other matters covered by the Initial Letter are accurate and (iii) confirming in all material respects the conclusions and findings set forth in the Initial Letter;

(f) SBA Finance shall have furnished to the Representatives (i) a report from Deloitte & Touche LLP (“Deloitte”), dated April 4, 2013, in form and substance reasonably satisfactory to the Representatives, concerning certain agreed upon procedures performed in respect of the information presented in the Preliminary Offering Memorandum on the Cover and under the captions “Security Summary,” “Summary of Memorandum,” “Risk Factors,” “The Business of the Closing Date Borrowers,” “The Closing Date Sites,” “Description of the Mortgage Loan,” “Description of the Securities” and “Yield and Maturity Considerations” and certain information in the Sales Slides (as hereinafter defined) addressed to the Initial Purchasers, (ii) a report from Deloitte, dated April 4, 2013, in form and substance reasonably satisfactory to the Representatives, concerning certain agreed upon procedures performed in respect of the information presented in the Offering Memorandum on the Cover and under the captions “Security Summary,” “Summary of Memorandum,” “Risk Factors,” “The Business of the Closing Date Borrowers,” “The Closing Date Sites,” “Description of the Mortgage Loan,” “Description of the Securities” and “Yield and Maturity Considerations” addressed to the Initial Purchasers, (iii) a report from Deloitte, dated April 4, 2013, in form and substance reasonably satisfactory to the Representatives, concerning certain agreed upon procedures performed in respect of the information presented in the data file containing certain information pertaining to wireless communication sites, tenant leases, and wireless communication towers;

(g) The Closing Date Transaction Documents shall have been executed and delivered by the parties thereto in form satisfactory to the Representatives; the Transaction Documents shall be in full force and effect, the representations and warranties of the parties thereto contained in the Transaction Documents shall be true and correct and each of such parties shall have performed its obligations thereunder required to be performed on or prior to the Closing Date;

(h) The Offered Certificates shall have been duly executed and delivered by the Trustee and duly authenticated by the Certificate Registrar and shall be eligible for clearance and settlement through DTC;

 

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(i) The Representatives and the Trustee shall have received a letter from Moody’s stating that the 2013-1C Certificates and the 2013-2C Certificates have received a rating of “A2” and the 2013-1D Certificates have received a rating of “Baa2” and a letter from Fitch stating that the 2013-1C Certificates and the 2013-2C Certificates have received a rating of “A” and the 2013-1D Certificates have received a rating of “BBB”;

(j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the Nasdaq National Market or in the over-the-counter market, or trading in any securities of SBA Parent on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Securities and Exchange Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a material disruption in securities settlement, payment or clearance services in the United States, (iii) a banking moratorium shall have been declared by Federal or state authorities, (iv) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity, crisis or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity, crisis or emergency makes it impractical or inadvisable to proceed with the completion of the offering or sale of and payment for the Offered Certificates, or (v) the occurrence of any other calamity, crisis (including without limitation as a result of terrorist activities), or material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Offered Certificates being delivered on the Closing Date on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto) or that, in the judgment of the Representatives, would materially and adversely affect the financial markets or the markets for the Offered Certificates and or debt or equity securities;

(k) Since the date as of which information is given in the Pricing Disclosure Package, there shall not have occurred any change, or any development which would reasonably be expected to involve a prospective change, in or affecting the financial condition, or in the business, assets or results of operations, of SBA Finance or any Transaction Party, or in the Trust Fund, other than as set forth in or contemplated by the Pricing Disclosure Package and the Offering Memorandum at the date of this Agreement, the effect of which is, in the Representatives’ judgment, such as to make it impracticable or inadvisable to market or sell the Offered Certificates on the terms and in the manner contemplated in the Preliminary Offering Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto);

 

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(l) The Representatives and the Trustee shall have received (i) all title insurance policies (or a marked, signed and predated commitment to issue all title insurance policies) and all endorsements to previously issued title insurance policies required to be delivered to the Servicer in connection with the addition of the Additional Borrower Sites and the Closing Date Mortgage Loan Increases pursuant to the Loan Agreement and (ii) evidence reasonably satisfactory to the Representatives and their counsel, that (A) all amendments to all Mortgages with respect to all Mortgaged Sites of the Existing Borrowers included in the Closing Date Sites, all Mortgages with respect to all Mortgaged Sites of the SBA IV Borrowers included in the Closing Date Sites and all assignments of rent with respect to the Other Sites included in the Closing Date Sites have been properly prepared and duly executed by the Closing Date Borrowers, (B) all UCC-1 financing statements required to be filed on or prior to the Closing Date pursuant to the Transaction Documents have been prepared and are ready to be filed and (C) on or prior to the Closing Date, 26 Ground Lease Sites owned by the Existing Borrowers but excluded from the Closing Date Sites (as defined in the Pricing Disclosure Package) have been assigned or terminated in accordance with the terms of Section 5.21(A)(ii) of the Loan Agreement;

(m) On or before the Closing Date, the organizational documents of each of the SBA IV Borrowers shall have been amended to limit its respective purpose and to add certain provisions consistent with current rating agency criteria for special purpose subsidiaries and copies of such documents shall have been furnished to the Representatives and shall be reasonably satisfactory to the Representatives;

(n) (1) The Representatives and the Trustee shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special New York counsel to SBA Finance and the Transaction Parties, dated the Closing Date and addressed to the Initial Purchasers, regarding due authorization, execution and delivery of the Transaction Documents by SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I and, with respect to the Transaction Documents to which the Depositor is a party, the Depositor, due authorization of the direction by the Closing Date Borrowers to the Trustee and the Certificate Registrar to execute and authenticate the Offered Certificates, due authorization of the order by the Depositor to the Trustee to enter into this Agreement, with respect to the Transaction Parties, the enforceability of certain Transaction Documents, the Offered Certificates’ entitlement to the benefits of the Trust Agreement, required authorizations and consents of federal and New York governmental authorities, no violations of federal or New York law or regulation, the validity of the security interests created under the Transaction Documents, the perfection and priority of those security interests created under the Transaction Documents the perfection and priority of which is governed by New York law, the exemption from registration of the Offered Certificates under the Securities Act, the exemption from qualification of the Trust Agreement under

 

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the Trust Indenture Act, the exemption from regulation as an “investment company” under the 1940 Act of SBA Holdings, the Guarantor and the Closing Date Borrowers and such other matters as the Representatives may reasonably request, each in form and substance reasonably satisfactory to the Representatives and their counsel;

(2) The Representatives shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special New York counsel to SBA Finance and the Transaction Parties, dated the Closing Date and addressed to the Initial Purchasers, regarding the accuracy of the descriptions of the Transaction Documents in the Pricing Disclosure Package and the Offering Memorandum and securities law matters, including negative assurances concerning the Pricing Disclosure Package as of the Applicable Time and the Offering Memorandum as of its date and the Closing Date and such other matters as the Representatives may reasonably request, each in form and substance reasonably satisfactory to the Representatives and their counsel;

(o) The Representatives and the Trustee shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special New York counsel to the Transaction Parties, dated the Closing Date and addressed to the Initial Purchasers, regarding the substantive nonconsolidation of the assets and liabilities of the Closing Date Borrowers, SBA Holdings or the Guarantor with those of SBA Finance, in form and substance reasonably satisfactory to the Representatives and their counsel;

(p) The Representatives and the Trustee shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special counsel to SBA Finance, dated the Closing Date and addressed to the Initial Purchasers, to the effect that the statements made in the Preliminary Offering Memorandum and the Offering Memorandum under the captions “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations” to the extent such statements summarize material tax consequences or material consequences under ERISA, respectively, of the purchase, beneficial ownership and disposition of the Offered Certificates to the holders thereof described therein, constitute accurate summaries of the matters described therein in all material respects, and will confirm its opinion under the caption “Certain U.S. Federal Income Tax Considerations” that the Trust will be treated as a mere security device or, alternatively, as one or more grantor trusts and will not be taxable as a corporation for U.S. federal income tax purposes, in form and substance reasonably satisfactory to the Representatives and their counsel;

(q) The Representatives and the Trustee shall have received an opinion of Greenberg Traurig LLP, Florida counsel to SBA Finance, the Manager, the Sub-Manager and SBA USVI II, dated the Closing Date and addressed to the Initial Purchasers, regarding organizational matters, power and authority, due authorization, execution and delivery of the Transaction Documents by SBA

 

26

Finance, the Manager, the Sub-Manager and SBA USVI II, absence of litigation, no conflicts with organizational documents, Florida laws or regulations, court orders or contracts, required authorizations and consents of Florida governmental authorities, the exemption from regulation as an “investment company” under the 1940 Act of SBA Finance, the Manager and the Sub-Manager and such other matters as the Representatives may reasonably request, in form and substance reasonably satisfactory to the Representatives and their counsel;

(r) The Representatives and the Trustee shall have received an opinion of Greenberg and Traurig LLP, Florida counsel to SBA USVI II, regarding the filing of UCC-1 financing statements and the perfection and priority of the security interests created under the Transaction Documents the perfection and priority of which is governed by Florida law, in form and substance reasonably satisfactory to the Representatives and their counsel;

(s) The Representatives and the Trustee shall have received an opinion of Dudley, Topper and Feuerzeig, LLP, U.S. Virgin Islands counsel to SBA USVI, or other counsel reasonably satisfactory to the Representatives and their counsel, dated the Closing Date and addressed to the Initial Purchasers, regarding organizational matters, power and authority, due authorization, execution and delivery of the Transaction Documents by SBA USVI, absence of litigation, no conflicts with organizational documents, U.S. Virgin Islands laws or regulations, court orders or contracts, required authorizations and consents of U.S. Virgin Islands governmental authorities, regarding the filing of UCC-1 financing statements and the perfection and priority of the security interests created under the Transaction Documents the perfection and priority of which is governed by U.S. Virgin Islands law and such other matters as the Representatives may reasonably request, in form and substance reasonably satisfactory to the Representatives and their counsel;

(t) The Representatives and the Trustee shall have received an opinion of The Delaware Counsel Group LLP, special Delaware counsel to the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, regarding the due organization of each of the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, no conflicts with organizational documents and Delaware laws or regulations, the enforceability of the limited liability company agreement of each of the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, including certain provisions thereof relating to the filing of a voluntary bankruptcy petition, the rights of a judgment creditor of such members against the property of the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I,

 

27

as applicable, treatment as a separate legal entity and the impact of the bankruptcy or dissolution of such members on the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, as applicable, in form and substance reasonably satisfactory to the Representatives and their counsel;

(u) The Representatives and the Trustee shall have received an opinion of The Delaware Counsel Group LLP, special Delaware counsel to the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, regarding the applicability of Delaware law to the determination of what persons have the authority to file a voluntary bankruptcy petition on behalf of each of the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, as applicable, in form and substance reasonably satisfactory to the Representatives and their counsel;

(v) The Representatives and the Trustee shall have received an opinion of The Delaware Counsel Group LLP, special Delaware counsel to the Depositor, SBA Holdings, the Guarantor, SBA Properties, SBA Structures, SBA Sites, SBA Infrastructure, SBA Monarch III, SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, regarding the filing of UCC-1 financing statements and the perfection and priority of the security interests created under the Transaction Documents the perfection and priority of which is governed by Delaware law, in form and substance reasonably satisfactory to the Representatives and their counsel;

(w) The Representatives shall have received opinions of counsel to the Trustee and Certificate Registrar dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representatives and their counsel;

(x) The Representatives and the Trustee shall have received an opinion of Andrascik & Tita LLC, counsel to the Servicer, dated the Closing Date and addressed to the Initial Purchasers, including, among other matters, negative assurances concerning the Servicer Information included in the Pricing Disclosure Package as of the Applicable Time and the Offering Memorandum as of its date and the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel;

(y) The Representatives and the Trustee shall have received an opinion of Wiley Rein & Fielding, FCC counsel to SBA Finance and the Closing Date Borrowers, dated the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representatives and their counsel;

 

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(z) The Representatives shall have received an opinion of Simpson Thacher & Bartlett LLP, dated the Closing Date and addressed to the Initial Purchasers, with respect to the validity of the Offered Certificates and such other matters as the Representatives may reasonably request;

(aa) The Representatives and the Trustee shall have received copies of any opinions of counsel to the Transaction Parties supplied to the Rating Agencies, the Servicer or the Trustee in connection with the issuance of the Offered Securities which opinions shall be dated the Closing Date and addressed to the Initial Purchasers or accompanied by reliance letters addressed to the Initial Purchasers;

(bb) The Representatives and the Trustee shall have received a certificate or certificates signed by any two of the Chairman of the Board of Directors, the President, any Vice President or the Treasurer of SBA Finance, dated the Closing Date, in which each such officer shall state that (i) the representations and warranties of SBA Finance in this Agreement are true and correct on and as of the Closing Date; (ii) that SBA Finance has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) he or she has carefully examined the Pricing Disclosure Package and the Offering Memorandum and, in his or her opinion the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date, and the Offering Memorandum, as of its date and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(cc) The Representatives and the Trustee shall have received a certificate or certificates signed by any two of the Chairman of the Board of Directors, the President, any Vice President or the Treasurer of each of the Closing Date Borrowers, dated the Closing Date, in which each such officer shall state that (i) the representations and warranties of such Closing Date Borrower in the Transaction Documents to which such Closing Date Borrower is a party are true and correct on and as of the Closing Date; (ii) that such Closing Date Borrower has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under the Transaction Documents at or prior to the Closing Date; and (iii) he or she has carefully examined the Pricing Disclosure Package and the Offering Memorandum and, in his or her opinion the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date, and the Offering Memorandum, as of its date and as of the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(dd) The Representatives and the Trustee shall have received a certificate or certificates signed by any two of the Chairman of the Managers, the President, any Vice President or the Treasurer of SBA Holdings, dated the Closing Date, in

 

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which each such officer shall state that (i) the representations and warranties of SBA Holdings in the Transaction Documents to which SBA Holdings is a party are true and correct on and as of the Closing Date; and (ii) that SBA Holdings has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under the Transaction Documents at or prior to the Closing Date;

(ee) The Representatives and the Trustee shall have received a certificate or certificates signed by any two of the Chairman of the Managers, the President, any Manager, any Vice President or the Treasurer of the Guarantor, dated the Closing Date, in which each such officer shall state that (i) the representations and warranties of the Guarantor in the Transaction Documents to which the Guarantor is a party are true and correct on and as of the Closing Date; and (ii) that the Guarantor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under the Transaction Documents at or prior to the Closing Date; and

(ff) The Representatives and the Trustee shall have received a certificate or certificates signed by any two of the Chairman of the Board of Directors, the President, any Vice President or the Treasurer of the Manager, dated the Closing Date, in which each such officer shall state that (i) the representations and warranties of the Manager in the Transaction Documents to which the Manager is a party are true and correct on and as of the Closing Date; and (ii) that the Manager has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under the Transaction Documents at or prior to the Closing Date.

All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.

 

  6. Termination.

The obligations of the Initial Purchasers hereunder may be terminated by the Initial Purchasers in their absolute discretion, by notice given to and received by the Trustee and SBA Finance prior to delivery of and payment for the Offered Certificates if, prior to that time, any event described in Sections 5(j) or 5(k) shall have occurred and be continuing.

 

  7. Indemnification and Contribution.

(a) SBA Finance hereby agrees to indemnify and hold harmless each Initial Purchaser, its directors, officers and employees and each person, if any, who controls such Initial Purchaser within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to

 

30

purchases and sales of Offered Certificates), to which such Initial Purchaser, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto or (B) in any materials or information provided to investors by, or with the approval of, SBA Finance, in connection with the marketing of the offering and sale of the Offered Certificates, including the sales presentation dated April 1, 2013 (the “Sales Slides”) and any roadshow or other investor presentation made to investors by or on behalf of SBA Finance (whether in person or electronically) (collectively, the “Marketing Materials”), (ii) the omission or alleged omission to state in the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto or in any Marketing Materials, any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) the website maintained in compliance with Rule 17g-5 under the Exchange Act by or on behalf of SBA Finance, the Closing Date Borrowers, the Guarantor or SBA Holdings in connection with the offering of the Offered Certificates, or (iv) any act or failure to act or any alleged act or failure to act by such Initial Purchaser in connection with, or relating in any manner to, the Offered Certificates or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clauses (i), (ii) or (iii) above (provided that SBA Finance shall not be liable under clause (iv) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Initial Purchaser through its gross negligence or willful misconduct); and shall reimburse such Initial Purchaser and each such director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Initial Purchaser, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that SBA Finance shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto or in any Marketing Materials in reliance upon and in conformity with (i) the Initial Purchasers’ Information or (ii) the information set forth in the Preliminary Offering Memorandum and the Offering Memorandum under the heading “Description of the Trust Agreement—The Servicer” (the “Servicer Information”). The foregoing indemnity agreement is in addition to any liability which SBA Finance may otherwise have to such Initial Purchaser or to any director, officer, employee or controlling person of such Initial Purchaser.

(b) Each of the Initial Purchasers, severally and not jointly, shall indemnify and hold harmless SBA Finance, its directors, officers, employees, and each person, if any, who controls SBA Finance within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to

 

31

which SBA Finance or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto or (B) the Marketing Materials or (ii) the omission or alleged omission to state in the Pricing Disclosure Package or the Offering Memorandum or in any amendment or supplement thereto or in any Marketing Materials, any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the Initial Purchasers’ Information, and shall reimburse SBA Finance and any such director, officer, employee or controlling person for any legal or other expenses reasonably incurred by SBA Finance or any such director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which the Initial Purchasers may otherwise have to SBA Finance or any such director, officer, employee or controlling person.

(c) Promptly after receipt by an indemnified party under this Section 7 of the notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 7 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 7. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the Initial Purchasers shall have the right to employ counsel (in addition to local counsel, if necessary) to represent jointly the Initial Purchasers and their respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Initial Purchasers against SBA Finance under this Section 7 if, in the reasonable judgment of the Initial Purchasers, it is advisable for the Initial Purchasers and those directors, officers, employees and controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by SBA Finance. No indemnifying party shall (i) without

 

32

the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes (x) an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (y) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.

(d) If the indemnification provided for in this Section 7 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by SBA Finance and its affiliates on the one hand and the Initial Purchasers on the other from the offering of the Offered Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of SBA Finance and its affiliates on the one hand and the Initial Purchasers on the other with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by SBA Finance and its affiliates on the one hand and the Initial Purchasers on the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Offered Certificates purchased under this Agreement (before deducting expenses) received by SBA Finance and its affiliates, on the one hand, and the total discounts and commissions received by the Initial Purchasers with respect to the Offered Certificates purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Offered Certificates under this Agreement. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by SBA Finance or its affiliates, or the Initial Purchasers, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. SBA Finance and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this Section 7(d) were to be determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as

 

33

a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section shall be deemed to include, for purposes of this Section 7(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(d), the Initial Purchasers shall not be required to contribute any amount in excess of the amount by which the total price at which the Offered Certificates purchased by them were resold to Eligible Purchasers exceeds the amount of any damages which the Initial Purchasers have otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute as provided in this Section 7(d) are several in proportion to their respective obligations and not joint.

(e) The Initial Purchasers confirm and SBA Finance acknowledges that, for all purposes of this Agreement, the information relating to the Initial Purchasers furnished to SBA Finance by or on behalf of the Initial Purchasers expressly for use in the Preliminary Offering Memorandum, the Pricing Disclosure Package and the Offering Memorandum (the “Initial Purchasers’ Information”) consists solely of (i) the second sentence of the last paragraph on the cover page of the Preliminary Offering Memorandum and the Offering Memorandum, the second paragraph of the section of the Preliminary Offering Memorandum and the Offering Memorandum entitled “Offering of Securities” and (ii) the names, addresses and telephone numbers on page 32 of the Sales Slides.

 

  8. Persons Entitled to Benefit of Agreement.

This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Trustee, SBA Finance and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except as provided in Section 7 with respect to officers, directors, employees or controlling persons of SBA Finance and the Initial Purchasers and in Section 4(e) with respect to holders and prospective purchasers of the Offered Certificates. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 8, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.

 

  9. Expenses.

(a) SBA Finance agrees to pay all costs, expenses, fees and taxes incident to and in connection with (i) the authorization, issuance, sale, preparation and delivery of the Offered Certificates; (ii) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and any amendments or supplements thereto; (iii) reproducing and distributing each of the Transaction Documents; (iv) the preparation, printing and delivery of the certificates evidencing the Offered Certificates, including stamp duties and transfer taxes, if any, payable upon issuance of the Offered Certificates; (v) preparing, printing and distributing the Blue Sky Memoranda (including related fees and expenses of counsel for the Initial Purchasers);

 

34

(vi) any fees charged by rating agencies for ratings letters and/or ratings confirmation letters issued in connection with the issuance of the Offered Certificates; (vii) any fees charged by the rating agencies for rating the Offered Certificates; (viii) the fees and expenses of E&Y and Deloitte incurred in connection with the delivery of the comfort letters and procedures letters to the Initial Purchasers pursuant to the terms of this Agreement; (ix) the fees and expenses of the Trustee and the Certificate Registrar (including related fees and expenses of any counsel to such parties); (x) the fees and expenses of counsel to SBA Finance and the Transaction Parties, (xi) the fees and expenses of the Servicer (including related fees and expenses of counsel to the Servicer); (xii) the reasonable fees and disbursements of Simpson Thacher & Bartlett LLP, counsel to the Initial Purchasers; (xiii) the reasonable out-of-pocket expenses of the Initial Purchasers incurred by the Initial Purchasers in connection with this Agreement and the purchase and reoffering of the Offered Certificates, including, without limitation, all travel expenses of the Initial Purchasers and all expenses of the Initial Purchasers incurred in connection with attending or hosting meetings with prospective purchasers of the Offered Certificates; (xiv) the reasonable out-of-pocket fees and expenses incurred by SBA Finance in connection with attending meetings with prospective purchasers of the Offered Certificates, (xv) expenses of all expenses and application fees incurred in connection with the approval of the Offered Certificates for book entry transfer by DTC; and (xvi) all other costs and expenses incident to the performance of the obligations of SBA Finance under this Agreement which are not otherwise specifically provided for in this Section 9.

(b) In addition, if the Trustee shall fail to tender the Offered Certificates for delivery to the Initial Purchasers by reason of any failure, refusal or inability on the part of the Trustee or SBA Finance to perform any agreement on its part to be performed, or if the Initial Purchasers shall decline to purchase the Offered Certificates because any other condition of the Initial Purchasers’ obligations hereunder required to be fulfilled is not fulfilled, SBA Finance will reimburse the Initial Purchasers for any reasonable out-of-pocket fees and expenses incurred by the Initial Purchasers in connection with this Agreement and the proposed purchase of the Offered Certificates, including the reasonable fees and disbursements of Simpson Thacher & Bartlett LLP, counsel to the Initial Purchasers, and the reasonable out-of-pocket fees and expenses incurred by the Initial Purchasers in connection with hosting or attending meetings with prospective purchasers of the Offered Certificates.

 

  10. Indemnification of the Trustee

SBA Finance hereby agrees to indemnify and hold harmless the Trustee (including in its individual capacity) and any Affiliates, directors, officers, employees or agents of the Trustee for and against any loss, liability, claim or expense (including costs and expenses of litigation, and of investigation, reasonable counsel’s fees, damages, judgments and amounts paid in settlement) arising out of, or incurred in connection with, this Agreement, the marketing and Offering of the Offered Certificates hereunder, or any act or omission of the Trustee relating to the exercise and performance of any of the rights and duties of the Trustee hereunder; provided, however, that the Trustee shall not

 

35

be entitled to indemnification pursuant to this Section 10 for any loss, liability, claim or expense incurred by reason of any willful misfeasance, bad faith or gross negligence of the Trustee in the performance of, or reckless disregard of, its obligations and duties hereunder.

 

  11. Certain Additional Matters Regarding the Trustee

It is expressly understood and agreed by the parties hereto that insofar as this Agreement is executed by the Trustee (i) this Agreement is executed and delivered by Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Trustee under the Trust Agreement, in the exercise of the powers and authority conferred upon and vested in it thereunder, (ii) each of the undertakings and agreements herein made on behalf of the Trust is made and intended not as a personal undertaking or agreement of the Trustee but is made and intended solely for the purpose of binding only the Trust, and (iii) under no circumstances shall Deutsche Bank Trust Company Americas, in its individual capacity be personally liable for the payment of any indebtedness or expenses or be personally liable for the breach or failure of any obligation or covenant made or undertaken by it on behalf of the Trust under this Agreement.

 

  12. Survival.

The respective indemnities, rights of contribution, representations, warranties and agreements of SBA Finance and the Initial Purchasers contained in this Agreement or made by or on behalf of the Guarantor, SBA Holdings, each of the Closing Date Borrowers, the Manager or the Initial Purchasers pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Offered Certificates and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any of them or any of their respective affiliates, officers, directors, employees, representatives, agents or controlling persons.

 

  13. Notices. etc.

All statements, requests, notices and agreements hereunder shall be in writing, and:

(a) if to the Representatives, shall be delivered or sent by mail or telecopy transmission to:

Barclays Capital Inc.

745 7th Avenue

New York, New York 10019

Attention: Securitized Products Origination Group

Facsimile no.: (212) 412-2663

and

 

36

Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005

Attention: Credit Solutions Group

Facsimile no.: (212) 797-5300

(b) if to SBA Finance or the Trustee, shall be delivered or sent by mail or telecopy transmission to:

SBA Senior Finance, LLC

5900 Broken Sound Parkway NW

Boca Raton, Florida 33487

Attention: Thomas P. Hunt

Facsimile no.: (561) 997-0343

or

Deutsche Bank Trust Company Americas

60 Wall Street

New York, New York 10005

Attention: TSS-Alternative and Structured Finance Services

w/ a copy to:

Deutsche Bank National Trust Company

100 Plaza One MS: JCY 03-0699

Jersey City, New Jersey 07311

Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.

 

  14. Definition of Terms.

For purposes of this Agreement, (a) the term “Material Adverse Effect” shall have the meaning given to such term in the Loan Agreement, (b) the term “business day” means any day on which the New York Stock Exchange, Inc. is open for trading and (c) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act.

 

  15. Research Independence.

SBA Finance acknowledges and agree that the Initial Purchasers’ research analysts and research departments are required to be independent from its investment banking division and are subject to certain regulations and internal policies, and that the Initial Purchasers’ research analysts may hold and make statements or investment recommendations and/or publish research reports with respect to SBA Parent and its subsidiaries and/or the offering that differ from the views of its investment bankers. SBA Finance hereby waives and releases, to the fullest extent permitted by law, any claims

 

37

that SBA Finance may have against the Initial Purchasers with respect to any conflict of interest that may arise from the fact that the views expressed by its independent research analysts and research department may be different from or inconsistent with the views or advice communicated to SBA Finance by the Initial Purchasers’ investment banking division. SBA Finance acknowledges that each of the Initial Purchasers is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in the Offered Certificates.

 

  16. No Fiduciary Duty.

SBA Finance acknowledges and agrees that in connection with this offering of the Offered Certificates or any other services the Initial Purchasers may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Initial Purchasers: (i) no fiduciary or agency relationship between SBA Finance and any other person, on the one hand, and the Initial Purchasers, on the other, exists; (ii) the Initial Purchasers are not acting as advisor, expert or otherwise, to SBA Finance, and such relationship between SBA Finance, on the one hand, and the Initial Purchasers, on the other, is entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Initial Purchasers may have to SBA Finance shall be limited to those duties and obligations specifically stated herein; and (iv) the Initial Purchasers and their respective affiliates may have interests that differ from those of SBA Finance. SBA Finance hereby waives any claims that SBA Finance may have against the Initial Purchasers with respect to any breach of fiduciary duty in connection with the offering of the Offered Certificates.

 

  17. Governing Law and Forum Selection.

THIS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.

 

38

  18. Counterparts.

This Agreement may be executed in one or more counterparts (which may include counterparts delivered by facsimile) and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed original counterpart of this Agreement.

 

  19. Amendments.

No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.

 

  20. Headings.

The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.

 

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If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us a counterpart hereof, whereupon this instrument will become a binding agreement, effective as of the date first written above, among the Trustee, on behalf of the Certificateholders, SBA Finance and the Initial Purchasers in accordance with its terms.

 

Very truly yours,
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:  

/s/ Michele H.Y. Voon

Name:   Michele H.Y. Voon
Title:   Vice President
By:  

/s/ Robin Durant

Name:   Robin Durant
Title:   Associate
SBA SENIOR FINANCE, LLC
By:  

/s/ Brendan T. Cavanagh

Name:   Brendan T. Cavanagh
Title:   Senior Vice President and Chief Financial Officer

 

Accepted:
BARCLAYS CAPITAL INC.
By:  

/s/ Cory Wishengrad

  Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:  

/s/ Ozan Kaya

  Authorized Signatory
By:  

/s/ Matt Bissonnette

  Authorized Signatory

For themselves and as Representatives of the several Initial Purchasers named on Schedule I hereto

 

40

SCHEDULE I

 

Initial Purchasers

    Principal Amount
2013-1C Certificates		      Principal Amount
2013-1D Certificates		      Principal Amount
2013-2C Certificates		  

Barclays Capital Inc.

    $ 127,500,000       $ 99,000,000       $ 172,500,000   

Deutsche Bank Securities Inc.

    $ 127,500,000       $ 99,000,000       $ 172,500,000   

Citigroup Global Markets Inc.

    $ 34,000,000       $ 26,400,000       $ 46,000,000   

J.P. Morgan Securities LLC

    $ 34,000,000       $ 26,400,000       $ 46,000,000   

Wells Fargo Securities, LLC

    $ 34,000,000       $ 26,400,000       $ 46,000,000   

RBS Securities Inc.

    $ 34,000,000       $ 26,400,000       $ 46,000,000   

TD Securities (USA) LLC

    $ 34,000,000       $ 26,400,000       $ 46,000,000   

Total

    $ 425,000,000       $ 330,000,000       $ 575,000,000   
  

 

 

     

 

 

     

 

 

  

SCHEDULE II

Pricing Term Sheet

THIS PRICING SUPPLEMENT TO THE PRELIMINARY OFFERING MEMORANDUM DATED APRIL 1, 2013 IS INTENDED FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED IN THE EMAIL TO WHICH THIS FIRST SUPPLEMENT IS ATTACHED. IF YOU ARE NOT THE INTENDED RECIPIENT OF THIS PRICING SUPPLEMENT YOU ARE HEREBY NOTIFIED THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS FIRST SUPPLEMENT IS STRICTLY PROHIBITED.

BY ELECTING TO VIEW THIS INFORMATION, YOU REPRESENT, WARRANT AND AGREE THAT YOU WILL NOT COPY, RECORD OR OTHERWISE ATTEMPT TO REPRODUCE OR RETRANSMIT THIS INFORMATION TO ANY OTHER PERSON.

PRICING SUPPLEMENT

TO THE PRELIMINARY OFFERING

MEMORANDUM DATED APRIL 1, 2013,

AS SUPPLEMENTED BY

THE FIRST SUPPLEMENT THERETO

DATED APRIL 4, 2013

of

SBA TOWER TRUST

This is the Second Supplement dated April 4, 2013 (the “Pricing Supplement”) to the confidential preliminary offering memorandum dated April 1, 2013 (as supplemented by the First Supplement dated April 4, 2013, the “Preliminary Offering Memorandum”) of SBA Tower Trust.

The information in this Pricing Supplement supplements the Preliminary Offering Memorandum and supersedes the information in the Preliminary Offering Memorandum to the extent inconsistent with the information in the Preliminary Offering Memorandum. This Pricing Supplement is qualified in its entirety by reference to, and must be read in conjunction with, the Preliminary Offering Memorandum. Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Offering Memorandum.

IMPORTANT NOTICE

THE OFFERED SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS, AND ARE BEING OFFERED AND SOLD (1) IN THE UNITED STATES ONLY TO “QUALIFIED INSTITUTIONAL BUYERS” (“QUALIFIED INSTITUTIONAL BUYERS”) WITHIN THE MEANING OF, AND IN RELIANCE ON, RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) AND TO ENTITIES THAT QUALIFY AS “ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) or (7) of REGULATION D UNDER THE SECURITIES ACT (“INSTITUTIONAL ACCREDITED INVESTORS”); AND (2) TO CERTAIN NON-“U.S. PERSONS” IN “OFFSHORE TRANSACTIONS” AS DEFINED IN, AND IN RELIANCE ON, REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”).

IMPORTANT: You must read the following notice before continuing. The following notice applies to this Pricing Supplement to the Preliminary Offering Memorandum and you are therefore advised to read this notice carefully before reading, accessing or making any other use of this Pricing Supplement. In reading, accessing or making any other use of this Pricing Supplement, you agree to be bound by the following terms and conditions, including any modifications to them any time you receive any information from the Initial Purchasers as a result of such access.

NOTHING IN THIS ELECTRONIC TRANSMISSION CONSTITUTES AN OFFER OF OFFERED SECURITIES FOR SALE IN ANY JURISDICTION WHERE IT IS UNLAWFUL TO DO SO. THE OFFERED SECURITIES HAVE NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND THE OFFERED SECURITIES MAY NOT BE OFFERED OR SOLD WITHIN THE U.S. OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE OR LOCAL SECURITIES LAWS.

WITHIN THE UNITED KINGDOM, THE DISTRIBUTION OF THIS PRICING SUPPLEMENT (A) IF MADE BY A PERSON WHO IS NOT AN AUTHORIZED PERSON UNDER THE FINANCIAL SERVICES AND MARKETS ACT 2000 (“FSMA”), IS BEING MADE ONLY TO, OR DIRECTED ONLY AT, PERSONS WHO (I) ARE INVESTMENT PROFESSIONALS, AS SUCH TERM IS DEFINED IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE “FINANCIAL PROMOTION ORDER”), (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) THROUGH (D) (“HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC.”) OF THE FINANCIAL PROMOTION ORDER, OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS “FPO PERSONS”); AND (B) IF MADE BY A PERSON WHO IS AN AUTHORIZED PERSON UNDER THE FSMA, IS BEING MADE ONLY TO, OR DIRECTED ONLY AT, PERSONS WHO (I) ARE INVESTMENT PROFESSIONALS, AS SUCH TERM IS DEFINED IN ARTICLE 14(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (PROMOTION OF COLLECTIVE INVESTMENT

This Pricing Supplement is qualified in its entirety by reference to, and must be read

in conjunction with, the Preliminary Offering Memorandum dated April 1, 2013, as supplemented by the First

Supplement dated April 4, 2013

 

SCHEMES) (EXEMPTIONS) ORDER 2001, AS AMENDED (THE “EXEMPTIONS ORDER”), (II) ARE PERSONS FALLING WITHIN ARTICLE 22(2)(A) THROUGH (D) (“HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC.”) OF THE EXEMPTIONS ORDER, OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS, TOGETHER WITH THE FPO PERSONS, THE “RELEVANT PERSONS”). THIS PRICING SUPPLEMENT IS DIRECTED ONLY AT RELEVANT PERSONS AND MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS PRICING SUPPLEMENT RELATES, INCLUDING THE OFFERED SECURITIES, IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS.

THIS SUPPLEMENT MAY NOT BE FORWARDED OR DISTRIBUTED TO ANY OTHER PERSON AND MAY NOT BE REPRODUCED IN ANY MANNER WHATSOEVER. ANY FORWARDING, DISTRIBUTION OR REPRODUCTION OF THIS SUPPLEMENT IN WHOLE OR IN PART IS UNAUTHORIZED. FAILURE TO COMPLY WITH THIS DIRECTIVE MAY RESULT IN A VIOLATION OF THE SECURITIES ACT OR THE APPLICABLE SECURITIES LAWS OF OTHER JURISDICTIONS.

Confirmation of Your Representation: In order to be eligible to view this Pricing Supplement or make an investment decision with respect to the Offered Securities, you must be (A) (i) a Qualified Institutional Buyer, (ii) aware that the sale of the Offered Securities to you is being made in reliance on Rule 144A and (iii) acquiring such Offered Securities for your own account or for the account of another Qualified Institutional Buyer, as the case may be, (B) (i) an Institutional Accredited Investor or an entity owned entirely by other Institutional Accredited Investors, (ii) acquiring such Offered Securities for your own account and (iii) do not intend to resell or distribute such Offered Securities in any manner that would violate, or require registration under, Section 5 of the Securities Act, or (C) (i) not a “U.S. person” as defined in Rule 902(k) of Regulation S (a “U.S. Person”), (ii) not acquiring such Offered Securities for the account or benefit of a U.S. Person and (iii) is acquiring such Offered Securities in an “offshore transaction” as defined in Rule 902(h) of Regulation S.

You are reminded that this Pricing Supplement has been delivered to you on the basis that you are a person into whose possession this Pricing Supplement may be lawfully delivered in accordance with the laws of the jurisdiction in which you are located and you may not, nor are you authorized to, deliver this Pricing Supplement to any other person.

The materials relating to the offering do not constitute, and may not be used in connection with, an offer or solicitation in any place where such offers or solicitations are not permitted by law. If a jurisdiction requires that the offering be made by a licensed broker or dealer and the Initial Purchasers or any affiliate of the Initial Purchasers is a licensed broker or dealer in that jurisdiction, the offering shall be deemed to be made by the Initial Purchasers or such affiliate on behalf of the Issuer in such jurisdiction.

This Pricing Supplement has been sent to you in an electronic form. You are reminded that documents transmitted via this medium may be altered or changed during the process of electronic transmission and consequently none of Barclays Capital Inc., Deutsche Bank Securities Inc., the other initial purchasers nor any person who controls any of them nor any director, officer, employee or agent of any of them nor any affiliate of any such person accepts any liability or responsibility whatsoever in respect of any difference between this Pricing Supplement distributed to you in electronic format and the hard copy version available to you on request from Barclays Capital Inc., Deutsche Bank Securities Inc. and the other initial purchasers. By accepting delivery of this Pricing Supplement, you agree to the foregoing.

This Pricing Supplement is qualified in its entirety by reference to, and must be read

in conjunction with, the Preliminary Offering Memorandum dated April 1, 2013, as supplemented by the First

Supplement dated April 4, 2013

 

 

ISSUER:    SBA Tower Trust   
SERIES OF SECURITIES:    Secured Tower Revenue Securities, Series 2013-1 and Series 2013-2
SUBCLASSES:      
     Initial Subclass Principal Balance    % of Class Principal Balance
SUBCLASS 2013-1C    $425,000,000    15.0
SUBCLASS 2013-2C    $575,000,000    20.2
SUBCLASS 2013-1D    $330,000,000    100.0
CURRENCY:    U.S. Dollars   

OFFERING FORM:

   144A/IAI/Reg S   

PASS-THROUGH RATE:

      

SUBCLASS 2013-1C

    2.240%   

SUBCLASS 2013-2C

    3.722%   

SUBCLASS 2013-1D

    3.598%   

BASE COMPONENT RATE:

     

SUBCLASS 2013-1C

    2.240%   

SUBCLASS 2013-2C

    3.722%   

SUBCLASS 2013-1D

    3.598%   

POST-ARD SPREAD:

     

SUBCLASS 2013-1C

    1.56%   

SUBCLASS 2013-2C

    1.99%   

SUBCLASS 2013-1D

    2.93%   

DSCR AS OF CLOSING DATE:

     

SUBCLASS 2013-1C

    4.07x   

SUBCLASS 2013-2C

    4.07x   

SUBCLASS 2013-1D

    3.66x   

ANTICIPATED REPAYMENT DATE:

      

SUBCLASS 2013-1C

    April 2018   

SUBCLASS 2013-2C

    April 2023   

This Pricing Supplement is qualified in its entirety by reference to, and must be read

in conjunction with, the Preliminary Offering Memorandum dated April 1, 2013, as supplemented by the First

Supplement dated April 4, 2013

 

 

SUBCLASS 2013-1D    April 2018
FINAL REPAYMENT DATE:   
SUBCLASS 2013-1C    April 2043
SUBCLASS 2013-2C    April 2048
SUBCLASS 2013-1D    April 2043
PAYMENT FREQUENCY:    Monthly

RATINGS: 1

 

SUBCLASS 2013-1C    Moody’s/Fitch    A2(sf)/A(sf)    
SUBCLASS 2013-2C    Moody’s/Fitch    A2(sf)/A(sf)    
SUBCLASS 2013-1D    Moody’s/Fitch    Baa3(sf)/BBB(sf)

 

DENOMINATIONS:    The Offered Securities will be issued in a denomination of not less than $25,000 initial principal balance and in integral multiples of $1,000 in excess thereof, except that Offered Securities issued to Institutional Accredited Investors that are not Qualified Institutional Buyers will be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof.
DAY COUNT:    30/360
OFFERING PRICE:    100%
PRICING DATE:    April 4, 2013
CLOSING DATE:    April 18, 2013
EXPECTED SETTLEMENT:    T+10 (April 18, 2013)2

SUBCLASS 2013-1C

CUSIP:

   

 

78403D AD2 (Rule 144A)

U80547 AD1 (Regulation S)

 

1  An explanation of the significance of ratings may be obtained from the rating agencies. Generally, rating agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The rating of the securities should be evaluated independently from similar ratings of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency.
2 

The Initial Purchasers expect to deliver the Offered Securities on April 18, 2013, which will be the 10th Business Day following the date of pricing of the Offered Securities (such settlement schedule being herein referred to as “T + 10”). Under Rule 15c6-1 under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), trades in the secondary market generally are required to settle in three Business Days, unless the parties to any such trade expressly agree otherwise. Because the Offered Securities will not be delivered before closing, purchasers trading the Offered Securities on the date of pricing or the next seven Business Days will be required to specify a longer settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Offered Securities who wish to trade Offered Securities on the date of pricing or the next seven Business Days should consult their own advisor.

This Pricing Supplement is qualified in its entirety by reference to, and must be read

in conjunction with, the Preliminary Offering Memorandum dated April 1, 2013, as supplemented by the First

Supplement dated April 4, 2013

 

 

ISIN:   

US78403DAD21 (Rule 144A)

USU80547AD18 (Regulation S)

SUBCLASS 2013-2C

CUSIP:

   

 

78403D AF7 (Rule 144A)

U80547 AF6 (Regulation S)

ISIN:    US78403DAF78 (Rule 144A)
   USU80547AF65 (Regulation S)

SUBCLASS 2013-1D

CUSIP:

   

 

78403D AEO (Rule 144A)

U80547 AE9 Regulation S)

ISIN:    US78403DAE04 (Rule 144A)
   USU80547AE90 (Regulation S)
SETTLEMENT:    DTC, Euroclear, Clearstream
INITIAL PURCHASERS:    Barclays Capital Inc.
.    Deutsche Bank Securities Inc.
   Citigroup Global Markets Inc.
  

J.P. Morgan Securities LLC

Wells Fargo Securities, LLC

RBS Securities Inc.

   TD Securities (USA) LLC

This communication is intended for the sole use of the person to whom it is provided by the sender.

A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.

ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.

EX-10.5 3 d526073dex105.htm EX-10.5 EX-10.5

Exhibit 10.5

Execution Copy

 

 

 

SIXTH

LOAN AND SECURITY AGREEMENT SUPPLEMENT AND AMENDMENT

among

SBA PROPERTIES, LLC (successor to SBA Properties, Inc.),

SBA SITES, LLC (successor to SBA Sites, Inc.),

SBA STRUCTURES, LLC (successor to SBA Structures, Inc.),

SBA INFRASTRUCTURE, LLC,

SBA MONARCH TOWERS III, LLC,

SBA TOWERS USVI II, INC.,

as Borrowers,

and

SBA 2012 TC ASSETS PR, LLC,

SBA 2012 TC ASSETS, LLC,

SBA TOWERS IV, LLC,

SBA MONARCH TOWERS I, LLC,

SBA TOWERS USVI, INC.,

as Additional Borrowers,

and

MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION,

as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee

dated as of April 18, 2013

 

 

 

TABLE OF CONTENTS

 

         Page  

ARTICLE I

  

DEFINITIONS AND INCORPORATION BY REFERENCE

  

Section 1.01  

Definitions

      3   

ARTICLE II

  

2013-1 COMPONENT DETAILS

  

Section 2.01  

2013-1 Component Details

      6   

ARTICLE III

  

MORTGAGE LOAN INCREASE

  

Section 3.01  

Loan Increase

      7   
Section 3.02  

Use of Proceeds

      8   
Section 3.03  

Funding of Reserves

      8   

ARTICLE IV

  

ADDITION OF ADDITIONAL BORROWERS

  

Section 4.01  

Election

      9   
Section 4.02  

Further Assurances

      10   
Section 4.03  

Joinder

      11   

ARTICLE V

  

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS

  

Section 5.01  

Representations and Warranties

      11   
Section 5.02  

Additional Representations, Warranties and Covenants of the Closing Date Borrowers

      11   
Section 5.03  

Amendments to the Loan Agreement Schedules

      13   

 

-i-

ARTICLE VI

  

AMENDMENTS TO THE FIFTH LOAN SUPPLEMENT AND THE LOAN AGREEMENT

  

Section 6.01  

Fifth Loan Supplement

      14   
Section 6.02  

Management Fee Rate

      14   
Section 6.03  

Components of Loan Increases

      14   
Section 6.04  

Mergers

      14   
Section 6.05  

Conditional Amendments Effective Upon Retirement of the Existing Components

      15   

ARTICLE VII

  

GENERAL PROVISIONS

  

Section 7.01  

Governing Law

      20   
Section 7.02  

Severability

      21   
Section 7.03  

Counterparts

      21   

ARTICLE VIII

  

APPLICABILITY OF LOAN AND SECURITY AGREEMENT

  

Section 8.01  

Applicability

      21   

 

-ii-

SIXTH LOAN AND SECURITY AGREEMENT SUPPLEMENT AND AMENDMENT

This SIXTH LOAN AND SECURITY AGREEMENT SUPPLEMENT AND AMENDMENT (this “Loan Agreement Supplement”) is dated as of April 18, 2013, and entered into by and among SBA PROPERTIES, LLC (successor to SBA Properties, Inc.), a Delaware limited liability company (“SBA Properties”), SBA SITES, LLC (successor to SBA Sites, Inc.), a Delaware limited liability company (“SBA Sites”), SBA STRUCTURES, LLC (successor to SBA Structures, Inc.), a Delaware limited liability company (“SBA Structures” and, collectively with SBA Properties and SBA Sites, the “2010 Borrowers”), SBA INFRASTRUCTURE, LLC, a Delaware limited liability company (“SBA Infrastructure”), SBA TOWERS USVI II, INC., a Florida corporation (“SBA USVI II”), SBA MONARCH TOWERS III, LLC, a Delaware limited liability company (“SBA Monarch III” and, collectively with SBA Infrastructure and SBA USVI II, the “SBA III Borrowers” and, collectively with the 2010 Borrowers, the “Existing Borrowers” and, each individually, an “Existing Borrower”), SBA 2012 TC Assets PR, LLC, a Delaware limited liability company (“SBA TC PR”), SBA 2012 TC Assets, LLC, a Delaware limited liability company (“SBA TC”), SBA Towers IV, LLC, a Delaware limited liability company (“SBA Towers IV”), SBA Monarch Towers I, LLC, a Delaware limited liability company (“SBA Monarch I”) and SBA Towers USVI, Inc., a U.S. Virgin Islands corporation (“SBA USVI” and, collectively with SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, the “Additional Borrowers” and, collectively with the Existing Borrowers, the “Closing Date Borrowers” and, each individually, a “Closing Date Borrower”), and MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION (formerly known as Midland Loan Services, Inc.), as servicer (the “Servicer”), on behalf of DEUTSCHE BANK TRUST COMPANY AMERICAS (as successor trustee to Bank of America, N.A. successor trustee by merger to LaSalle Bank National Association), as trustee (the “Trustee”) under that certain Trust and Servicing Agreement (the “Trust Agreement”) dated as of November 18, 2005 among SBA DEPOSITOR LLC (formerly known as SBA CMBS-1 Depositor LLC) (the “Depositor”), the Servicer and the Trustee.

RECITALS

WHEREAS, SBA Properties entered into an Amended and Restated Loan and Security Agreement, dated as of November 18, 2005 (the “Loan Agreement”), between SBA Properties and the Depositor;

WHEREAS, the Depositor assigned all of its right, title and interest in the Loan Agreement to the Trustee on behalf of the Certificateholders pursuant to the Trust Agreement and the Servicer is authorized to enter into this Loan Agreement Supplement on behalf of the Trustee pursuant to Section 3.25 of the Trust Agreement;

WHEREAS, on November 6, 2006, the 2010 Borrowers, SBA USVI, SBA Towers, Inc., a Florida corporation (“SBA Towers”) and SBA Puerto Rico, Inc., a Florida corporation (“SBA PR” and, collectively with SBA Structures, SBA Sites, SBA USVI and SBA Towers, the “Added Borrowers”) entered into the Second Loan and Security Agreement Supplement and Amendment together with the Servicer on behalf of the Trustee (the

“Second Loan Supplement”) whereby a Loan Increase in the amount of $1,150,000,000 (the “First Mortgage Loan Increase”) was agreed upon and the Added Borrowers were added as Additional Borrowers under the Loan Agreement in accordance with Section 2.3 of the Loan Agreement, and each Added Borrower agreed to be bound by and perform all of the obligations of a Borrower under the Loan Agreement and the other Loan Documents;

WHEREAS, SBA Towers, SBA PR and SBA USVI (collectively the “Released Borrowers”) entered into a Payoff, Termination and Release Agreement, dated as of July 28, 2009, among the Released Borrowers, the 2010 Borrowers, the Servicer and Bank of America, N.A., (successor by merger to LaSalle Bank National Association) on behalf of SBA Tower Trust and the holders of the Certificates corresponding to the 2005–1 Components, whereby the 2005–1 Components were repaid and the Released Borrowers were released from their obligations under the Loan Documents;

WHEREAS, on April 16, 2010 (the “2010 Closing Date”), the 2010 Borrowers entered into the Third Loan and Security Agreement Supplement and Amendment with the Servicer on behalf of the Trustee (the “Third Loan Supplement”) whereby a Loan Increase in the amount of $680,000,000 (the “Second Mortgage Loan Increase”), in the form of one (1) component designated as 2010-1C (the “2010-1C Component”), was agreed upon;

WHEREAS, on the 2010 Closing Date, the 2010 Borrowers entered into the Fourth Loan and Security Agreement Supplement and Amendment with the Servicer on behalf of the Trustee (the “Fourth Loan Supplement”) whereby a Loan Increase in the amount of $550,000,000 (the “Third Mortgage Loan Increase”), in the form of one (1) component designated as 2010-2C (the “2010-2C Component” and, together with the 2010-1C Component, the “2010 Components”) was agreed upon;

WHEREAS, the 2010 Borrowers entered into a Payoff, Termination and Release Agreement, dated as of the 2010 Closing Date, with the Guarantor, the Servicer, the Trustee and Bank of America, N.A., as Paying Agent, on behalf of the trust established pursuant to the Trust Agreement and the holders of the Certificates corresponding to the 2006–1 Components, whereby the 2006–1 Components were repaid and the 2010 Borrowers were released from their obligations under the Loan Documents with respect to the 2006-1 Components;

WHEREAS, on August 9, 2012 (the “2012 Closing Date”), the Existing Borrowers entered into the Fifth Loan and Security Agreement Supplement and Amendment with the Servicer on behalf of the Trustee (the “Fifth Loan Supplement”) whereby a Loan Increase in the amount of $610,000,000 (the “Fourth Mortgage Loan Increase”), in the form of one (1) component designated as 2012-1C (the “2012-1C Component” and, together with the 2010 Components, the “Existing Components”), was agreed upon and the SBA III Borrowers were added as Additional Borrowers under the Loan Agreement in accordance with Section 2.3 of the Loan Agreement, and the SBA III Borrowers agreed to be bound by and perform all of the obligations of a Borrower under the Loan Agreement and the other Loan Documents;

WHEREAS, each Existing Borrower and each Additional Borrower intend to, and the Lender has agreed to, add each Additional Borrower as a Borrower under the Loan

 

-2-

Agreement in accordance with Section 2.3 of the Loan Agreement and Section 3.25 of the Trust Agreement, and each Additional Borrower has agreed to become a Borrower thereunder, and be bound by and perform all of the obligations of a Borrower under the Loan Agreement and the other Loan Documents;

WHEREAS, upon the addition of the Additional Borrowers in accordance with Section 2.3 of the Loan Agreement and Section 3.25 of the Trust Agreement, the properties (including land and Improvements) and all related facilities that are owned or leased by the Additional Borrowers will become Additional Borrower Sites under the Loan Agreement, as provided for therein;

WHEREAS, pursuant to Section 3.2 of the Loan Agreement, the Closing Date Borrowers desire to effect (i) a Loan Increase in an amount equal to $755,000,000 (the “Fifth Mortgage Loan Increase”), in the form of two (2) separate components designated as 2013-1C (the “2013-1C Component”) and 2013-1D (the “2013-1D Component” and, together with the 2013-1C Component, the “2013-1 Components”), and the Lender has agreed to the Fifth Mortgage Loan Increase and to advance the amount of the Fifth Mortgage Loan Increase, and (ii) a Loan Increase in an amount equal to $575,000,000 (the “Sixth Mortgage Loan Increase”), in the form of one (1) component designated as 2013-2C (the “2013-2C Component”), and the Lender has agreed to the Sixth Mortgage Loan Increase and to advance the amount of the Sixth Mortgage Loan Increase;

WHEREAS, each of the 2013-1 Components constitutes a Component as defined in the Loan Agreement;

WHEREAS, the Closing Date Borrowers and the Lender have agreed to certain amendments to the Loan Agreement;

WHEREAS, the Closing Date Borrowers and the Lender intend these recitals to be a material part of this Agreement; and

WHEREAS, all things necessary to make this Loan Agreement Supplement the valid and legally binding obligation of the Closing Date Borrowers in accordance with its terms, for the uses and purposes herein set forth, have been done and performed.

NOW, THEREFORE, it is mutually covenanted and agreed as follows:

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions. All defined terms used herein and not defined herein shall have the meanings ascribed to such terms in the Loan Agreement. All words and phrases defined in the Loan Agreement shall have the same meanings in this Loan Agreement Supplement, except as otherwise appears in this Article. In addition, the following terms have the following meanings in this Loan Agreement Supplement unless the context clearly requires otherwise:

“2010 Components” shall have the meaning ascribed to it in the Recitals hereto.

 

-3-

“2010-1C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2010-2C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2012-1C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1 Certificates” shall mean the 2013-1C Certificates and the 2013-1D Certificates.

“2013-1 Notes” shall have the meaning ascribed to it in Section 3.01(b) hereof.

“2013-1C Certificates” shall mean the Series 2013-1C certificates issued by the SBA Tower Trust pursuant to the Trust Agreement corresponding to the 2013-1C Component.

“2013-1D Certificates” shall mean the Series 2013-1D certificates issued by the SBA Tower Trust pursuant to the Trust Agreement corresponding to the 2013-1D Component.

“2013-2 Certificates” shall mean the Series 2013-2C certificates issued by the SBA Tower Trust pursuant to the Trust Agreement corresponding to the 2013-2C Component.

“2013-1 Components” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1C Note” shall have the meaning ascribed to it in Section 3.01(b) hereof.

“2013-1D Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1D Note” shall have the meaning ascribed to it in Section 3.01(b) hereof.

“2013-2C Component” shall have the meaning ascribed to it in the Recitals hereto.

“Anticipated Repayment Date” shall have the meaning ascribed to it in Section 2.01(b) hereof.

“Component Rate” shall mean, for any Component, the rate per annum set forth in Section 2.01(a)(i) hereof.

 

-4-

“Date of Issuance” shall mean, with respect to the 2013-1 Components, April 18, 2013.

“Existing Components” shall have the meaning ascribed to it in the Recitals hereto.

“Fifth Mortgage Loan Increase” shall have the meaning ascribed to it in the Recitals hereto.

“Initial Increase Reserve Account” shall mean the account described in Section 2.01(a)(v) hereof.

“Initial Purchasers” shall mean Barclays Capital Inc., Deutsche Bank Securities Inc. and the other Initial Purchasers listed in Schedule I of the Purchase Agreement.

“Maturity Date” shall mean the date set forth in Section 2.01(a)(iii) hereof.

“Mortgage File” shall have the meaning ascribed to it in the Trust Agreement.

“Offering Memorandum” shall mean the Offering Memorandum dated April 4, 2013, relating to the offering and sale of the 2013-1 Certificates and the 2013-2 Certificates.

“Post-ARD Additional Interest Rate” shall have the meaning ascribed to it in Section 2.01(a)(ii) hereof.

“Purchase Agreement” shall mean the Purchase Agreement, dated April 4, 2013, relating to the purchase by the Initial Purchasers of the 2013-1 Certificates and the 2013-2 Certificates.

“Sixth Mortgage Loan Increase” shall have the meaning ascribed to it in the Recitals hereto.

“Yield Maintenance” shall have the meaning ascribed to it in Section 2.01(a)(iv) hereof.

Words importing the masculine gender include the feminine gender. Words importing persons include firms, associations and corporations. Words importing the singular number include the plural number and vice versa. Additional terms are defined in the body of this Loan Agreement Supplement.

In the event that any term or provision contained herein with respect to the 2013-1 Components shall conflict with or be inconsistent with any term or provision contained in the Loan Agreement, the terms and provisions of this Loan Agreement Supplement shall govern.

 

-5-

ARTICLE II

2013-1 COMPONENT DETAILS

Section 2.01 2013-1 Component Details. (a) The 2013-1 Components authenticated and delivered under this Loan Agreement Supplement shall consist of two (2) Components, each having:

(i) the designation, Component Principal Balance and Component Rate set forth below.

 

Component

    Initial
Component
Principal
Balance		      Component
Rate		  

2013-1C

    $ 425,000,000         2.240 % 

2013-1D

    $ 330,000,000         3.598 % 

(ii) Post-ARD Additional Interest Rate determined by the Servicer to be the greater of (i) five percent (5%) and (ii) the amount, if any, by which the sum of the following exceeds the Component Rate for such Component: (x) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry Association) on such Anticipated Repayment Date of the United States Treasury Security having a term closest to ten (10) years plus (y) the “Spread” set forth below in the appropriate row corresponding to such Component plus (z) five percent (5%):

 

Component

    Spread  

2013-1C

      1.56 % 

2013-1D

      2.93 % 

(iii) a Maturity Date which is the Due Date occurring in April 2043 or such earlier date on which the final payment of principal of the Notes becomes due and payable as provided in the Loan Agreement, whether at such stated Maturity Date, by acceleration, or otherwise.

(iv) Yield Maintenance in an amount equal to the excess, if any, of (i) the present value as of the date of prepayment (by acceleration or otherwise) of all future installments of principal and interest that the Borrowers would otherwise be required to pay on such 2013-1 Component (or portion thereof) on the related Due Date from the date of such prepayment to and including the first Due Date that occurs (i) twelve months prior to the Anticipated Repayment Date for such 2013-1 Component absent such prepayment, assuming the entire unpaid Principal Amount of such 2013-1 Component is required to be paid on such Due Date, with such present value determined by the use of a discount rate equal to the sum of (x) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry Association), on the Due Date relating to the date of such prepayment, of the United

 

-6-

States Treasury Security having the maturity closest to the Distribution Date that occurs twelve months prior to the Assumed Final Distribution Date related to the Anticipated Repayment Date for such 2013-1 Component plus (y) 0.50% over (ii) the Component Principal Balance of such 2013-1 Component (or portion thereof) on the date of such prepayment. No Yield Maintenance is payable in connection with any prepayment of either 2013-1 Component that occurs less than twelve months prior to the Anticipated Repayment Date with respect to such 2013-1 Component.

(v) Interest shall accrue on each 2013-1 Component and the corresponding 2013-1 Note from and including the date hereof. An amount equal to the interest for the period from and including the date hereof until the Distribution Date in May, 2013 shall be deposited on the date hereof in the Initial Increase Reserve Account and applied by the Lender to the payment of such interest on the Due Date in May, 2013.

(b) There are no Scheduled Principal Payments in respect of the 2013-1 Components and the Closing Date Borrowers shall not be required to pay any principal of the 2013-1 Components prior to the Due Date in April 2018 (such date with respect to the 2013-1 Components, the “Anticipated Repayment Date”), other than after the occurrence and during the continuation of an Amortization Period or an Event of Default as provided in the Loan Agreement or as otherwise required under the terms of the Loan Documents.

ARTICLE III

MORTGAGE LOAN INCREASE

Section 3.01 Loan Increase. (a) Pursuant to Section 3.2 of the Loan Agreement, the Lender and the Closing Date Borrowers agree to the Fifth Mortgage Loan Increase, to be divided into the Components described in Section 2.01.

(b) On the date hereof, each Closing Date Borrower shall execute and deliver to the Trustee (i) a promissory note payable to the order of the Trustee evidencing the 2013-1C Component, in the initial principal amount equal to $425,000,000 (the “2013-1C Note”) and (ii) a promissory note payable to the order of the Trustee evidencing the 2013-1D Component, in the initial principal amount equal to $330,000,000 (the “2013-1D Note” and, together with the 2013-1C Note, the “2013-1 Notes”). The 2013-1 Notes shall bear interest on the unpaid principal amount thereof at the applicable Component Rates set forth in Section 2.01(a) hereof and mature on the Maturity Date. The Closing Date Borrowers shall also, on the date hereof, execute and deliver to the Trustee, in exchange for the amended and restated 2010-1 Note, the amended and restated 2010-2 Note and the 2012-1 Note, each executed and delivered to the Trustee by the Existing Borrowers on the 2012 Closing Date, an amended and restated 2010-1 Note, an amended and restated 2010-2 Note and an amended and restated 2012-1 Note, each payable to the order of the Trustee, under which each Closing Date Borrower agrees to be jointly and severally liable for the payment of all amounts payable thereunder.

(c) The Closing Date Borrowers hereby represent and warrant to the Lender that each condition of Section 3.2 of the Loan Agreement in respect of the Fifth Mortgage Loan Increase has been satisfied, as of the date hereof.

 

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(d) The parties hereto agree that the date hereof is an Allocated Loan Amount Determination Date, pursuant to Section 11.8 of the Loan Agreement, the Servicer has determined the Allocated Loan Amounts for each Site after giving effect to the Addition of the Additional Borrower Sites and the Fifth Mortgage Loan Increase, as described herein, and the Sixth Mortgage Loan Increase, as described in the Seventh Loan Supplement, based on information provided to it by the Manager, and until any subsequent Allocated Loan Amount Determination Date, such Allocated Loan Amounts shall be as set forth on Exhibit A hereto.

(e) The parties hereto agree that Exhibits C, D and F of the Loan Agreement are hereby deleted in their entirety and replaced by Exhibits B, C and D hereto.

Section 3.02 Use of Proceeds. The proceeds from the sale of the 2013-1 Certificates shall be used to fund the Fifth Mortgage Loan Increase and the proceeds of the Fifth Mortgage Loan Increase shall be used to (i) pay all recording fees and taxes, title insurance premiums, reasonable out of pocket costs and expenses incurred by the Lender, including reasonable legal fees and expenses of counsel to the Lender, and other costs and expenses approved by the Lender (which approval will not be unreasonably withheld or delayed) related to the 2013-1 Components; (ii) pay all fees and expenses incurred by the Closing Date Borrowers; (iii) fund the reserve deposits described in Section 3.03 hereof; and (iv) make a cash distribution to each Closing Date Borrower.

Section 3.03 Funding of Reserves. (a) Pursuant to Section 6.3 of the Loan Agreement, on the date hereof, the Closing Date Borrowers shall deposit with Central Account Bank $3,471,849 for deposit in the Impositions and Insurance Reserve as required in connection with the Addition of the Additional Borrower Sites hereunder, and has delivered to Lender an Officer’s Certificate setting forth in reasonable detail the calculation of the forgoing.

(b) Pursuant to Section 6.2 of the Loan Agreement, on the date hereof, the Closing Date Borrowers shall deposit with Central Account Bank $651,783 for deposit in the Advance Rents Reserve Sub-Account in connection with the Addition of the Additional Borrower Sites hereunder.

(c) The Lender shall designate a Sub-Account of the Central Account to be the “2013 Loan Increase Reserve Account”. On the date hereof, the Closing Date Borrowers shall deposit an amount equal to the amount of interest that will accrue on the 2013-1 Components and the 2013-2C Component from the date hereof to but excluding the Distribution Date in May 2013 (such amount, the “Closing Date Loan Increase Reserve”). The Closing Date Loan Increase Reserve shall be a Reserve under the Loan Agreement, and shall be applied by the Lender on the Due Date in May 2013 to the payment of such interest.

(d) The deposits into the Reserves described in clauses (a), (b) and (c) above shall occur by deduction from the amount of the Fifth Mortgage Loan Increase and the Sixth Mortgage Loan Increase disbursed to the Closing Date Borrowers pursuant to Section 3.02 hereof on the date hereof. Notwithstanding such deductions, the Fifth Mortgage Loan Increase contemplated hereby shall be deemed for all purposes to be fully disbursed.

 

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ARTICLE IV

ADDITION OF ADDITIONAL BORROWERS

Section 4.01 Election. (a) Pursuant to Sections 2.3 and 3.2 of the Loan Agreement, the Existing Borrowers elect to cause each Additional Borrower to assume and become jointly and severally liable under the Notes, the Loan Agreement and the other Loan Documents, and each Additional Borrower hereby covenants and agrees upon the execution and delivery of this Loan Agreement Supplement by such Additional Borrower:

(i) such Additional Borrower shall be a Borrower jointly and severally liable under the Loan Agreement and each of the other Loan Documents and Mortgage Loan Documents (as defined in the Trust Agreement) to which such Additional Borrower shall be a party, and shall be entitled to all of the respective rights and privileges, and subject to all of the respective duties and obligations of a Borrower thereunder, and

(ii) such Additional Borrower shall perform in accordance with their terms all of the obligations which by the terms of the Loan Agreement and the other Loan Documents and Mortgage Loan Documents to which such Additional Borrower shall be a party are required to be performed by it as a Borrower and shall be bound by all of the provisions of the Loan Agreement and such other Loan Documents and Mortgage Loan Documents as if it had been an original party to such agreements.

(b) On the date hereof, each Additional Borrower shall assume and become jointly and severally obligated under the 2010-1 Note, the 2010-2 Note and 2012-1 Note in accordance with Section 3.01(b) hereof and shall enter into the following other Loan Documents:

(i) Joinder and Amendment to the Cash Management Agreement, dated as of April 18, 2013, among the Closing Date Borrowers, the Servicer, the Manager and the Trustee;

(ii) the Deeds of Trust;

(iii) Joinder to the Assignment and Subordination of Management Agreement, dated as of April 18, 2013, among the Closing Date Borrowers and the Manager;

(iv) Joinder to the Environmental Indemnity, dated as of April 18, 2013, from the Closing Date Borrowers in favor of the Trustee;

(v) Joinder and Amendment to the Management Agreement, dated as of April 18, 2013, among the Closing Date Borrowers, SBA Senior Finance, LLC and the Manager;

(vi) Contribution and Subrogation Agreement, dated as of April 18, 2013, among the Closing Date Borrowers;

(vii) Joinder to the Advance Reimbursement Agreement, dated as of April 18, 2013, among the Closing Date Borrowers, the Servicer and the Trustee;

 

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(viii) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA TC PR, the Trustee and Wells Fargo Bank, N.A.

(ix) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA TC, the Trustee and Wells Fargo Bank, N.A.;

(x) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA Towers IV, the Trustee and Wells Fargo Bank, N.A.;

(xi) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA Monarch I, the Trustee and Wells Fargo Bank, N.A.;

(xii) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA USVI, the Trustee and Wells Fargo Bank, N.A.; and

(xiii) the Financing Statements.

(c) Each Additional Borrower hereby pledges, assigns and grants to Lender a security interest in and to all of such Additional Borrower’s fixtures and personal property including, but not limited to all, (i) equipment in all forms, now or hereafter existing, all parts thereof and all accessions thereto, including but not limited to machinery, towers, satellite receivers, antennas, headend electronics, furniture, motor vehicles, aircraft and rolling stock, (ii) such Additional Borrower’s fixtures now existing and or hereafter acquired, all substitutes and replacements therefore, all accessions and attachments thereto, and all tools, parts and equipment now or hereafter added to or used in connection with the fixtures on or above all Sites and all other real property now owned or hereafter acquired by such Additional Borrower and all substitutes and replacements for, accessions, attachments and other additions to, tools, parts and equipment used in connection with, and all proceeds, products, and increases of, any and all of the foregoing Collateral (including, without limitation, proceeds which constitute property of the types described herein), (iii) accounts now or hereafter existing, (iv) inventory now or hereafter existing, (v) general intangibles (other than Site Management Agreements) now or hereafter existing, (vi) investment property now or hereafter existing, (vii) deposit accounts now or hereafter existing, (viii) chattel paper now or hereafter existing, (ix) instruments now owned or hereafter existing, (x) any Site Management Agreements now or hereafter existing (including all rights to payment thereunder, but excluding any other rights that cannot be assigned without third party consent under such Site Management Agreements), and (xi) the equity interests of any subsidiary of such Additional Borrower now owned or hereafter existing and the proceeds of the foregoing, as security for the payment and performance of all of the Obligations.

(d) Each Additional Borrower hereby represents and warrants that it has satisfied (i) all of the provisions of Section 11.7(A) with respect to each of its Additional Borrower Sites that is to be a Mortgaged Site and has delivered an Officer’s Certificate dated the date hereof to that effect and (ii) all of the provisions of Section 11.7(B) with respect to each of its Additional Borrower Sites that is to be an Other Pledged Site and has delivered an Officer’s Certificate dated the date hereof to that effect.

Section 4.02 Further Assurances. (a) Each of the Existing Borrowers and the Additional Borrowers hereby agree that they will deliver to and deposit with, or cause to be

 

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delivered to and deposited with, the Servicer such documents and agreements as reasonably requested to evidence the Addition of the Additional Borrower Sites of the Additional Borrowers or as are required to be delivered by the Closing Date Borrowers pursuant to Section 2.01 of the Trust Agreement in connection with such Addition, this Fifth Mortgage Loan Increase, or the addition of the Additional Borrowers, including, without limitation (i) the documents with respect to the Fifth Mortgage Loan Increase or the addition of the Additional Borrowers required for the Mortgage File pursuant to Section 2.01(e) of the Trust Agreement and (ii) originals or copies of all other documents, certificates and opinions in the possession or under the control of the Closing Date Borrowers with respect to the Fifth Mortgage Loan Increase or the addition of the Additional Borrowers and that are necessary for the ongoing servicing and administration of the Loan (or, if any of the foregoing items are not in the actual possession of the Closing Date Borrowers, as soon as reasonably practical, but in any event within 90 days after the date of the Addition).

Section 4.03 Joinder. All references to Borrower or Borrowers contained in the Loan Agreement and the Loan Documents are hereby deemed, for all purposes to refer to and include each of the Additional Borrowers as a Borrower.

ARTICLE V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS

Section 5.01 Representations and Warranties. (a) Each Closing Date Borrower hereby represents and warrants to the Lender that, as to itself and its Sites, each of the representations and warranties set forth in Article IV of the Loan Agreement, other than Section 4.30, is true as of the date hereof.

(b) Each of the Closing Date Borrowers hereby represents and warrants to the Lender that, as to itself, each of the representations and warranties set forth in Section 9.1 of the Loan Agreement, is true as of the date hereof.

(c) Each of the Closing Date Borrowers hereby represents and warrants to the Lender that each condition of Section 2.3 of the Loan Agreement and Section 3.25 of the Trust Agreement have been satisfied as of the date hereof.

Section 5.02 Additional Representations, Warranties and Covenants of the Closing Date Borrowers.

(a) Each of the Closing Date Borrowers hereby represents, warrants, and covenants to the Lender that, as to itself, from the date of such entity’s formation, and until such time as all Obligations are paid in full, that such Closing Date Borrower:

(i) except for capital contributions and distributions properly reflected on the books and records of such entity, has not entered and shall not enter into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related Parties”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party;

 

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(ii) has paid and shall pay all of its debts and liabilities from its own assets, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

(iii) has done and shall do or caused to be done and shall cause to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence;

(iv) has maintained and shall maintain all of its books, records, financial statements and since the date of incorporation or formation, as the case may be, its bank accounts separate from those of any other Person;

(v) has been and shall be, and at all times has held and shall hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party);

(vi) has corrected and shall correct any known misunderstanding regarding its status as a separate entity;

(vii) has conducted and shall conduct all of its business and has held and shall hold all of its assets in its own name;

(viii) has not identified and shall not identify itself or any of its affiliates as a division or part of the other;

(ix) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name;

(x) has not commingled and shall not commingle its funds or other assets with those of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties, and has held all of its funds or other assets in its own name other than any improper deposits by third parties which have been promptly corrected;

(xi) has not guaranteed or become obligated for the debts of any other Person with respect to debts that are still outstanding or, in the case of the Additional Borrowers, will not be discharged as a result of the closing of the Fifth Mortgage Loan Increase, other than the Loan and shall not guaranty or become obligated for the debts of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

(xii) has not held itself out as being responsible for the debts or material obligations of any other Person with respect to debts or obligations that are still outstanding or will not be discharged as a result of the Fifth Mortgage Loan Increase other than the Loan and shall not hold itself out as being responsible for the debts or material obligations of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

 

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(xiii) has allocated and shall allocate fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party;

(xiv) has not pledged its assets to secure the obligations of any other Person with respect to obligations that are still outstanding or will not be discharged as a result of the Fifth Mortgage Loan Increase other than the Loan and shall not pledge its assets to secure the obligations of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

(xv) has maintained and shall maintain adequate capital in light of its contemplated business operations;

(xvi) has not incurred any indebtedness that is still outstanding and shall not incur any indebtedness other than indebtedness that is permitted under the Loan Documents;

(xvii) has not had any of its obligations guaranteed by an affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the Fifth Mortgage Loan Increase) or guarantees that are expressly contemplated by the Loan Documents; and

(xviii) has received and reviewed copies of the Loan Agreement and the other Mortgage Loan Documents (as defined in the Trust Agreement).

Section 5.03 Amendments to the Loan Agreement Schedules.

(a) The parties hereto agree that Schedule 1 of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 1 hereto.

(b) The parties hereto agree that Schedule 4 of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 4 hereto.

(c) The parties hereto agree that Schedule 4.1(C) of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 4.1(C) hereto.

(d) The parties hereto agree that Schedule 4.19 of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 4.19 hereto.

(e) The parties hereto agree that Schedules 4.25 and 4.26 of the Loan Agreement are hereby deleted in their entirety and replaced by Schedules 4.25 and 4.26, respectively, hereto.

 

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ARTICLE VI

AMENDMENTS TO THE FIFTH LOAN SUPPLEMENT AND THE LOAN AGREEMENT

Section 6.01 Fifth Loan Supplement. The parties hereto agree that Section 6.07(a) of the Fifth Loan Supplement shall be deleted in its entirety and replaced with “[Reserved.]”.

Section 6.02 Management Fee Rate. The parties hereto agree that the words “so long as SBA Network Management, Inc., or an affiliated thereof, is the Manager, and otherwise shall be such amount not to exceed 10% that is agreed to by the successor manager” in the definition of “Management Fee Rate” in Section 1.1 of the Loan Agreement shall be deleted in its entirety.

Section 6.03 Components of Loan Increases.

(a) The parties hereto agree that the second sentence in Section 3.2(C) of the Loan Agreement is hereby amended and restated in its entirety as follows: “The Anticipated Repayment Date for each Component related to the Loan Increase, as defined in such Loan Agreement Supplement, will, until the payment in full of the principal of the Note corresponding to the 2010-1C Component and the Note corresponding to the 2010-2C Component and all accrued and unpaid interest thereon and the satisfaction of any other Obligations in respect of the 2010 Components, be later than the Anticipated Repayment Date for the 2010-2C Component, except if such Component corresponds to a Variable Funding Series to be issued under the Trust.”

(b) The parties hereto agree that the last sentence in Section 3.2(C) of the Loan Agreement is hereby amended and restated in its entirety as follows: “Any Component of any Loan Increase may have an alphabetical designation higher, lower or equal to the alphabetical designation of any then-outstanding Component.”

Section 6.04 Mergers. The parties hereto agree that Section 5.2 of the Loan Agreement is hereby amended by adding the following to end thereof:

“; provided, however, that any Borrower may merge with any other Borrower, Additional Borrower or other Person at any time; provided that (i) a then-existing Borrower or Additional Borrower is the surviving entity, (ii) such Borrower shall, as of the effective date of such merger, make each of the representations, warranties and covenants set forth in Section 9.1 herein and (iii) on or prior to the date of such merger, such Borrower shall deliver to the Lender an opinion of nationally recognized tax counsel to the effect that such merger will not (a) cause a taxable event for U.S. federal income tax purposes to any holder of a Certificate, (b) cause the Trust to be other than a mere security device or grantor trust for U.S. Federal income tax purposes, or (c) cause any of the Components to be characterized as other than indebtedness for U.S. Federal income tax purposes; provided, further that in the case of a merger of a Borrower or an Additional Borrower with a Person who is not a Borrower or an Additional Borrower, (x) such Borrower or Additional Borrower shall have made to the Lender, in a Loan Agreement

 

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Supplement, as to the Sites owned by such Person prior to such merger, the representations and warranties set forth in Sections 4.5, 4.6, 4.7(A) and (B), 4.8, 4.9, 4.25, 4.26, 4.28 and 4.29 herein and (y) the Borrower shall deliver to Lender a letter from the counsel who most recently delivered an opinion to Lender concerning the substantive non-consolidation of such Borrower or Additional Borrower, in a form reasonably satisfactory to Lender, to the effect that such merger does not affect the conclusions in such substantive non-consolidation opinion.”

Section 6.05 Conditional Amendments Effective Upon Retirement of the Existing Components. The parties hereto agree that the amendments to the Loan Agreement set forth in this Section 6.05 shall automatically become effective upon the payment in full of the Existing Components and all accrued and unpaid interest thereon and the satisfaction of any other Obligations in respect of the Existing Components.

(a) Definitions. The following definitions shall be hereby incorporated in alphabetical order into Section 1.1 of the Loan Agreement, and if any such definition is already found in Section 1.1 of the Loan Agreement, shall replace it in its entirety:

“17g-5 Website” means SBA Depositor LLC’s website for purposes of compliance with Rule 17g-5(a)(3)(iii) of the United States Securities Exchange Act of 1934, as amended.

“Authorized Representative” has the meaning set forth in Section 14.26(a).

“Initial Request” has the meaning set forth in Section 14.26(a).

“Rating Agency Confirmation” means, with respect to the transaction or matter in question, Moody’s shall have confirmed in writing (which may be in the form of e-mail, facsimile, press release, posting to its internet website or other such means then considered industry standard as determined by Moody’s) that such transaction or matter shall not result in a downgrade, qualification, or withdrawal of the then current rating for any certificate or other securities issued in connection with any Securitization (or the placing of such certificate or other security on negative credit watch or ratings outlook in contemplation of any such action with respect thereto) and provision of notice of such transaction or matter in question to Fitch; provided, however, that with respect to Sections 5.9, 5.21, 5.22, 11.3, 11.4 (excepting 11.4(C)), 11.5, and 11.6 of this Loan Agreement, Rating Agency Confirmation means provision of notice to Moody’s and Fitch; provided, further, that (i) if a Rating Agency Declination is received, the requirement to receive Rating Agency Confirmation from Moody’s with respect to such matter will not apply and (ii) other than in connection with a Rating Agency Confirmation with respect to a matter arising under Sections 3.2, 5.11(B), 5.11(C), 11.1, 11.2 and 11.4(C) of this Loan Agreement, if Moody’s refuses to respond or otherwise does not respond to a request for Rating Agency Confirmation after good faith efforts by the party requesting such Rating Agency Confirmation in accordance with Section 14.26, the requirement to receive such Rating Agency Confirmation shall be waived unless Moody’s refusal or failure to respond to such request (A) followed Moody’s consideration of the substance of such request or (B) is due to any failure to reach a commercial agreement between Moody’s and the Borrowers or its Affiliates including, but not limited to, any disagreement regarding Moody’s fees.

 

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“Rating Agency Declination” means receipt of a written waiver or acknowledgement from a Rating Agency indicating its decision not to review or declining to review a matter for which Rating Agency Confirmation is sought; provided that the absence of Rating Agency Confirmation from a Rating Agency following a consideration by such Rating Agency of the substance of a request shall not constitute a Rating Agency Declination; provided, further, that if a Rating Agency publicly announces a policy, as a general matter, to no longer review requests for rating agency confirmations, so long as such policy shall remain in effect, any party requesting a Rating Agency Confirmation in connection with a particular matter shall only be required to deliver written notice to such Rating Agency of such matter and such Rating Agency shall thereafter be deemed to have delivered a Rating Agency Declination with respect to such matter.

“Requesting Party” has the meaning set forth in Section 14.26(a).

“Second Request” has the meaning set forth in Section 14.26(b)(i).

(b) Prepayment. The words “or (iii) during an Amortization Period.” in the first sentence of Section 2.6(A) of the Loan Agreement shall be deleted in their entirety and replaced with: “, (iii) during an Amortization Period or (iv) to cure a breach of a representation, warranty or other default herein”.

(c) Performance of Agreements and Leases. The words “April 16, 2010” in clause (iii) of the proviso to the second sentence of Section 5.9 of the Loan Agreement shall be deleted in their entirety and replaced with: “the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time”.

(d) Ground Leases. The words “April 16, 2010” in clause (c) of Section 5.21(A)(ii) of the Loan Agreement shall be deleted in their entirety and replaced with: “the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time”.

(e) Modification of Ground Leases. Section 5.21(A)(iii)(c) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(c) if the Ground Lease being replaced is, with respect to a Mortgaged Site, simultaneous with the execution and delivery of the Amended Ground Lease, Lender shall have received (1) an Amended Deed of Trust executed and delivered by a duly authorized officer of the applicable Borrower encumbering the property included under the Amended Ground Lease and (2) if the Ground Lease Site relating to the Ground Lease being replaced was part of the Collateral on April 18, 2013, an endorsement to the existing Title Policy in substantially the form delivered at Closing insuring the lien of the Amended Deed of Trust, or a replacement policy in an amount equal to 125% of the Allocated Loan Amount with respect to such Site, in either case issued by the Title Company and dated as of the date of the Amended Ground Lease, unless the Borrowers shall have delivered Rating Agency Confirmation;”

 

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(f) Easements. The words “April 16, 2010” in clause (c) of Section 5.22(A)(ii) of the Loan Agreement shall be deleted in their entirety and replaced with: “the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time”.

(g) Modification of Easements. Section 5.22(A)(iii)(d) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(d) if the Easement being replaced is with respect to a Mortgaged Site, simultaneous with the execution and delivery of the Amended Easement, Lender shall have received (1) an Amended Deed of Trust executed and delivered by a duly authorized officer of the applicable Borrower encumbering the property included under the Amended Easement and (2) if the Easement Site relating to the Easement being replaced was part of the Collateral on April 18, 2013, an endorsement to the existing Title Policy in substantially the form delivered at Closing insuring the lien of the Amended Deed of Trust, or a replacement policy in an amount equal to 125% of the Allocated Loan Amount with respect to such Site, in either case issued by the Title Company and dated as of the date of the Amended Easement, unless the Borrowers shall have delivered Rating Agency Confirmation;”

(h) Site Dispositions. Sections 11.4(B)(ii) and (iii) of the Loan Agreement shall be amended and restated in their entirety as follows:

“(ii) Together with such notice the Borrowers provide supporting information reasonably acceptable to Lender that following such sale the DSCR will be at least within 0.2x of the DSCR immediately prior to such sale.

(iii) If the aggregate Allocated Loan Amount of (x) each such Site for which a sale has occurred under this Section 11.4(B) since the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time, and (y) the Site for which a sale is proposed is greater than five percent (5%) of the aggregate original Component Principal Balances of all Components of the Loan then outstanding, the Borrowers have delivered a Rating Agency Confirmation.”

(i) Payment in Full of Components of the Loan Having the Same Numerical Designation. Section 11.4(C)(i) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(i) Lender shall have received from the Borrowers evidence in form and substance satisfactory to Lender that (1) following such Release, the percentage of Operating Revenues from the remaining Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is not materially less than (and in any event at least 95% of) such percentage as of the date immediately preceding the Release, (2) if any of the remaining Sites are subject to a Ground Lease, such Ground Leases will have an average remaining term (calculated on a

 

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net cash flow weighted average basis) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis) of all Sites (including all available extensions) subject to Ground Leases prior to such Release (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration), (3) the Maintenance Capital Expenditures for the remaining Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance Capital Expenditures for the Sites (taken together and averaged on a per site basis) prior to such Release, and (4) after giving effect to the Release, the Debt Service Coverage Ratio is at least within 0.2x of the Debt Service Coverage Ratio as of the date immediately preceding the Release, or, in each case, the Borrowers shall have delivered Rating Agency Confirmation.”

(j) Title Policies Relating to Substitution of a Mortgaged Site. Section 11.5(E) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(E) if the Mortgaged Site being replaced was part of the Collateral on April 18, 2013, Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, (ii) reasonably requested endorsements to the title policies delivered to Lender in connection with the Deeds of Trust to reflect the Substitution and (iii) copies of paid receipts showing that all premiums in respect of such endorsements and title insurance policies have been paid, unless, in each case the Borrowers have delivered a Rating Agency Confirmation.”

(k) Substitution of a Mortgaged Site. Section 11.5(K) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(K) If (1) the aggregate Allocated Loan Amount of all Substituted Sites and Substituted Other Pledged Sites during any calendar year exceeds five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period beginning on the Closing Date), (2) the percentage of Operating Revenues from the applicable Replacement Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution, (3) the Substituted Sites will be subject to a Ground Lease with a term (including all available extensions) that is shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis) of all other Sites subject to Ground Leases (excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution, (4) the weighted average remaining term of the Leases with respect to the Replacement Sites is shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all other Sites, (5) the Maintenance Capital Expenditures for the Replacement Sites (taken

 

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together and averaged on a per site basis) are materially greater than the Maintenance Capital Expenditures for the Substituted Sites, (6) after giving effect to the Substitution, the Debt Service Coverage Ratio of the Loan is not at least within 0.2x of the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution or (7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of Lender, shall not be at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites), the Borrowers shall have delivered Rating Agency Confirmation.”

(l) Substitution of Other Pledged Sites. Section 11.6(J) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(J) If (1) the aggregate Allocated Loan Amount of all Substituted Other Pledged Sites and Substituted Sites during any calendar year exceeds five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period beginning on the Closing Date), (2) the percentage of Operating Revenues from the applicable Replacement Other Pledged Site represented by telephony tenants and non-telephony investment grade tenants (taken together) is materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution, (3) the Substituted Other Pledged Site will be subject to a Ground Lease with a term (including all available extensions) that is shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis) of all other Sites subject to Ground Leases (excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution, (4) the weighted average remaining term of the Leases with respect to the Replacement Other Pledged Sites is shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all other Sites, (5) the Maintenance Capital Expenditures for the Replacement Other Pledged Sites (taken together and averaged on a per site basis) are materially greater than the Maintenance Capital Expenditures for the Substituted Other Pledged Site, (6) after giving effect to the Substitution, the Debt Service Coverage Ratio of the Loan is not at least within 0.2x of the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution, or (7) the aggregate value of the Replacement Other Pledged Site, as established by the Borrowers to the reasonable satisfaction of Lender, shall not be at least equal to the aggregate value of the Substituted Other Pledged Site as of the date immediately preceding the Other Pledged Site Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites), the Borrowers shall have delivered Rating Agency Confirmation.”

(m) Addition of an Additional Site or Additional Borrower Site. Section 11.7(A)(v) shall be deleted in its entirety and replaced with “[Reserved.]”.

(n) Waiver of Rating Agency Confirmation. Article XIV of the Loan Agreement shall be amended by adding the following new section immediately following Section 14.25:

 

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“Section 14.26. Waiver of Rating Agency Confirmation.

(a) Any request for a Rating Agency Confirmation made by a Borrower, the Servicer or the Trustee, as applicable (such requesting party, the “Requesting Party”), to Moody’s pursuant to this Loan Agreement shall (i) be made in writing, which writing shall include electronic mail, (ii) contain a cover page indicating the nature of the request for Rating Agency Confirmation and all back-up material necessary for Moody’s to process such request, and (iii) be provided by the Requesting Party in electronic format to 17greports@sbasite.com (the “Authorized Representative”) who shall post such request on the 17g-5 Website (the “Initial Request”). If the Requesting Party is a Borrower or the Trustee, such Requesting Party shall also provide a copy of the Initial Request to the Servicer.

(b) If Moody’s has not replied to an Initial Request or has responded to an Initial Request in a manner that indicates that Moody’s is neither reviewing the request for Rating Agency Confirmation nor waiving the requirement for such Rating Agency Confirmation within ten (10) Business Days of the making of such Initial Request, the Requesting Party shall:

(i) confirm, through direct communication and not by posting a request for a Rating Agency Confirmation on the 17g-5 Website, that Moody’s has received such Initial Request, and, if it has not, promptly make a second request to Moody’s for Rating Agency Confirmation (the “Second Request”); and

(ii) if there is no response by Moody’s to such Initial Request or such Second Request within five (5) Business Days of the making of such Second Request or if Moody’s has responded to such Initial Request or such Second Request in a manner that indicates that Moody’s is neither reviewing the request for Rating Agency Confirmation nor waiving the requirement for such Rating Agency Confirmation, then such Requesting Party shall confirm (without providing notice to the Authorized Representative), by direct communication and not by posting a request for Rating Agency Confirmation on the 17g-5 Website, that Moody’s has received such Second Request.

If a Requesting Party provides the requests for a Rating Agency Confirmation to Moody’s in the manner and at the times provided for in this Section 14.26, it shall be deemed to have made good faith efforts to request such Rating Agency Confirmation from Moody’s.”

ARTICLE VII

GENERAL PROVISIONS

Section 7.01 Governing Law. THIS LOAN AGREEMENT SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE CLOSING DATE BORROWERS IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED

 

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STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS LOAN AGREEMENT SUPPLEMENT.

Section 7.02 Severability. In case any provision in this Loan Agreement Supplement shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 7.03 Counterparts. This Loan Agreement Supplement may be executed in any number of counterparts, each of which 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 counterpart of a signature page of this Loan Agreement Supplement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Loan Agreement Supplement.

ARTICLE VIII

APPLICABILITY OF LOAN AND SECURITY AGREEMENT

Section 8.01 Applicability. The provisions of the Loan Agreement are hereby ratified, approved and confirmed, as supplemented by this Loan Agreement Supplement. The representations, warranties and covenants contained in the Loan Agreement (except as expressly modified herein) are hereby reaffirmed with the same force and effect as if fully set forth herein and made again as of the date hereof.

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the Closing Date Borrowers and the Servicer on behalf of the Trustee, have caused this Loan Agreement Supplement to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written.

 

SBA PROPERTIES, LLC, as Existing Borrower     SBA SITES, LLC, as Existing Borrower
By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel
SBA STRUCTURES, LLC, as Existing Borrower     SBA INFRASTRUCTURE, LLC, as Existing Borrower
By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel
SBA TOWERS USVI II, INC., as Existing Borrower     SBA MONARCH TOWERS III, LLC, as Existing Borrower
By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel
SBA 2012 TC ASSETS PR, LLC, as Additional Borrower     SBA 2012 TC ASSETS, LLC, as Additional Borrower
By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel

SBA TOWERS IV, LLC, as Additional Borrower     SBA MONARCH TOWERS I, LLC, as Additional Borrower
By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel
SBA TOWERS USVI, INC., as Additional Borrower        
By:  

/s/ Thomas P. Hunt

        
  Name:   Thomas P. Hunt        
  Title:   Senior Vice President and General Counsel        

MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION, as Servicer

By:  

/s/ Lawrence D. Ashley

  Name:   Lawrence D. Ashley
  Title:   Senior Vice President
 EX-10.6 4 d526073dex106.htm EX-10.6 EX-10.6

Exhibit 10.6

EXECUTION COPY

 

 

 

SEVENTH

LOAN AND SECURITY AGREEMENT SUPPLEMENT AND AMENDMENT

among

SBA PROPERTIES, LLC (successor to SBA Properties, Inc.),

SBA SITES, LLC (successor to SBA Sites, Inc.),

SBA STRUCTURES, LLC (successor to SBA Structures, Inc.),

SBA INFRASTRUCTURE, LLC,

SBA MONARCH TOWERS III, LLC,

SBA TOWERS USVI II, INC.,

as Borrowers,

and

SBA 2012 TC ASSETS PR, LLC,

SBA 2012 TC ASSETS, LLC,

SBA TOWERS IV, LLC,

SBA MONARCH TOWERS I, LLC,

SBA TOWERS USVI, INC.,

as Additional Borrowers,

and

MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION,

as Servicer on behalf of Deutsche Bank Trust Company Americas, as Trustee

dated as of April 18, 2013

 

 

 

TABLE OF CONTENTS

 

         Page  

ARTICLE I

  

DEFINITIONS AND INCORPORATION BY REFERENCE

  

Section 1.01  

Definitions

      3   

ARTICLE II

  

2013-2C COMPONENT DETAILS

  

Section 2.01  

2013-2C Component Details

      6   

ARTICLE III

  

MORTGAGE LOAN INCREASE

  

Section 3.01  

Loan Increase

      7   
Section 3.02  

Use of Proceeds

      8   
Section 3.03  

Funding of Reserves

      8   

ARTICLE IV

  

ADDITION OF ADDITIONAL BORROWERS

  

Section 4.01  

Election

      9   
Section 4.02  

Further Assurances

      11   
Section 4.03  

Joinder

      11   

ARTICLE V

  

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS

  

Section 5.01  

Representations and Warranties

      11   
Section 5.02  

Additional Representations, Warranties and Covenants of the Closing Date Borrowers

      11   
Section 5.03  

Amendments to the Loan Agreement Schedules

      13   

 

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ARTICLE VI

  

AMENDMENTS TO THE FIFTH LOAN SUPPLEMENT AND THE LOAN AGREEMENT

  

Section 6.01  

Fifth Loan Supplement

      14   
Section 6.02  

Management Fee Rate

      14   
Section 6.03  

Components of Loan Increases

      14   
Section 6.04  

Mergers

      14   
Section 6.05  

Conditional Amendments Effective Upon Retirement of the Existing Components

      15   

ARTICLE VII

  

GENERAL PROVISIONS

  

Section 7.01  

Governing Law

      20   
Section 7.02  

Severability

      21   
Section 7.03  

Counterparts

      21   

ARTICLE VIII

  

APPLICABILITY OF LOAN AND SECURITY AGREEMENT

  

Section 8.01  

Applicability

      21   

 

-ii-

SEVENTH LOAN AND SECURITY AGREEMENT SUPPLEMENT AND AMENDMENT

This SEVENTH LOAN AND SECURITY AGREEMENT SUPPLEMENT AND AMENDMENT (this “Loan Agreement Supplement”) is dated as of April 18, 2013, and entered into by and among SBA PROPERTIES, LLC (successor to SBA Properties, Inc.), a Delaware limited liability company (“SBA Properties”), SBA SITES, LLC (successor to SBA Sites, Inc.), a Delaware limited liability company (“SBA Sites”), SBA STRUCTURES, LLC (successor to SBA Structures, Inc.), a Delaware limited liability company (“SBA Structures” and, collectively with SBA Properties and SBA Sites, the “2010 Borrowers”), SBA INFRASTRUCTURE, LLC, a Delaware limited liability company (“SBA Infrastructure”), SBA TOWERS USVI II, INC., a Florida corporation (“SBA USVI II”), SBA MONARCH TOWERS III, LLC, a Delaware limited liability company (“SBA Monarch III” and, collectively with SBA Infrastructure and SBA USVI II, the “SBA III Borrowers” and, collectively with the 2010 Borrowers, the “Existing Borrowers” and, each individually, an “Existing Borrower”), SBA 2012 TC Assets PR, LLC, a Delaware limited liability company (“SBA TC PR”), SBA 2012 TC Assets, LLC, a Delaware limited liability company (“SBA TC”), SBA Towers IV, LLC, a Delaware limited liability company (“SBA Towers IV”), SBA Monarch Towers I, LLC, a Delaware limited liability company (“SBA Monarch I”) and SBA Towers USVI, Inc., a U.S. Virgin Islands corporation (“SBA USVI” and, collectively with SBA TC PR, SBA TC, SBA Towers IV and SBA Monarch I, the “Additional Borrowers” and, collectively with the Existing Borrowers, the “Closing Date Borrowers” and, each individually, a “Closing Date Borrower”), and MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION (formerly known as Midland Loan Services, Inc.), as servicer (the “Servicer”), on behalf of DEUTSCHE BANK TRUST COMPANY AMERICAS (as successor trustee to Bank of America, N.A. successor trustee by merger to LaSalle Bank National Association), as trustee (the “Trustee”) under that certain Trust and Servicing Agreement (the “Trust Agreement”) dated as of November 18, 2005 among SBA DEPOSITOR LLC (formerly known as SBA CMBS-1 Depositor LLC) (the “Depositor”), the Servicer and the Trustee.

RECITALS

WHEREAS, SBA Properties entered into an Amended and Restated Loan and Security Agreement, dated as of November 18, 2005 (the “Loan Agreement”), between SBA Properties and the Depositor;

WHEREAS, the Depositor assigned all of its right, title and interest in the Loan Agreement to the Trustee on behalf of the Certificateholders pursuant to the Trust Agreement and the Servicer is authorized to enter into this Loan Agreement Supplement on behalf of the Trustee pursuant to Section 3.25 of the Trust Agreement;

WHEREAS, on November 6, 2006, the 2010 Borrowers, SBA USVI, SBA Towers, Inc., a Florida corporation (“SBA Towers”) and SBA Puerto Rico, Inc., a Florida corporation (“SBA PR” and, collectively with SBA Structures, SBA Sites, SBA USVI and SBA

Towers, the “Added Borrowers”) entered into the Second Loan and Security Agreement Supplement and Amendment together with the Servicer on behalf of the Trustee (the “Second Loan Supplement”) whereby a Loan Increase in the amount of $1,150,000,000 (the “First Mortgage Loan Increase”) was agreed upon and the Added Borrowers were added as Additional Borrowers under the Loan Agreement in accordance with Section 2.3 of the Loan Agreement, and each Added Borrower agreed to be bound by and perform all of the obligations of a Borrower under the Loan Agreement and the other Loan Documents;

WHEREAS, SBA Towers, SBA PR and SBA USVI (collectively the “Released Borrowers”) entered into a Payoff, Termination and Release Agreement, dated as of July 28, 2009, among the Released Borrowers, the 2010 Borrowers, the Servicer and Bank of America, N.A., (successor by merger to LaSalle Bank National Association) on behalf of SBA Tower Trust and the holders of the Certificates corresponding to the 2005-1 Components, whereby the 2005-1 Components were repaid and the Released Borrowers were released from their obligations under the Loan Documents;

WHEREAS, on April 16, 2010 (the “2010 Closing Date”), the 2010 Borrowers entered into the Third Loan and Security Agreement Supplement and Amendment with the Servicer on behalf of the Trustee (the “Third Loan Supplement”) whereby a Loan Increase in the amount of $680,000,000 (the “Second Mortgage Loan Increase”), in the form of one (1) component designated as 2010-1C (the “2010-1C Component”), was agreed upon;

WHEREAS, on the 2010 Closing Date, the 2010 Borrowers entered into the Fourth Loan and Security Agreement Supplement and Amendment with the Servicer on behalf of the Trustee (the “Fourth Loan Supplement”) whereby a Loan Increase in the amount of $550,000,000 (the “Third Mortgage Loan Increase”), in the form of one (1) component designated as 2010-2C (the “2010-2C Component” and, together with the 2010-1C Component, the “2010 Components”) was agreed upon;

WHEREAS, the 2010 Borrowers entered into a Payoff, Termination and Release Agreement, dated as of the 2010 Closing Date, with the Guarantor, the Servicer, the Trustee and Bank of America, N.A., as Paying Agent, on behalf of the trust established pursuant to the Trust Agreement and the holders of the Certificates corresponding to the 2006-1 Components, whereby the 2006-1 Components were repaid and the 2010 Borrowers were released from their obligations under the Loan Documents with respect to the 2006-1 Components;

WHEREAS, on August 9, 2012 (the “2012 Closing Date”), the Existing Borrowers entered into the Fifth Loan and Security Agreement Supplement and Amendment with the Servicer on behalf of the Trustee (the “Fifth Loan Supplement”) whereby a Loan Increase in the amount of $610,000,000 (the “Fourth Mortgage Loan Increase”), in the form of one (1) component designated as 2012-1C (the “2012-1C Component” and, together with the 2010 Components, the “Existing Components”), was agreed upon and the SBA III Borrowers were added as Additional Borrowers under the Loan Agreement in accordance with Section 2.3 of the Loan Agreement, and the SBA III Borrowers agreed to be bound by and perform all of the obligations of a Borrower under the Loan Agreement and the other Loan Documents;

 

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WHEREAS, each Existing Borrower and each Additional Borrower intend to, and the Lender has agreed to, add each Additional Borrower as a Borrower under the Loan Agreement in accordance with Section 2.3 of the Loan Agreement and Section 3.25 of the Trust Agreement, and each Additional Borrower has agreed to become a Borrower thereunder, and be bound by and perform all of the obligations of a Borrower under the Loan Agreement and the other Loan Documents;

WHEREAS, upon the addition of the Additional Borrowers in accordance with Section 2.3 of the Loan Agreement and Section 3.25 of the Trust Agreement, the properties (including land and Improvements) and all related facilities that are owned or leased by the Additional Borrowers will become Additional Borrower Sites under the Loan Agreement, as provided for therein;

WHEREAS, pursuant to Section 3.2 of the Loan Agreement, the Closing Date Borrowers desire to effect (i) a Loan Increase in an amount equal to $755,000,000 (the “Fifth Mortgage Loan Increase”), in the form of two (2) separate components designated as 2013-1C (the “2013-1C Component”) and 2013-1D (the “2013-1D Component” and, together with the 2013-1C Component, the “2013-1 Components”), and the Lender has agreed to the Fifth Mortgage Loan Increase and to advance the amount of the Fifth Mortgage Loan Increase, and (ii) a Loan Increase in an amount equal to $575,000,000 (the “Sixth Mortgage Loan Increase”), in the form of one (1) component designated as 2013-2C (the “2013-2C Component”), and the Lender has agreed to the Sixth Mortgage Loan Increase and to advance the amount of the Sixth Mortgage Loan Increase;

WHEREAS, the 2013-2C Component constitutes a Component as defined in the Loan Agreement;

WHEREAS, the Closing Date Borrowers and the Lender have agreed to certain amendments to the Loan Agreement;

WHEREAS, the Closing Date Borrowers and the Lender intend these recitals to be a material part of this Agreement; and

WHEREAS, all things necessary to make this Loan Agreement Supplement the valid and legally binding obligation of the Closing Date Borrowers in accordance with its terms, for the uses and purposes herein set forth, have been done and performed.

NOW, THEREFORE, it is mutually covenanted and agreed as follows:

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01 Definitions. All defined terms used herein and not defined herein shall have the meanings ascribed to such terms in the Loan Agreement. All words and phrases

 

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defined in the Loan Agreement shall have the same meanings in this Loan Agreement Supplement, except as otherwise appears in this Article. In addition, the following terms have the following meanings in this Loan Agreement Supplement unless the context clearly requires otherwise:

“2010 Components” shall have the meaning ascribed to it in the Recitals hereto.

“2010-1C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2010-2C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2012-1C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1 Certificates” shall mean the 2013-1C Certificates and the 2013-1D Certificates.

“2013-1C Certificates” shall mean the Series 2013-1C certificates issued by the SBA Tower Trust pursuant to the Trust Agreement corresponding to the 2013-1C Component.

“2013-1D Certificates” shall mean the Series 2013-1D certificates issued by the SBA Tower Trust pursuant to the Trust Agreement corresponding to the 2013-1D Component.

“2013-2 Certificates” shall mean the Series 2013-2C certificates issued by the SBA Tower Trust pursuant to the Trust Agreement corresponding to the 2013-2C Component.

“2013-1 Components” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-1D Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-2C Component” shall have the meaning ascribed to it in the Recitals hereto.

“2013-2C Note” shall have the meaning ascribed to it in Section 3.01(b) hereof.

“Anticipated Repayment Date” shall have the meaning ascribed to it in Section 2.01(b) hereof.

“Component Rate” shall mean the rate per annum set forth in Section 2.01(a)(i) hereof.

“Date of Issuance” shall mean, with respect to the 2013-2C Component, April 18, 2013.

 

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“Existing Components” shall have the meaning ascribed to it in the Recitals hereto.

“Fifth Mortgage Loan Increase” shall have the meaning ascribed to it in the Recitals hereto.

“Initial Increase Reserve Account” shall mean the account described in Section 2.01(a)(v) hereof.

“Initial Purchasers” shall mean Barclays Capital Inc., Deutsche Bank Securities Inc. and the other Initial Purchasers listed in Schedule I of the Purchase Agreement.

“Maturity Date” shall mean the date set forth in Section 2.01(a)(iii) hereof.

“Mortgage File” shall have the meaning ascribed to it in the Trust Agreement.

“Offering Memorandum” shall mean the Offering Memorandum dated April 4, 2013, relating to the offering and sale of the 2013-1 Certificates and the 2013-2 Certificates.

“Post-ARD Additional Interest Rate” shall have the meaning ascribed to it in Section 2.01(a)(ii) hereof.

“Purchase Agreement” shall mean the Purchase Agreement, dated April 4, 2013, relating to the purchase by the Initial Purchasers of the 2013-1 Certificates and the 2013-2 Certificates.

“Sixth Mortgage Loan Increase” shall have the meaning ascribed to it in the Recitals hereto.

“Yield Maintenance” shall have the meaning ascribed to it in Section 2.01(a)(iv) hereof.

Words importing the masculine gender include the feminine gender. Words importing persons include firms, associations and corporations. Words importing the singular number include the plural number and vice versa. Additional terms are defined in the body of this Loan Agreement Supplement.

In the event that any term or provision contained herein with respect to the 2013-2C Component shall conflict with or be inconsistent with any term or provision contained in the Loan Agreement, the terms and provisions of this Loan Agreement Supplement shall govern.

 

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ARTICLE II

2013-2C COMPONENT DETAILS

Section 2.01 2013-2C Component Details. (a) The 2013-2C Component authenticated and delivered under this Loan Agreement Supplement shall consist of one (1) Component having:

(i) the designation, Component Principal Balance and Component Rate set forth below.

 

Component

    Initial
Component
Principal
Balance		      Component
Rate		  

2013-2C

    $ 575,000,000         3.722 % 

(ii) Post-ARD Additional Interest Rate determined by the Servicer to be the greater of (i) five percent (5%) and (ii) the amount, if any, by which the sum of the following exceeds the Component Rate for the 2013-2C Component: (x) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry Association) on the Anticipated Repayment Date of the United States Treasury Security having a term closest to ten (10) years plus (y) the “Spread” set forth below in the appropriate row corresponding to such Component plus (z) five percent (5%):

 

Component

    Spread  

2013-2C

      1.99 % 

(iii) a Maturity Date which is the Due Date occurring in April 2048 or such earlier date on which the final payment of principal of the Notes becomes due and payable as provided in the Loan Agreement, whether at such stated Maturity Date, by acceleration, or otherwise.

(iv) Yield Maintenance in an amount equal to the excess, if any, of (i) the present value as of the date of prepayment (by acceleration or otherwise) of all future installments of principal and interest that the Borrowers would otherwise be required to pay on the 2013-2C Component (or portion thereof) on the related Due Date from the date of such prepayment to and including the first Due Date that occurs (i) eighteen months prior to the Anticipated Repayment Date for the 2013-2C Component absent such prepayment, assuming the entire unpaid Principal Amount of the 2013-2C Component is required to be paid on such Due Date, with such present value determined by the use of a discount rate equal to the sum of (x) the yield to maturity (adjusted to a “mortgage equivalent basis” pursuant to the standards and practices of the Securities Industry Association), on the Due Date relating to the date of such prepayment, of the United States Treasury Security having the maturity closest to the Distribution Date that occurs eighteen months prior to the Assumed Final Distribution Date related to the Anticipated

 

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Repayment Date for the 2013-2C Component plus (y) 0.50% over (ii) the Component Principal Balance of the 2013-2C Component (or portion thereof) on the date of such prepayment. No Yield Maintenance is payable in connection with any prepayment of the 2013-2C Component that occurs less than eighteen months prior to the Anticipated Repayment Date with respect to the 2013-2C Component.

(v) Interest shall accrue on the 2013-2C Component and the corresponding 2013-2C Note from and including the date hereof. An amount equal to the interest for the period from and including the date hereof until the Distribution Date in May, 2013 shall be deposited on the date hereof in the Initial Increase Reserve Account and applied by the Lender to the payment of such interest on the Due Date in May, 2013.

(b) There are no Scheduled Principal Payments in respect of the 2013-2C Component and the Closing Date Borrowers shall not be required to pay any principal of the 2013-2C Component prior to the Due Date in April 2023 (such date with respect to the 2013-2C Component, the “Anticipated Repayment Date”), other than after the occurrence and during the continuation of an Amortization Period or an Event of Default as provided in the Loan Agreement or as otherwise required under the terms of the Loan Documents.

ARTICLE III

MORTGAGE LOAN INCREASE

Section 3.01 Loan Increase. (a) Pursuant to Section 3.2 of the Loan Agreement, the Lender and the Closing Date Borrowers agree to the Sixth Mortgage Loan Increase consisting of the Component described in Section 2.01.

(b) On the date hereof, each Closing Date Borrower shall execute and deliver to the Trustee (i) a promissory note payable to the order of the Trustee evidencing the 2013-2C Component, in the initial principal amount equal to $575,000,000 (the “2013-2C Note”). The 2013-2C Note shall bear interest on the unpaid principal amount thereof at the Component Rate set forth in Section 2.01(a) hereof and mature on the Maturity Date. The Closing Date Borrowers shall also, on the date hereof, execute and deliver to the Trustee, in exchange for the amended and restated 2010-1 Note, the amended and restated 2010-2 Note and the 2012-1 Note, each executed and delivered to the Trustee by the Existing Borrowers on the 2012 Closing Date, an amended and restated 2010-1 Note, an amended and restated 2010-2 Note and an amended and restated 2012-1 Note, each payable to the order of the Trustee, under which each Closing Date Borrower agrees to be jointly and severally liable for the payment of all amounts payable thereunder.

(c) The Closing Date Borrowers hereby represent and warrant to the Lender that each condition of Section 3.2 of the Loan Agreement in respect of the Sixth Mortgage Loan Increase has been satisfied, as of the date hereof.

(d) The parties hereto agree that the date hereof is an Allocated Loan Amount Determination Date, pursuant to Section 11.8 of the Loan Agreement, the Servicer has determined the Allocated Loan Amounts for each Site after giving effect to the Addition of the

 

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Additional Borrower Sites and the Sixth Mortgage Loan Increase, as described herein, and the Fifth Mortgage Loan Increase, as described in the Sixth Loan Supplement, based on information provided to it by the Manager, and until any subsequent Allocated Loan Amount Determination Date, such Allocated Loan Amounts shall be as set forth on Exhibit A hereto.

(e) The parties hereto agree that Exhibits C, D and F of the Loan Agreement are hereby deleted in their entirety and replaced by Exhibits B, C and D hereto.

Section 3.02 Use of Proceeds. The proceeds from the sale of the 2013-2 Certificates shall be used to fund the Sixth Mortgage Loan Increase and the proceeds of the Sixth Mortgage Loan Increase shall be used to (i) pay all recording fees and taxes, title insurance premiums, reasonable out of pocket costs and expenses incurred by the Lender, including reasonable legal fees and expenses of counsel to the Lender, and other costs and expenses approved by the Lender (which approval will not be unreasonably withheld or delayed) related to the 2013-2C Component; (ii) pay all fees and expenses incurred by the Closing Date Borrowers; (iii) fund the reserve deposits described in Section 3.03 hereof; and (iv) make a cash distribution to each Closing Date Borrower.

Section 3.03 Funding of Reserves. (a) Pursuant to Section 6.3 of the Loan Agreement, on the date hereof, the Closing Date Borrowers shall deposit with Central Account Bank $3,471,849 for deposit in the Impositions and Insurance Reserve as required in connection with the Addition of the Additional Borrower Sites hereunder, and has delivered to Lender an Officer’s Certificate setting forth in reasonable detail the calculation of the forgoing.

(b) Pursuant to Section 6.2 of the Loan Agreement, on the date hereof, the Closing Date Borrowers shall deposit with Central Account Bank $651,783 for deposit in the Advance Rents Reserve Sub-Account in connection with the Addition of the Additional Borrower Sites hereunder.

(c) The Lender shall designate a Sub-Account of the Central Account to be the “2013 Loan Increase Reserve Account”. On the date hereof, the Closing Date Borrowers shall deposit an amount equal to the amount of interest that will accrue on the 2013-1 Components and the 2013-2C Component from the date hereof to but excluding the Distribution Date in May 2013 (such amount, the “Closing Date Loan Increase Reserve”). The Closing Date Loan Increase Reserve shall be a Reserve under the Loan Agreement, and shall be applied by the Lender on the Due Date in May 2013 to the payment of such interest.

(d) The deposits into the Reserves described in clauses (a), (b) and (c) above shall occur by deduction from the amount of the Fifth Mortgage Loan Increase and the Sixth Mortgage Loan Increase disbursed to the Closing Date Borrowers pursuant to Section 3.02 hereof on the date hereof. Notwithstanding such deductions, the Sixth Mortgage Loan Increase contemplated hereby shall be deemed for all purposes to be fully disbursed.

 

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ARTICLE IV

ADDITION OF ADDITIONAL BORROWERS

Section 4.01 Election. (a) Pursuant to Sections 2.3 and 3.2 of the Loan Agreement, the Existing Borrowers elect to cause each Additional Borrower to assume and become jointly and severally liable under the Notes, the Loan Agreement and the other Loan Documents, and each Additional Borrower hereby covenants and agrees upon the execution and delivery of this Loan Agreement Supplement by such Additional Borrower:

(i) such Additional Borrower shall be a Borrower jointly and severally liable under the Loan Agreement and each of the other Loan Documents and Mortgage Loan Documents (as defined in the Trust Agreement) to which such Additional Borrower shall be a party, and shall be entitled to all of the respective rights and privileges, and subject to all of the respective duties and obligations of a Borrower thereunder, and

(ii) such Additional Borrower shall perform in accordance with their terms all of the obligations which by the terms of the Loan Agreement and the other Loan Documents and Mortgage Loan Documents to which such Additional Borrower shall be a party are required to be performed by it as a Borrower and shall be bound by all of the provisions of the Loan Agreement and such other Loan Documents and Mortgage Loan Documents as if it had been an original party to such agreements.

(b) On the date hereof, each Additional Borrower shall assume and become jointly and severally obligated under the 2010-1 Note, the 2010-2 Note and 2012-1 Note in accordance with Section 3.01(b) hereof and shall enter into the following other Loan Documents:

(i) Joinder and Amendment to the Cash Management Agreement, dated as of April 18, 2013, among the Closing Date Borrowers, the Servicer, the Manager and the Trustee;

(ii) the Deeds of Trust;

(iii) Joinder to the Assignment and Subordination of Management Agreement, dated as of April 18, 2013, among the Closing Date Borrowers and the Manager;

(iv) Joinder to the Environmental Indemnity, dated as of April 18, 2013, from the Closing Date Borrowers in favor of the Trustee;

(v) Joinder and Amendment to the Management Agreement, dated as of April 18, 2013, among the Closing Date Borrowers, SBA Senior Finance, LLC and the Manager;

(vi) Contribution and Subrogation Agreement, dated as of April 18, 2013, among the Closing Date Borrowers;

(vii) Joinder to the Advance Reimbursement Agreement, dated as of April 18, 2013, among the Closing Date Borrowers, the Servicer and the Trustee;

 

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(viii) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA TC PR, the Trustee and Wells Fargo Bank, N.A.

(ix) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA TC, the Trustee and Wells Fargo Bank, N.A.;

(x) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA Towers IV, the Trustee and Wells Fargo Bank, N.A.;

(xi) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA Monarch I, the Trustee and Wells Fargo Bank, N.A.;

(xii) Deposit Account Control Agreement, dated as of April 18, 2013, among SBA USVI, the Trustee and Wells Fargo Bank, N.A.; and

(xiii) the Financing Statements.

(c) Each Additional Borrower hereby pledges, assigns and grants to Lender a security interest in and to all of such Additional Borrower’s fixtures and personal property including, but not limited to all, (i) equipment in all forms, now or hereafter existing, all parts thereof and all accessions thereto, including but not limited to machinery, towers, satellite receivers, antennas, headend electronics, furniture, motor vehicles, aircraft and rolling stock, (ii) such Additional Borrower’s fixtures now existing and or hereafter acquired, all substitutes and replacements therefore, all accessions and attachments thereto, and all tools, parts and equipment now or hereafter added to or used in connection with the fixtures on or above all Sites and all other real property now owned or hereafter acquired by such Additional Borrower and all substitutes and replacements for, accessions, attachments and other additions to, tools, parts and equipment used in connection with, and all proceeds, products, and increases of, any and all of the foregoing Collateral (including, without limitation, proceeds which constitute property of the types described herein), (iii) accounts now or hereafter existing, (iv) inventory now or hereafter existing, (v) general intangibles (other than Site Management Agreements) now or hereafter existing, (vi) investment property now or hereafter existing, (vii) deposit accounts now or hereafter existing, (viii) chattel paper now or hereafter existing, (ix) instruments now owned or hereafter existing, (x) any Site Management Agreements now or hereafter existing (including all rights to payment thereunder, but excluding any other rights that cannot be assigned without third party consent under such Site Management Agreements), and (xi) the equity interests of any subsidiary of such Additional Borrower now owned or hereafter existing and the proceeds of the foregoing, as security for the payment and performance of all of the Obligations.

(d) Each Additional Borrower hereby represents and warrants that it has satisfied (i) all of the provisions of Section 11.7(A) with respect to each of its Additional Borrower Sites that is to be a Mortgaged Site and has delivered an Officer’s Certificate dated the date hereof to that effect and (ii) all of the provisions of Section 11.7(B) with respect to each of its Additional Borrower Sites that is to be an Other Pledged Site and has delivered an Officer’s Certificate dated the date hereof to that effect.

Section 4.02 Further Assurances. (a) Each of the Existing Borrowers and the Additional Borrowers hereby agree that they will deliver to and deposit with, or cause to be

 

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delivered to and deposited with, the Servicer such documents and agreements as reasonably requested to evidence the Addition of the Additional Borrower Sites of the Additional Borrowers or as are required to be delivered by the Closing Date Borrowers pursuant to Section 2.01 of the Trust Agreement in connection with such Addition, this Sixth Mortgage Loan Increase, or the addition of the Additional Borrowers, including, without limitation (i) the documents with respect to the Sixth Mortgage Loan Increase or the addition of the Additional Borrowers required for the Mortgage File pursuant to Section 2.01(e) of the Trust Agreement and (ii) originals or copies of all other documents, certificates and opinions in the possession or under the control of the Closing Date Borrowers with respect to the Sixth Mortgage Loan Increase or the addition of the Additional Borrowers and that are necessary for the ongoing servicing and administration of the Loan (or, if any of the foregoing items are not in the actual possession of the Closing Date Borrowers, as soon as reasonably practical, but in any event within 90 days after the date of the Addition).

Section 4.03 Joinder. All references to Borrower or Borrowers contained in the Loan Agreement and the Loan Documents are hereby deemed, for all purposes to refer to and include each of the Additional Borrowers as a Borrower.

ARTICLE V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWERS

Section 5.01 Representations and Warranties. (a) Each Closing Date Borrower hereby represents and warrants to the Lender that, as to itself and its Sites, each of the representations and warranties set forth in Article IV of the Loan Agreement, other than Section 4.30, is true as of the date hereof.

(b) Each of the Closing Date Borrowers hereby represents and warrants to the Lender that, as to itself, each of the representations and warranties set forth in Section 9.1 of the Loan Agreement, is true as of the date hereof.

(c) Each of the Closing Date Borrowers hereby represents and warrants to the Lender that each condition of Section 2.3 of the Loan Agreement and Section 3.25 of the Trust Agreement have been satisfied as of the date hereof.

Section 5.02 Additional Representations, Warranties and Covenants of the Closing Date Borrowers.

(a) Each of the Closing Date Borrowers hereby represents, warrants, and covenants to the Lender that, as to itself, from the date of such entity’s formation, and until such time as all Obligations are paid in full, that such Closing Date Borrower:

(i) except for capital contributions and distributions properly reflected on the books and records of such entity, has not entered and shall not enter into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related Parties”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party;

 

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(ii) has paid and shall pay all of its debts and liabilities from its own assets, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

(iii) has done and shall do or caused to be done and shall cause to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence;

(iv) has maintained and shall maintain all of its books, records, financial statements and since the date of incorporation or formation, as the case may be, its bank accounts separate from those of any other Person;

(v) has been and shall be, and at all times has held and shall hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party);

(vi) has corrected and shall correct any known misunderstanding regarding its status as a separate entity;

(vii) has conducted and shall conduct all of its business and has held and shall hold all of its assets in its own name;

(viii) has not identified and shall not identify itself or any of its affiliates as a division or part of the other;

(ix) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name;

(x) has not commingled and shall not commingle its funds or other assets with those of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties, and has held all of its funds or other assets in its own name other than any improper deposits by third parties which have been promptly corrected;

(xi) has not guaranteed or become obligated for the debts of any other Person with respect to debts that are still outstanding or, in the case of the Additional Borrowers, will not be discharged as a result of the closing of the Sixth Mortgage Loan Increase, other than the Loan and shall not guaranty or become obligated for the debts of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

(xii) has not held itself out as being responsible for the debts or material obligations of any other Person with respect to debts or obligations that are still outstanding or will not be discharged as a result of the Sixth Mortgage Loan Increase other than the Loan and shall not hold itself out as being responsible for the debts or material obligations of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

 

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(xiii) has allocated and shall allocate fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party;

(xiv) has not pledged its assets to secure the obligations of any other Person with respect to obligations that are still outstanding or will not be discharged as a result of the Sixth Mortgage Loan Increase other than the Loan and shall not pledge its assets to secure the obligations of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties;

(xv) has maintained and shall maintain adequate capital in light of its contemplated business operations;

(xvi) has not incurred any indebtedness that is still outstanding and shall not incur any indebtedness other than indebtedness that is permitted under the Loan Documents;

(xvii) has not had any of its obligations guaranteed by an affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the Sixth Mortgage Loan Increase) or guarantees that are expressly contemplated by the Loan Documents; and

(xviii) has received and reviewed copies of the Loan Agreement and the other Mortgage Loan Documents (as defined in the Trust Agreement).

Section 5.03 Amendments to the Loan Agreement Schedules.

(a) The parties hereto agree that Schedule 1 of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 1 hereto.

(b) The parties hereto agree that Schedule 4 of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 4 hereto.

(c) The parties hereto agree that Schedule 4.1(C) of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 4.1(C) hereto.

(d) The parties hereto agree that Schedule 4.19 of the Loan Agreement is hereby deleted in its entirety and replaced by Schedule 4.19 hereto.

(e) The parties hereto agree that Schedules 4.25 and 4.26 of the Loan Agreement are hereby deleted in their entirety and replaced by Schedules 4.25 and 4.26, respectively, hereto.

 

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ARTICLE VI

AMENDMENTS TO THE FIFTH LOAN SUPPLEMENT AND THE LOAN AGREEMENT

Section 6.01 Fifth Loan Supplement. The parties hereto agree that Section 6.07(a) of the Fifth Loan Supplement shall be deleted in its entirety and replaced with “[Reserved.]”.

Section 6.02 Management Fee Rate. The parties hereto agree that the words “so long as SBA Network Management, Inc., or an affiliated thereof, is the Manager, and otherwise shall be such amount not to exceed 10% that is agreed to by the successor manager” in the definition of “Management Fee Rate” in Section 1.1 of the Loan Agreement shall be deleted in its entirety.

Section 6.03 Components of Loan Increases.

(a) The parties hereto agree that the second sentence in Section 3.2(C) of the Loan Agreement is hereby amended and restated in its entirety as follows: “The Anticipated Repayment Date for each Component related to the Loan Increase, as defined in such Loan Agreement Supplement, will, until the payment in full of the principal of the Note corresponding to the 2010-1C Component and the Note corresponding to the 2010-2C Component and all accrued and unpaid interest thereon and the satisfaction of any other Obligations in respect of the 2010 Components, be later than the Anticipated Repayment Date for the 2010-2C Component, except if such Component corresponds to a Variable Funding Series to be issued under the Trust.”

(b) The parties hereto agree that the last sentence in Section 3.2(C) of the Loan Agreement is hereby amended and restated in its entirety as follows: “Any Component of any Loan Increase may have an alphabetical designation higher, lower or equal to the alphabetical designation of any then-outstanding Component.”

Section 6.04 Mergers. The parties hereto agree that Section 5.2 of the Loan Agreement is hereby amended by adding the following to end thereof:

“; provided, however, that any Borrower may merge with any other Borrower, Additional Borrower or other Person at any time; provided that (i) a then-existing Borrower or Additional Borrower is the surviving entity, (ii) such Borrower shall, as of the effective date of such merger, make each of the representations, warranties and covenants set forth in Section 9.1 herein and (iii) on or prior to the date of such merger, such Borrower shall deliver to the Lender an opinion of nationally recognized tax counsel to the effect that such merger will not (a) cause a taxable event for U.S. federal income tax purposes to any holder of a Certificate, (b) cause the Trust to be other than a mere security device or grantor trust for U.S. Federal income tax purposes, or (c) cause any of the Components to be characterized as other than indebtedness for U.S. Federal income tax purposes; provided, further that in the case of a merger of a Borrower or an Additional Borrower with a Person who is not a Borrower or an Additional Borrower, (x) such Borrower or Additional Borrower shall have made to the Lender, in a Loan Agreement

 

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Supplement, as to the Sites owned by such Person prior to such merger, the representations and warranties set forth in Sections 4.5, 4.6, 4.7(A) and (B), 4.8, 4.9, 4.25, 4.26, 4.28 and 4.29 herein and (y) the Borrower shall deliver to Lender a letter from the counsel who most recently delivered an opinion to Lender concerning the substantive non-consolidation of such Borrower or Additional Borrower, in a form reasonably satisfactory to Lender, to the effect that such merger does not affect the conclusions in such substantive non-consolidation opinion.”

Section 6.05 Conditional Amendments Effective Upon Retirement of the Existing Components. The parties hereto agree that the amendments to the Loan Agreement set forth in this Section 6.05 shall automatically become effective upon the payment in full of the Existing Components and all accrued and unpaid interest thereon and the satisfaction of any other Obligations in respect of the Existing Components.

(a) Definitions. The following definitions shall be hereby incorporated in alphabetical order into Section 1.1 of the Loan Agreement, and if any such definition is already found in Section 1.1 of the Loan Agreement, shall replace it in its entirety:

“17g-5 Website” means SBA Depositor LLC’s website for purposes of compliance with Rule 17g-5(a)(3)(iii) of the United States Securities Exchange Act of 1934, as amended.

“Authorized Representative” has the meaning set forth in Section 14.26(a).

“Initial Request” has the meaning set forth in Section 14.26(a).

“Rating Agency Confirmation” means, with respect to the transaction or matter in question, Moody’s shall have confirmed in writing (which may be in the form of e-mail, facsimile, press release, posting to its internet website or other such means then considered industry standard as determined by Moody’s) that such transaction or matter shall not result in a downgrade, qualification, or withdrawal of the then current rating for any certificate or other securities issued in connection with any Securitization (or the placing of such certificate or other security on negative credit watch or ratings outlook in contemplation of any such action with respect thereto) and provision of notice of such transaction or matter in question to Fitch; provided, however, that with respect to Sections 5.9, 5.21, 5.22, 11.3, 11.4 (excepting 11.4(C)), 11.5, and 11.6 of this Loan Agreement, Rating Agency Confirmation means provision of notice to Moody’s and Fitch; provided, further, that (i) if a Rating Agency Declination is received, the requirement to receive Rating Agency Confirmation from Moody’s with respect to such matter will not apply and (ii) other than in connection with a Rating Agency Confirmation with respect to a matter arising under Sections 3.2, 5.11(B), 5.11(C), 11.1, 11.2 and 11.4(C) of this Loan Agreement, if Moody’s refuses to respond or otherwise does not respond to a request for Rating Agency Confirmation after good faith efforts by the party requesting such Rating Agency Confirmation in accordance with Section 14.26, the requirement to receive such Rating Agency Confirmation shall be waived unless Moody’s refusal or failure to respond to such request (A) followed Moody’s consideration of the substance of such request or (B) is due to any failure to reach a commercial agreement between Moody’s and the Borrowers or its Affiliates including, but not limited to, any disagreement regarding Moody’s fees.

 

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“Rating Agency Declination” means receipt of a written waiver or acknowledgement from a Rating Agency indicating its decision not to review or declining to review a matter for which Rating Agency Confirmation is sought; provided that the absence of Rating Agency Confirmation from a Rating Agency following a consideration by such Rating Agency of the substance of a request shall not constitute a Rating Agency Declination; provided, further, that if a Rating Agency publicly announces a policy, as a general matter, to no longer review requests for rating agency confirmations, so long as such policy shall remain in effect, any party requesting a Rating Agency Confirmation in connection with a particular matter shall only be required to deliver written notice to such Rating Agency of such matter and such Rating Agency shall thereafter be deemed to have delivered a Rating Agency Declination with respect to such matter.

“Requesting Party” has the meaning set forth in Section 14.26(a).

“Second Request” has the meaning set forth in Section 14.26(b)(i).

(b) Prepayment. The words “or (iii) during an Amortization Period.” in the first sentence of Section 2.6(A) of the Loan Agreement shall be deleted in their entirety and replaced with: “, (iii) during an Amortization Period or (iv) to cure a breach of a representation, warranty or other default herein”.

(c) Performance of Agreements and Leases. The words “April 16, 2010” in clause (iii) of the proviso to the second sentence of Section 5.9 of the Loan Agreement shall be deleted in their entirety and replaced with: “the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time”.

(d) Ground Leases. The words “April 16, 2010” in clause (c) of Section 5.21(A)(ii) of the Loan Agreement shall be deleted in their entirety and replaced with: “the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time”.

(e) Modification of Ground Leases. Section 5.21(A)(iii)(c) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(c) if the Ground Lease being replaced is, with respect to a Mortgaged Site, simultaneous with the execution and delivery of the Amended Ground Lease, Lender shall have received (1) an Amended Deed of Trust executed and delivered by a duly authorized officer of the applicable Borrower encumbering the property included under the Amended Ground Lease and (2) if the Ground Lease Site relating to the Ground Lease being replaced was part of the Collateral on April 18, 2013, an endorsement to the existing Title Policy in substantially the form delivered at Closing insuring the lien of the Amended Deed of Trust, or a replacement policy in an amount equal to 125% of the Allocated Loan Amount with respect to such Site, in either case issued by the Title Company and dated as of the date of the Amended Ground Lease, unless the Borrowers shall have delivered Rating Agency Confirmation;”

 

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(f) Easements. The words “April 16, 2010” in clause (c) of Section 5.22(A)(ii) of the Loan Agreement shall be deleted in their entirety and replaced with: “the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time”.

(g) Modification of Easements. Section 5.22(A)(iii)(d) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(d) if the Easement being replaced is with respect to a Mortgaged Site, simultaneous with the execution and delivery of the Amended Easement, Lender shall have received (1) an Amended Deed of Trust executed and delivered by a duly authorized officer of the applicable Borrower encumbering the property included under the Amended Easement and (2) if the Easement Site relating to the Easement being replaced was part of the Collateral on April 18, 2013, an endorsement to the existing Title Policy in substantially the form delivered at Closing insuring the lien of the Amended Deed of Trust, or a replacement policy in an amount equal to 125% of the Allocated Loan Amount with respect to such Site, in either case issued by the Title Company and dated as of the date of the Amended Easement, unless the Borrowers shall have delivered Rating Agency Confirmation;”

(h) Site Dispositions. Sections 11.4(B)(ii) and (iii) of the Loan Agreement shall be amended and restated in their entirety as follows:

“(ii) Together with such notice the Borrowers provide supporting information reasonably acceptable to Lender that following such sale the DSCR will be at least within 0.2x of the DSCR immediately prior to such sale.

(iii) If the aggregate Allocated Loan Amount of (x) each such Site for which a sale has occurred under this Section 11.4(B) since the date of the Mortgage Loan Increase relating to the then-outstanding Component that has been outstanding for the longest period of time, and (y) the Site for which a sale is proposed is greater than five percent (5%) of the aggregate original Component Principal Balances of all Components of the Loan then outstanding, the Borrowers have delivered a Rating Agency Confirmation.”

(i) Payment in Full of Components of the Loan Having the Same Numerical Designation. Section 11.4(C)(i) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(i) Lender shall have received from the Borrowers evidence in form and substance satisfactory to Lender that (1) following such Release, the percentage of Operating Revenues from the remaining Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is not materially less than (and in any event at least 95% of) such percentage as of the date immediately preceding the Release, (2) if any of the remaining Sites are subject to a Ground Lease, such Ground Leases will have an average remaining term (calculated on a

 

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net cash flow weighted average basis) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis) of all Sites (including all available extensions) subject to Ground Leases prior to such Release (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration), (3) the Maintenance Capital Expenditures for the remaining Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance Capital Expenditures for the Sites (taken together and averaged on a per site basis) prior to such Release, and (4) after giving effect to the Release, the Debt Service Coverage Ratio is at least within 0.2x of the Debt Service Coverage Ratio as of the date immediately preceding the Release, or, in each case, the Borrowers shall have delivered Rating Agency Confirmation.”

(j) Title Policies Relating to Substitution of a Mortgaged Site. Section 11.5(E) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(E) if the Mortgaged Site being replaced was part of the Collateral on April 18, 2013, Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, (ii) reasonably requested endorsements to the title policies delivered to Lender in connection with the Deeds of Trust to reflect the Substitution and (iii) copies of paid receipts showing that all premiums in respect of such endorsements and title insurance policies have been paid, unless, in each case the Borrowers have delivered a Rating Agency Confirmation.”

(k) Substitution of a Mortgaged Site. Section 11.5(K) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(K) If (1) the aggregate Allocated Loan Amount of all Substituted Sites and Substituted Other Pledged Sites during any calendar year exceeds five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period beginning on the Closing Date), (2) the percentage of Operating Revenues from the applicable Replacement Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution, (3) the Substituted Sites will be subject to a Ground Lease with a term (including all available extensions) that is shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis) of all other Sites subject to Ground Leases (excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution, (4) the weighted average remaining term of the Leases with respect to the Replacement Sites is shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all other Sites, (5) the Maintenance Capital Expenditures for the Replacement Sites (taken

 

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together and averaged on a per site basis) are materially greater than the Maintenance Capital Expenditures for the Substituted Sites, (6) after giving effect to the Substitution, the Debt Service Coverage Ratio of the Loan is not at least within 0.2x of the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution or (7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of Lender, shall not be at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites), the Borrowers shall have delivered Rating Agency Confirmation.”

(l) Substitution of Other Pledged Sites. Section 11.6(J) of the Loan Agreement shall be amended and restated in its entirety as follows:

“(J) If (1) the aggregate Allocated Loan Amount of all Substituted Other Pledged Sites and Substituted Sites during any calendar year exceeds five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period beginning on the Closing Date), (2) the percentage of Operating Revenues from the applicable Replacement Other Pledged Site represented by telephony tenants and non-telephony investment grade tenants (taken together) is materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution, (3) the Substituted Other Pledged Site will be subject to a Ground Lease with a term (including all available extensions) that is shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis) of all other Sites subject to Ground Leases (excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution, (4) the weighted average remaining term of the Leases with respect to the Replacement Other Pledged Sites is shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all other Sites, (5) the Maintenance Capital Expenditures for the Replacement Other Pledged Sites (taken together and averaged on a per site basis) are materially greater than the Maintenance Capital Expenditures for the Substituted Other Pledged Site, (6) after giving effect to the Substitution, the Debt Service Coverage Ratio of the Loan is not at least within 0.2x of the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution, or (7) the aggregate value of the Replacement Other Pledged Site, as established by the Borrowers to the reasonable satisfaction of Lender, shall not be at least equal to the aggregate value of the Substituted Other Pledged Site as of the date immediately preceding the Other Pledged Site Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites), the Borrowers shall have delivered Rating Agency Confirmation.”

(m) Addition of an Additional Site or Additional Borrower Site. Section 11.7(A)(v) shall be deleted in its entirety and replaced with “[Reserved.]”.

(n) Waiver of Rating Agency Confirmation. Article XIV of the Loan Agreement shall be amended by adding the following new section immediately following Section 14.25:

 

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“Section 14.26. Waiver of Rating Agency Confirmation.

(a) Any request for a Rating Agency Confirmation made by a Borrower, the Servicer or the Trustee, as applicable (such requesting party, the “Requesting Party”), to Moody’s pursuant to this Loan Agreement shall (i) be made in writing, which writing shall include electronic mail, (ii) contain a cover page indicating the nature of the request for Rating Agency Confirmation and all back-up material necessary for Moody’s to process such request, and (iii) be provided by the Requesting Party in electronic format to 17greports@sbasite.com (the “Authorized Representative”) who shall post such request on the 17g-5 Website (the “Initial Request”). If the Requesting Party is a Borrower or the Trustee, such Requesting Party shall also provide a copy of the Initial Request to the Servicer.

(b) If Moody’s has not replied to an Initial Request or has responded to an Initial Request in a manner that indicates that Moody’s is neither reviewing the request for Rating Agency Confirmation nor waiving the requirement for such Rating Agency Confirmation within ten (10) Business Days of the making of such Initial Request, the Requesting Party shall:

(i) confirm, through direct communication and not by posting a request for a Rating Agency Confirmation on the 17g-5 Website, that Moody’s has received such Initial Request, and, if it has not, promptly make a second request to Moody’s for Rating Agency Confirmation (the “Second Request”); and

(ii) if there is no response by Moody’s to such Initial Request or such Second Request within five (5) Business Days of the making of such Second Request or if Moody’s has responded to such Initial Request or such Second Request in a manner that indicates that Moody’s is neither reviewing the request for Rating Agency Confirmation nor waiving the requirement for such Rating Agency Confirmation, then such Requesting Party shall confirm (without providing notice to the Authorized Representative), by direct communication and not by posting a request for Rating Agency Confirmation on the 17g-5 Website, that Moody’s has received such Second Request.

If a Requesting Party provides the requests for a Rating Agency Confirmation to Moody’s in the manner and at the times provided for in this Section 14.26, it shall be deemed to have made good faith efforts to request such Rating Agency Confirmation from Moody’s.”

ARTICLE VII

GENERAL PROVISIONS

Section 7.01 Governing Law. THIS LOAN AGREEMENT SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE CLOSING DATE BORROWERS IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED

 

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STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN RELATION TO THIS LOAN AGREEMENT SUPPLEMENT.

Section 7.02 Severability. In case any provision in this Loan Agreement Supplement shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 7.03 Counterparts. This Loan Agreement Supplement may be executed in any number of counterparts, each of which 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 counterpart of a signature page of this Loan Agreement Supplement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Loan Agreement Supplement.

ARTICLE VIII

APPLICABILITY OF LOAN AND SECURITY AGREEMENT

Section 8.01 Applicability. The provisions of the Loan Agreement are hereby ratified, approved and confirmed, as supplemented by this Loan Agreement Supplement. The representations, warranties and covenants contained in the Loan Agreement (except as expressly modified herein) are hereby reaffirmed with the same force and effect as if fully set forth herein and made again as of the date hereof.

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the Closing Date Borrowers and the Servicer on behalf of the Trustee, have caused this Loan Agreement Supplement to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written.

 

SBA PROPERTIES, LLC, as Existing Borrower

    

SBA SITES, LLC, as Existing Borrower

By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel

SBA STRUCTURES, LLC, as Existing Borrower

     SBA INFRASTRUCTURE, LLC, as Existing Borrower
By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel

SBA TOWERS USVI II, INC., as Existing Borrower

    

SBA MONARCH TOWERS III, LLC, as Existing Borrower

By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel

SBA 2012 TC ASSETS PR, LLC, as Additional Borrower

    

SBA 2012 TC ASSETS, LLC, as Additional Borrower

By:  

/s/ Thomas P. Hunt

     By:  

/s/ Thomas P. Hunt

  Name:   Thomas P. Hunt       Name:   Thomas P. Hunt
  Title:   Senior Vice President and General Counsel       Title:   Senior Vice President and General Counsel

SBA TOWERS IV, LLC, as Additional Borrower     

SBA MONARCH TOWERS I, LLC, as Additional Borrower

By:  

/s/ Thomas P. Hunt

      By:  

/s/ Thomas P. Hunt

  Name:    Thomas P. Hunt        Name:    Thomas P. Hunt
  Title:    Senior Vice President and General Counsel        Title:    Senior Vice President and General Counsel
SBA TOWERS USVI, INC., as Additional Borrower          
By:  

/s/ Thomas P. Hunt

          
  Name:    Thomas P. Hunt          
  Title:    Senior Vice President and General Counsel          

MIDLAND LOAN SERVICES, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION, as Servicer

By:  

/s/ Lawrence D. Ashley

  Name:   Lawrence D. Ashley
  Title:   Senior Vice President