EXHIBIT 99.7
EXECUTION COPY
MASTER BUILD TO SUIT
AGREEMENT
Between
Cellco Partnership
and
CROWN ATLANTIC COMPANY, LLC
March 31, 1999
MASTER BUILD TO SUIT AGREEMENT
THIS MASTER BUILD TO SUIT AGREEMENT ("Agreement") is entered into as
of the 31st day of March, 1999, by and between Crown Atlantic Company, LLC,
a Delaware Limited Liability company, ( together with its affiliates,
"Landlord"), and Cellco Partnership, a Delaware general partnership doing
business as ββββ Atlantic Mobile ("Tenant").
RECITALS
Tenant is in the business of owning, managing and operating wireless
telecommunications facilities and providing telecommunications and related
services. Landlord and Tenant have entered into that certain Global Lease
Agreement dated as of even date herewith, pursuant to which Tenant and/or
its principal, or affiliates (which for these purposes shall include,
without limitation, any entity with respect to which Tenant or Tenant's
parent or subsidiary is a general partner, manager or occupies a similar
position of control, regardless of ownership interest), subsidiary or
subsidiary of its principal (any of the foregoing, "Tenant's Affiliate"),
will from time to time lease from Landlord capacity on Landlord's
communications towers and related real property (as amended from time to
time, the "Global Lease"). Landlord is in the business of acquiring,
constructing, owning and operating communications towers and related real
property, for the purpose of leasing such capacity to third parties. Tenant
has informed the Landlord that it expects to require additional tower
capacity and that it believes that such needs cannot currently be met
through the use of any existing towers. Landlord intends to acquire, lease
or otherwise control real property on which Landlord will be constructing
certain improvements, including an antenna support structure for the
attachment of communications equipment in locations which would be suitable
for use by Tenant.
Landlord and Tenant are desirous of establishing terms and conditions
which will apply to the development of certain portions of such real
property and improvements to be constructed by Landlord for the operation
of Tenant's (or Tenant's Affiliates') communications facilities and for the
lease of additional space by Landlord to third parties. Each location for
which Tenant, pursuant to this Agreement, enters into a Supplement (as
defined in the Global Lease) for a portion of the property and improvements
will be referred to individually as a "Site" and collectively as "Sites".
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. BUILD -TO- SUIT AGREEMENT
This Agreement contains the basic terms and conditions upon which each
Site is developed by Landlord for lease by Tenant of a portion thereof.
When the parties agree on the particular terms for a Site, the parties will
execute a completed Global Lease Supplement in the form attached hereto as
Exhibit "A" ("SLA"). Each executed SLA is deemed to be a part of this
Agreement until such time as Tenant or Tenant's Affiliate commences, or is
required to commence payment under the SLA, at which point the SLA shall no
longer be deemed to be part of this Agreement but shall be deemed to be a
part of the Global Lease as provided for therein. The terms and conditions
of the SLA will govern and control if there is a conflict or inconsistency
between the terms and conditions of an SLA and this Agreement.
2. SITE LEASE
Each Site to be leased from Landlord will include, as described in the
SLA for that Site, space on an antenna support structure ("Tower") to be
constructed by Landlord on that particular real property, described in the
SLA for that Site, together with either a specific area inside an enclosed
structure owned or to be built by Landlord on the Site to house a portion
of the communications equipment identified in this Agreement
("Communications Facility") or a specific portion of the Site to enable
Tenant to construct or locate a structure for Tenant's exclusive use,
together with the non-exclusive access easement and non-exclusive utility
easement described in this Agreement. The Tower space, the area in the
enclosed structure (or the portion of the Site to be used for Tenant's
construction of an enclosed structure), the access easement and the utility
easement for each Site are referred to collectively in this Agreement as
the "Premises". Subject to the terms and conditions contained in this
Agreement, the Global Lease and the SLA relating to the Site, upon the
execution of an SLA by both Landlord and Tenant, Landlord will lease to
Tenant and Tenant will lease from Landlord the Premises described in the
SLA.
3. SITE APPROVAL AND CONSTRUCTION PROCESS
3.1 Lessee's Proposals. Tenant shall make Landlord aware of an
opportunity to construct a Site or group of Sites pursuant to this
Agreement by providing Landlord with a written proposal ("Proposal") which
identifies the applicable search areas for the potential Sites and provides
the following information: (i) the maximum time for Landlord to submit to
Tenant candidates for the potential Sites (which unless a longer period of
time is specified by Tenant, shall be fourteen (14) days); (ii) the maximum
time for Landlord to submit to Tenant the "SLA Package" (which, unless a
longer period of time is specified by Tenant, shall be ninety (90) days
following receipt of "RF Approval", as defined below) as defined below; and
(iii) the height required for Tenant's Communications Facilities (as
defined below) for the potential Site or Sites. Subject to Landlord's
obligations hereunder with respect to the "Landlord Commitment" as defined
below, Landlord's failure to deliver to Tenant its written acceptance of
the Proposal within thirty (30) days of Landlord's receipt thereof shall be
deemed a rejection of Tenant's
Proposal by Landlord and there shall be no further obligation or liability
between the parties in connection with the Sites encompassed by that
Proposal.
3.2 RF Approval. Within twenty-one (21) days of Landlord's submission
to Tenant of at least three (3) candidates for a potential Site, Tenant
shall provide written notice to Landlord whether or not any of the
candidates satisfy Tenant's RF requirements ("RF Approval"). The candidates
shall be deemed to not satisfy Tenant's RF requirements if Tenant fails to
provide timely notice to Landlord and Landlord shall have no further
obligation to identify additional candidates in connection with such
proposal. If Tenant affirmatively rejects the candidates, Landlord shall
have the obligation to identify other candidates within the search area.
Landlord shall be obligated to continue to identify potential candidates
within the applicable search area until: (i) Tenant determines that a
candidate satisfies Tenant's RF requirements; or (ii) Landlord indicates
that the search ring is condemned based upon the unavailability of feasible
candidates for that potential Site. In the event Landlord condemns a search
area, Landlord shall provide Tenant with reasonable support in writing for
condemning a search ring, which support shall consist of such factors such
as the probable inability to timely obtain a final, non-appealable building
permit, unwillingness of landowners to grant an interest in real property,
construction feasibility issues or probable inability to obtain FAA
approval, and/or any other factors agreed upon by Tenant and Landlord.
Within thirty (30) days of receipt of notice from Landlord that a search
area has been condemned, Tenant shall either provide Landlord with a new
search area or notify Landlord of the termination of the search area
pursuant to Section 3.6. Failure of Tenant to timely provide Landlord with
either a new search area or notice of termination shall be deemed a
termination by Tenant pursuant to Section 3.6. In the event Landlord
submits to Tenant other candidates within the search area, the time frames
applicable to said alternate candidates shall begin anew and shall be the
same as the time frames for the initial candidate.
3.3 SLA Package.
3.3.1 Upon Landlord's receipt of Tenant's RF Approval of a
candidate, Landlord shall submit to Tenant, within ninety (90) days of
RF approval, the following: (i) a completed SLA executed by Landlord;
(ii) ground lease or other instrument (which may include an option
agreement, provided that the term of such option is of sufficient
duration to permit Landlord to exercise such option in a timely
fashion, and provided further that Landlord exercises such option
prior to the commencement of construction) evidencing Landlord's real
estate interest in the potential Site and Landlord's right and ability
to grant Tenant rights therein, together with a certification from the
Landlord that such real estate interest conforms to the requirements
set forth in the Global Lease (and upon Tenant's request, copies of
any related documentation); (iii) title report, commitment, opinion or
abstract; (iv) site survey; (v) Phase I environmental report; (vi) FAA
analysis prepared by Landlord; (vii) a detailed description of the
proposed tower structure, identifying any differences between the
tower height proposed by Landlord and that specified by Tenant as
meeting Tenant's requirements; (viii)
zoning synopsis (which shall include, without limitation, Landlord's
assessment of its ability to obtain all necessary approvals for the
facilities described in the SLA within the time periods specified
herein); and (ix) the date by which Landlord expects to substantially
complete the Site (the earlier of the date: (a) specified in the SLA
Package; or (b) which is within ninety (90) days of the issuance of a
final, non-appealable building permit for the Site, herein the
"Committed Completion Date")( the items specified in clauses (i)
through (ix) collectively, the "SLA Package"). Tenant shall notify
Landlord within ten (10) days of Tenant's receipt of the SLA Package
whether the SLA Package is acceptable to Tenant. Tenant shall indicate
its acceptance of the SLA Package by executing and dating the SLA and
forwarding same to Landlord. Failure of Tenant to timely provide
Landlord with an executed SLA shall be deemed a termination by Tenant
pursuant to Section 3.6 and Tenant shall be obligated to pay the fees
set forth on Exhibit C. In the event that Landlord indicates in the
SLA Package that it may require a time period beyond one hundred
eighty (180) days to obtain the required building permit, Tenant shall
have the right to request that Landlord engage in discussions and
negotiations to reduce the indicated period. If after such
discussions, the Landlord does not agree to reduce such period to a
period acceptable to Tenant, Tenant shall have the right, without
penalty or further obligation hereunder to reject the SLA Package. For
SLA Packages submitted pursuant to Landlord's Commitment, if Tenant
determines that Landlord's proposed tower height would be one of the
causes of an approval period longer than one hundred and eighty (180)
days, Landlord shall, at Tenant's request, revise the SLA Package to
provide for a tower height which, while meeting Tenant's requirements
as identified in the Proposal, will, in Tenant's judgment, be
permitted in a timely fashion; provided, however, in revising the SLA
Package Landlord shall have the right to pursue (i) a permit for a
tower structure which meets Tenant's requirements as identified in the
Proposal, but which structure (and permit) can be subsequently
modified to increase the height of the tower structure in order to
meet the Landlord's requirements and/or (ii) simultaneous permits for
the construction of (1) a temporary structure which meets Tenant's
height requirements identified in the Proposal, if such permit for a
temporary structure can be obtained within one-hundred eighty
(180)days, and (2) a permanent tower structure with greater height
which meets both Tenant's and Landlord's requirements. In the event
that Tenant locates its Communications Facilities on any such
temporary tower structure prior to Landlord's completion of permitting
and construction of a higher permanent tower structure, following
completion of such higher permanent tower structure, Tenant's
Communications Facilities shall be relocated to the permanent
structure at Landlord's sole cost and expense.
3.3.2. If in the course of preparing the SLA Package, Landlord
determines that an "Environmental Hazard" (as defined below) exists on
the prospective Site, Landlord may at its option and upon written
notice to Tenant, withdraw the prospective Site, without penalty. Upon
such withdrawal, the Landlord will submit new candidates for Tenant's
approval pursuant to Section 3.1 hereof.
3.4 Building Permit; Substantial Completion of Site.
3.4.1 Upon timely receipt of the executed SLA, Landlord shall
diligently proceed to obtain the building permit (for purposes of this
Agreement, "building permit" shall mean all permits, licenses,
approvals, waivers, grants of authorization and any other
authorizations required under any applicable laws, rules, regulations
or ordinances of any governmental body, agency, authority, commission
or regulatory body for the construction and operation of a tower
facility) consistent with the terms of the SLA. Unless otherwise
provided for in the SLA Landlord shall obtain a building permit
consistent with the SLA Package within one hundred eighty (180) days
of Landlord's receipt of the approved SLA Package. The time period for
Landlord to obtain a building permit may be extended by reason of an
event of "Force Majeure" which is also defined in Exhibit "B" attached
hereto. Should Landlord fail to timely obtain said building permit,
Tenant may terminate pursuant to Section 3.6. If Landlord fails to
timely obtain said building permit, Landlord shall have the obligation
to make further efforts to obtain said building permit unless and
until the earliest of: (i)Tenant has given notice of termination
pursuant to Section 3.6; (ii) the actual costs and expenses incurred
by Landlord (including both direct costs payable to third parties and
internal costs, including salaries, allocable by Landlord consistent
with past practice) equals or exceeds one hundred thousand dollars
($100,000); or (iii)Landlord notifies Tenant in writing that Landlord
has determined that obtaining the building permit will take at least
twenty-four (24) months from the Landlord's receipt of the approved
SLA package. Landlord shall keep tenant apprised of its efforts to
obtain the required permits, and shall promptly notify Tenant when it
appears reasonably likely that Landlord will not obtain the permit
within the one hundred eighty (180) day period (or the period
specified in the SLA). If, during the course of attempting to obtain
the building permit, it becomes reasonably clear that one of the
reasons for any delay or failure to timely obtain the permit is that
Landlord has requested a building permit for a facility which exceeds
Tenant's height requirements, subject to Landlord's rights set forth
in Section 3.3, Landlord shall promptly modify its proposed structure
and building permit request to conform to the minimum structure
necessary to meet Tenant's requirements as set forth in the SLA, and
shall provide Tenant with a written notice of such modification.
Tenant shall have the right to review all building permits. Upon
receipt of a copy of the final building permit, Tenant shall have ten
(10) days to provide Landlord with its acceptance or rejection of such
building permit; provided, however, that Tenant may only reject a
building permit if it determines that the building permit was modified
without Tenant's written consent to authorize a tower structure with
less height than indicated in the SLA Package, and such lesser height
will result in a tower structure not suitable for Tenant's intended
use. Tenant's failure to give notice of rejection within the ten (10)
day period shall be deemed to constitute Tenant's acceptance of the
building permit.
3.4.2 Landlord shall be responsible for substantial completion of
the Site by the Committed Completion Date. For the purposes of this
Agreement, substantial completion is defined as set forth in Exhibit
"B" attached hereto. The substantial completion date (and
Committed Completion Date) may be extended by reason of an event of
"Force Majeure" which is also defined in Exhibit "B" attached hereto.
The substantial completion period (and Committed Completion Date) may
also be extended by agreement of the parties due to circumstances such
as the diversion of resources for another project. Construction of the
Site by Landlord shall only include: (i) all site engineering,
architectural and engineering drawings (as necessary) and geotechnical
investigations; (ii) construction of an access road, if necessary,
suitable for pedestrian and vehicular ingress and egress; (iii) the
construction of a communications tower complete with grounding systems
and tower lighting and monitoring (as necessary); and (iv) unless
otherwise agreed in writing or provided in the SLA Package, the
installations described in Exhibit 3.4.2, attached hereto.
Notwithstanding the foregoing, the SLA Package shall, unless Landlord
and Tenant agree otherwise in writing, require Landlord to provide the
antenna installation services described in Subsection D of Exhibit
3.4.2; as compensation for performing such installation services,
Tenant shall pay to Landlord the per-site fee set forth in subsection
D2 of Exhibit 3.4.2.
3.5 Liquidated Damages. Landlord's failure to substantially complete
construction of the Site by the Committed Completion Date for the
applicable SLA (as extended pursuant to Section 3.4.2) shall result in
liquidated damages assessed against Landlord in the amount of two (2) days
rent for every additional day needed for substantial completion of the
Site. In the event Landlord fails to substantially complete construction of
the Site within ninety (90) days of the Committed Completion Date for the
applicable SLA (as extended pursuant to Section 3.4.2), Tenant has the
unilateral right to terminate the SLA by providing Landlord fifteen (15)
days written notice prior to the date of substantial completion of the
Site. In such event, Landlord shall be liable for liquidated damages
through the date of termination and there shall be no further liability
between the parties in connection with the applicable SLA. Notwithstanding
the foregoing, in no event shall Landlord be liable for liquidated damages
exceeding one hundred eighty (180) days rent.
3.6 Termination by Tenant.
3.6.1 Without limiting any other rights of termination available
to Tenant hereunder, Tenant has the unilateral right of termination at
any time prior to the issuance of a building permit for a particular
Site. In the event of any such termination, Tenant shall immediately
pay to Landlord a termination fee according to the schedule set forth
in Exhibit "C" attached hereto.
3.6.2 In the event that Tenant is entitled to exercise a right of
termination pursuant to Section 3.4.1, then, in addition to any other
rights or remedies available to Tenant hereunder, Tenant shall have
the right, but not the obligation, to either: (i) cause Landlord to
assign or convey to it, as appropriate, all rights to any real estate
(or interests in real estate) described in the SLA, together with any
building permits or applications for building permits relating to the
SLA and Tenant shall: (X) reimburse Landlord for any payments made to
third parties directly related to the foregoing and (Y) pay Landlord
the sum of seven thousand five hundred dollars ($7,500) for its site
acquisition and
permitting activities; or (ii) Tenant shall have the right to assume
responsibility for obtaining the required building permit relating to
the SLA, at Landlord's cost and expense, but not to exceed fifteen
thousand dollars ($15,000). In the event that Tenant assumes
responsibility for obtaining the building permit, Tenant shall keep
Landlord informed of its progress and shall provide Landlord with
copies of any modified or additional filings related to the building
permit. Exercise by Tenant of the rights in the foregoing two
sentences shall not relieve Landlord of any of its obligations and
duties hereunder (other than the duty to obtain the building permit)
and shall not be deemed to create any additional obligations or duties
on the part of Tenant.
3.6.3 In the event that Tenant exercises its right of termination
as set forth in Section 3.5 above, then in addition to any other
rights and remedies available to Tenant hereunder, Tenant shall have
the right, but not the obligation, to cause Landlord to assign or
convey to it, as appropriate, all rights to any real estate (or
interests in real estate) described in the SLA, together with any
building permits relating to the SLA and any improvements placed upon
the real estate by the Landlord (including without limitation, any
purchase orders for equipment and any architectural and engineering
plans) and Tenant shall reimburse Landlord for any payments made to
third parties directly related to the foregoing.
3.7 Tenant Tower Commitment; Right of First Refusal.
3.7.1 Throughout the Term of this Agreement, Tenant agrees that,
in the event that Tenant determines that: (i) it has a need for
capacity upon which to place Communications Facilities; (ii) such need
cannot, in its sole judgment, be met through the use of structures
(owned by Tenant, Tenant's Affiliates or any other party) which
currently exist or are under construction by unaffiliated third
parties; and (iii) Tenant, in its sole discretion, determines that the
needs of its business do not require it to own the structure on which
its Communications Facilities will be located, then Tenant shall offer
Landlord a right of first refusal to develop and construct a Site to
be occupied by Tenant as provided for in this Agreement and the Global
Lease; provided, however that Tenant's obligations under this
subsection 3.7.1 shall expire after Tenant (together with Tenant's
Affiliates) has submitted seven hundred (700) Proposals to Landlord
(the "Total Commitment"). Landlord acknowledges and agrees that the
Global Lease Rates for Sites subject to this Agreement have been
negotiated with the understanding that the Proposals to be submitted
by Tenant and Tenant's Affiliates will encompass Sites in a broad
variety of locations and that the cost of acquiring real estate and
constructing towers in such locations (and Landlord's ability to
construct a tower suitable for use by multiple tenants) will vary.
Landlord agrees that it will take into account the overall historical
and projected costs and returns relating to Sites subject to this
Agreement in making its determination of whether to accept or reject a
Proposal under this Section 3.7.1.
3.7.2 Based upon its projected business needs, Tenant has
informed Landlord that it expects to require at least five hundred
(500) Sites during the first five (5) years of this Agreement. In
return for Landlord's undertaking set forth in subsection 3.7.4 below,
as
well as Landlord's performance of its obligations under this
Agreement, Tenant agrees that it (together with Tenant's Affiliates)
shall provide Landlord with not less than five hundred (500) Proposals
(excluding proposals for facilities to be located on water towers or
roof tops) during the first five (5) years of this Agreement (the "500
Site Commitment). Tenant further agrees that the Proposals which it
shall provide Landlord to meet Tenant's obligations regarding the
Total Site Commitment shall reflect the first seven hundred (700)
Sites which Tenant (which for purposes of this subsection 3.7.2 shall
be deemed to include: (a) the "Transferring Partnerships" (as defined
in the Formation Agreement); (b) any entity formed in the future by
Tenant which is either wholly-owned by Tenant or over which Tenant
exercises sole management control and which enters into leases of
tower capacity either on its own behalf or on behalf of Tenant or a
Transferring Partnership; and (c) any entity which would otherwise
meet the definition of a Tenant Affiliate and over which Tenant
exercises sole management control and as to which Tenant in good faith
reasonably determines that it does not require (either as a matter of
agreement or under any law applicable to such entity or Tenant's
duties as a manager of such entity) the consent of any other party to
subject such Tenant Affiliate to the terms of this Agreement;
provided, however, with respect to any such entity for which Tenant
determines consent of another would be required, Tenant shall use
commercially reasonable efforts to obtain such consent; and provided
further, however, that any entity in which Tenant does not currently
hold an ownership interest that would otherwise become a Tenant
Affiliate as a result of an acquisition by Tenant or its parent shall
not be included in the definition of Tenant) requires for its business
needs following execution of this Agreement. For purposes of this
Section 3.7.2, if Tenant identifies a Site owned, operated or under
construction by Landlord or any of its affiliates, which would be
suitable for use by Tenant, and Tenant enters into a lease for such
Site, the lease of such Site shall apply towards the Total Commitment;
provided, however, no lease by Tenant which relates to either: (i)the
Sites acquired or to be acquired by Landlord pursuant to the Formation
Agreement dated as of December 8, 1998 by and between Tenant, certain
of Tenant's Affiliates, Crown Castle International Corp. and CCA
Investment Corp. (as amended from time to time, the "Formation
Agreement"); or (ii)the sites owned, managed or under construction as
of the date hereof by Crown Communication Corp., shall apply towards
the Total Commitment.
3.7.3 In the event that the Total Commitment has not been met by
the 5th anniversary of this Agreement, the Term of this Agreement
shall, at Landlord's Option, be extended by one (1) additional year
for each additional year or portion thereof until the Total Commitment
has been met.
3.7.4 In consideration of the Total Commitment, Landlord agrees
that, notwithstanding anything to the contrary in this Agreement, it
shall accept all Proposals submitted by Tenant and Tenant's
Affiliates, submit SLA packages for each such Proposal and perform all
other obligations set forth in Section 3 hereof, with respect to the
first 500 Proposals submitted by Tenant and Tenant's Affiliates (the
"Landlord Commitment"). A Proposal (or SLA) which is terminated
subject to Sections 3.2, 3.4.1, 3.4.2, 3.5, the last sentence of
Section 3.1 or the sixth (6th) sentence of Section 3.3.1 shall
not be counted towards satisfaction of the Landlord Commitment, but
shall be counted towards satisfaction of the 500 Site Commitment and
Total Commitment.
3.7.5 With respect to Proposals furnished by Tenant (or Tenant's
Affiliates) in excess of the 500 Site Commitment or after the 5th
anniversary of this Agreement, regardless of whether the Landlord
Commitment has been satisfied Landlord shall have the right, but not
the obligation to accept the Proposals as set forth in Section 3.1. If
Landlord does not accept Tenant's Proposal or a Proposal or SLA is
terminated as set forth in Section 3, Tenant shall have no further
obligations to Landlord with respect to such Proposal or SLA or the
Communications Facilities which are the subject thereof.
3.7.6 In the event that, during the term of this Agreement,
Landlord has failed to comply with its obligations under Sections 3.2,
3.3, 3.4 or 3.5 herein with respect to the greater of: (i) ten (10)
Proposals or SLAs; or (ii) ten percent (10%) of the Proposals or SLAs,
during any continuous twelve (12) month period, then, in addition to
any other rights and remedies specifically provided to Tenant under
this Agreement, Tenant's obligations under the 500 Site Commitment
shall terminate, which termination shall not affect the Landlord
Commitment, and the Total Commitment, for all purposes of this
Agreement from after the date of such termination shall be reduced to
two hundred (200) Proposals. In the event that, during the term of
this Agreement, Landlord has failed to comply with its obligations
under Sections 3.2, 3.3, 3.4 or 3.5 herein with respect to the greater
of: (i)twenty (20) Proposals or SLAs; or (ii) twenty percent (20%) of
the Proposals or SLAs, during any continuous twelve (12) month period,
then, in addition to any other rights and remedies specifically
provided to Tenant under this Agreement, Tenant's obligations under
Sections 3.7.1 and 3.7.3 of this Agreement shall be terminated.
Termination by Tenant under this Section 3.7.6 shall not terminate the
rights or obligations of the parties with respect to: (X) any SLA then
subject to the Global Lease; or (Y) any Site for which Landlord has
delivered an SLA package prior to the date of termination (whether or
not Tenant has executed the SLA package).
3.7.7 From time to time, Tenant shall provide Landlord with
forecasts of its anticipated tower needs for the following twelve (12)
month period. Following presentation of such forecast, Tenant and
Landlord will meet to discuss the forecast, including any constraints
on Landlord's ability to construct the number of towers indicated and
any other relevant issues. Tenant's forecasts and Landlord's response
to such forecasts, shall not create binding obligations or commitments
on the part of either party, but shall be used only for long-range
planning purposes.
3.8 Access To Information Technology
Tenant shall have electronic access to Landlord's database information
for Sites which are the subject of this Agreement for the following items:
(i) the tracking of the Site Approval and Construction Process identified
in this Section 3 (currently part of the database known as the Project
Tracking System); and (ii) the utilization of Sites by providers of
wireless services, including leasing, licensing and other collocation
information (currently part of the database known as the Executive
Information System). The access to information technology described
herein constitutes a license to Tenant terminable at will by Landlord upon
notice to Tenant upon termination of this Agreement and does not convey to
Tenant any title or other proprietary rights whatsoever in the information
or any other property related thereto. To the extent that Tenant is granted
access to information which is subject to an obligation of non-disclosure
to a third party, Tenant agrees that it shall keep such information
confidential and not publicly disclose such information (except to the
extent such information is otherwise made publicly available, disclosed to
Tenant by such third party, or Tenant is required to disclose pursuant to
court order, rule or regulation of governmental authority or other
judicial, administrative or regulatory process).
4. CONSTRUCTION OF IMPROVEMENTS
At the time each SLA is executed, the Site described in the SLA will
be undeveloped real estate. To enable Tenant to use the Site as a
Communications Facility, Landlord agrees to substantially complete
construction on each Site the improvements described in Section 3.4.2 and
the SLA ("Improvements") on or before the Committed Completion Date (as
extended pursuant to Section 3.4.2) specified in the SLA for that Site. The
timely substantial completion of the Improvements is of the essence in this
Agreement and the SLA and, by execution of the SLA, Landlord confirms that
the Committed Completion Date (as extended pursuant to Section 3.4.2) is a
reasonable period for the completion of the Improvements. Construction of
the Improvements will be done at Landlord's sole cost and expense and will
be completed (a) in a good and workmanlike manner; (b) in accordance with
all applicable governmental laws, codes, rules and regulations; (c) in
accordance with any applicable requirements or standards included in the
SLA; and (d) in accordance with the building plans. Subject to the
provisions of Section 3.6.2, Landlord agrees that it will be responsible
for obtaining and maintaining any permits, zoning approvals, variances or
similar governmental requirements or approvals necessary for the
construction and operation of a wireless communications facility at the
Site, excluding, however, any FCC or other licenses related specifically to
Tenant's operations ("Government Approvals"). Tenant shall cooperate with
Landlord, at no cost to Tenant, in obtaining Government Approvals,
including acting as applicant and executing documents reasonably needed to
obtain the Government Approvals, to the extent such actions are customary
in the communications industry.
5. USE
The Premises may be used by Tenant for any purpose specified in the
SLA or as permitted under the terms of the Global Lease, including, without
limitation, for the installation, operation, maintenance, upgrading and
removal of unmanned communications equipment and related communications
(voice and/or data) activities (a "Communications Facility"). The
Communications Facility which Tenant may attach to the Tower for each Site
will be specifically described in the SLA for that Site, subject to any
additional rights or obligations provided for in the Global Lease.
Notwithstanding anything to the contrary contained in this Agreement, and
without limiting any additional rights granted, or obligations imposed,
under the Global Lease, Tenant may install in the same plane and at
substantially the same ERP as identified in the applicable SLA the
equipment identified in the applicable SLA and replacement equipment, so
long as the replacement equipment results in no materially greater wind
loading or structure loading than the equivalent of the equipment
identified in the applicable SLA, including all attachment hardware.
For purposes of this Agreement and the applicable provisions of the
Global Lease as to all Sites constructed by Landlord, Tenant, at the time
it first operates facilities on the Site identified in the SLA, will be
deemed to be the "first user" for purposes of resolving any interference
issues which may arise as the result of use of the Site by Landlord, other
tenants or any other party using the Site for the operation of
communications equipment.
6. TERM
Unless otherwise terminated or extended pursuant to the terms herein,
this Agreement will expire five (5) years after the date hereof. The
initial term of each SLA ("Initial Term") commences on the date that the
SLA is signed by both parties. All other terms and conditions relating to
term, renewal, termination, expiration and renewal of each SLA shall be
governed by the Global Lease, except to the extent that this Agreement
expressly provides for an earlier termination date.
7. TERMINATION
In addition to any other rights to terminate this Agreement or an SLA:
(a) Tenant has the right to terminate an SLA (whether subject to this
Agreement or the Global Lease) at any time upon six (6) months prior
written notice if any Governmental Approval needed for Tenant to utilize
the Site for the purposes intended by this Agreement is canceled, expires,
lapses, or is otherwise withdrawn or terminated by the applicable
governmental agency through no fault of Tenant; and (b) Tenant has the
right to terminate this Agreement (but not any SLA which is then a part of
the Global Lease) if Landlord ceases to be an affiliate of Crown Castle
International Corp. ("CCIC") For purposes of the foregoing sentence, a
merger or acquisition transaction pursuant to which CCIC continues to exist
as the surviving entity or as a subsidiary of another entity (but with its
assets and operations substantially intact) shall not give rise to a right
of termination by Tenant.
8. FEES
Unless otherwise specified in an SLA, Tenant will commence paying a
monthly lease fee (the "Fee") for a Premises on the first day of the month
following the substantial completion of construction of the Improvements
("Rent Commencement Date"). Upon substantial completion of construction of
the Improvements, Landlord will prepare, sign and submit to Tenant a
certificate evidencing the Rent Commencement Date for that Premises. The
Fee will be due as
provided in the Global Lease. The Fee will be payable as specified in the
Global Lease and the applicable SLA. Unless otherwise agreed to by the
Parties, the applicable Fee for each Site subject to an SLA under this
Agreement shall be as set forth on Exhibit 8, "Build-to-Suit Fees." In the
event that Tenant proposes to place Communications Facilities on a Site
which are different from or exceed the facilities set forth on Exhibit 8A,
"Standard Tenant Facilities", the Fees shall be increased as provided in
Exhibit 8 or as otherwise agreed upon by the Tenant and Landlord in good
faith.
Subject to adjustment as provided for in Exhibit 8 or the Global
Lease, the Fee for the Premises is stated in the SLA for that Site.
9. IMPROVEMENTS AND CONSTRUCTION
9.1 Approved Communications Facility
Tenant has the right, at Tenant's sole cost and expense, subject to
compliance with the terms of this Agreement and the Global Lease, to
maintain, replace, operate, upgrade and remove at the Premises
Communications Facilities as specified on the SLA and in the Global Lease.
Landlord agrees that any improvements which Tenant makes to the Site will
be solely for the benefit of Tenant and no other party will be entitled to
use the Communication Facilities constructed by Tenant. Landlord's and
Tenant's rights, duties and obligations with respect to such facilities are
set forth in the Global Lease.
10. UTILITIES
Tenant has the right, at Tenant's sole cost and expense, to obtain
electrical and telephone service to the Premises subject to the terms and
conditions of the Global Lease and any limitations contained in underlying
real estate interests. Landlord understands and acknowledges that:
10.1 the Premises includes such non-exclusive easements as
necessary to enable Tenant to connect utility wires, cables, fibers
and conduits (including, without limitation, telecommunications
facilities) to the Communications Facility; and
10.2 Landlord does have the right to approve the route and the
manner of installation, which approval shall not be unreasonably
withheld, conditioned or delayed.
11. ACCESS
Tenant and its agents, employees and contractors are entitled to
unrestricted access the Premises and the Communications Facility
twenty-four (24) hours per day, seven (7) days per week. Access to the
Premises may be by foot or vehicle, including trucks and equipment. Tenant
acknowledges that the foregoing access rights are subject to any
limitations or restrictions on access imposed upon Landlord (and therefore
upon Tenant) by Landlord under any underlying real property interests
relating to a particular Site if Tenant has been given a copy of the
document relating to a particular Site and has been notified in writing by
Landlord of such limitations or restrictions prior to the execution of the
SLA for that Site. Limitations or restrictions imposed by a Landlord which
is an affiliate of Landlord will not be more restrictive than those
contained in this Section.
12. IMPROVEMENT FEES AND TAXES
Tenant must pay all taxes and other fees and assessments, or increases
thereto, which are attributable to Tenant's Communications Facility. Tenant
shall have the right to appear before the appropriate public body and
contest any tax, fee or assessment, or increases thereto, attributed to the
Communications Facility.
Except as otherwise provided in this Agreement, Landlord must pay all
taxes and other fees or charges attributable to (including, without
limitation, debt and ground lease obligations), each Site and, if required
under Landlord's ground lease obligations, the real estate of which the
Premises are a portion.
13. MEMORANDUM OF LEASE
After execution of an SLA, each party, at the request of the other,
will sign a recordable Memorandum of Lease for the Site described in the
SLA. Either party, at its sole expense, may record the Memorandum of Lease
in the land records of any recording office.
14. INSURANCE
14.1 Required Insurance of Tenant
Tenant must, during the term of this Agreement and at Tenant's sole
expense, obtain and keep in force, the insurance specified in the Global
Lease.
14.2 Required Insurance of Landlord
Landlord must, during the term of this Agreement and the Global Lease
and at Landlord's sole expense, obtain and keep in force, the insurance
specified in the Global Lease but in any event the following coverage:
14.2.1 Property insurance, including coverage for fire, extended
coverage, vandalism and malicious mischief on the Improvements, in an
amount equal to the full replacement cost of the Improvements;
14.2.2 Commercial General Liability insurance insuring operations
hazard, independent contractor hazard, contractual liability and
products and completed operations liability, in limits not less than
$5,000,000.00 combined single limit for each occurrence for bodily
injury, personal injury and property damage liability, naming Tenant
as an additional insured;
14.2.3 Workers' Compensation and Employer's Liability insurance;
14.2.4 Business Auto Insurance covering the ownership,
maintenance or use of any owned, non-owned or hired automobile, with a
limit of not less than $1,000,000.00 combined single limit per
accident for bodily injury and property damage liability; and
14.2.5 any other coverage required by the lessor of any property
included in a Site.
14.3 Policies of Insurance
All required insurance policies must be taken out with reputable
national insurers that are licensed to do business in the jurisdiction
where the Premises and Sites are located. Each party agrees that
certificates of insurance will be delivered to the other within ten (10)
days after the SLA has been signed for a Site. All certificates of
insurance must contain an undertaking by the agents or brokers to notify
the other party in writing not less than fifteen (15) days before any
material change, reduction in coverage, cancellation, or termination of the
insurance.
14.4 Release
Landlord and Tenant release each other, and their respective
principals, employees, representatives and agents, from any claims for
damage to any person or to the Premises, the Site, the Communications
Facility and the Improvements, that are caused by, or result from, risks
insured against under any insurance policies carried by the party suffering
such damage and in force at the time of any such damage. Each party will
cause each insurance policy obtained by it
to provide that the insurance company waives all right of recovery by way
of subrogation against the other party in connection with any damage
covered by any policy.
15. INDEMNIFICATION
15.1 Indemnification by Tenant
Tenant shall indemnify Landlord from and against any and all claims,
actions, damages, liability and expense in connection with the loss of
life, personal injury, and/or damage to property as specified in the Global
Lease, and in the event that Tenant is granted access to a Site prior to
substantial completion, any of the foregoing arising from or out of:
15.1.1 any occurrence in, upon or at the Premises or Site caused
by the act or omission of Tenant or Tenant's agents, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers, except to the extent caused by the
negligence or misconduct of Landlord, Landlord 's agent, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers;
15.1.2 any occurrence caused by the violation of any law,
regulation or ordinance applicable to Tenant's actual use or presence
on the Premises or the actual use of or presence on the Site by
Tenant's agents, customers, business invitees, concessionaires,
contractors, servants, vendors, materialmen or suppliers; or
15.1.3 real estate brokers claiming by, through or under Tenant
for any commission, fee or payment in connection with this Agreement.
15.2 Indemnification by Landlord
Landlord shall indemnify Tenant from and against any and all claims,
actions, damages, liability and expense in connection with the loss of
life, personal injury, and/or damage to property as specified in the Global
Lease and prior to the time Tenant commences use of a Site any of the
foregoing arising from or out of:
15.2.1 any occurrence in, upon or at the Premises or Site caused
by the act or omission of Landlord or Landlord's agents, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers, except to the extent caused by the
negligence or misconduct of Tenant, Tenant's agent, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers;
15.2.2 any occurrence caused by the violation of any law,
regulation or ordinance applicable to Landlord's actual use or
presence on the Premises or the actual use of or presence on the Site
by Landlord's agents, customers, business invitees, concessionaires,
contractors, servants, vendors, materialmen or suppliers; or
15.2.3 real estate brokers claiming by, through or under Landlord
for any commission, fee or payment in connection with this Agreement.
15.3 Procedure
For all claims for indemnification not governed by the Global Lease:
15.3.1 Any party being indemnified ("Indemnitee") will give the
party making the indemnification ("Indemnitor") written notice as soon
as reasonably possible of:
15.3.1.1 any claim or demand that may be made or liability
that may be asserted against Indemnitee; or
15.3.1.2 any suit, action, or administrative or legal
proceedings that may be instituted or commenced in which any
Indemnitee is involved or is named as a defendant, either
individually or with others.
15.3.2 If, within thirty (30) days after the giving of such
notice, Indemnitee receives written notice from Indemnitor stating
that Indemnitor disputes or intends to defend against such claim,
demand, liability, suit, action or proceeding, then Indemnitor will
have the right to select counsel of its choice and to dispute or
defend against such claim, demand, liability, suit, action or
proceeding, at Indemnitor's expense. Indemnitee will fully cooperate
with Indemnitor in such dispute or defense so long as Indemnitor is
conducting such dispute or defense diligently and in good faith;
provided, however, that Indemnitor will not be permitted to settle
such dispute or claim without the prior written approval of
Indemnitee, which will not be unreasonably withheld, conditioned or
delayed. Even though Indemnitor selects counsel of its choice,
Indemnitee has the right to additional representation by counsel of
its choice to participate in such defense at Indemnitee's sole cost
and expense.
15.3.3 If no such notice of intent to dispute or defend is
received by Indemnitee within the thirty (30) day period, or if
diligent and good faith defense is not being, or ceases to be,
conducted, Indemnitee has the right to dispute and defend against the
claim, demand or other liability at the sole cost and expense of
Indemnitor and to settle such claim, demand or other liability, and in
either event to be indemnified as provided for in this Section.
Indemnitee is not permitted to settle such dispute or claim without
the prior written approval of Indemnitor, which approval will not be
unreasonably withheld, conditioned or delayed.
15.3.4 The Indemnitor's indemnity obligation includes reasonable
attorneys' fees, investigation costs, and all other reasonable costs
and expenses incurred by the Indemnitee from the first notice that any
claim or demand has been made or may be made, and is not limited in
any way by any limitation on the amount or type of damages,
compensation, or benefits payable under applicable workers'
compensation acts, disability benefit acts, or other employee benefit
acts. The entire indemnification provisions of this Section will
survive the termination of this Agreement with respect to any damage,
injury or death occurring before such termination.
16. ASSIGNMENT
16.1 By Tenant
Notwithstanding any provision to the contrary, Tenant shall have the
right to assign this Agreement (provided that such assignment shall not
relieve Tenant of its obligations under Section 3.7) and any SLA, subject
to the same terms and conditions applicable to Tenant's rights to assign
the Global Lease and any Supplement thereunder, under the Global Lease.
16.2 By Landlord
Notwithstanding any provision to the contrary, Landlord shall have the
right to assign this Agreement and any SLA, subject to the same terms and
conditions applicable to Landlord's rights to assign the Global Lease and
any Supplement thereunder, under the Global Lease. For purposes of
application of the foregoing sentence, Landlord's rights to assign a Site
or SLA shall be governed by the provisions of the Global Lease applicable
to Landlord's rights to assign, transfer, sell or otherwise convey a
Supplement or any Property (as defined in the Global Lease) subject to a
Supplement.
17. DEFAULT AND REMEDIES
17.1 Tenant's Events of Default
The occurrence of any one or more of the following event constitutes
an "event of default" by Tenant under this Agreement and the applicable SLA
(but only with respect to SLA's not then subject to the terms of the Global
Lease):
17.1.1 if Tenant fails to pay any Fee or other sums payable by
Tenant for the applicable Premises which are not then subject to the
Global Lease within ten (10) business days after Tenant's receipt of
written request for payment:
17.1.2 if Tenant (which for purposes of this subsection shall
include any entity in which Tenant or Tenant's parent owns eighty
percent (80%) or more of the equity interests), as defined in Section
3.7.2, breaches its obligations under Section 3.7 (provided, however,
that the acquisition of a Site and the construction of a Tower by
Tenant or a third party on Tenant's behalf following termination
pursuant to Sections 3.2, 3.3 or 3.4 hereof shall not constitute a
breach by Tenant);
17.1.3 if any petition is filed by or against Tenant under any
section or chapter of the present or any future federal Bankruptcy
Code or under any similar law or statute of the United States or any
state thereof (and with respect to any petition filed against Tenant,
such petition is not dismissed within sixty (60) days after the filing
thereof), or Tenant is adjudged bankrupt or insolvent in proceedings
filed under any section or chapter of the present or any future
federal Bankruptcy Code or under any similar law or statute of the
United States or any state thereof;
17.1.4 if a receiver, custodian, or trustee is appointed for
Tenant or for any of the assets of Tenant and such appointment is not
vacated within sixty (60) days of the date of appointment;
17.1.5 if Tenant makes a transfer in fraud of creditors; and
17.1.6 if Tenant breaches in any material way any representation
or warranty set forth in this Agreement and such breach has a material
adverse effect on Landlord (for breaches related to a specific Site,
material adverse effect will be determined with reference to such Site
only).
17.2 Landlord's Remedies
17.2.1 If an event of default occurs, while Tenant remains in
default, Landlord may incur any expense reasonably necessary to
perform the obligation of Tenant specified in the notice previously
provided to Tenant and invoice Tenant for the actual and reasonable
expenses incurred by Landlord in performing such obligation Any
invoice must be accompanied by documentation reasonably detailing the
actual expenses incurred by Landlord. Tenant shall be obligated to
remit payment to Landlord within ten (10) days of Tenant's receipt of
request for payment.
17.2.2 If any event of default pursuant to Section 17.1.2 occurs
and is continuing, Landlord may, as its sole remedies: (a) pursue an
action at law for direct damages resulting from such breach; and (b)
pursue equitable remedies
including specific performance and/or injunctive relief to compel
Tenant to comply with its obligations under Section 3.7.
17.2.3 If an event of default pursuant to subsection 17.1.3
occurs and is continuing or an event of default under subsection
17.1.1, 17.1.4, 17.1.5 or 17.1.6 occurs and is continuing and such
default has a material adverse effect on Landlord, then Landlord may,
in addition to any other remedy available at law or in equity or
otherwise provided for in this Agreement, at Landlord's option upon
fifteen (15) days written notice, terminate this Agreement and any
applicable SLA not then subject to the Global Lease.
17.2.4 In no event shall Tenant be liable to Landlord for
consequential damages resulting from an event of default.
17.3 Landlord's Default
The occurrence of any one or more of the following events constitutes
an "event of default" by Landlord under this Agreement:
17.3.1 If Landlord fails to perform or observe the terms of
Section 3.7.4, or any term of any SLA, including terms and conditions
applicable thereto contained in this Agreement, and such failure
continues for more than thirty (30) days after written notice from
Tenant; except such thirty (30) day cure period will be extended as
reasonably necessary to permit Landlord to complete such cure so long
as Landlord commences such cure within such thirty (30) days cure
period and thereafter continuously and diligently pursues and
completes each cure;
17.3.2 if any petition is filed by or against Landlord, under any
section or chapter of the present or future federal Bankruptcy Code or
under any similar law or statute of the United States or any state
thereof (and with respect to any petition filed against Landlord, such
petition is not dismissed within sixty (60) days after the filing
thereof), or Landlord is adjudged bankrupt or insolvent in proceedings
filed under any section or chapter of the present or any future
federal Bankruptcy Code or under any similar law or statute of the
United States or any state thereof;
17.3.3 if a receiver, custodian, or trustee is appointed for
Landlord or for any of the assets of Tenant and such appointment is
not vacated within sixty (60) days of the date of the appointment;
17.3.4 if Landlord makes a transfer in fraud of creditors; or
17.3.5 if Landlord breaches in any material way any
representation or warranty set forth in this Agreement and such breach
has a material adverse effect on Tenant (for
breaches related to a specific Site, material adverse effect will be
determined with reference to such Site only).
17.4 Tenant's Remedies
If an event of default pursuant to subsection 17.3.2 occurs and is
continuing or an event of default under subsection 17.3.1 (and Tenant has
not exercised any other remedy available to it under Article 3 of this
Agreement), 17.3.3, 17.3.4 or 17.3.5 occurs and is continuing and such
default has a material adverse effect on Tenant, Tenant may, in addition to
any other remedy available at law or in equity or otherwise provided for in
this Agreement, at Tenant's option upon fifteen (15) days written notice,
terminate this Agreement and any applicable SLA not then subject to the
Global Lease, or incur any expense reasonably necessary to perform the
obligation of Landlord specified in the notice previously provided by
Tenant and invoice Landlord for the actual expenses incurred by Tenant. Any
invoice must be accompanied by documentation reasonably detailing the
actual expenses incurred by Tenant. If Landlord fails to reimburse the
costs within thirty (30) days of receipt of written invoice, then Tenant is
entitled to offset and deduct such expenses from the Fees or other charges
next becoming due under any SLA. In no event shall Landlord be liable to
Tenant for consequential damages resulting from an event of default.
18. COVENANT OF QUIET ENJOYMENT
Landlord covenants and warrants to Tenant that Tenant, so long as
Tenant is not in default hereunder after giving of notice and the
expiration of any applicable cure periods, will have, hold and enjoy
uninterrupted possession and use of each Premises leased under an SLA
during the term of the applicable SLA and any renewal or extension thereof.
Landlord will not, nor permit any other person occupying or using the Site
to, take any action not expressly permitted under the terms of this
Agreement or the Global Lease that will interfere with Tenant's intended
use of the Premises nor will Landlord fail to take any action or perform
any obligation identified in this Agreement or the Global Lease to fulfill
Landlord's aforesaid covenant of quiet enjoyment in favor of Tenant. This
Section will survive termination of the Agreement as to any SLAs then
subject to the Global Lease.
19. COVENANTS AND WARRANTIES
19.1 Landlord
Landlord warrants to Tenant, with respect to each particular SLA, that
except as indicated in the SLA Package:
19.1.1 Landlord owns good marketable fee simple title, has a good
and marketable leasehold interest, or has a valid easement or other
real property interest in the
land on which the Site and Premises are located and has rights of
unobstructed access thereto;
19.1.2 Landlord will not permit or suffer the installation and
existence of any other improvement (including, without limitation,
transmission or reception devices) upon the structure or land of which
any Site or Premises is a portion if such improvement interferes with
transmission or reception by the Communications Facility, unless such
interference is caused by Tenant; and
19.1.3 The Premises are to the best of Landlord's knowledge not
contaminated by any Environmental Hazards (as defined in this
Agreement).
19.2 Mutual
Each party represents and warrants to the other party that:
19.2.1 it has full right, power and authority to make this
Agreement and to enter into the SLAs;
19.2.2 the making of this Agreement and the performance thereof
will not violate any laws, ordinances, restrictive covenants, or other
agreements under which such party is bound;
19.2.3 that such party is a duly organized and existing
corporation, partnership, limited liability company or limited
partnership;
19.2.4 the party is qualified to do business in any state in
which the Premises and Sites are located, to the extent that such
qualification is so required; and
19.2.5 all persons signing on behalf of such party were
authorized to do so by appropriate corporate, partnership or other
similar action.
20.3 No Brokers
Tenant and Landlord each represent to the other that they have not had
any dealings with any real estate brokers or agents in connection with the
negotiation of this Agreement.
21. ENVIRONMENTAL MATTERS
Landlord represents and warrants to Tenant that, to the best of
Landlord's knowledge (which will be limited to obtaining a Phase I
environmental report that includes, without
limitation the results of specific inquiry made to the owners of any Site)
there are no Environmental Hazards on any Site not otherwise identified in
each SLA Package. Nothing in this Agreement or in any SLA will be construed
or interpreted to require that Tenant remediate any Environmental Hazards
located at any Site unless Tenant or Tenant's Affiliates or their
respective officers, employees, agents, or contractors placed the
Environmental Hazards on the Site.
Tenant will not bring to, transport across or dispose of any
Environmental Hazards on any Site without Landlord's prior written
approval, which approval may not be unreasonably withheld, except Tenant
may keep on Site substances commonly used in the wireless
telecommunications industry for back-up power generation. Tenant's use of
any approved substances constituting Environmental Hazards must comply with
all applicable laws, ordinances, and regulations governing such use.
The term "Environmental Hazards" means hazardous substances, hazardous
wastes, pollutants, asbestos, polychlorinated biphenyl (PCB), petroleum or
other fuels (including crude oil or any fraction or derivative thereof),
underground storage tanks and any other substances or emissions which are
regulated by any state or local government agency in the state in which a
Site is located. The term "hazardous substances" will be as defined in the
Comprehensive Environmental Response, Compensation, and Liability Act (and
any similar laws of any state in which a Site is located), and any
regulations promulgated pursuant thereto. The term "pollutants" will be as
defined in the Clean Water Act (and any similar laws of any state in which
a Site is located), and any regulations promulgated pursuant thereto. This
Section will survive termination of the Agreement and any SLA.
Tenant and each Tenant Affiliate which executes an SLA agrees (but
only with respect to SLAs executed by such party) to defend, indemnify and
hold Landlord harmless from and against any and all claims, causes of
action, demands and liability including, but not limited to, damages,
costs, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees that Landlord may suffer due to the existence or discovery
of any Environmental Hazards on the Site or the migration of any
Environmental Hazards to other properties or released into the environment
arising from Tenant's or Tenant's Affiliates' activities or the activities
of Tenant's and Tenant's Affiliates' respective owners, agents, employees
or contractors on the Site.
Landlord agrees to defend, indemnify and hold Tenant and each of
Tenant's Affiliates harmless from and against any and all claims, causes of
action, demands and liability including, but not limited to, damages,
costs, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees that Tenant (or any of Tenant's Affiliates) may suffer due
to the existence or discovery of any other Environmental Hazards on the
Site or the migration of any Environmental Hazards from the Site to other
properties except as to any Environmental Hazards identified in the Phase I
Environmental Report and SLA Package associated with such Site or
associated with
Tenant's activities or the activities of Tenant's and Tenant's Affiliates'
respective owners, agents, employees or contractors on the Site.
The indemnification in this Section specifically includes costs
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any governmental
authority of competent jurisdiction. The provisions of this Section will
survive expiration or termination of this Agreement and each SLA. The
provisions of this Section are in addition to, and not in lieu of, any
rights or obligations of the Parties as set forth in the Global Lease.
22. GENERAL PROVISIONS
22.1 Entire Agreement; Global Lease
This Agreement and each SLA constitutes the entire agreement and
understanding between the parties, and, except as expressly provided for in
this Agreement with respect to the application of the Global Lease or any
terms contained therein, supersedes all offers, negotiations and other
agreements concerning the subject matter contained in this Agreement and
that SLA. Any amendments to this Agreement or any SLA must be in writing
and executed by Landlord and Tenant. To the extent of any conflict or
inconsistency between this Agreement and the Global Lease, the terms of the
Global Lease shall govern.
22.2 Severability
If any provision of this Agreement or any SLA is invalid or
unenforceable with respect to any party, the remainder of this Agreement,
the applicable SLA or the application of such provision to persons other
than those as to whom it is held invalid or unenforceable, is not to be
affected and each provision of this Agreement or the applicable SLA is
valid and enforceable to the fullest extent permitted by law.
22.3 Binding Effect
This Agreement and each SLA will be binding on and inure to the
benefit of the respective parties' successors and permitted assignees.
22.4 Captions
The captions of this Agreement are inserted for convenience only and
are not to be construed as part of this Agreement or the applicable SLA or
in any way limiting the scope or intent of its provision.
22.5 No Waiver
No provision of this Agreement or a SLA will be deemed to have been
waived by either party unless the waiver is in writing and signed by the
party against whom enforcement is attempted. No custom or practice which
may develop between the parties in the administration of the terms of this
Agreement or any SLA is to be construed to waive or lessen any party's
right to insist upon strict performance of the terms of this Agreement or
any SLA. The rights granted in this Agreement and under each SLA are
cumulative of every other right or remedy that the enforcing party may
otherwise have at law or in equity or by statute and the exercise of one or
more rights or remedies will not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
22.6 Construction
The parties acknowledge and agree that they have been represented by
counsel and that each of the parties has participated in the drafting of
this Agreement and each SLA. Accordingly, it is the intention and agreement
of the parties that the language, terms and conditions of this Agreement
and each SLA are not to be construed in any way against or in favor of any
party hereto by reason of the responsibilities in connection with the
preparation of this Agreement or each SLA.
22.7 Notice
Any notice or demand required to be given in this Agreement must be
made by certified or registered mail, return receipt requested or reliable
overnight courier to the address of other parties set forth below:
Landlord:
Crown Atlantic Company, LLC
βββ βββββββββββ βββββββββ
ββββββββββ, ββββββββββββ βββββ
Attention: βββββ β. βββββ, President
Fax No.: (βββ) βββ-ββββ
With copies to:
Crown Castle International Corp.
βββ ββββββ, βββββ βββ
βββββββ, βββββ βββββ
Attention: CEO and General Counsel
Fax No: (βββ) βββ-ββββ
and:
Crown Communication Inc.
USA Headquarters
βββ βββββββββββ βββββββββ
ββββββββββ ββββββββββββ βββββ
Attention: ββββ βββββ, President
Fax No: (βββ) βββ-ββββ
Tenant: Cellco Partnership
c/β ββββ Atlantic Mobile
βββ ββββββββββ ββββββ ββββ
ββββββββββ, βββ ββββββ βββββ
Attention: Network Real Estate
With a copy to:
Cellco Partnership
c/β ββββ Atlantic Mobile
βββ ββββββββββ ββββββ ββββ
ββββββββββ, βββ ββββββ βββββ
Attention: General Counsel
Any such notice is deemed received one (1) business day following
deposit with a reliable overnight courier or five (5) business days
following deposit in the United States mail addressed as required above.
Landlord or Tenant may from time to time designate any other address for
this purpose by written notice to the other party.
22.8 Governing Law
This Agreement is governed by the laws of the State of New Jersey.
22.9 No Liens
(a) Each Communications Facility and related property of Tenant
located upon any Premises by Tenant pursuant to the terms of this
Agreement and the applicable SLA will at all times be and remain
the property of Tenant and will not be subject to any lien or
encumbrance created or suffered by Landlord. Tenant has the right
to make such public filings as Tenant deems necessary or
desirable to evidence Tenant's ownership of the Communications
Facility. Landlord hereby waives all lessor's or
landlord's lien on any property of Tenant (whether created by
statute or otherwise). The provisions of this Section will
survive expiration or termination of this Agreement and each SLA.
(b) In the event that, prior to Substantial Completion, Tenant is
permitted hereunder to have access to a Site and constructs (or
causes to be constructed) improvements to the Site, Tenant agrees
to keep the Site free from any liens arising from any work
performed, materials placed materials furnished, or obligations
incurred by or at the request of Tenant. If any such valid lien
is filed against the Site as a result of the acts or omissions of
Tenant, or Tenant's employees, agents, or contractors, Tenant
must discharge such lien or bond the lien off within thirty (30)
days after Tenant receives written notice from any party that the
lien has been filed. If Tenant fails to discharge or bond any
such valid lien within such period, then, in addition to any
other right or remedy of Landlord, Landlord may, at Landlord's
election, discharge the lien by either paying the amount claimed
to be due or obtaining the discharge by deposit with a court or a
title company or by bonding. Tenant must pay, within thirty (30)
days of Landlord's written demand, any reasonable amount actually
paid by Landlord for the discharge or satisfaction of any such
valid lien, and all reasonable attorneys' fees and other legal
expenses of Landlord incurred in defending any such action or in
obtaining the discharge of such lien.
22.10 Time is of the Essence
Time is of the essence with respect to this Agreement and each SLA.
22.11 Non-Disclosure
The parties agree that without the express written consent of the
other party, neither party shall reveal, disclose or promulgate to any
third party the terms of this Agreement or any portion thereof, except to
such third party's auditor, accountant or attorney or to a governmental
agency if required by regulation, subpoena or government order to do so,
and in the case of Landlord or Tenant, to their respective Affiliates.
22.12 Reference to Tenant deemed to constitute reference to Tenant's
Affiliate.
Whenever a Proposal is submitted by, and a SLA package executed by,
Tenant's Affiliate, all references in this Agreement to "Tenant" shall be
deemed to be a reference to such Tenant's Affiliate and the Tenant's
Affiliate will be entitled to all benefits and rights, and subject to all
obligations, of Tenant with respect to the applicable Site and SLA Package.
A default by a Tenant Affiliate hereunder shall not constitute a default by
Tenant and Landlord's rights and remedies shall be limited to such Tenant
Affiliate. Notwithstanding the foregoing, Tenant agrees that, if Tenant's
Affiliate defaults hereunder and Landlord after using commercially
reasonable efforts, fails to obtain the required cure or payment from such
entity (and provided that such
entity is not, in good faith, disputing such claim of default or have not
otherwise asserted a meritorious defense or counterclaim) or has not
otherwise settled or compromised such claim, then Landlord may, by notice
make demand upon Tenant to cure such default and subject to the provisions
of this Section, Tenant shall be obligated hereunder to cure such default.
Tenant shall have the same time periods to cure such default as were
available to the Tenant Affiliate or transferee or assignee hereunder,
commencing with the effective date of such notice and Tenant shall
furthermore have the benefit of any and all defenses, claims or
counterclaims available to it or to such Tenant Affiliate or transferee or
assignee. In the event that Tenant cures the default it shall succeed to
all of Landlord's rights and remedies with respect to such Tenant
Affiliate, assignee or transferee (other than rights to terminate an SLA
Package). In the event that Tenant fails to cure any default of a Tenant
Affiliate as to which proper demand was made as provided hereunder and
Tenant was obligated to cure under the provisions of this Section, the
Landlord shall have all of the rights and remedies available to it
hereunder with respect to such uncured default by Tenant as it would have
against the Tenant Affiliate.
22.13 Interest.
Any fee or reimbursement payable hereunder not paid within ten (10)
business days of when due may, at the option of the party entitled to such
payment, bear interest at the lesser of: (a) the rate of ten percent (10%)
per annum; or (b) the maximum rate allowed under the laws of the
jurisdiction in which the Site is located.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
as of the date first above written.
TENANT:
ATTEST: Cellco Partnership
by ββββ Atlantic Mobile, Inc.
its managing general partner
/s/ ββββββ β. βββββββ By: /s/ β. β. ββββββ
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Assistant Secretary Title: β. β. ββββββ
Vice President
Network Planning and
Administration
LANDLORD:
ATTEST: Crown Atlantic Company LLC
/s/ βββββ β. βββββββββ By: /s/ βββββ β. βββββ
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Secretary Title: President