GROUND LEASE AGREEMENT
_____________________ SITE
THIS GROUND LEASE AGREEMENT (this "Agreement" or this "Lease"), made this ____
day of ________________ , ______, between South Carolina Electric & Gas Company,
a South Carolina corporation (hereinafter designated as LANDLORD) and SCANA
Communications, Inc., a South Carolina corporation (hereinafter designated as
TENANT) (hereinafter collectively designated as the "Parties").
In consideration of the mutual covenants contained herein, and intending to
be legally bound, LANDLORD and TENANT agree as follows:
1. Premises: LANDLORD hereby leases to TENANT and TENANT leases from
LANDLORD a site (the "Leased Property") within that certain parcel of real
property (the "Tract") situated in the County of __________, State of South
Carolina, being more particularly described as the _______________________ Site,
together with ingress and egress for pedestrian and vehicular use. The Leased
Property and ingress and egress area are more fully described in Exhibit "A" and
on Exhibit "B" which are both attached hereto and made a part hereof.
LANDLORD hereby grants to TENANT the right to survey the Leased Property
and Tract, and upon such action by TENANT and approval of the survey by
LANDLORD, this Agreement may be amended to substitute the legal description of
the Leased Property prepared from said survey for Exhibit "B" as long as such
amendment reflects a legal description of substantially the same size, shape and
description of the previous property description of the Leased Property and
Tract.
2. Term: This Agreement shall commence on the date hereof and shall
terminate after a period of six months unless TENANT initiates the Rental
Commencement Date as defined below. Should TENANT initiate the Rental
Commencement Date, this Agreement shall continue in effect for an initial term
("Initial Term") of five years from that date subject to termination rights of
LANDLORD as described in this Agreement.
Thereafter, this Agreement shall continue in force and effect upon the
terms and conditions contained herein for four additional terms of five years
each (collectively, the "Extension Terms" and, individually, the "Extension
Term") unless TENANT provides to LANDLORD, written notice of its intention no to
renew this Agreement at least 90 days before the expiration of the Initial Term
or any Extension Term. Except as provided in Paragraph 3 of this Agreement, all
terms and conditions of this Agreement shall remain in full force and effect
during the Extension Terms.
If, at the end of the last Extension Term, this Agreement has not been
terminated by written notice of either party at least 90 days prior to the end
of such term, or has not otherwise been terminated pursuant to the terms of this
Agreement, this Agreement shall be deemed further extended upon the same
covenants, terms and conditions for a further term of one year, and for annual
terms thereafter (collectively, the "Annual Terms" and, individually, the
"Annual Term"), until terminated by either party upon written notice to the
other of its intention to so terminate at least 90 days prior to the end of such
Annual Term or as otherwise provided herein. The Initial Term, the Extension
Terms, and the Annual Terms are hereinafter collectively referred to as the
"Term."
3. Rent: The Rental Commencement Date shall be the date upon which TENANT
begins construction of the Communications Facility. The Parties will execute the
Statement of Rental Commencement Date attached as Exhibit C hereto in order to
document the Rental Commencement Date. During the Initial Term, TENANT shall pay
an annual rental payment of _________________________________ Dollars
($_______.00) to be paid in equal monthly installments on or before the first
day of each month in said term to LANDLORD or to such other person, firm or
place as LANDLORD may, from time to time, designate in writing to TENANT at
least 30 days in advance of any rental payment date. The annual rental for the
first five year Extension Term shall be _____________________ Dollars
($________.00), the second five year Extension Term shall be
_______________________ Dollars ($________.00), the third five year Extension
Term shall be Seven Thousand Three Hundred Dollars ($7,300.00), and the fourth
five year Extension Term shall be ________________________ Dollars
($_________.00), each to be paid in equal monthly installments on or before the
first day of each month in said term to LANDLORD or to such other person, firm,
or place as LANDLORD may, from time to time, designate in writing to TENANT. The
annual rental during the Annual Term(s), if any, shall be equal to the rent paid
for the last full year of the last Extension Term or last Annual Term, whichever
is more recent, multiplied by 1.15, to be paid in equal monthly installments on
the first day of each month in said term, in advance, to LANDLORD or to such
other person, firm, or place as LANDLORD may, from time to time designate in
writing to TENANT at least 30 days in advance of any rental payment date.
TENANT shall have the option of paying the annual rental payment for the
Initial Term, the Extension Terms, and the Annual Term(s) as a lump sum on or
before the first day of the Initial Term or each anniversary thereof during the
Initial Term, or the first day of each Extension Term or each anniversary
thereof during such Extension Term, or on the first day of each Annual Term, as
applicable. Annual rental payments made lump sum as provided shall be reduced by
6% as a discount for lump sum payment. Rent for any partially leased month or
year during the Term shall be pro-rated based on the number of days of the Term
in said month or year, as applicable. In the event of early termination of any
Term for any reason except Tenant's breach, LANDLORD shall have the duty to
reimburse pre-paid rent for the unexpired portion of any pre-paid Term, which
duty shall survive termination of this Lease.
4. Use: Subject to the provisions regarding interference with LANDLORD'S
operations set forth in this Agreement, and only with prior, close coordination
with LANDLORD, TENANT may use the Leased Property for the purpose of
constructing, maintaining, operating, and leasing space to third parties on or
at, a communications facility (the "Communications Facility") and for uses
incidental thereto. Specifically, TENANT shall have the right, at its expense,
to construct or otherwise erect such improvements that TENANT now or hereafter
deems necessary or desirable on all or any part of the Leased Property,
including, without limitation:
a. a tower constructed in accordance with the Electronic Industries
Association (EIA) standard TIA-EIA 222-F;
b. buildings to shelter telecommunications equipment;
c. generators;
d. a security fence;
e. subject to prior LANDLORD written approval, improvements on any part
of the ingress and egress area for purposes of adequate access. (The
foregoing improvements to the Leased Property are hereinafter
collectively referred to as the "Improvements").
LANDLORD agrees that some of the Improvements may be constructed or
placed on the Leased Property by sublessees of TENANT, although TENANT will be
responsible for all such activities. LANDLORD also agrees that sublessees of
TENANT, at their own risk or at the risk of TENANT, may place, operate and
maintain antennas, dishes, transmitters, receivers, and other equipment on the
Leased Property.
TENANT must provide to LANDLORD prior to any construction, erection, or
placement of Improvements, equipment, or facilities on the Leased Property, an
initial construction plan ("Plan") which describes the Improvements, equipment,
and/or facilities to be placed upon the Leased Property. TENANT shall not
further burden the Leased Property or add facilities or perform/arrange for the
performance of further construction, placement, and/or erection of facilities
(Additional Facilities") other than those described in the initial Plan until
(a) TENANT has informed LANDLORD in writing of such Additional Facilities and
(b) LANDLORD has provided to TENANT written consent for the construction,
placement, and/or erection of such Additional Facilities.
LANDLORD shall cooperate with TENANT to obtain utility services for the
Leased Property. TENANT shall be solely responsible for and shall promptly pay
all charges for utilities serving the Leased Property and for the cost of the
installation, maintenance, and repair of all utility meters associated with such
utility service.
LANDLORD grants TENANT and its employees, agents, contractors and/or
sublessees ingress and egress to, over, across and through the Tract as are
reasonably required (and so long as such ingress and egress does not interfere
with LANDLORD'S operations) for construction, installation, maintenance, and
operation of the Improvements, said ingress and egress to be located with the
approval of LANDLORD.
LANDLORD grants TENANT the right to clear trees, undergrowth, or other
obstructions and to trim, cut, and keep trimmed and cut tree limbs which may
interfere with or fall upon TENANT'S tower, the Improvements or the
Communications Facilities, providing, however, that TENANT does not remove any
vegetation intended as vegetative screening at or around LANDLORD'S facility
without specific permission of LANDLORD.
Upon termination of this Lease, TENANT shall, within 180 days
thereafter, upon written request by LANDLORD, remove such Improvements,
including its personal property and other fixtures as requested by LANDLORD, and
restore the Leased Property as near as practical to its original condition,
vegetation removed for construction purposes, utility lines, roadways, paving,
and normal wear and tear excepted. This obligation shall survive termination of
this Lease. Notwithstanding the above, LANDLORD retains the right to purchase
from TENANT or lease from TENANT any Improvements on the Leased Property at the
time of termination of this Agreement. If LANDLORD elects to purchase the
Improvements, then such Improvements will be valued at that time at the
then-current book value. Any other purchase or lease terms shall be negotiated
by LANDLORD and TENANT a the time of termination of this Agreement.
5. Regulatory Compliance. TENANT represents that it is familiar with
all applicable rules and regulations of the Federal Aviation Administration
("FAA"), the Federal Communications Commission ("FCC"), and all other government
and regulatory bodies having jurisdiction over the subject matter hereof. TENANT
expressly agrees to comply fully with all such rules and regulations. TENANT
further agrees that the Communications Facility and all Improvements will comply
fully with all such rules and regulations. TENANT understands that LANDLORD is
not in the business of constructing and operating facilities such as those
contemplated herein and is not, and will not, be as familiar with the applicable
rules and regulations, and consequently, TENANT accepts full and exclusive
responsibility for compliance hereunder.
6. Liability and Indemnity: TENANT agrees to compensate LANDLORD for
damages and to indemnify and to hold LANDLORD harmless from all claims
(including, but not limited to, property damages and personal injury, including
death), including costs and expenses of defending against such claims, as well
as fines and penalties imposed by government and regulatory agencies, including
but not limited to the FAA and FCC, through counsel designated by TENANT and
approved by LANDLORD, arising or alleged to arise directly or indirectly from
the occupation or use of the Leased Property by TENANT or its sublessees; the
use or failure of the Communications Facility and/or the Improvements by TENANT
or its sublessees; any action or activity of TENANT'S agents, employees,
contractors or sublessees; or the breach of this Lease by TENANT.
LANDLORD agrees to compensate TENANT for damages and to indemnify and
hold TENANT harmless from all claims (including, but not limited to, property
damages and personal injury, including death), including costs and expenses of
defending against such claims through counsel designated by LANDLORD and
approved by TENANT, arising or alleged to arise solely from acts of gross
negligence or willful misconduct of LANDLORD, LANDLORD'S agents, employees,
contractors, or other tenants of LANDLORD occurring in or about the Leased
Property or the Tract or arising out of any breach of this Lease by LANDLORD.
The indemnities described in this Paragraph 5 shall survive termination
of this Lease.
Notwithstanding any other provision of this Lease, neither LANDLORD nor
TENANT shall be liable for lost profits of the other party, the other party's
customers or sublessees, or any other person or entity in any event or under any
circumstances, whether arising from damage to the Communications Facility, the
Improvements or otherwise, and each party hereto shall indemnify and hold the
other harmless therefrom. There are no intended third party beneficiaries under
this Paragraph or this Agreement.
THE PARTIES UNDERSTAND THAT LANDLORD WOULD NOT ENTER INTO THIS
AGREEMENT EXCEPT THAT IT IS CLEARLY UNDERSTOOD THAT LANDLORD SHALL NOT BE LIABLE
TO TENANT, TENANT'S SUBLESSEES, OR ANY OTHER PERSON OR ENTITY, FOR ANY
CONSEQUENTIAL DAMAGES ARISING FROM ANY CAUSE WHATSOEVER. In the event that any
third party, including any sublessee of TENANT, obtains a judgment against
LANDLORD for consequential damages, then in that event, TENANT agrees to
indemnify LANDLORD pursuant to the foregoing paragraphs.
7. Defaults and Remedies:
A. Notwithstanding anything in this Lease to the contrary, TENANT shall not
be in default under this Lease until:
(i) Fifteen days after actual receipt of written notice thereof from
Landlord of the non-payment of rent or other sums under this Lease, which
nonpayment is not cured within said time, provided that not more than two
payments during any twelve month period may be late without constituting a
default; or
(ii) Thirty days after actual receipt of written notice of any other
default from Landlord which default is not cured within said time; provided,
however, where any such default cannot reasonably be cured within said period,
TENANT shall not be deemed to be in default under this Lease if TENANT commences
to cure such default within said period and thereafter diligently pursues such
cure to completion.
In the event of TENANT default, LANDLORD may, at LANDLORD'S option, cure
TENANT'S default at TENANT'S expense or terminate this Lease without affecting
its rights to demand, ▇▇▇ for, and collect all of its damages arising out of
TENANT'S failure to comply.
B. Notwithstanding anything in this Lease to the contrary, LANDLORD shall
not be in default under this Lease until 30 days after actual receipt of written
notice of any breach from TENANT, which breach is not cured within said time;
provided, however, where any such default cannot reasonably be cured within said
period, LANDLORD shall not be deemed to be in default under this Lease if
LANDLORD commences to cure such default within said period and thereafter
diligently pursues such cure to completion. In the event of LANDLORD's default,
TENANT may, at TENANT'S option, cure LANDLORD's default at LANDLORD's expense
(which expense may, at TENANT'S option, be deducted from rent) or terminate this
Lease without affecting its rights to demand, ▇▇▇ for, and collect all of its
damages arising out of LANDLORD's failure to comply.
C. The rights and remedies stated in this Lease are not exclusive. The
parties, in the event of a default under this Lease, are entitled to terminate
this Lease or pursue any of the remedies provided in this Lease, by law, or by
equity subject to any limitations contained herein. Notwithstanding any
provision of this Agreement, both LANDLORD and TENANT agree and acknowledge that
the only entity with a right of action against LANDLORD under or pursuant to
this Agreement is the TENANT and not any other third party.
D. No course of dealing between the parties or any delay on the part of a
party to exercise any right it may have under this Lease shall operate as a
waiver of any of the rights hereunder or by law or equity provided, nor shall
any waiver of any prior default operate as the waiver of any subsequent default;
and no express waiver shall affect any term or condition other than the one
specified in such waiver, and that one only for the time and manner specifically
stated.
8. Insurance: TENANT, at its expense, shall maintain in force during the
Term a combined single limit policy of bodily injury and property damage
insurance, with a limit of not less than $1,000,000.00 insuring LANDLORD and
TENANT against all liability arising out of the use, occupancy, or maintenance
of the Leased Property and appurtenant areas by TENANT, including the
Communications Equipment and the Tower. A certificate of insurance will be
provided if requested.
9. Taxes: TENANT shall pay annually during the Term an amount equal to
any increase in LANDLORD's real estate taxes, and such other assessments
directly attributable to any Improvement to the Leased Property made by TENANT
or TENANT'S sublessees. If such tax is paid by LANDLORD, TENANT shall reimburse
LANDLORD for the amount of any such tax payment within 60 days of receipt of
sufficient documentation indicating the amount paid and calculation of TENANT'S
pro-rata share; such documentation shall be deemed sufficient only if it
definitively evidences that portion of the tax increase arising directly out of
the Improvement such as, by way of example, the relevant tax assessor's
designation of the value of such Improvement. Upon written request by TENANT,
LANDLORD shall furnish evidence of payment of all taxes and assessments on the
Tract.
10. Sale of the Tract: Should LANDLORD at any time during the Term decide
to sell or lease all or any part of the Tract, LANDLORD shall provide TENANT
with written notice of the name, telephone number, and address of the proposed
purchaser or tenant not less than 60 days prior to the date of the consummation
of such sale or lease and such sale or lease shall be subject to this Lease and
TENANT'S rights hereunder.
11. LANDLORD's Use of the Leased Property. LANDLORD hereby reserves unto
itself, its successors and assigns, the right to use the Leased Property for any
purpose or use which does not unreasonably interfere with the rights and uses
granted to TENANT herein; specifically, LANDLORD reserves the right to install
over, under, across and through the Leased Property created by this instrument
such electric, gas or communications lines, roadways, and any other facilities
as LANDLORD may deem necessary or advisable or desirable in or for the conduct
of its business.
12. Covenant of Quiet Enjoyment: LANDLORD covenants that TENANT shall, upon
paying the rent and observing the other covenants herein upon its part to be
observed, and subject always to the needs of LANDLORD regarding its operations,
peaceably and quietly hold and enjoy the Leased Property during the Term without
hindrance, ejection or molestation by LANDLORD or any person or entity
whomsoever subject to LANDLORD'S rights of termination. LANDLORD covenants that
LANDLORD is seized of good and sufficient title and interest to the Tract,
including the Leased Property, and has full authority to enter into and execute
and perform this Agreement.
13. Subordination and Non-Disturbance: At LANDLORD's option, this Agreement
shall be subordinate to any deed to secure debt, deed of trust, mortgage or
similar instrument (collectively "Mortgage") by LANDLORD which from time to time
may encumber all of part of the Leased Property; provided, however, the holder
of every such Mortgage shall recognize the validity of this Agreement in the
event of a foreclosure of LANDLORD's interest and TENANT'S right to remain in
occupancy of the Leased Property as long as TENANT is not in default of this
Agreement by executing a non-disturbance agreement in a form reasonably
acceptable to TENANT, which action shall constitute a condition precedent to the
effectiveness of such subordination. TENANT shall execute in a timely manner
whatever instruments as may reasonably be required to evidence this
subordination clause.
14. Hazardous Substances: In the event Hazardous Substances, as said term
is hereinafter defined, are discovered on, in or under the Leased Property as of
the date of commencement of this Lease or hereafter, except as a result of any
act or omission of TENANT or any third party, LANDLORD, at its sole expense, may
elect to institute and complete all proper, requisite and thorough procedures
for the removal of such Hazardous Substances in accordance with all applicable
laws, rules, ordinances, and regulations (the "Removal"). Unless such Hazardous
Substances are deposited in, on, or under the Leased Property by an act or
omission of TENANT or any third party, LANDLORD shall indemnify and hold TENANT
harmless against any claims arising out of such Hazardous Substances, including
all of TENANT'S attorneys' fees and costs, which indemnity shall survive
termination of this Lease (the "Indemnity"). TENANT assumes full responsibility
for insuring that its use of the Leased Property and the use of the Leased
Property by sublessees/assignees will not result in contamination of or other
impairment of the environmental values of it or the surrounding area. TENANT
agrees to fully protect, indemnify and hold LANDLORD harmless from and against
any and all claims for natural resource damages or environmental impairment
resulting directly or indirectly from TENANT'S use of the Leased Property. In
the event Hazardous Substances are discovered on, in or under the Leased
Property solely as a result of any act or omission of TENANT, TENANT shall be
obligated immediately to conduct the Removal with respect to and to provide the
Indemnity to LANDLORD as to claims arising out of such Hazardous Substances. Any
violation of these prohibitions shall, in addition to the provisions
hereinabove, render TENANT liable to LANDLORD for any costs, including legal
fees, incurred by LANDLORD in regards to any resulting citations, penalties or
claims of any and all governmental agencies having responsibilities for
environmental matters, and for any natural resource damage resulting from such
violation. In the event Hazardous Substances are discovered on, in or under the
Leased Property solely as a result of any act or omission of any
sublessee/assignee, such sublessee/assignee(s) shall be obligated immediately to
conduct the Removal with respect to and to provide the Indemnity to LANDLORD as
to claims arising out of such Hazardous Substances. Any violation of these
prohibitions shall, in addition to the provisions hereinabove, render such
sublessees/assignees liable to LANDLORD for any costs, including legal fees,
incurred by LANDLORD in regards to any resulting citations, penalties or claims
of any and all governmental agencies having responsibilities for environmental
matters, and for any natural resource damage resulting from such violation. For
the purposes hereof, "Hazardous Substances" means pollutants, contaminants,
toxic or hazardous substances or wastes, oil or petroleum products, flammables
or any other substances whose nature and/or quantity of existence, use, release,
manufacture or effect renders it subject to clean up under any Federal, state or
local environmental, health, community awareness or safety laws or regulations,
now or hereafter enacted or promulgated by any governmental authority or court
ruling.
15. Assignment and Subletting: TENANT shall not voluntarily assign or
encumber its interest in this Lease or in the Leased Property, or sublease all
or any part of the Leased Property, without LANDLORD'S prior written consent.
TENANT shall provide written notification to LANDLORD 30 days prior to any such
assignment or subletting. Any assignee or successor of TENANT shall agree in
writing to assume and perform all of the terms and conditions of this Lease on
TENANT'S part to be performed from and after the effective date of such
assignment and shall enjoy all of the rights and privileges of TENANT under this
Lease, but such assignment shall not operate to release TENANT of its
liabilities and obligations arising hereunder after the date of such assignment.
Notwithstanding anything contained herein to the contrary, TENANT may lease
space on the tower to be constructed by it on the Leased Property, may grant
easement rights thereto, and may sublet portions of the Leased Property for the
placement of communications equipment and the construction of communications
shelters, to sublessee without the consent of LANDLORD. Nevertheless, there
shall be coordination and consultation with LANDLORD regarding the site and
location of any equipment and communications shelters and access thereto. In the
event LANDLORD determines that such leasing and/or subletting will cause
interference with LANDLORD's operations, TENANT will make such accommodations as
are reasonably requested by LANDLORD to eliminate or minimize such
interferences.
16. Notices: All notices hereunder must be in writing and shall be deemed
validly given if sent by certified mail, return receipt requested, or by courier
or by overnight delivery, addressed as follows (or to any other address that the
party to be notified may have designated to the sender by like notice):
TENANT: SCANA Communications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LANDLORD: South Carolina Electric and Gas Company
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
17. Tenant Mortgage: LANDLORD covenants and agrees that, at all times
during the continuance of this Agreement, TENANT shall have the right to
mortgage or convey by deed of trust or other instrument adequate for the purpose
of securing any bona fide indebtedness of TENANT this Lease or the leasehold
interest of TENANT created hereby, together with all of TENANT'S right, title
and interest in and to the Improvements, and any equipment, towers or trade
fixtures placed on the Leased Property by TENANT, provided always that no such
mortgage, conveyance or encumbrance, or any foreclosure thereof, or any purchase
thereunder, shall materially impair or abridge the rights of LANDLORD. LANDLORD
acknowledges that any lien that it may have against such Improvements,
equipment, towers, or trade fixtures shall be junior and subordinate to such
lender. If requested by Tenant to do so, Landlord shall execute a lien
subordination in the form reasonably requested by such lender and will provide
such lender with notice of a default by TENANT hereunder and a right to cure
such default for 30 days after the receipt of such notice (unless this Lease
provides for a shorter period of cure, in which case such shorter period shall
apply).
18. Condemnation: If the whole of the Leased Property or such portion
thereof as will in TENANT'S sole judgment make the Leased Property unusable for
the purposes herein leased, are condemned by any legally constituted authority
for any public use or purpose, then in either of said events the term hereby
granted shall cease from the time when possession thereof is taken by public
authorities, and rental shall be accounted for as between LANDLORD and TENANT as
of that date. Any lesser condemnation shall cause the rental payable hereunder
to be reduced by such percentage as the area so condemned bears to the entire
Leased Property. Nothing in this provision shall be construed to limit or affect
TENANT'S right to an award of compensation in any eminent domain proceeding for
the Improvements or TENANT'S leasehold interest hereunder.
19. Tests: Upon notice to LANDLORD, TENANT is hereby given the right to
conduct surveys, soil tests, radio coverage tests, and any other test or
investigation needed in TENANT'S determination to or from the Leased Property
and the Tract to determine if the physical condition of the Leased Property is
suitable for TENANT'S uses hereunder. TENANT must coordinate with LANDLORD prior
to any invasive tests, to avoid any interferences with any of LANDLORD'S
operations.
20. Termination: TENANT shall have the right to terminate this Lease at any
time upon the occurrence of any of the following events:
(A) If the approval of or issuance of a license or permit by any agency,
board, court or other governmental authority necessary for the construction
and/or operation of the Communications Facility or the Improvements as described
herein (the "Approvals") cannot be obtained, or is revoked (unless such
revocation is the result of an illegal or improper act on the part of TENANT or
TENANT, in TENANT'S discretion, determines that the cost of obtaining or
retaining such Approvals is unreasonable; or
(B) If TENANT determines, in its reasonable discretion exercised as soon
as such conditions became apparent, based upon soil bearing tests, radio
frequency propagation tests, or interference with TENANT'S reception or
transmission, that the Leased Property is inappropriate for the uses set forth
herein.
Upon not less than 30 days written notice of termination of this Lease by
TENANT pursuant to the terms of Subsections (A) or (B) above, or in the event
that the Approvals described in Subsection (A) above have not been received by
TENANT within 365 days (the "Cancellation Date") from the latest date of the
execution of this Lease by any party (the "Execution Date"), this Lease shall
automatically terminate and neither party shall have any further rights or
obligations arising hereunder, except that TENANT shall have the right to remove
the Communications Facility and any Improvements from the Leased Property upon
receiving consent of LANDLORD to remove such, and except for those rights and
obligations that are to survive the termination of this Lease pursuant to the
express terms of this Lease. Notwithstanding the foregoing, LANDLORD retains the
right to purchase or lease any Improvements or facilities on the Leased Property
from TENANT at LANDLORD'S request. Following the Execution Date, TENANT shall
make a diligent reasonable effort to obtain all of the Approvals. LANDLORD
agrees to cooperate with TENANT in securing all of the Approvals referenced in
Subsection (A) above so long as said Approvals do not interfere with LANDLORD'S
operations. Upon the request of TENANT, LANDLORD shall execute and deliver such
forms and applications as are necessary and appropriate to obtain such
Approvals. TENANT reserves the right to contest and/or appeal, to the extent
determined by TENANT in TENANT'S sole discretion, any adverse governmental or
judicial decision or determination relative to the issuance of any such
Approval. All costs arising out of the procurement of such Approvals shall be
borne by TENANT.
21. Force Majeure: Neither party shall be liable to the other for any loss
or damage due to the failure or delay in performance hereunder resulting from
any cause beyond such party's reasonable control, including, but not limited to
acts of God; acts or omissions of civil or military authority; acts or omissions
of the other party hereto; fires; floods; epidemics; quarantine restrictions;
strikes or other labor disputes; wars or warlike circumstances; or compliance
with applicable regulations or directives of national, state or local
governments or any department thereof (except, however, that neither party shall
be relieved from liability stemming from compliance with a lawful directive of a
governmental authority if the directive is in response to the failure of the
affected party to comply with its regulatory compliance obligations). The party
asserting the force majeure as an excuse from performance shall give the other
party notice verbally within 24 hours of the occurrence of a force majeure
event, confirmed in writing within 10 days thereafter, such notice to state the
nature of the event and the anticipated length of delay. Such party shall take
all reasonable steps to mitigate the effects of any force majeure event
(provided, however, that this shall not require settlement of labor disputes
that are negotiated in good faith).
22. Disclaimer of Warranties: LANDLORD and TENANT each disclaims any and
all warranties of any type, except for those specifically set forth in this
Lease. EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
23. Miscellaneous:
A. This Agreement contains all agreements, promises and understandings
between LANDLORD and TENANT; and no verbal or oral agreements, promises or
understandings relating to the Leased Property, the Tract, the Improvements or
any other matter discussed herein shall be binding upon either LANDLORD or
TENANT in any dispute, controversy or proceeding at law. Any addition, variation
or modification to this Agreement shall be void and ineffective unless made in
writing and signed by the parties. Headings are included for convenience of
reference only and neither limit nor amplify the terms of this Lease.
B. This Agreement and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State where the Leased
Property is located.
C. This Agreement shall inure to the benefit of and be binding upon the
heirs, executors, personal representatives, successors and assigns of the
parties hereto.
D. Whenever under this Lease the consent or approval of either party is
required or a determination must be made by either party, no such consent or
approval shall be unreasonably withheld or delayed, and all such determinations
shall be made on a reasonable basis and in a reasonable manner.
E. If any paragraph, section, subsection, provision, sentence, clause or
portion of this Agreement is determined to be illegal, invalid or unenforceable,
such determination shall in no way affect the legality, validity or
enforceability of any other paragraph, section, subsection, provision, sentence,
clause or portion of this Agreement; and any such affected portion or provision
shall be modified, amended, or deleted to the extent possible and permissible to
give the fullest effect to the purposes of the parties and to this Agreement,
and the parties hereby declare that they would have agreed to the remaining
parts of this Agreement if they had know that such provisions or portions hereof
would be determined to be illegal, invalid, or unenforceable.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their respective seals the day and year first above written.
WITNESS: LANDLORD:
___________________________ South Carolina Electric & Gas Company
BY: ____________________________
___________________________ ITS: ____________________________
Attest:
BY: ________________________
ITS: Secretary
STATE OF SOUTH CAROLINA )
COUNTY OF ______________ )
PERSONALLY APPEARED before me the undersigned witness and made oath that
(s)he saw the within-named SOUTH CAROLINA ELECTRIC & GAS COMPANY, by
______________________________, its _________________________________, and
________________________, its Secretary, sign, seal and as its act and deed,
deliver the within-written instrument and that (s)he with the other witness
named above witnessed the execution thereof.
________________________________
SWORN to before me this
____________ day of __________, 200__.
________________________________ (LS)
Notary Public for South Carolina
My Commission Expires: ____________
WITNESS: TENANT:
___________________________ SCANA Communications, Inc.
BY: ____________________________
___________________________ ITS: ____________________________
Attest:
BY: _______________________
ITS: Secretary
STATE OF SOUTH CAROLINA )
COUNTY OF ______________ )
PERSONALLY APPEARED before me the undersigned witness and made oath that
(s)he saw the within-named SOUTH CAROLINA ELECTRIC & GAS COMPANY, by
____________________, its _________________________________, and
__________________, its Secretary, sign, seal and as its act and deed, deliver
the within-written instrument and that (s)he with the other witness named above
witnessed the execution thereof.
________________________________
SWORN to before me this
____________ day of __________, 200__.
________________________________ (LS)
Notary Public for South Carolina
My Commission Expires: ____________
EXHIBIT A
________________________ SITE
Tower Lease Description
Description to be inserted upon receipt of plat. Exact location shall be
contingent on approval by LANDLORD.
Derivation: Deed Book _____ at Page _____
Tax Map Number: _____________________
Ingress and Egress Area
Access into the parcel is granted only to the extent that LANDLORD has the
authority to do so and shall be across the existing entrance road into the
Tract.