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EXHIBIT 10.33
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MASTER SITE LEASE AGREEMENT
BETWEEN
NEXTEL OF NEW YORK, INC.,
NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.,
NEXTEL SOUTH CORP.,
NEXTEL OF TEXAS, INC.,
NEXTEL WEST CORP.,
AND NEXTEL OF CALIFORNIA, INC.
AND
TOWER ASSET SUB, INC. AND
LANDLORD PARTIES AS DEFINED HEREIN
Dated as of _______ __, 1999
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TABLE OF CONTENTS
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RECITALS1
1. Incorporation of Recitals; Definitions5
2. Master Lease5
3. Premises6
4. Use6
5. Term6
6. Rent7
7. Facilities; Utilities; ▇▇▇▇▇▇▇
▇. Interference11
9. RF Compliance12
10. Taxes13
11. Waiver of Liens13
12. Termination13
13. Destruction or Condemnation14
14. Insurance14
15. Waiver of Subrogation15
16. Assignment and Subletting16
17. Warranties; Quiet Enjoyment17
18. Installations, Replacements, Maintenance and Repairs18
19. Right of First Refusal20
20. Hazardous Substances21
21. Indemnity22
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22. Tower Marking and Lighting Requirements22
23. Estoppels/SNDAS23
24. Prime Lease23
25. Conduct of Landlord24
26. Tests and Contingencies24
27. Default; Remedies; Dispute Resolution25
28. Miscellaneous27
Exhibits A-1 Site Schedule
A-2 Site Schedule (Microwave)
Exhibit B Estoppel Certificate
Exhibit C Subordination, Non-Disturbance and Attornment Agreement
Exhibit D Memorandum of Agreement
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MASTER SITE LEASE AGREEMENT
This Master Site Lease Agreement ("Lease") is entered into as of the
_____ day of April, 1999 (the "Closing Date"), between Nextel of New York,
Inc., a Delaware corporation, Nextel Communications of the Mid-Atlantic, Inc.,
a Delaware corporation, Nextel South Corp., a Georgia corporation, Nextel of
Texas, Inc., a Texas corporation, Nextel West Corp., a Delaware corporation and
Nextel of California, Inc., a Delaware corporation, each d/b/a Nextel
Communications (hereafter individually or collectively, as the context may
require, "Tenant"), and Tower Asset Sub, Inc., a Delaware corporation ("Tower
Sub") (together with its successors and assigns and the Landlord Parties
described herein, in each case individually or collectively, as the context may
require, "Landlord").
RECITALS
A. Tenant is licensed by the Federal Communications Commission ("FCC")
to construct and operate communications systems, including specialized mobile
radio ("SMR"), throughout the United States.
B. Nextel Communications, Inc., a Delaware corporation ("Nextel"),
Tower Parent Corp., a Delaware corporation ("Parent Co."), Tower Merger
Vehicle, Inc., a Delaware corporation ("Merger Sub"), Tower Sub, SpectraSite
Holdings, Inc., a Delaware corporation ("Tower Aggregator") SpectraSite
Communications, Inc., a Delaware corporation ("SCI"), and SHI Merger Sub, Inc.,
a Delaware corporation ("SHI Merger Sub") are parties to a certain Agreement
and Plan of Merger dated as of February 10, 1999, as amended (the "Merger
Agreement"). The Merger Agreement contemplates, among other things, that (i)
prior to the merger of SHI Merger Sub with and into Merger Sub (the "Merger"),
Tenant will transfer to Parent Co. and Parent Co. will, in turn, transfer to
Tower Sub, certain towers and other improvements (defined as "Existing Towers"
and "Additional Towers" in the Merger Agreement), and (ii) from time to time
after the consummation of the Merger (the "Closing"), certain Affiliates (as
hereinafter defined) of Nextel will sell, transfer or assign to Tower Sub
certain towers and other improvements, the construction of which is completed
after the Closing by or for Tenant or to which Tenant otherwise acquires rights
after the Closing (such additional towers and other improvements are defined as
or are otherwise deemed to be "Purchased New Sites" and "Constructed New Sites"
in, and such transfers and assignments will be undertaken pursuant to, the
terms of that certain Master Site Commitment Agreement dated as of the Closing
Date (the "Master Site Commitment Agreement")). The Existing Towers, the
Additional Towers, the Purchased New Sites, and the Constructed New Sites are
collectively referred to herein as the "Towers Package," and the various
transactions in which Tower Sub or its successors and assigns acquire any
portion or all of the Towers Package are referred to herein as the "Towers
Transactions." "Affiliate" shall have the meaning set forth in Rule 12(b)-2
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
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C. It is the intent of the parties to this Lease that this Lease sets
forth the monthly rental rate and related adjustment procedures set forth in
Section 6 of this Lease, the terms relating to the payment of Rent set forth in
Section 6 of this Lease, the terms relating to the payment of taxes set forth
in Section 10 of this Lease, the terms relating to the procurement and
maintenance of insurance coverage set forth in Section 14 of this Lease and the
terms relating to the monthly rates for installation of microwave antennas and
other additional equipment set forth in Section 6 of this Lease (such terms
being collectively referred to herein as the "Economic Terms") and all the
other terms and conditions (all of the terms and conditions contained in the
body of this Lease, but excluding all Economic Terms, herein called the
"Substantive Terms and Conditions") that are applicable to each relevant
Tenant's (including, as appropriate, such Tenant's successors and permitted
assigns) lease and/or sublease of platform space on the towers and the right to
use and/or benefit from other improvements included within the Towers Package
(including any related interests in real property contained in such Towers
Package, on which such towers and other improvements are situated or which
otherwise benefit or provide access to such towers and other improvements; such
related interests in real property, with reference to any particular tower,
individually an "Existing Site" and collectively the "Existing Sites").
D. The parties also intend that, with respect to each relevant
Tenant's (including as appropriate, such Tenant's successors and permitted
assigns) lease and/or sublease of platform space on towers and of space on
other communications sites (such as, by way of example and not limitation,
rooftops and water tanks) and the right to use and/or benefit from other
improvements (including related interests in real property of a nature
comparable or equivalent to the Existing Sites and the Landlord Sites, as
hereinafter defined) pursuant to leases, licenses, co-location or other similar
agreements (collectively, "Pre-existing Agreements") that either are (i) in
effect on the date hereof between such Tenant and Tower Aggregator (or any
controlled Affiliate of Tower Aggregator) or (ii) in effect on the date hereof
or are hereafter entered into, in either case between such Tenant and any third
party other than Tower Aggregator (or any controlled Affiliate of Tower
Aggregator) which, subsequent to the date on which the relevant Pre-existing
Agreement(s) are entered into, becomes one of the Landlord Parties hereunder
(individually a "Pre-existing Site" and collectively, "Pre-existing Sites"),
the Economic Terms relating to Pre-existing Sites will continue, but this Lease
shall be deemed to set forth all of the Substantive Terms and Conditions
applicable to Pre-existing Sites and shall replace and supersede in their
entirety all contrary, conflicting or inconsistent terms and conditions now or
hereafter in force or effect.
E. Finally, the parties intend that this Lease set forth the Economic
Terms and the Substantive Terms and Conditions that shall be applicable to each
relevant Tenant's (including, as appropriate, such Tenant's successors and
permitted assigns) lease and/or sublease of platform space on towers and of
space on other communications sites (such as, by way of example and not of
limitation, rooftops and water tanks) and the right to use and/or benefit from
other improvements (including related interests in real property of a nature
comparable or equivalent to the Sites) now owned or hereafter acquired (other
than the Existing Sites and the Pre-existing Sites), at any location in the
United States (including Alaska, Hawaii, Puerto Rico and all other United
States territories, possessions and protectorates), by Landlord, any successor
in interest to Landlord, or any controlled Affiliate of Landlord (the "Landlord
Parties") (individually a
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"Landlord Site" and collectively, "Landlord Sites"). The Existing Sites,
Pre-existing Sites and Landlord Sites are sometimes referred to individually in
this Lease as a "Site" and collectively as the "Sites."
F. As further consideration for the sale, transfer, assignment and
Merger, Landlord and Tenant have agreed to stagger the initial terms of this
Lease as it relates to the Existing Sites (other than those relating to
Constructed New Sites and Purchased New Sites).
G. Landlord and Tenant have agreed to execute and deliver Site
Schedules for each Existing Site, each Pre-existing Site and each Landlord Site
described in the foregoing recitals, which shall be attached to and made a part
of this Lease, with each such Site to be subject to the terms and conditions
hereinafter set forth in this Lease.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. INCORPORATION OF RECITALS; DEFINITIONS. Each of the foregoing recitals is
incorporated and made a part of this Lease as if restated in its entirety
herein. Whenever used in this Lease, any noun or pronoun will be deemed to
include both the singular and plural and to cover all genders. Unless otherwise
specified, the terms "hereof", "herein" and similar terms refer to this Lease
as a whole, and references to sections or paragraphs refer to sections or
paragraphs of this Lease.
2. MASTER LEASE. (a) This Lease sets forth the Substantive Terms and
Conditions upon which a portion of each Existing Site, each Pre-existing Site
and (subject to Subparagraph 2(b) hereof) each Landlord Site is leased or
licensed by Landlord to Tenant and the Economic Terms upon which a portion of
each Existing Site and Landlord Site is leased or licensed by Landlord to
Tenant. For purposes of this Lease, the term "lease" shall mean lease,
sublease, license or sublicense, as the context may require for any Site. The
parties shall execute and attach hereto one or more, as applicable, "Site
Schedules" in the forms set forth on Exhibits A-1 and A-2 (Microwave) which are
incorporated herein by this reference for each Existing Site, each Pre-existing
Site and (subject to Subparagraph 2(b) hereof) each Landlord Site subject to
this Lease. The terms and conditions of this Lease shall govern and control in
the event of a discrepancy or inconsistency with the terms and conditions of
any Site Schedule. Site-specific terms which apply only to a particular Site
shall be set forth on the Site Schedule.
(b) Landlord and Tenant have agreed that any Landlord Site now or
hereafter owned or controlled by Landlord or any controlled Affiliate of Tower
Aggregator shall, subject to the provisions of Section 2.5(c) of the Master
Site Commitment Agreement, be made available for lease by Landlord or any
controlled Affiliate of Tower Aggregator to Tenant. Landlord shall, no less
frequently than every thirty (30) days, notify Tenant in writing of all
Landlord Sites owned or controlled by Landlord or any controlled Affiliate of
Tower Aggregator, as well as each such Landlord Site's latitude, longitude,
available capacity, available ground space and any other pertinent information
available to Landlord or any controlled Affiliate of Tower Aggregator, with
such list and information to be in a form reasonably acceptable to Tenant.
Landlord shall
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use best efforts to make capacity and/or space available on any Landlord Site
desired by Tenant subject to the available capacity and space of such Landlord
Site. Tenant shall have the right, to be exercised by providing notice to
Landlord, to lease any such Landlord Site on the Substantive Terms and
Conditions and Economic Terms set forth in this Lease, whereupon the parties
shall execute and attach hereto a Site Schedule for such Landlord Site.
3. PREMISES. Landlord either owns, leases or licenses (or in the future will
own, lease or license) the Sites and the improvements thereon, which
improvements may include, without limitation, buildings, water tanks, poles and
tower structures (the "Antenna Sites"). If Landlord leases or licenses any
Site, Landlord shall provide Tenant upon request with a copy of Landlord's
lease or license and all amendments or modifications thereto (the "Prime
Lease"), which will be attached to each affected Site Schedule as Exhibit 4. If
required by the terms of the Prime Lease, Landlord shall use best efforts to
obtain the written consent of the prime landlord or licensor to this Lease and
the relevant Site Schedule which shall include specifically the consent to
Tenant's rights pursuant to Section 16 of this Lease; provided, however, that
the Landlord shall have no obligation to obtain the written consent of the
prime landlord or licensor with respect to any Site transferred under and
pursuant to the Merger Agreement. If Landlord shall fail to obtain such
required written consent of the prime landlord or licensor for any Sites other
than Sites being transferred under and pursuant to the Merger Agreement at
Closing, then Tenant shall not be obligated to enter into a Site Schedule for
such Site. Upon execution of each Site Schedule (but subject to Section 28(m)
of this Lease) and subject to the terms and conditions of this Lease and the
Site Schedule, Landlord hereby leases to Tenant, and Tenant leases from
Landlord, space on each Site as more particularly described in each Site
Schedule and space on the related Antenna Site (collectively, the "Premises")
and grants Tenant the right, subject to the rights of existing tenants, to
install and maintain transmission and utility wires, poles, cables, conduits
and pipes on each Site including over, under or along a right-of-way extending
from the nearest public right-of-way to the Premises; said Premises and
right-of-way for access being substantially as described in Exhibits 1 and 2
annexed to each individual Site Schedule. For all Existing Sites included in
the Towers Package for which Tenant has provided the Site Acquisition Work (as
defined in the Master Site Commitment Agreement) Tenant agrees that whatever
description of the Premises and access thereto is provided by Tenant in
connection with Tenant's transfer and assignment of such Existing Sites to
Landlord (or its predecessor in interest) shall be the description utilized in
the Site Schedules for such Existing Sites.
4. USE. The Premises may be used by Tenant for any activity in connection
with the provision of communications services subject to the terms, covenants
and conditions of this Lease.
5. TERM.
(a) The term ("Term") of Tenant's right to use any Site shall be five (5)
years commencing on the date specified in the Site Schedule ("Commencement
Date"), and terminating on the fifth anniversary of the Commencement Date except
that the initial term for the Existing Sites (other than those relating to the
Purchased New Sites and the Constructed New Sites) shall be divided as equally
as possible into five (5), six (6), seven (7) and eight (8) years, unless
earlier terminated by Tenant as set forth herein, which Term shall be specified
in the Site
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Schedules. Unless the Tenant is then in default beyond all applicable notice
and cure periods, Tenant shall have the right to extend the Term of its rights
to each Site for five (5) successive five (5) year periods ("Renewal Terms") on
the same terms and conditions as set forth herein or such shorter term as may
be provided in any Prime Lease. The right to use a Site shall automatically be
extended for each successive Renewal Term unless Tenant notifies Landlord of
its intention not to renew prior to commencement of the succeeding Renewal
Term. If the Prime Lease is extended, the number of Renewal Terms hereunder
shall automatically be increased to correspond with the maximum term, including
options, available under the Prime Lease.
(b) Subject to the term of the Prime Lease, Tenant may elect, upon
expiration of the final Renewal Term set forth above, to further extend the
term of its right to use any Site on the same terms and conditions set forth
herein.
(c) Subject to the provisions of Section 24 hereof, if Tenant shall
hold possession of the Premises after the expiration or earlier termination of
the Term or any Renewal Term or pending negotiation of an extension, Tenant's
right to use such Premises shall automatically without notice become a
month-to-month lease on the same terms and conditions set forth herein, and
Tenant's possession hereunder a month-to-month tenancy.
(d) Tenant shall have the right, which shall be expressly limited to
one time per Site Schedule per Term, to trade or exchange the Term of any
particular Site for the Term of another Site, upon written notice to Landlord,
which written notice shall specify with particularity which Site expiration
dates and Sites are being exchanged, and which notice shall constitute an
amendment to the two affected Site Schedules. For example, during the initial
Term, Tenant may elect to exchange the expiration date of a Site having an
eight (8) year Term with the expiration date of another Site having a five (5)
year Term, but may not thereafter initiate another exchange or trade of
expiration dates for such Sites until after the end of the then-current Terms
as to such Sites.
(e) This Lease shall remain in effect until expiration or termination
of Tenant's right to use all Sites made available pursuant to this Lease.
6. RENT. (a) Within 15 days of the Commencement Date for each Site (other
than a Pre-existing Site) subject to this Lease at any time, and on the first
day of each month thereafter, Tenant shall pay to Landlord as rent One Thousand
Six Hundred and 00/100 Dollars ($1,600.00) per month ("Rent") for each Existing
Tower, each Additional Tower, each Constructed New Site, each Purchased New
Site, and each Landlord Site, in consideration of Landlord's covenants and
obligations set forth in this Lease and Landlord's agreement to lease and
demise to Tenant space on the Antenna Sites on the Premises that is sufficient
for the installation and operation of the following or equivalent items:
-- Twelve (12) panel antenna array.
-- Two (2) GPS units: one (1) operational and one (1) backup,
with 1/2" coax to each unit. GPS units must have an
unobstructed view of the sky.
-- Three (3) Tower Top Amplifiers (TTA). Each TTA
will have two(2) runs of 7/8" coax. TTA
locations also require one (1) additional run
of 7/8" coax for use as a
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test line.
-- Each antenna will have 1 5/8" coax runs. Antennas will have
twenty (20) foot vertical antenna separation between antenna
mounts.
-- One air conditioned shelter not to exceed 10' x 20'; together
with adequate pad space.
-- One standby generator; together with adequate pad or shelter
space for same.
Rent for any fractional month at the beginning or at the end of a Term or
Renewal Term shall be prorated. On each annual anniversary of each Commencement
Date, the Rent shall be increased by three percent (3%) over the preceding
year's Rent amount. Rent shall be payable to Landlord at SpectraSite
Communications, Inc., SpectraSite Communications, Inc., ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Accounts Receivable.
(b) Provided that additional capacity is or can be made available at
the Premises and subject to the rights of existing tenants to space on the
Site, Tenant shall have the right, at its sole option, to lease additional
space on the Premises that is sufficient to permit Tenant to add one or more
additional sets of Tenant Facilities (defined in Section 7(a)) or equivalent.
If Tenant shall exercise its option to add additional sets of Tenant Facilities
on any Site pursuant to this subparagraph, Landlord and Tenant shall execute a
new Site Schedule for each such additional Tenant Facilities, which shall be
governed by the terms of this Lease as applied to such Site Schedule. For each
new additional Site Schedule executed for additional Tenant Facilities on a
Merger Site (as defined in the Master Site Commitment Agreement), Tenant shall
pay to Landlord as rent an amount equal to $1,600.00 per month, increased by
three percent (3%) for each anniversary of the Closing Date (as defined in the
Merger Agreement) which shall have passed prior to the Commencement Date of
such new Site Schedule. For each new additional Site Schedule executed for
additional Tenant Facilities on a Constructed New Site or Purchased New Site,
Tenant shall pay to Landlord as rent the amount of $1,600.00 per month,
increased by three percent (3%) for each anniversary of the Commencement Date
of the original Site Schedule for such Constructed New Site or Purchased New
Site. Any additional rent or payments payable under new additional Site
Schedules executed pursuant to this subparagraph 6(b) shall be deemed to be
"Rent" for all purposes of this Lease, including without limitation the terms
of this Lease providing that Rent shall be increased by three percent (3%) on
each anniversary of each Commencement Date. The determination of whether
additional capacity exists to accommodate the installation of one or more sets
of additional Tenant Facilities shall be made by Landlord in Landlord's
reasonable discretion and shall include a consideration of strutural and
wind-loading capacity of the tower including the then existing installations on
the tower and any equipment which may be installed on the tower in the future
pursuant to a binding agreement that has been entered into by Landlord. If
additional capacity can be made available by modifying or reinforcing the
existing tower structure, Tenant shall have the right to make such
modifications or reinforcements at its cost and expense, provided such
modifications or reinforcements comply with all applicable laws, are consistent
with the recommendations of any structural analysis or report undertaken for
such tower and do not interfere with the Tenant Facilities of other tenants or
the operation thereof.
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(c) In addition, provided that additional capacity is or can be made
available at the Premises, Tenant shall have the right, at its sole option and
expense, to install microwave antennas for a monthly rental payment of One and
50/100 Dollars ($1.50) per linear foot per microwave antenna mounting height,
using standard microwave cabling, plus (i) $0 for antenna dishes less than or
equal to two (2) feet in diameter, (ii) $100 for antenna dishes more than two
(2) feet but less than or equal to four (4) feet in diameter, (iii) $200 for
antenna dishes more than four (4) feet but less than or equal to six (6) feet
in diameter, and (iv) $300 for antenna dishes more than six (6) feet in
diameter. All grid dishes must contain de-icers and all dishes larger than two
(2) feet in diameter must contain a radome cover. Installations above 250 feet
are subject to Landlord's reasonable review and approval. The parties shall
execute a new Site Schedule in the form set forth on Exhibit A-2 if any of the
foregoing equipment is placed on a Site. Any additional rent or payments
payable under a new Site Schedule executed pursuant to this subparagraph 6(c)
shall be deemed to be "Rent" for all purposes of this Lease, including without
limitation the terms of this Lease providing that Rent shall be increased by
three percent (3%) on each anniversary of each Commencement Date.
(d) The foregoing Rent provisions shall not apply to the Pre-existing
Sites for the duration of the then current term of the Pre-existing Agreement,
but all other Substantive Terms and Conditions of this Lease shall apply,
including, without limitation, the right to add additional Tenant Facilities as
set forth in subparagraphs (b) and (c) above. To the extent that any
Pre-existing Agreement contains terms with respect to microwave antennas that
are inconsistent with subparagraph (c), however, the terms of such Pre-existing
Agreement shall govern and shall be described with specificity in the Site
Schedule for such Pre-existing Site. Any existing agreements or contracts
between Landlord and Tenant relating to any Pre-existing Site, other than such
Pre-existing Agreements which are hereby amended and restated and made subject
to this Lease by the execution of each Site Schedule, and any inconsistent
terms (other than the Economic Terms) contained in the Pre-existing Agreements
(except as otherwise preserved herein) are hereby expressly agreed to be null,
void and of no further force and effect.
7. FACILITIES; UTILITIES; ACCESS.
(a) Tenant has the right, subject to the terms and provisions of the
Prime Lease and governmental regulations and approvals, to erect, maintain and
operate on each Premises radio communications facilities, including without
limitation utility lines, transmission lines, air conditioned equipment
shelter(s), electronic equipment, radio transmitting and receiving antennas and
supporting equipment and structures thereto, including poles, cables, conduits,
and pipes over, under or along a right-of-way across the Site from the nearest
public right-of-way, and other accessories appropriate to the successful and
secure operation of its communications facilities all as more particularly
described in Section 6 and on Exhibits 1 and 2 to each Site Schedule
(collectively, the "Tenant Facilities") and Tenant shall be entitled to replace
any thereof from time to time provided that the replacement equipment is no
larger than the original tenant facilities, places no additional structural or
wind load on the tower and requires no additional space other than the
Premises. Tenant shall be responsible for all costs and expenses associated
with the purchase, installation, shipping, maintenance and repair of the Tenant
Facilities. In connection therewith, Tenant has the right to do all work
necessary to prepare, maintain and alter
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the Premises for Tenant's business operations and to install transmission lines
connecting the antennas to the transmitters and receivers. Title to the Tenant
Facilities shall be held by Tenant, and Landlord access to the Tenant
Facilities shall be restricted in any manner that Tenant, in its reasonable
discretion, deems appropriate. All Tenant Facilities shall remain Tenant's
personal property and are not fixtures. Tenant has the right to remove all
Tenant Facilities on or before the expiration or earlier termination of any
Term.
(b) Tenant shall have the right to draw electricity and other
utilities from the existing utilities on each Site or obtain separate utility
service from any utility company that will provide service to the Site.
Tenant's utilities shall be separately metered, and Tenant shall only be
responsible for those utility bills rendered directly to Tenant by the
servicing utility company. Tenant shall be permitted to install and operate a
standby power generator on the Premises, subject to prime landlord approval and
governmental regulations and required approvals, for Tenant's exclusive use.
(c) In the event that T-1 or other comparable transmission service for
the connection of the Tenant Facilities to Tenant's communications network is
unavailable at a Site, Tenant shall have the right to install on a temporary
basis at such Site microwave antennas and related cabling and equipment
("Temporary Microwave Facilities") in lieu of such T-1 or comparable
transmission lines. The parties shall execute a Site Schedule in the form of
Exhibit A-2 for the Temporary Microwave Facilities, provided however that such
Site Schedule shall be for a term of twelve (12) months, terminable by Tenant
during such twelve-month period upon ten (10) days written notice to Landlord
following connection of a T-1 or comparable transmission service to such Site.
Upon the expiration of the foregoing twelve-month period, or any earlier
termination of a Site Schedule for Temporary Microwave Facilities, Tenant shall
have the right to convert the applicable Site Schedule to a full five (5) year
term pursuant to Section 6(c) above by written notice to Landlord. In the event
Tenant shall convert a Site Schedule for Temporary Microwave Facilities, such
converted Site Schedule shall thereafter be governed by Section 6(c) hereof. If
Tenant shall fail to convert any Site Schedule for Temporary Microwave
Facilities, then the same shall expire, and be null and void from and after the
date of expiration.
(d) Unless expressly limited by the terms of a Prime Lease, which
terms must be identified and described on each affected Site Schedule, Tenant,
Tenant's employees, agents, subcontractors, lenders and invitees shall have
access to the Premises without notice to Landlord twenty-four (24) hours a day,
seven (7) days a week, at no charge. Landlord grants to Tenant, and its agents,
employees, contractors, guests and invitees, a non-exclusive right and easement
for pedestrian and vehicular ingress and egress.
(e) Unless otherwise specified in the applicable Site Schedule,
Landlord shall maintain all access roadways from the nearest public roadway to
the Premises in a manner sufficient to allow pedestrian and vehicular access at
all times under normal weather conditions. Landlord shall be responsible for
maintaining and repairing such roadway, at its sole expense.
(f) Landlord acknowledges that the Rent does not include the transport
of signals or the interconnection by Landlord or any third party with Tenant's
communications network.
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(g) All construction, installations and operations in connection with
this Lease by Tenant shall meet with all applicable rules and regulations of
the FCC, FAA (as hereinafter defined) and all applicable codes and regulations
of the city, county, and state concerned. Landlord assumes no responsibility
for the licensing, operation and maintenance of the Tenant Facilities. Tenant
has the responsibility of carrying out the terms of Tenant's FCC license with
respect to tower light observation and notification to the FAA if those
requirements as imposed on Tenant are in excess of those required of Landlord.
Tenant covenants that the equipment and the construction, installation,
maintenance and operation thereof shall not damage the Premises or improvements
or interfere with the use of the Site by Landlord or any tenant whose
operations at the Site pre-date the Commencement Date.
8. INTERFERENCE.
(a) Landlord shall operate each Premises in a manner that will not
cause interference to the Tenant Facilities, and Landlord shall not interfere
with any current or future uses or frequencies employed or to be employed by
Tenant at the Premises. Tenant shall operate its Tenant Facilities at each Site
in a manner that will not cause interference to the lawful operation of
communications equipment of tenants at each such Site which pre-date the
installation of the Tenant Facilities. For purposes of this Section 8 and
Section 9 hereof, Tenant shall be deemed to be the initial tenant operating at
each Constructed New Site and Purchased New Site, regardless of the actual date
of installation of the Tenant Facilities at each such Site.
(b) Landlord shall not permit itself or its other lessees or licensees
to install equipment on the Premises, or property contiguous thereto owned or
controlled by Landlord, if such equipment will cause interference with Tenant's
operations. Tenant shall not install equipment on Premises, or property
contiguous thereto owned or controlled by Landlord, if such equipment will
cause interference with the lawful communications operations of tenants at each
such Site which pre-date the installation of the Tenant Facilities. Landlord
shall and shall require its other lessees or licensees to participate
diligently and in good faith to resolve any interference that affects Tenant.
Subject to Section 8(e), in the event interference occurs, Landlord shall
immediately take all action necessary to eliminate such interference.
(c) Landlord shall comply at all times with FCC and Federal Aviation
Administration ("FAA") regulations, including registration of towers with the
FCC where applicable. Landlord shall be liable to Tenant for any unauthorized
use of the Premises.
(d) Subject to Section 8(e), in the event Landlord fails to remedy
interference caused by the operation of equipment owned by Landlord or other
lessees or licensees within forty-eight (48) hours after receipt by Landlord of
written notice from Tenant describing the existence of material interference,
and in cases of non-material interference, within thirty (30) days of the date
of the receipt of notice from Tenant of the existence of such non-material
interference or Landlord otherwise fails to comply with this Section 8, Tenant
may pursue all remedies available at law and in equity, including, without
limitation, termination of this Lease but solely as it relates to the affected
Site.
(e) Tenant shall operate the Tenant Facilities in compliance with the
Communications
13
Act of 1934, as amended (the "Communications Act") and all requirements and
regulations of the FCC and FAA and to the extent that the Tenant Facilities
experience interference from the operation of equipment owned by Landlord or
other licensees because the Tenant Facilities do not comply with the
requirements and regulations of the FCC, FAA, or any other applicable laws,
rules or regulations, Landlord shall have no obligation to remedy such
interference. Tenant shall at no cost or expense to Tenant cooperate with
Landlord's efforts to resolve any interference with the operation of the Tenant
Facilities.
(f) Tenant agrees to install Tenant Facilities of types and radio
frequencies which will not cause interference to authorized communications
operations being conducted from the Site by Landlord or other occupants of the
Site which are in place as of the Commencement Date. In the event the Tenant
Facilities causes such interference, Tenant will take all steps necessary to
correct and eliminate the interference. If such interference is material and
cannot be eliminated within forty-eight (48) hours after receipt by Tenant of
written notice from Landlord describing the existence of material interference,
and in other cases, if such interference is not material, within thirty (30)
days of the date of the receipt of notice of the existence of the interference,
Tenant shall temporarily disconnect the electric power and shut down the Tenant
Facilities (except for intermittent operation for the purpose of testing, after
performing maintenance, repair, modification, replacement, or other action
taken for the purpose of correcting such interference) until such interference
is corrected. If such interference is not timely corrected after receipt of
written notice as aforesaid, then Landlord may pursue all remedies available at
law and in equity, including, without limitation, termination of this Lease,
but solely as it relates to the affected Site, and Tenant agrees to remove the
Tenant Facilities from such Premises.
9. RF COMPLIANCE.
(a) Landlord shall be solely responsible for ensuring that operations
at each Site do not exceed the radiated power density maximum permissible
exposure ("MPE") limits for workers and the general public specified by the
FCC. Landlord shall at all times operate the Antenna Sites in a manner that
will not cause the Premises to exceed the MPE specified by the FCC.
(b) Landlord shall not permit itself, its lessees or licensees to
install new or replacement equipment on the Premises, or property contiguous
thereto owned or controlled by Landlord, if such equipment is likely to cause
the Premises to exceed the MPE limits for that location. In the event excess
radiated power densities occur, Landlord agrees to take, or to cause any
subsequent lessee or licensee whose use of the Premises results in the FCC
specified MPE limits being exceeded to promptly take, all mitigation action
necessary to eliminate such excess radiated power densities within thirty (30)
days. In the event Landlord fails to comply with this Section 9, Tenant may, in
its sole option, terminate this Lease but in each case only to the extent it
relates to the applicable Site and/or pursue any other remedies available at
law or in equity, including injunctive relief.
10. TAXES. If personal property taxes are assessed on any Premises, Tenant
shall pay any portion of such taxes directly attributable to the Tenant
Facilities. Tenant shall also be solely responsible for the payment of any
taxes, levies, assessments and other charges imposed
14
including franchise and similar taxes imposed upon the business conducted by
Tenant. Tenant shall pay any sales or similar taxes imposed upon the payment or
receipt of Rent hereunder. Landlord shall pay all other taxes, levies,
assessments, deferred taxes, and other charges imposed on each Site by any
governmental authority. The foregoing terms of this Section 10 shall not apply
to any Pre-existing Site to the extent that the Pre-existing Agreement contains
terms that are inconsistent with this Section 10 (which inconsistent terms
shall govern and shall be described with specificity in the Site Schedule for
such Pre-existing Site). Landlord shall provide Tenant with documentation
reasonably acceptable to Tenant to substantiate the allocation of taxes to the
Tenant Facilities.
11. WAIVER OF LIENS.
(a) Landlord waives any lien rights it may have concerning the Tenant
Facilities which are deemed Tenant's personal property and not fixtures, and
Tenant has the right to remove the same at any time without Landlord's consent.
Landlord waives any lien rights it may have in any items constituting Affiliate
Collateral, as defined below, which are deemed personal property of Tenant's
appropriate Affiliates and are not fixtures, and the appropriate Affiliate has
the right to remove the same at any time without Landlord's consent.
(b) Landlord acknowledges that Tenant has entered into a financing
arrangement including promissory notes and financial and security agreements
for the financing of the Tenant Facilities (the "Collateral") with a third
party financing entity (and may in the future enter into additional financing
arrangements with other financing entities) and may enter into sale/leaseback
or other similar arrangements with Affiliates of Tenant who may become
sub-tenants with respect to certain of the Sites and may install items
equivalent to the Tenant Facilities at such Sites, which in turn may be subject
to financing and security agreement terms similar to those applicable to Tenant
(such items collectively, "Affiliate Collateral"). In connection therewith,
Landlord (i) consents to the installation of the Collateral and the Affiliate
Collateral; (ii) disclaims any interest in the Collateral and the Affiliate
Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral and
the Affiliate Collateral shall be exempt from execution, foreclosure, sale,
levy, attachment, or distress for any Rent due or to become due and that such
Collateral and the Affiliate Collateral may be removed by Tenant or its
Affiliates, as appropriate, at any time without recourse to legal proceedings.
12. TERMINATION. Tenant may terminate this Lease and the related Site
Schedule with respect to any Site, in its sole discretion, without further
liability to Landlord on thirty (30) days prior written notice as follows: (i)
upon failure to obtain or maintain any license, permit or other approval
necessary for construction and operation of the Tenant Facilities after
reasonable efforts by Tenant to obtain or maintain such license, permit or
other approval, or (ii) if Tenant is unable to occupy or utilize the Premises
due to an action of the FCC which is not the result of any action of Tenant,
including without limitation, the take-back of a license, channel or change in
frequency. Termination with respect to any affected Site(s) hereunder shall not
limit any rights or remedies available to Landlord or Tenant at law or in
equity.
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13. DESTRUCTION OR CONDEMNATION. If the Premises or Tenant Facilities are
damaged (but only if such damage, in the reasonable judgment of the Tenant,
adversely affects the Tenant's business operations), destroyed, condemned or
transferred in lieu of condemnation, Tenant may elect to terminate this Lease
and the related Site Schedule with respect to the affected Site as of the date
of the damage, destruction, condemnation or transfer in lieu of condemnation
unless Landlord repairs or reconstructs the Antenna Site on such affected Site
or on real property with the same coordinates to a condition that is suitable
to allow the installation of the Tenant Facilities within sixty (60) days of
the date of the destruction, condemnation or transfer. Rent accruing under the
Site Schedule shall be abated during that period in which the Site is being
repaired, rebuilt or reconstructed on a Site which has been damaged, destroyed,
condemned or transferred in lieu of condemnation. If Tenant chooses not to
terminate this Lease and the related Site Schedule with respect to the affected
Site, Rent shall be reduced or abated in proportion to the actual reduction or
abatement of use of the Premises and the duration thereof. Tenant shall have
the right, at its option, to locate and operate a "cell on wheels" or
comparable backup system on any affected Site during the pendency of any
repairs or reconstruction; provided, however, that, any such action by Tenant
shall not unreasonably interfere with Landlord's repairs or reconstruction.
Nothing herein shall be construed to preclude Tenant from prosecuting any claim
directly against the condemning authority for loss of business, loss of
goodwill, moving expenses, damage to, and cost of removal of, the Tenant
Facilities and other personal property belonging to Tenant.
14. INSURANCE.
(a) Landlord, at Landlord's sole cost and expense, shall procure and
maintain on each Site at all times: (i) "All Risk" property insurance covering
the full replacement cost of the Antenna Site provided by a Tower Aggregator
self-insurance program, and (ii) comprehensive general liability insurance,
including coverage for bodily injury, property damage, and contractual
liability, with a combined single limit of at least One Million Dollars
($1,000,000) per occurrence, and (iii) excess/umbrella coverage of $1,000,000.
Such insurance shall insure, on an occurrence basis, against liability of
Landlord, its employees, representatives, contractors and agents arising out of
or in connection with the use, management, occupancy or maintenance of each
Site.
(b) Tenant, at Tenant's sole cost and expense, shall procure and
maintain on the Premises at all times comprehensive general liability
insurance, including coverage for bodily injury, property damage and
contractual liability, with a combined single limit of at least One Million
Dollars ($1,000,000) per occurrence. Such insurance shall insure, on an
occurrence basis, against liability of Tenant, its employees, representatives,
contractors and agents arising out of or in connection with the use,
management, occupancy or maintenance of the Premises.
(c) Each party shall be named as an additional insured as its
interests may appear, on the other's policies of comprehensive general
liability insurance pertaining to each Site or Premises, and each policy shall
provide for thirty (30) days' written notice of termination or cancellation of
the policy. Upon request, each party shall provide to the other evidence of the
16
required insurance coverage by an insurance company reasonably acceptable to
the other party. Neither Landlord nor Tenant shall engage in any actions that
would impair or contravene the other party's insurance policy or policies
covering the Premises. Each party shall increase the amount of insurance
coverage set forth above to such amounts and to include such categories as the
other party deems reasonably necessary from time to time to protect its
interests.
(d) The foregoing terms shall not apply to any Pre-existing Site to
the extent that the Pre-existing Agreement relating to such Pre-existing Site
contains terms with respect the maintenance of insurance coverage that are
inconsistent with this Section 14, in which case the terms of such Pre-existing
Agreement shall govern, which inconsistent terms shall be described with
specificity in the Site Schedule for such Pre-existing Site.
15. WAIVER OF SUBROGATION.
(a) Landlord releases Tenant and Tenant's respective principals,
employees, representatives, contractors, and agents from any claims for damage
to any person or to any Site or any portion thereof caused by, or that result
from, risks insured against (or required to be insured against) under any
insurance policies carried by Landlord (including self-insurance coverage by
Landlord or its Affiliates) and in force (or required to be in force) at the
time of any such damage. Landlord shall cause each insurance policy (except for
workmen's compensation policies) obtained to provide that the insurance company
waives all right of recovery by way of subrogation against Tenant in connection
with any damage covered by Landlord's policy. Tenant shall not be liable to
Landlord for any damage caused by fire or any of the risks insured against (or
required to be insured against) under any insurance policy required by Section
14.
(b) Tenant releases Landlord and Landlord's respective principals,
employees, representatives, contractors, and agents from any claims for damage
to any person or to any Site or any portion thereof caused by, or that result
from, risks insured against (or required to be insured against) under any
insurance policies carried by Tenant and in force (or required to be in force)
at the time of any such damage. Tenant shall cause each insurance policy
(except for workmen's compensation policies) obtained to provide that the
insurance company waives all right of recovery by way of subrogation against
Landlord in connection with any damage covered by Tenant's policy. Landlord
shall not be liable to Tenant for any damage caused by fire or any of the risks
insured against (or required to be insured against) under any insurance policy
required by Section 14.
16. ASSIGNMENT AND SUBLETTING.
(a) Except for any assignment, mortgage, pledge, hypothecation, or
transfer to Tower Aggregator or a wholly-owned subsidiary of Tower Aggregator
or to an entity party to a credit facility with Landlord or an Affiliate of
Landlord, Landlord may not assign, or otherwise transfer all or any part of its
interest in this Lease without the prior written consent of Tenant, which
consent will not be unreasonably withheld; provided, however, that the
foregoing shall not prohibit a Change of Control (as defined in the Merger
Agreement) of Tower Aggregator. Any such assignment shall be subject to the
assignee assuming in writing in a form acceptable to Tenant all of Landlord's
obligations herein. Notwithstanding the foregoing, this Lease shall be
17
subordinate and inferior to any presently existing or future mortgage which
encumbers the Premises, to the extent and as set forth in the Security and
Subordination Agreement (as defined in and attached to the Merger Agreement).
(b) Except for any assignment, mortgage, pledge, hypothecation, or
transfer to an Affiliate of Tenant, any entity in which Tenant has taken an
equity position, any entity acquiring fifty-one percent (51%) or more of the
outstanding stock or assets of Tenant, or to an entity party to a credit
facility with Tenant or an Affiliate of Tenant, Tenant may not assign,
mortgage, pledge, hypothecate or otherwise transfer, without Landlord's
consent, its interest in this Lease as a whole or with respect to any Site,
subject to any financing entity's interest as set forth in Section 11 above.
Except as set forth in the first sentence of this subparagraph, Tenant may
assign all or a portion of its interests hereunder only upon Landlord's written
consent, which consent shall not be withheld or delayed if Tenant's proposed
assignee agrees in writing to be bound by this Lease and maintains at the time
of such assignment, as demonstrated by current financial statements provided to
Landlord, a financial position reasonably demonstrating the ability of such
assignee to meet and perform the obligations of Tenant hereunder through the
unexpired balance of the Term (or delivers to Landlord a full guaranty of such
obligations by a guarantor that so demonstrates such a financial position). Any
purported assignment by Tenant in violation of the terms of this Lease shall be
void. Tenant may sublease all or any portion of its interest in this Lease with
respect to any Site without consent.
(c) Tenant shall not be released from any of its obligations or
liabilities hereunder in connection with any assignment, mortgage, pledge,
hypothecation or transfer of all or a portion of its interests in this Lease
unless Tenant's assignee agrees in writing to be bound by this Lease and
maintains at the time of such assignment, as demonstrated by current financial
statements provided to Landlord, a financial position demonstrating in
Landlord's reasonable judgment the ability of such assignee to meet and perform
the obligations of Tenant hereunder as it relates to the interests so assigned,
mortgaged, pledged, hypothecated or transferred through the unexpired balance
of the Term (or delivers to Landlord a full guaranty of such obligations by a
guarantor that so demonstrates, in Landlord's reasonable judgment, such a
financial position), and in such event Tenant shall be released from such
obligation or liability. Landlord shall, upon request of Tenant, confirm in
writing such release of liability. Tenant shall not be released from any of its
obligations or liabilities hereunder in connection with any sublease of all or
any portion of its interest in this Lease.
(d) In the event of an assignment by Landlord by operation of law
under Title 11 of the United States Code, or any state bankruptcy or insolvency
law and Tenant elects not to terminate, or is prohibited by law from
terminating, this Lease and the related Site Schedules as a whole or with
respect to any Site, the assignee shall provide Tenant with adequate assurance
of future performance of all of the terms, conditions and covenants of this
Lease and the related Site Schedules, which shall include, but which shall not
be limited to, assumption of all the terms, covenants and conditions of this
Lease and the related Site Schedules as a whole or with respect to the affected
Sites by the assignee and the making by the assignee of the following express
covenants to Tenant:
(i) that assignment of the Lease and the related Site Schedules as
a whole or
18
with respect to the affected Sites and assumption by the assignee will not
cause a violation or breach of any provision in any Prime Lease or any other
lease, license, financing agreement or operating agreement relating to the
Sites; and
(ii) that such assignment and assumption by the assignee will not
disrupt or impair operation of the Tenant Facilities or any items constituting
Affiliate Collateral.
(iii) that such assignee's obligations will be secured on terms
substantially equivalent to those contemplated by the Security and
Subordination Agreement.
17. WARRANTIES; QUIET ENJOYMENT.
(a) Landlord represents and warrants that Landlord has not dealt with
nor is any brokerage commission due to any broker in connection with this
Lease.
(b) Landlord warrants that each of the Landlord Parties is duly
organized/formed, validly existing and in good standing, and has full right,
power, and authority to make and perform this Lease and bind itself and each of
the Landlord Parties through the party or parties set forth as signatory of
Landlord and the Landlord Parties set forth below.
(c) Landlord warrants that its execution and performance of this Lease
does not and will not violate or conflict with or result in the breach of any
of the terms, conditions or duties or obligations to which Landlord is bound to
any third party.
(d) Landlord covenants and agrees with Tenant that upon paying the Rent
and performing its obligations hereunder, Tenant may peacefully and quietly
enjoy the Premises. Landlord shall indemnify and hold Tenant harmless from any
and all claims on Tenant's leasehold interest that arise after the date hereof
and for which Nextel or an Affiliate of Nextel (other than Tower Aggregator or
any Landlord Parties) is not responsible pursuant to the Merger Agreement,
Master Site Commitment Agreement, or Purchase Agreement executed pursuant to
the Master Site Commitment Agreement.
18. INSTALLATIONS, REPLACEMENTS, MAINTENANCE AND REPAIRS.
(a) Prior to Tenant's modifying or installing any equipment on any
Antenna Site (not including the original installation of Tenant Facilities, any
modification or installation mandated to bring the Site or Tenant Facilities
into compliance with applicable laws or governmental regulations, or the mere
replacement of existing equipment), Tenant, at Landlord's request shall have
conducted, at no expense to Landlord and through a professional engineer
approved by both Landlord and Tenant, and licensed in the state in which the
Site is located, an analysis which details the effect of such equipment on the
Antenna Site and Landlord's operations. A written proposal for rectification of
all problems found in the analysis shall be presented to Landlord for approval.
Upon Landlord's approval of such proposal, which approval shall not be
unreasonably withheld, Tenant shall be obligated, at no expense to Landlord, to
address all problems and potential problems to Landlord's reasonable
satisfaction. In no event shall Landlord be required
19
to pay any amount, perform any work, suffer any disruption in service to its
other tenants or assume any liability as a result of Tenant's installing or
replacing equipment on the Antenna Site or Site. Landlord's consent shall not
be construed as an acknowledgment of the sufficiency of the analysis or
proposed rectification, and Tenant shall remain fully liable for any loss
incurred by Landlord or other tenants as a result of the addition or
modification of equipment on the Antenna Site or Site. All such work shall be
performed in good and workmanlike manner in compliance with all laws, codes,
rules and regulations.
(b) Landlord shall not be obligated to consider any modification or
installation of equipment which would adversely affect or interfere with
Landlord or other tenant's operations. No equipment shall be installed on any
Antenna Site or Site by Tenant nor shall any construction pertaining to the
addition or modification of equipment commence until Landlord has approved the
construction, installation, grounding plans, contractors and subcontractors in
writing. Reasonable changes requested by Landlord shall be incorporated into
the plans. Tenant shall not alter any plans previously approved by Landlord
without Landlord's written consent.
(c) Tenant shall be responsible for all maintenance of and repairs to
the Tenant Facilities at Tenant's sole cost and expense. All other maintenance
and repairs to the Antenna Sites and each Site shall be the responsibility of
Landlord.
(d) Landlord, its agents, contractors, employees, and other lessees and
licensees shall exercise extreme care at all times to protect Tenant's
Facilities. In the event Tenant's Facilities are damaged or disturbed by the
acts or omissions of Landlord, its agents, contractors, employees, or other
lessees and licensees, Landlord shall reimburse Tenant for all reasonable costs
incurred by Tenant in repairing the damage and restoring service, regardless of
the cause of the damage or disruption.
(e) Tenant shall give Landlord prior written notice of any major
leasehold improvement work on any Antenna Site or Site, and Landlord's consent
or cooperation shall not be deemed to relieve Tenant, its agents, contractors
or employees from liability for any damage to Landlord's or other tenant's
equipment.
(f) Should Landlord fail to make repairs for which Landlord is
responsible pursuant to the terms of this Lease within a thirty (30) day period
following receipt of written notice from Tenant, Tenant shall have the right to
make such repairs and correct such damage, and all sums so advanced by Tenant,
together with interest computed at a rate of 12% per annum, shall be, at
Tenant's sole option and in any combination of cash or credit that Tenant
elects, paid to Tenant by Landlord within ten (10) days of Tenant's demand
therefor or credited in whole or in part, towards future installments of Rent.
(g) In the event that any mechanic's lien is filed against any Antenna
Site or Site by a contractor hired by the Tenant, the Tenant shall, at its
expense, discharge the same within thirty
20
(30) days after the date of Tenant's receipt of written notice of the filing
thereof. In the event Tenant shall fail to discharge such mechanic's lien,
Landlord, at its option, in addition to all other rights and remedies available
to it, may bond or pay said lien or claim without inquiring into the validity
thereof, and all sums so advanced by Landlord, together with interest computed
at a rate of 12% per annum, shall be paid to Landlord by Tenant within ten (10)
days of Landlord's demand thereof.
(h) In the event that any mechanic's lien is filed against any Antenna
Site or Site by a contractor not hired by Tenant, Landlord shall, at its
expense, discharge the same within thirty (30) days after the date of
Landlord's receipt of written notice of the filing thereof. In the event
Landlord shall fail to discharge such mechanic's lien, Tenant, at its option,
in addition to all other rights and remedies available to it, may bond or pay
said lien or claim without inquiring into the validity thereof, and all sums so
advanced by Tenant, together with interest computed at a rate of 12% per annum,
shall be, at Tenant's sole option and in any combination of cash or credit that
Tenant elects, paid to Tenant by Landlord, within ten (10) days of Tenant's
demand thereof or credited, in whole or in part, towards future installments of
Rent.
(i) Tenant may, from time to time, elect to replace, substitute,
relocate or otherwise modify its equipment on the Antenna Sites, provided that
the replacements, substitutions, relocations and/or other modifications are
consistent with the Communications Act and the rules and regulations of the FCC
and FAA, do not exceed the structural and wind loading capacity of the original
approved installation or the design capacity of the tower at the relevant
height, whichever is greater, do not cause interference with the authorized
operations of any then existing occupants of the Site, and do not exceed the
original size of the Premises. If after giving effect to Tenant's addition or
alteration, Tenant's altered use of the tower exceeds the then existing
structural or wind loading capacity of the tower, the Tenant may add or alter
the antennas mounted only after first obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed by
Landlord. Such replacement, substitution, relocation or modification shall be
at Tenant's sole expense, and will not result in any adjustment to the Rent
except as set forth in Subsection 6(b) and 6(c). Notwithstanding the foregoing,
Landlord shall bear the cost of any replacement, substitution, relocation or
modification performed by Tenant as an accommodation to Landlord.
(j) Following the installation of Tenant's equipment on the tower and
Site, Tenant shall provide Landlord with post-construction field drawings
satisfactory to Landlord highlighting any field changes made during
installation and verifying the antennas' RAD centers.
19. RIGHT OF FIRST REFUSAL.
(a) Tenant acknowledges that it may desire to relocate its or its
Affiliates' communications equipment on the Antenna Sites from time to time
during the Term or Renewal Term. In an effort to cooperate with and accommodate
Tenant, Landlord agrees (except with respect to Landlord Sites) to give to
Tenant the right of first refusal to relocate its or its Affiliates'
communications equipment on each of the applicable Antenna Sites within ten
(10) feet of the relocation height specified in the Site Schedule (the
"Relocation Height"), provided that any such
21
relocation shall be subject to the terms and conditions of paragraph 18(i) of
this Lease regarding structural loading, wind loading and interference. Upon
Tenant's receipt of written notice from Landlord that it has received a bona
fide offer from a prospective tenant desiring to locate at Tenant's Relocation
Height on any Antenna Site (other than a Landlord Site), Tenant shall have ten
(10) working days (the "Response Period") to determine, in its sole discretion,
whether it desires to occupy the Relocation Height, and to advise Landlord, in
writing, of its decision. During the Response Period, Landlord shall be
prohibited from leasing space on the applicable Antenna Site at the Relocation
Height to any other party, unless and until Tenant has notified Landlord in
writing that Tenant does not desire to relocate its or its Affiliates'
equipment or lease space on such Antenna Site at the Relocation Height. If
Tenant elects to relocate its or its Affiliates' equipment on such Antenna Site
it shall so notify Landlord in writing within the Response Period and Tenant
shall thereafter relocate its or its Affiliates' communications equipment
within sixty (60) days from the date of written notice thereof to Landlord.
(b) Landlord and Tenant hereby agree that in no event shall the
relocation of Tenant's or its Affiliates' equipment pursuant to Subparagraph
19(a) above affect, alter, modify or otherwise change any of the terms or
conditions of this Lease or the applicable Site Schedule.
(c) Tower Sub hereby grants to each Tenant a personal, non-assignable
right of first refusal to acquire the Antenna Sites acquired by Landlord
pursuant to the Merger Agreement or acquired or constructed by Landlord
pursuant to the terms of the Master Site Commitment Agreement upon a subsequent
sale or assignment to an entity that is not an Affiliate of Tower Aggregator,
or in the event of insolvency or bankruptcy, whether voluntary or involuntary,
of Landlord; provided, however, that the foregoing right of first refusal shall
not apply to a sale of the capital stock or all or substantially all of the
assets of Landlord, Tower Aggregator or SCI or to any foreclosure sale,
exercise of power of sale, or assignment by deed in lieu of foreclosure. If, at
any time, the Landlord wishes to transfer any Antenna Sites in a transaction
that is subject to the right of first refusal granted in the preceding
sentence, the Landlord shall first offer to sell such Antenna Sites to the
Tenant. The Landlord shall send written notice of the offer (the "Offer
Notice") to the Tenant, which Offer Notice shall state that the Landlord
proposes to effect a transfer of Antenna Sites (and shall include a list of the
location and type of such Antenna Sites) and set forth the terms and conditions
of the offer. Upon receipt of such Offer Notice, Tenant shall be entitled to
purchase all, but not less than all, of the offered Antenna Sites upon the
terms and conditions set forth in the Offer Notice. The right of first offer
shall be exercisable by delivery of written notice of exercise (the "Exercise
Notice") to Landlord within thirty (30) days after receipt of the Offer Notice.
If the Tenant shall fail to respond to the Landlord within such thirty-day
period, such failure shall be regarded a rejection of the offer by the Tenant.
The closing of any purchase of the Antenna Sites by the Tenant under this
section 19(c) shall be held at the principal office of the Landlord on or
before the 30th day following delivery to the Landlord by the Tenant of its
Exercise Notice (or such later time as may be necessary to comply with the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act")), or at such other time and place as the parties to the transaction may
agree. Notwithstanding anything to the contrary contained in this section
19(c), if the Tenant does not purchase all of the offered Antenna Sites within
the period specified above, the Landlord may transfer to any third party buyer,
all or a portion of the relevant Antenna Sites for a purchase price that is no
lower
22
than one hundred percent (or the relevant pro-rata percentage thereof if less
than all of the Antenna Sites are being sold) of that stated in the Offer
Notice; provided, however, that such transfer is bona fide and made not later
than 180 days from (i) the date of the rejection of the Landlord's offer, if it
is rejected, or the failure to consummate and purchase, if the Landlord's offer
is not rejected, and (ii) the date which is ten days after the expiration or
waiver of any applicable waiting period to such proposed transfer pursuant to
the HSR Act.
(d) In the event of transfer of any Antenna Sites to one or more third
party buyers during the Term hereof, (i) such transfer shall be subject to all
the terms of this Lease and all applicable Site Schedules, including, without
limitation, the Security and Subordination Agreement, (ii) the buyer(s) shall
expressly assume the Lease and the related Site Schedules, and shall deliver
one or more subordination, non-disturbance and attornment agreements to
confirm, inter alia, Tenant's rights to quiet enjoyment, and (iii) Landlord
shall remain liable for any breaches or violation by the successor landlord
under the Lease.
20. HAZARDOUS SUBSTANCES.
(a) Landlord represents, warrants and agrees that Landlord will not and
will not permit any third party to use, generate, store or dispose of any
Hazardous Material on, under, about or within any Site in violation of any law
or regulation. Landlord shall defend, indemnify, and hold harmless Tenant and
Tenant's partners, affiliates, agents, contractors, and employees against any
and all losses, liabilities, claims and/or costs (including reasonable
attorneys' fees and costs) arising from any breach of any representation,
warranty or agreement contained in this Subparagraph 20(a) and for which Nextel
or an Affiliate of Nextel (other than Tower Aggregator or Landlord Parties) is
not responsible pursuant to the Merger Agreement, Master Site Commitment
Agreement or Purchase Agreement executed pursuant to the Master Site Commitment
Agreement.
(b) Tenant represents, warrants and agrees that Tenant will not and
will not permit any third party to use, generate, store or dispose of any
Hazardous Material on, under, about or within any Site in violation of any law
or regulation. Tenant shall defend, indemnify, and hold harmless Landlord and
Landlord's partners, affiliates, agents, contractors, and employees and any
other person or entity which leases space at the Site from Landlord against any
and all losses, liabilities, claims and/or costs (including reasonable
attorneys' fees and costs) arising from any breach of any representation,
warranty or agreement contained in this Subparagraph 20(b).
(c) This Section 20 shall survive the termination of this Lease.
21. INDEMNITY.
(a) Landlord shall indemnify and hold Tenant, its subsidiaries,
affiliates, officers, directors, agents, employees, and contractors harmless
from all claims, actions, damages, liabilities, and expenses (including
attorneys' fees and costs, and expenses of defense) arising or
23
alleged to arise from the acts or omissions of Landlord or Landlord's agents,
employees, licensees, invitees, contractors or other lessees or licensees
occurring in or about any Site. In the event that Tenant, its subsidiaries,
affiliates, officers, directors, agents, employees or contractors shall be made
a party to any litigation commenced by or against Landlord (other than between
Landlord and Tenant), then Landlord shall protect and hold the same harmless
and shall pay all reasonable costs, expenses and attorneys' fees incurred or
paid in connection with such litigation.
(b) Tenant shall indemnify and hold Landlord, its subsidiaries,
affiliates, officers, directors, agents, employees, and contractors harmless
from all claims, actions, damages, liabilities, and expenses (including
attorneys' fees and costs, and expenses of defense) arising or alleged to arise
from the acts or omissions of Tenant or Tenant's agents, employees, licensees,
invitees, contractors or other lessees or licensees occurring in or about any
Site. In the event that Landlord, its subsidiaries, affiliates, officers,
directors, agents, employees or contractors shall be made a party to any
litigation commenced by or against Tenant (other than between Landlord and
Tenant), then Tenant shall protect and hold the same harmless and shall pay all
reasonable costs, expenses and attorneys' fees incurred or paid in connection
with such litigation.
(c) This Section 21 shall survive termination of this Lease.
22. TOWER MARKING AND LIGHTING REQUIREMENTS.
(a) Landlord shall be responsible for compliance with all FAA and FCC
tower marking and lighting requirements, and all costs associated therewith.
Landlord shall indemnify and hold Tenant harmless from any fines or other
liabilities caused by Landlord's failure to comply with such requirements.
Should Tenant be cited by either the FAA or the FCC because any tower or other
structure which is subject to this Agreement is not in compliance, Landlord
shall cure the conditions of noncompliance within the time frame allowed by the
citing agency. Should Landlord fail to cure the conditions of noncompliance
within the time frame allowed by the citing agency, Tenant may either terminate
this Lease with respect to the affected Site, effective immediately upon notice
to Landlord, or proceed to cure the conditions of noncompliance at Landlord's
expense, which amounts, together with interest, shall be at Tenant's sole
option and in any combination of cash or credit that Tenant elects, paid to
Tenant by Landlord within ten (10) days of Tenant's demand therefor or
credited, in whole or in part, towards future installments of Rent. Landlord
shall copy Tenant on all amendments or changes to FCC or FAA records on any
Antenna Sites.
(b) Tenant shall be permitted to bridge-in to any automatic lighting
alarm system installed or to be installed on the Antenna Sites to permit a
parallel alarm or, at Tenant's sole option, to install a second alarm.
23. ESTOPPELS/SNDAS.
(a) Each party agrees that it will, upon written request by the other
party, execute and deliver in favor of the requesting party and/or the
requesting party's present or future lenders, an Estoppel Certificate in the
form attached hereto and made a part hereof as Exhibit B.
(b) Tenant agrees that it will, upon written request by Landlord,
execute and deliver a
24
Subordination, Non-Disturbance and Attornment Agreement with respect to each
Site substantially in the form attached hereto and made a part hereof as
Exhibit C.
24. PRIME LEASE.
(a) Landlord shall comply with all obligations imposed on Landlord by
each Prime Lease at Sites where Tenant has Tenant Facilities including the
obligation to make all payments due thereunder. Tenant shall have the right, at
its option and after giving Landlord prior written notice and a cure period of
seven days from delivery of such notice (or such shorter period as may be
required to prevent termination of the Prime Lease), in addition to all other
rights and remedies available to it, to cure any default of Landlord under any
Prime Lease and all sums so advanced by Tenant, together with interest computed
at a rate of 12% per annum, shall be, at Tenant's sole option and in any
combination of cash or credit that Tenant elects, paid to Tenant by Landlord
within ten (10) days of Tenant's demand therefor or credited, in whole or in
part, towards future installments of Rent.
(b) Landlord shall not voluntarily terminate any Prime Lease at Sites
where Tenant has Tenant Facilities without Tenant's prior written consent. Any
termination, either with or without cause, of a Prime Lease without Tenant's
consent shall be a material breach as to the affected Site, and Tenant may
pursue all available remedies at law or in equity.
(c) Should Landlord desire to terminate a Prime Lease prior to
expiration of all renewal terms provided therein, Landlord shall give Tenant
written notice of such intention no less than six (6) months prior to the end
of the then current term or renewal term of the Prime Lease. Subject to the
rights of the Prime Lease landlord, Tenant shall at all times have the right of
first refusal to an assignment of the Prime Lease should Landlord desire to
terminate. If Tenant is entitled to and does elect to exercise its option,
Landlord shall promptly execute all documents necessary to effect the
assignment of the Prime Lease and all applicable third-party leases and/or
subleases. In such case Tenant shall have the right to purchase the Tower and
any other of Landlord's improvements on the Site for an amount equal to the
replacement cost of the Tower and such improvements, less reasonable wear and
tear.
(d) Except as herein otherwise expressly provided, or except as the
terms of the Prime Lease may be in conflict with or inconsistent with the terms
herein provided, all of the terms, covenants and provisions in the Prime Lease
are hereby incorporated into and made a part of this Agreement as if fully set
forth herein; the Landlord herein being substituted for the Landlord named in
the Prime Lease, and the Tenant herein being substituted for the Tenant named
in the Prime Lease. Notwithstanding anything to the contrary contained in this
Agreement, this Agreement and all of Tenant's rights and obligations hereunder
are inferior to the Prime Lease.
25. CONDUCT OF LANDLORD.
(a) Landlord warrants, represents, covenants, and agrees that, in
connection with its operation of each Site, Landlord shall (i) except as
provided in Section 10, pay before delinquency (except to the extent being
contested in good faith by appropriate proceedings diligently pursued), any and
all taxes, assessments and public charges levied, assessed or
25
imposed upon Landlord's business, Landlord's interest in the Site or upon
Landlord's fixtures or equipment on the Site; (ii) procure, maintain and pay
for all licenses and permits it is required to have and maintain under federal,
state or local statutes or ordinances with respect to each Site, and use its
best efforts at all times to avoid any adverse effect to the Tenant Facilities
and/or the Affiliate Collateral, as appropriate, or Tenant's (or any Affiliate
sub-tenant's) business operations on the Site including, but not limited to,
the payment when due of all such license fees, permit fees, and charges of a
similar nature for the conduct by Landlord or any subtenant or licensee of any
business or undertaking authorized hereunder to be conducted on or from the
Site; (iii) observe at all times the terms of the Prime Lease and all rules and
regulations promulgated by the prime lessor and/or owner of the land at any
time and from time to time relating to or affecting the Site or the Tenant
Facilities and/or the Affiliate Collateral, as appropriate, or Tenant's (or any
Affiliate sub-tenant's) business operations, including, without limitation,
rules and regulations relating to vehicles, use of facilities, and the storage
and removal of trash and garbage; and (iv) comply with and observe all
restrictive covenants which affect or are applicable to each Site.
(b) Landlord shall at all times, and at no cost to Tenant, be
responsible for keeping each Site secure, orderly, neat, safe, clean, and free
from rubbish.
26. TESTS AND CONTINGENCIES. The contingencies set forth in this Section 26
shall apply only to Landlord Sites. For such Landlord Sites that Landlord and
Landlord Parties are required to make available to Tenant pursuant to
Subparagraph 2(b) hereof, and that Tenant, at its sole option, may elect to
lease, the following contingencies shall apply:
(a) Landlord acknowledges that Tenant's ability to use any Premises is
contingent upon its suitability for Tenant's intended use from both an economic
and a technical engineering basis and Tenant's ability to obtain any and all
governmental licenses, permits, approvals or other relief required or deemed
necessary or appropriate by Tenant for such use (the "Governmental Approvals")
and any other consents required for Tenant's use of such Premises by twelve
(12) months from the date of the Site Schedule; provided that Tenant shall have
the right, without obligation, to appeal any denial of any such Governmental
Approval and the date for obtaining Governmental Approvals shall be extended
until such time as a final non-appealable decision is rendered.
(b) Tenant may, at its expense, within ninety (90) days from the date
of any Site Schedule relating to the relevant Landlord Site order a title
search and/or survey of the Landlord Site or the Premises which is a part
thereof to determine if there are any conditions, liens, easements,
restrictions, encroachments, overlaps or other rights or grants which interfere
with Tenant's use and enjoyment of the Premises. If a survey is performed, it
shall become part of the Site Schedule. In the event of any inconsistency
between the Site Schedule and the survey, Landlord shall make such amendments
to the Site Schedule and adjustments in the location of the Premises as shall
be reasonably necessary for Tenant's use and satisfactory to Tenant. If the
title search or the survey discloses any matters which interfere with Tenant's
use and enjoyment of the Premises, Landlord shall use reasonable efforts to
cure such defects within sixty (60) days,
26
at Landlord's sole cost and expense; provided that, the cost and expense for
any title or survey work shall be borne by Tenant. Tenant may obtain title
insurance on its interest in the Premises. Landlord shall cooperate by
executing documentation required by the title insurance company.
(c) Tenant is permitted, at its option, to obtain within ninety (90)
days after the date of any Site Schedule relating to a Landlord Site, at
Tenant's expense, satisfactory soil boring, percolation or other tests or
reports of such Premises as are deemed appropriate by Tenant to determine the
physical characteristics and conditions thereof. Any such tests or reports
shall indicate, to Tenant's reasonable satisfaction, that such Premises are
suitable for Tenant's use.
(d) If any of the contingencies of this Section 26 are not satisfied
within any applicable time period or waived by Tenant in writing, Tenant shall
have the right, without obligation, to terminate this Lease and the related
Site Schedule with respect to the affected Landlord Site and render it null and
void from and after the date of termination.
27. DEFAULT; REMEDIES; DISPUTE RESOLUTION.
(a) If any party to this Lease breaches or fails to perform any of its
covenants or obligations contained in this Lease as to any Site, the
non-breaching party may, but shall be under no obligation to, notify the
breaching party of the breach or non-performance, by written notice which
details with specificity the breach or failure. The defaulting party shall have
a period of sixty (60) days from receipt of the default notice within which to
cure such breach or non-performance of a non-monetary covenant, or if the
nature of the non-monetary default is such that a cure cannot be effectuated
within sixty (60) days, to begin such cure and to continue with diligence until
completion provided that the grace period for any monetary default is ten (10)
days from receipt of notice. If the defaulting party fails to so cure or
commence to cure as aforesaid, the non-defaulting party may, by written notice
to the defaulting party, terminate the defaulting party's rights under this
Lease, but only as to the affected Site. If the defaulting party cures any such
breach or non-performance prior to receipt of a termination notice as to the
affected Site, then such breach or non-performance shall be deemed cured,
notwithstanding expiration of the cure period.
(b) Each party's obligations under this Lease is unique. If any party
should fail to perform its obligations under this Lease, the parties
acknowledge that it would not be possible to measure adequately the resulting
damages; accordingly, the other parties, in addition to any other available
rights or remedies, shall be entitled to specific performance of its rights
under this Lease, and the parties expressly waive the defense that damages will
be adequate.
(c) If this Lease is terminated under the provisions of Section 27(a)
with respect to any Site by reason of default hereunder on the part of Tenant,
Tenant shall pay to Landlord as damages a lump sum equal to the present value
(using as a discount rate for such calculation the then-current rate of
interest applicable to Treasury Notes maturing on or about the end of the
applicable Term) of the unearned Rent which would have been payable by Tenant
during the balance of the applicable Term for such Site, had this Lease not so
terminated as to such Site, payable upon the date of termination. Landlord
shall have the duty to mitigate damages payable by Tenant under this subsection
(c); provided, however, that Tenant shall be entitled only to a
27
credit for any amounts actually received by Landlord for re-letting the
Premises previously occupied by Tenant, and Landlord shall not be required to
attempt to re-let the Premises until all additional platforms on the tower are
leased, licensed or otherwise occupied.
(d) Notwithstanding anything to the contrary contained in the
foregoing, in the event Tenant is in default in respect of the payment of Rent
with respect to more than ten percent (10%) of the Sites covered by this Lease
at the time of such default, and if such default shall remain uncured thirty
(30) days after written notice of cross default ("Cross Default Notice"),
Landlord may, at its option, terminate this Lease forthwith with respect to all
of the Sites then covered hereby. Any Cross Default Notice given by Landlord
shall (i) identify the Sites for which Tenant is in default in respect of the
payment of Rent and (ii) set forth the amount of Rent past due for each Site so
identified. Cross Default Notice shall be given in accordance with the terms of
Section 28(d), provided that Landlord shall deliver additional copies of any
Cross Default Notice to each of the following addresses: (A) Nextel
Communications, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
General Counsel; and (B) ▇▇▇▇▇ Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, 2300 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center,
▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Tenant may from time
to time designate any other address for Cross Default Notice by written notice
to Landlord. Failure of the Landlord to comply with the terms of this
subparagraph (d) for the providing of Cross Default Notice shall render any
such non-complying notice ineffective.
(e) If any Rent, additional charges or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after the due date
therefor, the same shall bear interest at the rate of one percent (1%) per
month.
(f) The parties shall attempt in good faith to resolve any dispute,
controversy or claim ("Dispute") arising out of or relating to this Lease or
any of the Sites promptly by negotiations between representatives of senior
management ("Executives") who have authority to settle the Dispute. Any party
may give the other parties written notice of any Dispute not resolved in the
normal course of business. Within 20 days after delivery of such a notice,
Executives of the parties involved in the Dispute who have authority to settle
the Dispute shall meet at a mutually acceptable time and place, and thereafter
as often as they reasonably deem necessary, to attempt to resolve the Dispute.
If any party intends to be accompanied at a meeting by an attorney, the other
involved parties shall be given at least three Business Days' notice of such
intention and may also be accompanied by an attorney. If the Dispute has not
been resolved within 30 days after such notice, unless extended by the
agreement of the parties involved in the Dispute in writing (the "Negotiation
Period"), any party may at any time within the 30 days after the end of the
Negotiation Period initiate mediation of the Dispute in New York, New York in
accordance with the Center for Public Resources Model Procedure for Mediation
of Business Disputes.
(g) If the Dispute has not been resolved within 60 days of the
initiation of mediation, or if no party elects to commence mediation within the
time specified in subparagraph (f) above, the Dispute will be subject to
arbitration as provided in Subparagraphs 27(h) and (i). All negotiations and
mediation pursuant to Subparagraphs 27(f) and (g) are confidential and will be
treated as compromise and settlement negotiations for purposes of the Federal
Rules of Evidence for United States Courts and comparable state rules.
28
(h) Upon the expiration of the Negotiation Period, any party seeking
relief (the "Claimant") may serve a demand for arbitration in accordance with
the Center for Public Resources Non-Administered Arbitration Rules (the
"Rules") in which, in addition to any other requirements of those Rules, the
Claimant states the specific nature of the claimed breach and the relief
sought, and demands a determination by the arbitrators of the parties' rights
together with any relief sought. The place of arbitration will be New York, New
York unless all of the parties to the arbitration otherwise agree. Three
arbitrators will be chosen, and the proceedings conducted, in accordance with
the Rules, except that (i) the parties shall choose three arbitrators through a
self-administered process of striking names from a list of potential
arbitrators and shall not employ the method provided for in the Rules, (ii) the
rules and evidence employed in the federal courts at the time will apply, and
(iii) discovery will be permitted in accordance with the Federal Rules of Civil
Procedure for the United States District Courts. The decision of the
arbitrators will be final and binding on the parties to the maximum extent
permitted under applicable law, and a final judgment may be entered on the
award in any court of competent jurisdiction.
(i) A court of competent jurisdiction, upon application from any party
to the Dispute, may relieve the parties of their duty to arbitrate Disputes in
whole or in part, or may stay any arbitration hereunder in whole or in part, if
ongoing litigation between one or more of the parties and a third party (or
parties) involves issues of fact or law common with those subject to
arbitration hereunder and there exists the possibility of inconsistent
judgments if such relief is not granted.
(j) Each party shall bear its own costs and expenses incurred in
connection with any Dispute, including, without limitation, the fees of its
attorneys, unless the arbitrators otherwise decide, in which case such costs
and expenses shall be borne by the parties in the manner determined by the
arbitrators.
28. MISCELLANEOUS.
(a) Any amendments to this Lease (including any changes to a Site
Schedule) must be in writing and executed by all affected parties.
(b) If any provision of this Lease is invalid or unenforceable with
respect to any party, the remainder of this Lease or the application of such
provision to other Sites or persons other than those as to whom it is held
invalid or unenforceable, shall not be affected and each provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
(c) The terms and conditions of this Lease and each Site Schedule as it
relates to a Site shall run with the Site and shall be binding on and inure to
the benefit of the successors and permitted assignees of the respective
parties.
(d) Subject to the requirements of Section 27(d), any notice or demand
required to be given herein shall be made by certified or registered mail,
return receipt requested, or reliable overnight courier to the address of the
respective parties set forth below:
29
Landlord: SpectraSite Communications, Inc Tenant:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ [As designated in each Site Schedule]
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contracts Manager
With a copy to:
SpectraSite Communications, Inc. Nextel Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel Attn: Legal Department,
Contracts Manager
Any notice given by Tenant to Landlord regarding this Lease or any Site
Schedule shall also be given to the address set forth below:
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
With an additional copy to:
▇▇▇▇▇ ▇▇▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
provided, however that any failure on Tenant's part to provide such notice
shall not constitute a breach or default hereunder or give rise to any claim by
Landlord. Landlord or Tenant may from time to time designate any other address
for this purpose by written notice to the other party. All notices hereunder
shall be deemed received upon actual receipt.
(e) This Lease shall be governed and construed in accordance with the
laws of the Commonwealth of Virginia, without reference to its conflicts of
laws principles. Notwithstanding the foregoing, to the extent that the law of
the state in which the affected Site is located is mandatory rather than
permissive for the issue in question (such as, by way of example only, with
respect to possession), the laws of the state in which the Site is located
shall govern. Should any provision of this Lease require judicial
interpretation, Landlord hereby agrees and stipulates that the court
interpreting or considering same shall not apply the presumption that the terms
hereof shall be more strictly construed against a party by reason of any rule
or conclusion that a document should be construed more strictly against the
party who itself or through its
30
agents prepared the same, it being agreed that all parties hereto have
participated in the preparation of this Lease and that each party had full
opportunity to consult legal counsel of its choice before the execution of this
Lease.
(f) Landlord acknowledges that a Memorandum of Agreement in the form
annexed hereto as Exhibit D may be recorded by Tenant in the official records
of the city or county where each Site is located.
(g) In any case where approval or consent of one party is required,
requested or otherwise to be given under this Lease, such party shall not
unreasonably delay or withhold its approval or consent. In any case where one
party is required by the terms of the Lease to use "best efforts", "diligent
efforts," "reasonable efforts" or "reasonable best efforts" to obtain the
approval or consent of a third party or to cure or remedy any non-compliance,
such requirement shall not be interpreted to obligate such party to pay money
or otherwise make a financial concession in order to obtain such approval,
consent, cure or remedy.
(h) The Site Schedules and all exhibits and appendices annexed hereto
form material parts of this Lease.
(i) This Lease and any Site Schedules and any amendments to any of them
may be executed in duplicate counterparts, each of which shall be deemed an
original.
(j) Failure or delay on the part of any party to exercise any right,
power or privilege hereunder shall not operate as a waiver thereof. No
provision of this Lease or any Site Schedule shall be deemed waived except in a
writing signed by the affected parties.
(k) Headings are for convenient reference only and in no way define or
limit the interpretation or construction of the terms and conditions of this
Lease or any Site Schedule.
(l) The relationship of the parties created hereby is and will at all
times remain that of landlord and tenant. Nothing in this Lease shall be
construed to create the relationship of partners, joint venturers,
employer/employee or member of any joint enterprise by or between Landlord and
Tenant. No use of the Premises, however extended, or payment of any Rent, fees,
costs or other charges under this Lease will create or vest in either party any
ownership rights of any nature in the other party.
(m) Notwithstanding anything to the contrary herein, the parties
acknowledge and agree that each Site Schedule for all Sites being transferred
under and pursuant to the Merger Agreement at Closing and all Pre-Existing
Sites shall be valid, binding and enforceable without the necessity of
execution of such individual Site Schedules upon completion of the terms of
each Site Schedule and delivery of the same at Closing in accordance with the
Lease. Site Schedules for all other Sites shall be executed by the applicable
Landlord and Tenant. The parties shall execute and deliver such further
instruments and do such further acts and things as may be required to carry out
the intent and purposes of this Lease. The parties further acknowledge and
agree that the Site Schedules for all Sites being transferred under and
pursuant to the Merger Agreement at Closing and all Pre-Existing Sites to be
delivered at Closing
31
pursuant to this subparagraph (m) shall be valid, binding and enforceable
without attachment of the actual exhibits thereto, it being the intention of
the parties that all the items identified as exhibits to said Site Schedules
shall remain in those certain binders which contain said items, all to be
delivered to Landlord in connection with Closing (there being one binder per
Site).
(n) LANDLORD SHALL NOT BE RESPONSIBLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES INCURRED BY TENANT RESULTING FROM TENANT'S USE OR
TENANT'S INABILITY TO USE THE ANTENNA SITE OR THE PREMISES. TENANT SHALL NOT BE
RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY LANDLORD
RESULTING FROM LANDLORD'S USE OR LANDLORD'S INABILITY TO USE LANDLORD'S TOWER
OR THE PREMISES.
(o) Landlord agrees to include provisions substantially similar to
Paragraphs 8 (Interference) and 9 (RF Compliance) hereof in all leases or
licenses executed by Landlord for space at any Site on which Tenant leases
space following the Commencement Date for such Site.
[The remainder of this page is intentionally left blank.]
32
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD: TENANT:
Tower Asset Sub, Inc. Nextel of New York, Inc.,
a Delaware corporation. a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ------------------------
Title: Title:
----------------------------- ------------------------
Date: Date:
----------------------------- ------------------------
Tax ID#: ▇▇-▇▇▇▇▇▇▇
SpectraSite Communications, Inc.
a Delaware corporation Nextel Communications of the
Mid-Atlantic, Inc., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------- ------------------------
Title: Title:
----------------------------- ------------------------
Date: Date:
----------------------------- ------------------------
Tax ID#:
-----------------------------
Nextel South Corp.,
a Georgia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title:
------------------------
Date:
------------------------
33
Nextel of Texas, Inc.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title:
---------------------------
Date:
---------------------------
Nextel West Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title:
---------------------------
Date:
---------------------------
Nextel of California, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title:
---------------------------
Date:
---------------------------
34
MASTER SITE LEASE AGREEMENT
EXHIBIT A-1Site No. __________
SITE SCHEDULE
to the Master Site Lease Agreement ("Lease") between the operating
communications subsidiaries of Nextel Communications, Inc., each d/b/a Nextel
Communications, collectively ("Tenant"), and Tower Asset Sub, Inc., its
successors and assigns and the Landlord Parties, as defined in the Lease
("Landlord").
1. Site No./Name:
2. Existing Site:______; Pre-existing Site:______; or Landlord Site:_______.
3. Name of Landlord:
4. Name of Tenant:
5. Site Address: (street address and legal description - attach metes and
bounds description)
6. Site Latitude and Longitude:
7. Commencement Date:
8. Expiration Date of Current Term - (Pre-existing Sites only):
9. Monthly Rent: $1,600 or $_________ (the amount due pursuant to the
Pre-existing Agreement).
Escalation/adjustment provision (Pre-existing Sites only):
Additional rent for additional equipment (Pre-existing Sites only):
10. Term: Initial Term of 5 ___ 6___ 7 ___ 8 ___ years.
Renewals: _______ of _______ years each.
11. Site Landlord-Owned: ______ or Landlord-Leased/Licensed: ______. If
leased or licensed, Term of Prime Lease:
12. Special Access Requirements:
13. Relocation Height: from ____ AGL to ____ AGL.
14. Taxes requirements (Pre-existing Sites only):
35
15. Insurance requirements (Pre-existing Sites only):
16. Landlord Contact for Emergency:
17. Tenant Contact for Emergency:
18. Tenant's Address for Notice Purposes:
19. The execution hereof by the parties shall serve as an acknowledgment and
notice that for all Sites other than those Sites being transferred under
and pursuant to the Merger Agreement at Closing, the Landlord has
obtained any consents or approvals required under the Prime Lease to the
assignment, subletting, transfer or encumbrance of this interest in the
Premises, as contemplated by the Lease.
Landlord:
By:
Title:
Tenant:
By:
Title:
Date: _________________
Attachments: Exhibit 1A: Antenna Attachment Data
Sheet (New Sites and Landlord
Sites commencing after closing)
Exhibit 1B: Tower Profile Drawing Showing Antenna/Dish
Locations
Exhibit 2: Proposed Site Layout and Right of Way to the
Premises
Exhibit 3: Existing Liens, Rights of Way, Easements and
Mortgages
Exhibit 4: Prime Lease (if applicable)
36
EXHIBIT 1.A.
ANTENNA ATTACHMENT DATA SHEET
RETURN THIS DATA SHEET TO: (E-MAIL IS PREFERRED)
SPECTRASITE COMMUNICATIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ E-MAIL: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ OFFICE: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: COLLOCATION MANAGEMENT FAX: (▇▇▇) ▇▇▇-▇▇▇▇
APPLICANT INFORMATION
Tower Owner: SpectraSite Communications Tenant Applicant:
Site Name: Site Name:
Site Number: Site Number:
Date (to be filled in by SpectraSite): Contact Name:
Contact Number:
Contact Address:
Contact e-mail:
37
-----------------------------------------------------------------------------------------
SPECTRASITE TOWER INFORMATION
-----------------------------------------------------------------------------------------
Latitude: Existing Structure
Type:
-----------------------------------------------------------------------------------------
Longitude: Existing
Structure Height:
-----------------------------------------------------------------------------------------
Site Address:
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
ANTENNAS
-----------------------------------------------------------------------------------------
V1 V2 V3 OTHER
-----------------------------------------------------------------------------------------
Desired Rad Center (Feet AGL)
-----------------------------------------------------------------------------------------
Antenna Quantity
-----------------------------------------------------------------------------------------
Antenna Manufacturer
-----------------------------------------------------------------------------------------
Antenna Model (Attach Spec Sheet)
-----------------------------------------------------------------------------------------
Weight (per antenna)
-----------------------------------------------------------------------------------------
Antenna Dimensions
-----------------------------------------------------------------------------------------
ERP (▇▇▇▇▇)
-----------------------------------------------------------------------------------------
Antenna Gain
-----------------------------------------------------------------------------------------
Orientation/Azimuth
-----------------------------------------------------------------------------------------
Mechanical Tilt
-----------------------------------------------------------------------------------------
Channels
-----------------------------------------------------------------------------------------
Tower Mount Dimensions
-----------------------------------------------------------------------------------------
Tower Mount Weight
-----------------------------------------------------------------------------------------
Tower Mount Mounting Height
-----------------------------------------------------------------------------------------
Transmit Frequency
-----------------------------------------------------------------------------------------
Receive Frequency
-----------------------------------------------------------------------------------------
Number of Coax Cables (PER
ANTENNA)
-----------------------------------------------------------------------------------------
Diameter of Coax Cables
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
RF Contact Name/Number
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
POWER REQUIREMENTS
-----------------------------------------------------------------------------------------
AC Power Required Voltage and Total Amperage
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Construction Contact
Name/Number:
-----------------------------------------------------------------------------------------
38
MASTER SITE LEASE AGREEMENT
EXHIBIT A-2 SITE NO. _________
SITE SCHEDULE
(MICROWAVE)
to the Master Site Lease Agreement ("Lease") between the operating
communications subsidiaries of Nextel Communications, Inc., each d/b/a Nextel
Communications, collectively ("Tenant"), and Tower Asset Sub, Inc., its
successors and assigns and the Landlord Parties, as defined in the Lease
("Landlord").
1. Site No./Name:
2. Existing Site: _______; Pre-existing Site: _______; or Landlord Site:
__________.
3. Name of Landlord:
4. Name of Tenant:
5. Site Address: (street address and legal description - attach metes and
bounds description)
6. Site Latitude and Longitude:
7. Commencement Date:
8. Expiration Date of Current Term - (Pre-existing Sites only):
9. Monthly Rent: $__________ ($1.50/linear foot of cabling) + $___________
($100/4' diameter dishes; $200/6' diameter dishes; $300/8'
diameter dishes) or $_______ (the amount due pursuant to the
Pre-existing Agreement).
Escalation/adjustment provision (Pre-existing Sites only): Additional
rent for additional equipment (Pre-existing Sites only):
10. Term: Initial Term of 5 ___ 6___ 7 ___ 8 ___ years.
Renewals: _______ of _______ years each.
11. Site Landlord-Owned: ______ or Landlord-Leased/Licensed: ______.
If leased or licensed, Term of Prime Lease:
12. Special Access Requirements:
13. Relocation Height: from ____ AGL to ____ AGL.
39
14. Taxes requirements (Pre-existing Sites only):
15. Insurance requirements (Pre-existing Sites only):
16. Landlord Contact for Emergency:
17. Tenant Contact for Emergency:
18. Tenant's Address for Notice Purposes:
19. The execution hereof by the parties shall serve as an acknowledgment and
notice that for all Sites other than those Sites being transferred under
and pursuant to the Merger Agreement at Closing, the Landlord has
obtained any consents or approvals required under the Prime Lease to the
assignment, subletting, transfer or encumbrance of this interest in the
Premises, as contemplated by the Lease.
Landlord:
By:
Title:
Tenant:
By:
Title:
Date: _________________
Attachments: Exhibit 1A: Antenna Attachment Data Sheet (New Sites and Landlord
Sites, commencing after closing)
Exhibit 1B: Tower Profile Drawing Showing Antenna/Dish Locations
Exhibit 2: Proposed Site Layout and Right of Way to the Premises
Exhibit 3: Existing Liens, Rights of Way, Easements and Mortgages
Exhibit 4: Prime Lease (if applicable)
40
EXHIBIT 1.A.
ANTENNA ATTACHMENT DATA SHEET
RETURN THIS DATA SHEET TO: (E-MAIL IS PREFERRED)
SPECTRASITE COMMUNICATIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ E-MAIL: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ OFFICE: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: COLLOCATION MANAGEMENT FAX: (▇▇▇) ▇▇▇-▇▇▇▇
APPLICANT INFORMATION
Tower Owner: SpectraSite Communications Tenant Applicant:
Site Name: Site Name:
Site Number: Site Number:
Date (to be filled in by SpectraSite): Contact Name:
Contact Number:
Contact Address:
Contact e-mail:
41
-----------------------------------------------------------------------------------------
SPECTRASITE TOWER INFORMATION
-----------------------------------------------------------------------------------------
Latitude: Existing Structure
Type:
-----------------------------------------------------------------------------------------
Longitude: Existing Structure
Height:
-----------------------------------------------------------------------------------------
Site Address:
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
ANTENNAS
-----------------------------------------------------------------------------------------
V1 V2 V3 OTHER
Desired Rad Center (Feet AGL)
-----------------------------------------------------------------------------------------
Antenna Quantity
-----------------------------------------------------------------------------------------
Antenna Manufacturer
-----------------------------------------------------------------------------------------
Antenna Model (Attach Spec
Sheet)
-----------------------------------------------------------------------------------------
Weight (per antenna)
-----------------------------------------------------------------------------------------
Antenna Dimensions
-----------------------------------------------------------------------------------------
ERP (▇▇▇▇▇)
-----------------------------------------------------------------------------------------
Antenna Gain
-----------------------------------------------------------------------------------------
Orientation/Azimuth
-----------------------------------------------------------------------------------------
Mechanical Tilt
-----------------------------------------------------------------------------------------
Channels
-----------------------------------------------------------------------------------------
Tower Mount Dimensions
-----------------------------------------------------------------------------------------
Tower Mount Weight
-----------------------------------------------------------------------------------------
Tower Mount Mounting Height
-----------------------------------------------------------------------------------------
Transmit Frequency
-----------------------------------------------------------------------------------------
Receive Frequency
-----------------------------------------------------------------------------------------
Number of Coax Cables (PER
ANTENNA)
-----------------------------------------------------------------------------------------
Diameter of Coax Cables
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
RF Contact Name/Number
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
POWER REQUIREMENTS
-----------------------------------------------------------------------------------------
AC Power Required Voltage and Total Amperage
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Construction Contact
Name/Number:
-----------------------------------------------------------------------------------------
42
Site Schedule
Exhibit 4
Prime Lease
43
MASTER SITE LEASE AGREEMENT
EXHIBIT B SITE NO. ________
ESTOPPEL CERTIFICATE
The undersigned does hereby represent and warrant as follows:
1. The undersigned, is the Landlord/Tenant under a Site Schedule dated
_______, _____ for Site No. _____ (the "Site Schedule") entered into
pursuant to the Master Site Lease Agreement dated ___________________,
1999 (the "Lease") between the operating communications subsidiaries of
Nextel Communications, Inc. and Tower Asset Sub, Inc., its successor and
assigns and the Landlord Parties defined in the Lease.
2. The Landlord/Tenant under the Site Schedule is: _______________.
3. Neither the Lease nor the Site Schedule has been modified, changed or
amended (except for the addition or revision of other Site Schedules)
except as listed on Exhibit A hereto, and a true and correct copy of any
such modification, change or amendment is attached hereto.
4. The Lease and the Site Schedule (each as modified, if modified) are in
full force and effect.
5. The monthly rent currently being paid is $______ per month. No rentals
are accrued and unpaid under the Site Schedule. Taxes, insurance,
maintenance, and any other applicable charges due under the Site Schedule
have been paid through_____________. No prepayments of rentals due under
the Site Schedule have been made.
6. The initial term of the Site Schedule commenced on_______, _____ and is
scheduled to expire on_______, _____. There is no option to renew or
extend the term of the Site Schedule, except as set forth in the Lease.
7. No default or event that with the passage of time or notice would
constitute a default on the part of the undersigned exists under the Site
Schedule, to the undersigned's knowledge.
8. The undersigned has not assigned, sublet, transferred, hypothecated or
otherwise disposed of its interest in the Lease as it relates to the Site
Schedule and/or the Premises, or any part thereof, [except for the
assignment of a collateral interest by Tenant to its lenders, as more
particularly described in Section 11 of the Lease].
9. To the undersigned's knowledge, the undersigned has no defense to its
obligations under
44
the Lease and will assert no setoff, claim or counterclaim except as may
be expressly provided for in the Lease.
10. The agreements contained herein shall be binding upon and inure to the
benefit of the respective heirs, administrators, executors, legal
representatives, successors and assigns of Landlord and Tenant, and their
respective lenders.
11. The party signing this Estoppel Certificate is authorized to execute same
on behalf of the undersigned.
IN WITNESS WHEREOF, The undersigned has caused this Estoppel Certificate to be
executed by its duly authorized representative on ______________________,
______.
LANDLORD/TENANT:
By:
Its:
45
MASTER SITE LEASE AGREEMENT
EXHIBIT C SITE NO.___________
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
("Agreement"), made and entered into as of ________, 1999, by and among
Canadian Imperial Bank of Commerce, as Collateral Agent for the Administrative
Agent, the Lenders and the Tranche C Lenders, all as defined in the
Intercreditor and Subordination Agreement by and among the parties to this
Agreement and SpectraSite Communications, Inc. as Borrower and [other
subsidiaries of Borrower] (the "Intercreditor Agreement") (hereinafter called
"Lender"), Tower Asset Sub, Inc., a Delaware corporation and the Landlord
Parties (as defined in the Lease (hereinafter individually or collectively as
the context may require, "Landlord") and Nextel of New York, Inc., Nextel
Communications of the Mid-Atlantic, Inc., Nextel South Corp., Nextel of Texas,
Inc., Nextel West Corp. and Nextel of California, Inc., each, d/b/a Nextel
Communications, (hereinafter individually or collectively, as the context may
require, "Tenant").
WITNESSETH:
WHEREAS, Lender has made or intends to make a loan or loans (the "Loan")
to or for the benefit of Landlord secured by, among other things, fee simple
and leasehold interests in certain real property and all improvements thereon
and appurtenances thereto owned by Landlord (individually, a C and
collectively the "Sites"); and
WHEREAS, Lender may require the Loan to be secured by a mortgage and
security agreement (the "Mortgage") on one or more Sites; and
WHEREAS, Landlord and Tenant have entered into certain site schedules
(each, a "Site Schedule") pursuant to a certain Master Site Lease Agreement (as
amended from time to time, the "Lease") with respect to the portions of each
Site and the improvements thereon leased by Tenant (the "Premises") all as more
particularly set forth in each Site Schedule; and
WHEREAS, Landlord has assigned or is to assign, pursuant to the Mortgage
and documents related thereto, all of its right, title and interest in the
Lease and some or all of the Site Schedules related thereto and the rents
payable thereunder to Lender as security, inter alia, for the performance of
its obligations made in connection with the Loan;
NOW, THEREFORE, in consideration of the mutual promises and covenants of
the parties hereto, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do
mutually covenant and agree as follows:
46
1. Non-Disturbance. So long as Tenant is not in default (after the
expiration of all periods afforded to Tenant during which Tenant has the right
to cure any default) under the Lease with respect to any Site, Tenant shall
not, by reason of foreclosure of the Mortgage, acceptance of a deed in lieu of
foreclosure, or the exercise of any remedy provided in the Mortgage, be
disturbed in Tenant's use, occupancy and quiet enjoyment of the Premises during
the term of the Lease as it relates to the Site Schedule or any extension
thereof set forth in the Site Schedule, and Tenant shall have the right to
exercise all renewal terms set forth in each Site Schedule. For purposes of
this Agreement, a "foreclosure" shall include (but be not limited to) a
judicial foreclosure proceeding, the exercise of a power of sale, a sheriff's
or trustee's sale under power of sale and any other transfer of the Landlord's
interest in the Site under peril of foreclosure, including, without limitation,
an assignment or sale in lieu of foreclosure and any Acquiring Party
(hereinafter defined) shall take subject to the terms of the Lease as it
relates to the affected Sites.
2. Subordination
(a) The Lease and the Site Schedules shall be subject and
subordinate in all respects to the lien and terms of the Mortgage, to any and
all advances to be made thereunder and to all renewals, modifications,
consolidations, replacements and extensions thereof. Lender agrees and
acknowledges that nothing in the Intercreditor Agreement shall negate or
preclude the exercise of Tenant's rights to any benefits afforded under this
Agreement.
(b) Tenant warrants and represents that it has not subordinated
the Lease or the Site Schedules or any of its rights to possession under the
Lease or the Site Schedules to any lien, mortgage, deed of trust or deed to
secure debt prior to the date hereof, except as set forth in Section 3 hereof.
3. Lender Acknowledgement
(a) Lender acknowledges that Tenant has entered into a financing
arrangement including promissory notes and financial and security arrangements
for the financing of the Tenant Facilities (as defined in the Lease,
hereinafter the "Collateral") with a third party financing entity (and may in
the future enter into additional financing arrangements with other financing
entities) and may enter into sale/leaseback or other similar arrangements with
Affiliates (as defined in the Lease) of Tenant who may become sub-tenants with
respect to certain of the Sites and may install items equivalent to the Tenant
Facilities (as defined in the Lease) at such Sites, which in turn may be
subject to financing and security agreement terms similar to those applicable
to Tenant (such items collectively, "Affiliate Collateral"). In connection
therewith, Lender (i) consents to the installation of the Collateral and the
Affiliate Collateral; (ii) disclaims any interest in the Collateral and the
Affiliate Collateral, as fixtures or otherwise; and (iii) agrees that the
Collateral and the Affiliate Collateral shall be exempt from execution,
foreclosure, sale, levy, attachment, or distress for any Rent (as defined in
the Lease) due or to become due, and that such Collateral and Affiliate
Collateral may be removed by Tenant or its Affiliates, as appropriate, at any
time without recourse to legal proceedings, subject to the terms of the Lease.
47
(b) Lender further acknowledges that Tenant has assigned its
rights in and to the Collateral and under the Lease as collateral security for
the aforesaid financing arrangements, and may in the future enter into
additional financing arrangements.
4. Attornment. At the election of such Acquiring Party, Tenant agrees
to attorn to, accept and recognize any person or entity which acquires a Site
through a foreclosure (an AAcquiring Party") as the landlord under the Lease
for the then remaining balance of the term of the relevant Site Schedule, and
any extensions thereof as made pursuant to the Lease; provided, however, the
Lease at such time shall be effective between Tenant and such Acquiring Party
only to the extent that the same relates to the Site. The foregoing provision
shall be self-operative and shall not require the execution of any further
instrument or agreement by Tenant as a condition to its effectiveness. Tenant
agrees, however, to execute and deliver, at any time and from time to time,
upon the request of the Lender or any Acquiring Party any reasonable instrument
which may be necessary or appropriate to evidence such attornment, including,
without limitation, a new lease substantially similar in terms to the Lease but
covering only the Site.
5. No Liability. Notwithstanding anything to the contrary contained
herein or in the Lease, it is specifically understood and agreed that neither
the Lender, any receiver nor any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default of any
prior landlord; provided, however, that any Acquiring Party shall be liable and
responsible for the performance of all covenants and obligations of Landlord
under the Lease accruing from and after the date that it takes title to any
Site; or
(b) except as set forth in (a) above, liable for any failure of
any prior landlord to construct any improvements; or
(c) subject to any offsets, credits, claims or defenses which
Tenant might have against any prior landlord except as provided in the Lease;
or
(d) bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1) month in
advance to any prior landlord; or
(e) bound by any cancellation, surrender, amendment or
modification of the Lease (provided, however, that any Acquiring Party shall be
bound by each amendment and modification that is in effect at the time such
Acquiring Party takes title to any Site) or release of Landlord from liability
thereunder not expressly consented to in writing by Lender or otherwise
permitted by the Mortgage in each instance provided, however, that Landlord may
obtain additional Sites pursuant to that certain Master Site Commitment
Agreement (which will be evidenced by new Site Schedules to the Lease) and
provided further that this subsection (e) shall not apply to any amendment or
modification that is not adverse to Lender or to cumulative cancellations or
surrenders of up to 10% of the Site Schedules then in effect under the Lease.
48
(f) liable to Tenant hereunder or under the terms of the Lease
beyond its interest in the Site; or
(g) liable under the Lease except as the same relates to the
Site (not liable under the Lease with respect to any site other than the Site).
Notwithstanding the foregoing, Tenant reserves its rights to any and all claims
or causes of action against such prior landlord for prior losses or damages
relating to the Site and against the successor landlord for all losses or
damages arising or relating to the Site from and after the date that such
successor landlord takes title to the Site.
6. Rent. Tenant has notice that the rents and all other sums due
thereunder relating to the Site have been assigned to Lender as security for
the Loan secured by the Mortgage. In the event Lender notifies Tenant of the
occurrence of a default under the Mortgage and demands that Tenant pay its
rents and all other sums due or to become due relating to the Site under the
Lease directly to Lender, Tenant shall honor such demand and pay its rent and
all other sums due relating to the applicable Site under the Lease directly to
Lender or as otherwise authorized in writing by Lender. Landlord hereby
irrevocably authorizes Tenant to make the foregoing payments to Lender upon
such notice and demand and payments so made by Tenant to Lender shall be
conclusively deemed, as between Tenant and Landlord, to have been made to
Landlord under the Lease.
7. Lender to Receive Notices. Landlord shall notify Lender promptly
following notice from Tenant of any actual or alleged default by Landlord under
the Lease relating to any Site which would entitle Tenant to cancel the Lease
as to such Site, and Tenant agrees that, notwithstanding any provisions of the
Lease to the contrary, no notice of cancellation thereof shall be effective
unless Lender shall have received notice of default giving rise to such
cancellation and shall have failed within thirty (30) days after receipt of
such notice to cure such default, or if such default cannot be cured within
thirty (30) days, shall have failed within sixty (60) days after receipt of
such notice to commence and diligently pursue any action necessary to cure such
default and shall have accomplished such cure by the expiration of such sixty
(60) day period, provided, however, that no notice shall be required hereunder
to the extent that the cancellation of the Lease as it relates to individual
Site Schedules, together with all previous and contemporaneous cancellations,
constitutes less than 10% of all Sites then subject to the Lease.
8. Notices. All notices or other written communications hereunder
shall be deemed to have been properly given (i) upon delivery, if delivered in
person with receipt acknowledged by the recipient thereof, (ii) one (1)
Business Day (hereinafter defined) after having been deposited for overnight
delivery with any reputable overnight courier service, or (iii) three (3)
Business Days after having been deposited in any post office or mail depository
regularly maintained by the U.S. Postal Service and sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
receiving party at its address set forth above, and:
If to Tenant:
---------------------------
---------------------------
---------------------------
49
---------------------------
and
If to Landlord:
---------------------------
---------------------------
---------------------------
---------------------------
and
If to Lender:
---------------------------
---------------------------
---------------------------
---------------------------
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Paragraph 7, the term "Business Day"
shall mean any day other than Saturday, Sunday or any other day on which banks
are required or authorized to close in New York, New York.
Any party by notice to the other may designate additional or different
addresses for subsequent notices or communications.
9. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement shall also bind and inure to the benefit of any subsequent
mortgagee or holder of other security instrument with respect to the Lease as
it relates to any Site Schedule or any part to refinance the Loan, and in such
event, all references herein to Lender shall also refer to such mortgagee or
holder, and all references to the Mortgage shall also refer to such mortgage or
security instrument.
10. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
11. Amendment. This Agreement may not be changed, amended or modified
in any manner other than by an agreement in writing specifically referring to
this Agreement and executed by the parties hereto.
12. Counterparts. This Agreement may be executed in counterparts, each
being deemed an original and all being deemed one and the same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LENDER:
[Lender]
50
(SEAL)
Attest: By:
--------------------------- --------------------------
Name: Name:
-----------------------------
Title: Title:
----------------------------
LANDLORD:
[Landlord]
By:
--------------------------
Name:
Title:
TENANT:
[Tenant]
By:
--------------------------
Title:
[Note: Site specific forms appropriate to the applicable jurisdiction to be
provided as required]
51
MASTER SITE LEASE AGREEMENT
EXHIBIT D SITE NO.______________
MEMORANDUM OF AGREEMENT
CLERK: Please return this document to:___________________
This Memorandum of Agreement is entered into on this ____ day of
________________, ______, by and between ___________________________, a
________________ corporation, with an office at
____________________________________, (hereinafter referred to as "Landlord")
and ________________________, a __________ Corporation with an office at
________________ ____________________________________, (hereinafter referred to
as "Tenant").
1. Landlord and Tenant entered into a Site Schedule pursuant to a Master
Site Lease Agreement ("Agreement") on the ____ day of ____________
______, for the purpose of installing, operating and maintaining a radio
communications facility and other improvements. All of the foregoing are
set forth in the Agreement.
2. The term of the Agreement as it relates to the Site Schedule is for ____
(__) years commencing on _________________, ______ ("Commencement Date"),
and terminating on the ________ anniversary of the Commencement Date with
______ (____) successive ____ (____) year options to renew.
3. The Land which is the subject of the Agreement as it relates to the Site
Schedule is described in Exhibit A annexed hereto. The portion of the
Land being leased to Tenant (the "Premises") is described in Exhibit B
annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as
of the day and year first above written.
Landlord Tenant
--------------------------------- --------------------------------
By: By:
-------------------------- -------------------------
Date: Date:
-------------------------- -------------------------
Title: Title:
-------------------------- -------------------------
52
STATE OF ________________________
COUNTY OF ______________________
On ____________________, before me, _________________________, Notary Public,
personally appeared ____________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
________________________________ (SEAL)
Notary Public
My commission expires: _______________________
STATE OF _____________________________
COUNTY OF ___________________________
On ____________________, before me, _________________________, Notary Public,
personally appeared ____________________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
________________________________ (SEAL)
Notary Public
My commission expires: _______________________________