Reserved Space. (a) TowerCo expressly acknowledges that, as to -------------- any Site, the Subleased Property of such Site does not include, and that BMI has reserved and excepted from this Sublease, the Reserved Space of such Site, regardless of whether or not such Reserved Space is now or hereafter occupied, and, TowerCo further expressly acknowledges that as between BMI and TowerCo, the Reserved Space of each Site shall, at all times during the Term of this Sublease, be and remain the property of BMI. As an appurtenance to, and a part of, the Reserved Space of each Site, BMI also reserves; (i) the right of ingress to and egress from the entire Site, and access to the entire Tower and all Improvements thereof (including any and all easements), at such times (on a 24- hour, seven (7) day per week basis unless otherwise limited by the Ground Lease or other restrictions of record that have priority over the Sublease), to such extent, and in such means and manners (on foot or by motor vehicle, including trucks and other heavy equipment), as BMI deems necessary or desirable in connection with its full use and enjoyment of the Reserved Space, including, without limitation, the construction, installation, use, operation, maintenance, repair and replacement of its Communications Facility thereon; and (ii) the right to use any portion of the Subleased Property of a Site, including the Land and Improvements thereof, for purposes of temporary location and storage of any equipment (including Communications Equipment) and any part thereof in connection with performing any repairs or replacements of BMI's Improvements; provided, however, that such storage shall not have a material adverse effect on -------- ------- Space Subtenants' Permitted Use. (i) Subject to the availability of Available Space on the applicable Tower (other than Towers on BTS Sites) at the time of the proposed expansion, BMI may at any time expand the Reserved Space on Towers on up to one hundred and twenty (120) Sites by expanding the number of panels on an existing Tower (other than Towers on BTS Sites) to up to twelve (12) panels consistent with other typical twelve (12) panel arrays currently existing on other Towers on the date hereof, without any limitation on the increase in the weight or sail area resulting from such expansion or upgrade; provided, however, that the -------- ------- weight and sail area of the Communications Equipment located on the Tower location of such Reserved Space shall not exceed the weight or sail area as of the applicable Site Commencement Date (subject to increase resulting from the expansion of the number of panels on such Tower) by more than ten percent (10%). (ii) As to BTS Sites, at the time of the proposed expansion, BMI will have the right to (x) expand the number of panels on the Towers of such BTS Sites to up to twelve (12) panels consistent with the twelve (12) panel antenna arrays and related equipment specified in Annex B to the Construction Agreement, without any limitation on (A) the number of BTS Sites in respect of which this right may be exercised and (B) the increase in the weight or sail area resulting from such expansion or upgrade and (y) add a microwave dish subject to Section 5(b)(iii). (iii) As to any BTS Site, regardless of the actual number of panel antennas existing at the time of the applicable Site Designation Supplement, BMI shall have the right to expand the number of antennas on such BTS Site and to add additional equipment on such BTS Site, so long as no such addition or expansion results in the increase of the weight or sail area of BMI's Communications Equipment by more than one hundred ten percent (110%) of the weight and sail area associated with the twelve (12) panel antenna array and related equipment specified in Annex B (excluding the weight and sail area associated with the microwave dish on Annex B) to the Construction Agreement. If such weight and sail area are exceeded at any BTS Site and the applicable BMI Affiliate desires to add a microwave dish or any other equipment at such BTS Site, such BMI Affiliate shall pay TowerCo an increase in the Site Maintenance Charge for such BTS Site, at market rates, for such microwave dish. (c) Subject to the availability of Available Space on the applicable Tower at the time of the proposed expansion, BMI shall have the further right to expand the number of panels on the Tower beyond the first one hundred twenty (120) Sites, provided that BMI shall pay TowerCo $100 per month per panel, not to exceed $1600 per Tower. Such amounts shall increase each year after the date hereof five percent (5%) per year, until the tenth anniversary of the applicable Site Designation Supplement and thereafter pursuant to Section 11(h). (d) Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that the Reserved Space of each Site will include, without limitation, all portions of such Site utilized or occupied by BMI or BMI Affiliate as of the applicable Site Commencement Date for such Site for the use, enjoyment, operation or maintenance of BMI's Communications Facility on such Site for the Permitted Use. Subject to Section 25(a), the Parties further agree that for purposes of calculating the Aggregate Site Maintenance Charge, the amount of Site Maintenance Charge stated in Section 11(c) shall apply to the number of antennas existing on any Site as of June 1, 1999. If at any time between June 1, 1999 and the Closing Date (as defined in the Agreement to Sublease) at which a Site is made subject to this Sublease, BMI or its Affiliate elects to increase the number of panels on such Site and install any additional antennas, then BMI shall have an option, exercisable at its sole discretion upon written notice to TowerCo prior to the applicable Closing, to (i) count such Site toward one hundred and twenty (120) Sites in accordance with Section 5(b) and pay the amount of Site Maintenance Charge determined in accordance with Section 11(c) with respect to such Site, or (ii) pay TowerCo, the amount of Site Maintenance Charge determined in accordance with in Section 5(c). (e) The parties acknowledge and agree that antenna mounting hardware constitutes a portion of the Improvements and does not constitute part of the Reserved Space, except antenna mounting hardware attached to the Tower on any BTS Site. If, as to any Sites (other than BTS Sites), the applicable BMI Affiliate desires to exercise its Right of Substitution pursuant to Section 25(b), to move any of its Communications Equipment on such Tower to any Available Space, and such exercise would require relocation of the existing antenna mounting hardware to accommodate such move, TowerCo shall move such antenna mounting hardware as requested by such BMI Affiliate, unless (i) other Space Subtenants are sharing the same antenna mounting hardware, (ii) such relocation would adversely affect the rights of other Space Subtenants or (iii) TowerCo otherwise determines that such relocation is not feasible or beneficial. If TowerCo does relocate such BMI Affiliate's antenna mounting hardware in response to the exercise of the Right of Substitution, such BMI Affiliate shall reimburse TowerCo for the reasonable costs directly attributable to such relocation. If as contemplated by the foregoing, TowerCo does not or cannot relocate the existing antenna mounting hardware, TowerCo shall, at its sole cost and expense, install suitable mounting hardware at the location on the Tower designated by the applicable BMI Affiliate, so as to accommodate the requested relocation; provided that such BMI Affiliate shall remain responsible for the payment of all costs and expenses associated with moving its antennas to the antenna mounting hardware supplied by TowerCo. Under no circumstances will any antenna mounting hardware be taken into account in determining the amount of any increase in the weight or sail area of a BMI Affiliate's Communications Equipment on the Tower location of its Reserved Space, pursuant to Section 5(c), 25(a) or otherwise. (f) Not later than five (5) business days before any BMI Affiliate adds or relocates any antennas to the Tower location of any Site, such BMI Affiliate shall give TowerCo notice of such addition or relocation. No approval of TowerCo shall be required for any addition or relocation. Upon the request of either Party, the Parties shall promptly execute such instruments as may be reasonably required to further evidence such addition or relocation, including without limitation an amendment to the applicable Site Designation Supplement, and shall cause such amendment to be recorded at such BMI Affiliate's cost and expense, unless the Parties otherwise agree. (g) With respect to any space which, pursuant to clause (y) of the definition of "Reserved Space", is reserved on a BTS Site for installation of a microwave dish (the "Reserved Microwave Space"), if BMI or one of BMI's Affiliates has not installed a microwave dish in such space pursuant to Section 5(b)(iii) and TowerCo receives a bona fide written application from a Space Subtenant to install equipment in such Reserved Microwave Space (there being no other acceptable Available Space for such Space Subtenant), BMI shall have ten (10) days from receipt of written notice from TowerCo to confirm that BMI or one of its Affiliates will commence use of the Reserved Microwave Space, otherwise such Reserved Microwave Space will be released for use by such Space Subtenant. If BMI or a BMI Affiliate commences use of such Reserved Microwave Space, it shall pay TowerCo an increase in the Site Maintenance Charge for such Site, at market rates, for such microwave dish. In the event that such Reserved Microwave Space is released, BMI shall be entitled to replacement microwave space (the "Replacement Microwave Space") located seventeen (17) feet below the Reserved Microwave Space, except to the extent no suitable Replacement Microwave Space exists by virtue of the operation of this Section 5(g). The Replacement Microwave Space shall be subject to the same notice, confirmation, release and replacement process described above; provided that upon release by BMI of any such space, BMI shall be entitled to replacement space (also, "Replacement Microwave Space") located seventeen (17) feet below such released space.
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Reserved Space. (a) TowerCo and each Sublessor expressly acknowledges that, as to -------------- any Site, the Subleased Property of such Site does not include, and that BMI has reserved and excepted from this Sublease, the Reserved Space of such Site, regardless of whether or not such Reserved Space is now or hereafter occupied, and, TowerCo further expressly acknowledges that as between BMI and TowerCo, the Reserved Space of each Site shall, at all times during the Term of this Sublease, be deemed to be leased or subleased to TowerCo pursuant hereto and remain leased back to the property of BMIapplicable Sublessor pursuant hereto for the exclusive possession and use by such Sublessor (or the SBC Affiliate which conducts its wireless activities at the Reserved Space) whether or not such Reserved Space is now or hereafter occupied. As an appurtenance to, and a part of, the Reserved Space of each Site, BMI each Sublessor (for the benefit of SBC or any SBC Affiliate) also reserves; :
(i) the right of ingress to and egress from the entire Site, and access to the entire Tower and all Improvements thereof to such Site and Tower (including any and all easements), at such times (on a 24- 24-hour, seven (7) day per week basis unless otherwise limited by the Ground Lease or other restrictions of record that have priority over the Sublease), to such extent, and in such means and manners (on foot or by motor vehicle, including trucks and other heavy equipment), as BMI SBC deems necessary or desirable in connection with its or an SBC Affiliate's full use and enjoyment of the Reserved Space, including, without limitation, the construction, installation, use, operation, maintenance, repair and replacement of its Communications Facility thereon; and (ii) the right to use any portion of the Subleased Property of a Site, including the Land and Improvements thereof, for purposes of temporary location and storage of any equipment (including Communications Equipment) and any part thereof in connection with performing any repairs or replacements of BMIsuch Person's Improvements; provided, however, that such storage shall not have a material adverse effect on -------- ------- Space Subtenants' Permitted Use.
(ic) Subject to the availability of Available Space on the applicable Tower Without limiting SBC's (other than Towers on BTS Sites) at the time of the proposed expansion, BMI may at any time expand the Reserved Space on Towers on up to one hundred and twenty (120) Sites by expanding the number of panels on an existing Tower (other than Towers on BTS Sites) to up to twelve (12) panels consistent with other typical twelve (12) panel arrays currently existing on other Towers on the date hereof, without any limitation on the increase in the weight or sail area resulting from such expansion or upgrade; provided, however, that the -------- ------- weight and sail area of the Communications Equipment located on the Tower location of such Reserved Space shall not exceed the weight or sail area as of the applicable Site Commencement Date (subject to increase resulting from the expansion of the number of panels on such Tower) by more than ten percent (10%).
(ii) As to BTS Sites, at the time of the proposed expansion, BMI will have the right to (x) expand the number of panels on the Towers of such BTS Sites to up to twelve (12) panels consistent with the twelve (12) panel antenna arrays and related equipment specified in Annex B to the Construction Agreement, without any limitation on (A) the number of BTS Sites in respect of which this right may be exercised and (B) the increase in the weight or sail area resulting from such expansion or upgrade and (y) add a microwave dish subject to Section 5(b)(iii).
(iii) As to any BTS Site, regardless of the actual number of panel antennas existing at the time of the applicable Site Designation Supplement, BMI shall have the right to expand the number of antennas on such BTS Site and to add additional equipment on such BTS Site, so long as no such addition or expansion results in the increase of the weight or sail area of BMI's Communications Equipment by more than one hundred ten percent (110%) of the weight and sail area associated with the twelve (12) panel antenna array and related equipment specified in Annex B (excluding the weight and sail area associated with the microwave dish on Annex B) to the Construction Agreement. If such weight and sail area are exceeded at any BTS Site and the applicable BMI Affiliate desires to add a microwave dish or any other equipment at such BTS Site, such BMI Affiliate shall pay TowerCo an increase in the Site Maintenance Charge for such BTS Site, at market rates, for such microwave dish.
(cSBC Affiliates') Subject rights under Section 24(a) hereof and subject to the availability of Available Space on the applicable Tower at the time of the proposed expansion, BMI SBC shall have the further right to expand the number amount of panels equipment on the Tower Towers beyond the first one three hundred twenty (120300) SitesTowers, provided that BMI SBC shall pay TowerCo as additional Leaseback Charge $100 per month per panel/antenna or space equivalent of one panel/antenna, not but in no event in an amount to exceed $1600 per Towerplatform, or if SBC locates any such expanded equipment on a platform which is not already occupied by SBC's Communication Equipment, not to be less than $1200 per any such additional platform (except with respect to microwave dishes and related equipment), such amount to be in addition to the SBC Leaseback Charge due and payable to TowerCo pursuant to Section 10. Such amounts shall increase each year after the date hereof five percent (5%) per year, until the tenth anniversary of the applicable Site Designation Supplement Commencement Date and thereafter pursuant to Section 11(h10(f). SBC may exercise the foregoing expansion right for itself or for the use and benefit of any SBC Affiliate.
(d) Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that the Reserved Space of each Site will include, without limitation, all portions of such Site utilized or occupied by BMI SBC or BMI an SBC Affiliate as of the applicable Site Commencement Date for such Site for the use, enjoyment, operation or maintenance of BMI's Communications Facility on such Site for the Permitted Use. Subject to Section 25(a), the Parties further agree that for purposes of calculating the Aggregate Site Maintenance Charge, the amount of Site Maintenance Charge stated in Section 11(c) shall apply to the number of antennas existing on any Site as of June 1, 1999. If at any time between June 1, 1999 the date hereof and the Closing Date (as defined in the Agreement to Sublease) at which a applicable Site is made subject to this SubleaseCommencement Date, BMI SBC or its an SBC Affiliate elects to increase the number amount of panels equipment on such Site and install any additional antennasa Tower on a Site, then BMI SBC shall have an option, exercisable at its sole discretion upon written notice to TowerCo prior to the applicable ClosingSite Commencement Date, to (i) count such Site Tower toward one three hundred and twenty (120300) Sites Towers in accordance with Section 5(b) and pay the amount of Site Maintenance SBC Leaseback Charge determined in accordance with Section 11(c10(b) with respect to such Site, or (ii) pay TowerCo, the amount of Site Maintenance SBC Leaseback Charge determined in accordance with in Section 5(c).
(ex) The parties acknowledge and agree that antenna mounting hardware constitutes a portion of the Improvements and does not constitute part of the Reserved Space, except antenna mounting hardware attached to the Tower on Xx SBC or any BTS Site. If, as to any Sites (other than BTS Sites), the applicable BMI SBC Affiliate desires to exercise its Right of Substitution pursuant to Section 25(b), to move any of its Communications Equipment on such Tower to any Available Space, and such exercise would require relocation of the existing antenna mounting hardware to accommodate such move, TowerCo shall move such antenna mounting hardware as requested by such BMI Affiliate, unless (i) other Space Subtenants are sharing the same antenna mounting hardware, (ii) such relocation would adversely affect the rights of other Space Subtenants add or (iii) TowerCo otherwise determines that such relocation is not feasible or beneficial. If TowerCo does relocate such BMI Affiliate's antenna mounting hardware in response to the exercise of the Right of Substitution, such BMI Affiliate shall reimburse TowerCo for the reasonable costs directly attributable to such relocation. If as contemplated by the foregoing, TowerCo does not or cannot relocate the existing antenna mounting hardware, TowerCo shall, at its sole cost and expense, install suitable mounting hardware at the location on the Tower designated by the applicable BMI Affiliate, so as to accommodate the requested relocation; provided that such BMI Affiliate shall remain responsible for the payment of all costs and expenses associated with moving its antennas to the antenna mounting hardware supplied by TowerCo. Under no circumstances will any antenna mounting hardware be taken into account in determining the amount of any increase in the weight or sail area of a BMI Affiliate's Communications Equipment on the Tower location of its Reserved Space, pursuant to Section 5(c), 25(a) or otherwise.
(f) Not later than five (5) business days before any BMI Affiliate adds or relocates any antennas to the Tower location of any Site, such BMI Affiliate the provisions of Sections 24(a)(i) and (a)(ii) shall give TowerCo notice of such addition or relocation. No approval of TowerCo shall be required for any addition or relocationapply. Upon the request of either Party, the Parties shall promptly execute such instruments as may be reasonably required to further evidence such addition or relocation, including without limitation an amendment to the applicable Site Designation Supplement, and shall cause such amendment to be recorded at SBC's or such BMI SBC Affiliate's cost and expense, unless the Parties otherwise agree.
(g) With respect to any space which, pursuant to clause (y) of the definition of "Reserved Space", is reserved on a BTS Site for installation of a microwave dish (the "Reserved Microwave Space"), if BMI or one of BMI's Affiliates has not installed a microwave dish in such space pursuant to Section 5(b)(iii) and TowerCo receives a bona fide written application from a Space Subtenant to install equipment in such Reserved Microwave Space (there being no other acceptable Available Space for such Space Subtenant), BMI shall have ten (10) days from receipt of written notice from TowerCo to confirm that BMI or one of its Affiliates will commence use of the Reserved Microwave Space, otherwise such Reserved Microwave Space will be released for use by such Space Subtenant. If BMI or a BMI Affiliate commences use of such Reserved Microwave Space, it shall pay TowerCo an increase in the Site Maintenance Charge for such Site, at market rates, for such microwave dish. In the event that such Reserved Microwave Space is released, BMI shall be entitled to replacement microwave space (the "Replacement Microwave Space") located seventeen (17) feet below the Reserved Microwave Space, except to the extent no suitable Replacement Microwave Space exists by virtue of the operation of this Section 5(g). The Replacement Microwave Space shall be subject to the same notice, confirmation, release and replacement process described above; provided that upon release by BMI of any such space, BMI shall be entitled to replacement space (also, "Replacement Microwave Space") located seventeen (17) feet below such released space.
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Reserved Space. (a) TowerCo ATC expressly acknowledges that, as to -------------- any Site, the Subleased Property of such Site does not include, and that BMI ALLTEL has reserved and excepted from this Sublease, the Reserved Space and Microwave Reserved Space of such Site, regardless of whether or not such Reserved Space is now or hereafter occupied, and, TowerCo further expressly acknowledges that Site for ALLTEL's and its Affiliates' exclusive possession and use so long as between BMI and TowerCo, ALLTEL's right to use the Reserved Space of each Site shall, at all times during the Term of and Microwave Reserved Space has not been terminated as provided for in this Sublease, be and remain the property of BMI. As an appurtenance to, and a part of, the Reserved Space and Microwave Reserved Space of each Site, BMI so long as ALLTEL's right to use the Reserved Space and Microwave Reserved Space has not been terminated, ALLTEL (for the benefit of ALLTEL or any Affiliate) also reserves; (i) the reserves a nonexclusive right of for ingress to and egress from the entire Site, and access to the entire Tower and all Improvements thereof Site (including any and all easementseasements but excluding any space leased or subleased exclusively to any Third Party Tenants in accordance with this Sublease), at such times (on a 24- 24-hour, seven (7) day per seven-day-per-week basis unless otherwise limited by the Ground Lease or other restrictions of record that have priority over the this Sublease), to such extent, and in such means and manners (on foot or by motor vehicle, including trucks and other heavy equipment), at ALLTEL's sole cost and expense, as BMI deems necessary or desirable is possible with respect to any Site and permitted under the Ground Lease with respect to any Leased Site in connection with its full use and enjoyment of the Reserved Space and Microwave Reserved Space, including, without limitation, the construction, installation, use, operation, maintenance, repair and replacement of its Communications Facility thereonALLTEL Equipment and Microwave Equipment thereon in accordance with the terms and conditions of this Sublease; and (ii) the right to use any portion of the Subleased Property of a Site, including upon the Land and Improvements thereofprior written approval of ATC (which shall not be unreasonably withheld, conditioned or delayed) for purposes of temporary location and storage of any equipment (including Communications Equipment) and any part thereof ALLTEL Equipment or Microwave Equipment in connection with performing any permitted repairs or replacements of BMI's Improvementsreplacements; provided, however, that such storage shall not exceed one month and shall be subject to and not have a material an adverse effect on -------- ------- Space Subtenants' ATC's Permitted Use, permitted use by Third Party Tenants or interfere in any manner with ATC's efforts to market and/or sublease any or all Available Space (including such portion of the Subleased Property) to any third party.
(i) Subject to the availability of Available Space on the applicable Tower (other than Towers on BTS Sites) at the time of the proposed expansion, BMI may at any time expand the Reserved Space on Towers on up to one hundred and twenty (120) Sites by expanding the number of panels on an existing Tower (other than Towers on BTS Sites) to up to twelve (12) panels consistent with other typical twelve (12) panel arrays currently existing on other Towers on the date hereof, without any limitation on the increase in the weight or sail area resulting from such expansion or upgrade; provided, however, that the -------- ------- weight and sail area of the Communications Equipment located on the Tower location of such Reserved Space shall not exceed the weight or sail area as of the applicable Site Commencement Date (subject to increase resulting from the expansion of the number of panels on such Tower) by more than ten percent (10%).
(ii) As to BTS Sites, at the time of the proposed expansion, BMI will have the right to (x) expand the number of panels on the Towers of such BTS Sites to up to twelve (12) panels consistent with the twelve (12) panel antenna arrays and related equipment specified in Annex B to the Construction Agreement, without any limitation on (A) the number of BTS Sites in respect of which this right may be exercised and (B) the increase in the weight or sail area resulting from such expansion or upgrade and (y) add a microwave dish subject to Section 5(b)(iii).
(iii) As to any BTS Site, regardless of the actual number of panel antennas existing at the time of the applicable Site Designation Supplement, BMI shall have the right to expand the number of antennas on such BTS Site and to add additional equipment on such BTS Site, so long as no such addition or expansion results in the increase of the weight or sail area of BMI's Communications Equipment by more than one hundred ten percent (110%) of the weight and sail area associated with the twelve (12) panel antenna array and related equipment specified in Annex B (excluding the weight and sail area associated with the microwave dish on Annex B) to the Construction Agreement. If such weight and sail area are exceeded at any BTS Site and the applicable BMI Affiliate desires to add a microwave dish or any other equipment at such BTS Site, such BMI Affiliate shall pay TowerCo an increase in the Site Maintenance Charge for such BTS Site, at market rates, for such microwave dish.
(c) Subject to the availability of Available Space on the applicable Tower at the time of the proposed expansion, BMI shall have the further right to expand the number of panels on the Tower beyond the first one hundred twenty (120) Sites, provided that BMI shall pay TowerCo $100 per month per panel, not to exceed $1600 per Tower. Such amounts shall increase each year after the date hereof five percent (5%) per year, until the tenth anniversary of the applicable Site Designation Supplement and thereafter pursuant to Section 11(h).
(db) Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that the Reserved Space and Microwave Reserved Space of each Site will include, without limitation, all portions of such Site utilized or occupied by BMI ALLTEL or BMI its Affiliate as of the applicable Site Commencement Effective Date for such Site for the use, enjoyment, operation or maintenance of BMI's Communications Facility on such Site for the Permitted Use. Subject to Section 25(a), the Parties further agree that for purposes of calculating the Aggregate Site Maintenance Charge, the amount of Site Maintenance Charge stated in Section 11(c) shall apply to the number of antennas existing on any Site ALLTEL Equipment and Microwave Equipment as of June 1, 1999. If at any time between June 1, 1999 and the Closing Date (as defined specifically set forth in the Agreement to Subleaseapplicable Site Designation Supplement.
(c) at which a Site is made subject to Without limiting ATC's rights or obligations under this Sublease, BMI ATC acknowledges and agrees that ATC will not engage, nor will it permit any Third Party Tenant to engage, in any conduct that might reasonably be expected to significantly interfere (excluding electrical interference which shall be governed by Section 15) with ALLTEL's peaceful and quiet enjoyment of the Reserved Space, Microwave Reserved Space and Additional ALLTEL Space.
(d) Notwithstanding anything to the contrary (including, without limitation, the definitions of "Reserved Space," or its Affiliate elects "Additional ALLTEL Space"), in the event that ALLTEL now or hereafter operates any antennas on any Tower that exceed nine (9) feet in vertical space on the Tower, ATC shall reserve the right to increase the number of panels on such Site and install any other equipment or Third Party Tenant Property on a Platform located within the vertical space occupied by such antennas or next to ALLTEL's mounts, which space shall be deemed Available Space hereunder and part of the Subleased Property so long as (X) the Tower can structurally accommodate such installation, (Y) ATC (or the associated Third Party Tenant) must perform and deliver to ALLTEL an RF interference study (at no cost or expense to ALLTEL) that reasonably demonstrates that ALLTEL shall not suffer any measurable electronic interference as a result of such additional antennasinstallation, then BMI and (Z) ATC shall provide ALLTEL with no less than 10 business days' prior written notice of the date and time such installation is to be performed and ALLTEL shall have an option, exercisable the right to have a representative present at its sole discretion upon written notice to TowerCo prior to such installation. If all such antennas located on one Platform are removed from the applicable Closing, to Tower (i) count such Site toward one hundred and twenty (120) Sites in accordance other than replacements with Section 5(b) and pay the amount of Site Maintenance Charge determined in accordance with Section 11(c) with respect to such SiteALLTEL Equipment, or (iiAdditional ALLTEL Equipment of the same or substantially similar vertical height, dimension and locations) pay TowerCoby ALLTEL, the amount of Site Maintenance Charge determined in accordance vertical space on the Tower associated with in Section 5(c)the Reserved Space or Additional ALLTEL Space shall automatically revert to no greater than six (6) vertical feet on the Tower for such Platform.
(e) The parties acknowledge and agree In the event that antenna mounting hardware constitutes a portion of the Improvements and does not constitute part of the Reserved Space, except antenna mounting hardware attached to the Tower on any BTS Site. If, as to any Sites (other than BTS Sites), the applicable BMI Affiliate desires to ALLTEL exercise its Right of Substitution pursuant to Section 25(b), to move any of its Communications Equipment on such Tower to Expansion Rights under Section 8(a) of Exhibit 4, any Available SpaceSpace occupied by ALLTEL pursuant to such Expansion Rights shall automatically revert to ALLTEL and shall no longer be included in the Subleased Property or Subleasehold Estate of ATC upon compliance by the parties with the procedures set forth in Section 8(b) of Exhibit 4 (including, and such exercise would require relocation without limitation, the execution of the existing antenna mounting hardware to accommodate such move, TowerCo shall move such antenna mounting hardware as requested by such BMI Affiliate, unless (i) other Space Subtenants are sharing the same antenna mounting hardware, (ii) such relocation would adversely affect the rights of other Space Subtenants or (iii) TowerCo otherwise determines that such relocation is not feasible or beneficial. If TowerCo does relocate such BMI Affiliate's antenna mounting hardware in response an amendment to the exercise of the Right of SubstitutionSite Designation Supplement), such BMI Affiliate shall reimburse TowerCo for the reasonable costs directly attributable to such relocation. If as contemplated by the foregoing, TowerCo does not or cannot relocate the existing antenna mounting hardware, TowerCo shall, at its sole cost and expense, install suitable mounting hardware at the location on the Tower designated by the applicable BMI Affiliate, so as to accommodate the requested relocation; provided that such BMI Affiliate shall remain responsible for the payment of all costs and expenses associated with moving its antennas to the antenna mounting hardware supplied by TowerCo. Under no circumstances will any antenna mounting hardware be taken into account in determining the amount of any increase in the weight or sail area of a BMI Affiliate's Communications Equipment on the Tower location of its Reserved Space, pursuant subject to Section 5(c9(d), 25(a) or otherwise.
(f) Not later than five (5) business days before any BMI Affiliate adds or relocates any antennas Subject to the Tower location provisions of any Site, such BMI Affiliate shall give TowerCo notice of such addition or relocation. No approval of TowerCo shall be required for any addition or relocation. Upon the request of either Party, the Parties shall promptly execute such instruments as may be reasonably required to further evidence such addition or relocation, including without limitation an amendment to the applicable Site Designation Supplement, and shall cause such amendment to be recorded at such BMI Affiliate's cost and expense, unless the Parties otherwise agree.
(g) With respect to any space which, pursuant to clause (y) of the definition of "Reserved Space", is reserved on a BTS Site for installation of a microwave dish (the "Reserved Microwave Space"this Section 7(d), if BMI or one of BMI's Affiliates has not installed a microwave dish in such space pursuant to Section 5(b)(iii) ATC and TowerCo receives a bona fide written application from a Space Subtenant Third Party Tenants shall have the right to install equipment or property (including, without limitation, shelters, cabinets, generators, fuel tanks and Towers) above Non-Wireless Assets that are not used in such Reserved Microwave Space (there being no other acceptable Available Space for such Space Subtenant), BMI shall have ten (10) days from receipt of written notice from TowerCo to confirm that BMI connection with or one of its Affiliates will commence use in servicing any of the Reserved Microwave Spacecommunications needs of the Site on behalf of ALLTEL, otherwise ATC, Third Party Tenants or any of their Affiliates, if any. Notwithstanding the foregoing, ATC agrees to use reasonable and good faith efforts to avoid the installation of any equipment or property above such Reserved Microwave Space will be released for use by such Space Subtenant. If BMI Non-Wireless Assets that are not used in connection with or in servicing any of the communications needs of the Site on behalf of ALLTEL, ATC, Third Party Tenants or any of their Affiliates in a BMI Affiliate commences manner that would adversely affect ALLTEL's use of such Reserved Microwave SpaceNon-Wireless Assets, it shall pay TowerCo an increase in the Site Maintenance Charge for but only if such Site, at market rates, for such microwave dish. In the event that such Reserved Microwave Space is released, BMI shall be entitled to replacement microwave space (the "Replacement Microwave Space") located seventeen (17) feet below the Reserved Microwave Space, except to the extent no suitable Replacement Microwave Space exists Non-Wireless Assets are marked by virtue of the operation of this Section 5(g). The Replacement Microwave Space shall be subject to the same notice, confirmation, release and replacement process described above; provided that upon release by BMI of any such space, BMI shall be entitled to replacement space (also, "Replacement Microwave Space") located seventeen (17) feet below such released spaceutility installation markers.
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Reserved Space. (a) TowerCo expressly acknowledges that, as to -------------- any Site, the Subleased Property of such Site does not include, and that BMI each BellSouth Entity has reserved and excepted from this Sublease, the Reserved Space of such Site, regardless of whether or not such Reserved Space is now or hereafter occupied, and, TowerCo further expressly acknowledges that as between BMI each BellSouth Entity and TowerCo, the Reserved Space of each Site shall, at all times during the Term of this Sublease, be and remain the property of BMIsuch BellSouth Entity. As an appurtenance to, and a part of, the Reserved Space of each Site, BMI each BellSouth Entity also reserves; (i) the right of ingress to and egress from the entire Site, and access to the entire Tower and all Improvements thereof (including any and all easements), at such times (on a 24- 24-hour, seven (7) day per week basis unless otherwise limited by the Ground Lease or other restrictions of record that have priority over the Sublease), to such extent, and in such means and manners (on foot or by motor vehicle, including trucks and other heavy equipment), as BMI such BellSouth Entity deems necessary or desirable in connection with its full use and enjoyment of the Reserved Space, including, without limitation, the construction, installation, use, operation, maintenance, repair and replacement of its Communications Facility thereon; and (ii) the right to use any available portion of the Subleased Property of a Site, including the Land and Improvements thereof, for purposes of temporary location and storage of any equipment (including generators and Communications Equipment) and any part thereof in connection with performing any repairs or replacements of BMIsuch BellSouth Entity's Improvements; provided, however, that such storage shall not have a material adverse effect on -------- ------- Space Subtenants' Permitted Use.
(i) Subject to the availability of Available Space on the applicable Tower (other than Towers on BTS Sites) at the time of the proposed expansion, BMI BSPCI may at any time expand the number of antennas at the Reserved Space on Towers on up to one hundred and twenty nine (120) Sites by expanding the number of panels on an existing Tower (other than Towers on BTS Sites) to up to twelve (129) panels consistent with other typical twelve nine (129) panel arrays currently existing on other Towers on the date hereof, without any limitation on (x) the number of Sites in respect of which this right may be exercised and (y) the increase in the weight or sail area resulting from such expansion or upgrade; provided, however, that the -------- ------- weight and sail area of the Communications Equipment located on the Tower location of such Reserved Space shall not exceed the weight or sail area as of the applicable Site Commencement Date (subject to increase resulting from the expansion of the number of panels on such Tower) by more than ten percent (10%).
(ii) As to BTS Sites, at the time of the proposed expansion, BMI will have the right to (x) expand the number of panels on the Towers of such BTS Sites to up to twelve (12) panels consistent with the twelve (12) panel antenna arrays and related equipment specified in Annex B to the Construction Agreement, without any limitation on (A) the number of BTS Sites in respect of which this right may be exercised and (B) the increase in the weight or sail area resulting from such expansion or upgrade and (y) add a microwave dish subject to Section 5(b)(iii).
(iii) As to any BTS Site, regardless of the actual number of panel antennas existing at the time of the applicable Site Designation Supplement, BMI shall have the right to expand the number of antennas on such BTS Site and to add additional equipment on such BTS Site, so long as no such addition or expansion results in the increase of the weight or sail area of BMI's Communications Equipment by more than one hundred ten percent (110%) of the weight and sail area associated with the twelve (12) panel antenna array and related equipment specified in Annex B (excluding the weight and sail area associated with the microwave dish on Annex B) to the Construction Agreement. If such weight and sail area are exceeded at any BTS Site and the applicable BMI Affiliate desires to add a microwave dish or any other equipment at such BTS Site, such BMI Affiliate shall pay TowerCo an increase in the Site Maintenance Charge for such BTS Site, at market rates, for such microwave dish.
(c) Subject to the availability of Available Space on the applicable Tower (including Towers on BTS Sites) at the time of the proposed expansionexpansion of the number of antennas, BMI BSPCI shall have the further right to expand the number of panels on the Towers beyond nine (9) panels if the weight and sail area of the Communications Equipment are not increased by more than 10% of the weight and sail area of a nine (9) panel antennas array that is typical of the other Towers on the date hereof.
(iii) If BSPCI expands the number of antenna panels on a Tower beyond nine (9) panels and the first one hundred twenty weight and sail area are exceeded by more than ten percent (120) Sites10%), provided that BMI then BSPCI shall have the right nonetheless to expand the number of panels and shall pay TowerCo $100 per month per panel, not to exceed $1600 1,600 per Tower. Such amounts shall increase each year after the date hereof by five percent (5%) per year, until the tenth anniversary of the applicable Site Designation Supplement and thereafter pursuant to Section 11(hSECTION 11(H).
(dc) Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that the Reserved Space of each Site will include, without limitation, all portions of such Site utilized or occupied by BMI or BMI Affiliate the applicable BellSouth Entity as of the applicable Site Commencement Date for such Site date hereof for the use, enjoyment, operation or maintenance of BMIsuch BellSouth Entity's Communications Facility on such Site for the Permitted Use. Subject to Section 25(a), the Parties further agree that for purposes of calculating the Aggregate Site Maintenance Charge, the amount of Site Maintenance Charge stated in Section 11(c) shall apply to the number of antennas existing on any Site as of June 1, 1999. If at any time between June 1, 1999 and the Closing Date (as defined in the Agreement to Sublease) at which a Site is made subject to this Sublease, BMI or its Affiliate elects to increase the number of panels on such Site and install any additional antennas, then BMI shall have an option, exercisable at its sole discretion upon written notice to TowerCo prior to the applicable Closing, to (i) count such Site toward one hundred and twenty (120) Sites in accordance with Section 5(b) and pay the amount of Site Maintenance Charge determined in accordance with Section 11(c) with respect to such Site, or (ii) pay TowerCo, the amount of Site Maintenance Charge determined in accordance with in Section 5(c).
(e) The parties acknowledge and agree that antenna mounting hardware constitutes a portion of the Improvements and does not constitute part of the Reserved Space, except antenna mounting hardware attached to the Tower on any BTS Site. If, as to any Sites (other than BTS Sites), the applicable BMI Affiliate desires to exercise its Right of Substitution pursuant to Section 25(b), to move any of its Communications Equipment on such Tower to any Available Space, and such exercise would require relocation of the existing antenna mounting hardware to accommodate such move, TowerCo shall move such antenna mounting hardware as requested by such BMI Affiliate, unless (i) other Space Subtenants are sharing the same antenna mounting hardware, (ii) such relocation would adversely affect the rights of other Space Subtenants or (iii) TowerCo otherwise determines that such relocation is not feasible or beneficial. If TowerCo does relocate such BMI Affiliate's antenna mounting hardware in response to the exercise of the Right of Substitution, such BMI Affiliate shall reimburse TowerCo for the reasonable costs directly attributable to such relocation. If as contemplated by the foregoing, TowerCo does not or cannot relocate the existing antenna mounting hardware, TowerCo shall, at its sole cost and expense, install suitable mounting hardware at the location on the Tower designated by the applicable BMI Affiliate, so as to accommodate the requested relocation; provided that such BMI Affiliate shall remain responsible for the payment of all costs and expenses associated with moving its antennas to the antenna mounting hardware supplied by TowerCo. Under no circumstances will any antenna mounting hardware be taken into account in determining the amount of any increase in the weight or sail area of a BMI Affiliate's Communications Equipment on the Tower location of its Reserved Space, pursuant to Section 5(c), 25(a) or otherwise.
(fd) Not later than five (5) business days before any BMI BSPCI or its Affiliate adds or relocates any antennas to the Tower location of any Site, such BMI Affiliate BSPCI shall give TowerCo notice of such addition or relocation. No approval of TowerCo shall be required for any addition or relocation. Upon the request of either Party, the Parties shall promptly execute such instruments as may be reasonably required to further evidence such addition or relocation, including without limitation an amendment to the applicable Site Designation Supplement, and shall cause such amendment to be recorded at such BMI Affiliatethe applicable BellSouth Entity's cost and expense, unless the Parties otherwise agree.
(ge) With respect to any space which, pursuant to clause (y) of the definition of "Reserved SpaceRESERVED SPACE", is reserved on a BTS Site for installation of a microwave dish (the "Reserved Microwave SpaceRESERVED MICROWAVE SPACE"), if BMI BSPCI or one of BMI's Affiliates the Carolinas Partnership has not installed a microwave dish in such space pursuant to Section 5(b)(iii) and TowerCo receives a bona fide written application from a Space Subtenant to install equipment in such Reserved Microwave Space (there being no other acceptable Available Space for such Space Subtenant), BMI BSPCI shall have ten (10) days from receipt of written notice from TowerCo to confirm that BMI BSPCI or one of its Affiliates the Carolinas Partnership will commence use of the Reserved Microwave Space, otherwise such Reserved Microwave Space will be released for use by such Space Subtenant. If BMI or a BMI Affiliate commences use of such Reserved Microwave Space, it shall pay TowerCo an increase in the Site Maintenance Charge for such Site, at market rates, for such microwave dish. In the event that such Reserved Microwave Space is released, BMI BSPCI shall be entitled to replacement microwave space (the "Replacement Microwave SpaceREPLACEMENT MICROWAVE SPACE") located seventeen (17) feet below the Reserved Microwave Space, except to the extent no suitable Replacement Microwave Space exists by virtue of the operation of this Section 5(gSECTION 5(G). The Replacement Microwave Space shall be subject to the same notice, confirmation, release and replacement process described above; provided that upon release by BMI BSPCI of any such space, BMI BSPCI shall be entitled to replacement space (also, "Replacement Microwave SpaceREPLACEMENT MICROWAVE SPACE") located seventeen (17) feet below such released space.
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