Subleased Property. (a) Subject to the terms and conditions of this Sublease, each Sublessor hereby lets, leases and demises unto TowerCo, and except as otherwise provided in Sections 3(h) and 22(b), TowerCo hereby leases, takes and accepts from Sublessor the Subleased Property of all of the Sites owned or leased by such Sublessor, in its "AS IS" condition, without any representation, warranty or covenant of or from SBCW or any SBCW Affiliate of SBCW whatsoever as to the condition thereof or the suitability thereof for any particular use, except as may be expressly set forth in the Agreement to Sublease. To SBCW's knowledge, the Towers are satisfactory in all material respects for SBCW's and its Affiliates' continuing use consistent with its Permitted Use of such Towers. Except as set forth above, TowerCo hereby acknowledges that neither SBCW nor any Affiliate or agent of SBCW has made any representation or warranty, express or implied, with respect to any of the Subleased Property, or any portion thereof, or the suitability or fitness for the conduct of TowerCo's business or for any other purpose, including the Permitted Use, and TowerCo further acknowledges that it has had or by its execution and delivery of a Site Designation Supplement, will have had sufficient opportunity to inspect and approve the condition of the Subleased Property of the Sites. (b) Each Site in addition to the Initial Sites shall be made subject to this Sublease by the execution and delivery of a Site Designation Supplement with respect thereto between Sublessor and TowerCo. SBCW and TowerCo acknowledge and agree that this Sublease is intended to constitute a single sublease covering the Subleased Property of all of the Sites and a single agreement covering all the Sites, and not a separate sublease and agreement covering individual Sites. (c) This Sublease is a grant of a leasehold interest in each Owned Site subject to all matters affecting Sublessor's right, title and interest in and to each Owned Site (including without limitation, Existing Subleases and the interests of third parties as to any Owned Sites that are subject to any Colocation Agreements); and, as to Leased Sites, this Sublease is a grant of a subleasehold interest in each Leased Site subject to all matters affecting title to Sublessor's leasehold interest, leasehold estate or other possessory interest therein (including without limitation, Existing Subleases and the interests of third parties as to any Leased Sites that are subject to Colocation Agreements).
Appears in 1 contract
Subleased Property. (a) Subject to the terms and conditions of this Sublease, each Sublessor BellSouth Entity hereby lets, leases and demises unto TowerCo, and except as otherwise provided in Sections 3(hSECTIONS 3(H) and 22(b23(B), TowerCo hereby leases, takes and accepts from Sublessor each BellSouth Entity the Subleased Property of all of the Sites owned or leased by such Sublessoreach Site, in its "AS IS" condition, without any representation, warranty or covenant of or from SBCW any BellSouth Entity or any SBCW Affiliate of SBCW its Affiliates whatsoever as to the condition thereof or the suitability thereof for any particular use, except as may be expressly set forth in the Agreement to Sublease. To SBCWeach BellSouth Entity's knowledge, the Towers are satisfactory in all material respects for SBCW's and its Affiliates' continuing use consistent with its Permitted Use of such Towers. Except as set forth above, TowerCo hereby acknowledges that neither SBCW BSPCI, the Carolinas Partnership nor any Affiliate or agent of SBCW BSPCI or the Carolinas Partnership has made any representation or warranty, express or implied, with respect to any of the Subleased Property, or any portion thereof, or the suitability or fitness for the conduct of TowerCo's business or for any other purpose, including the Permitted Use, ; and TowerCo further acknowledges that it has had or by its execution and delivery of a Site Designation Supplement, will have had sufficient opportunity to inspect and approve the condition of the Subleased Property of the Siteseach Site.
(b) Each Site in addition to the Initial Sites shall be made subject to this Sublease Sublease, and the subleased portions thereof added to the Subleased Property, by the execution and delivery of a Site Designation Supplement with respect thereto between Sublessor the applicable BellSouth Entity and TowerCo. SBCW Each BellSouth Entity and TowerCo acknowledge that a Site Designation Supplement is being executed and delivered with respect to each Initial Site contemporaneously with the execution and delivery of this Sublease. Each BellSouth Entity and TowerCo acknowledge and agree that this Sublease is intended to constitute a single sublease covering the Subleased Property of all of the Sites and a single agreement covering all the Sites, and not a separate sublease and agreement covering the individual Sites.
(c) This Sublease is a grant of a leasehold interest in each Owned Site subject to all matters affecting Sublessoreach BellSouth Entity's right, title and interest in and to each any Owned Site (including without limitation, Existing Subleases and the interests of third parties as to any Owned Sites that are subject to any Colocation Agreements); and, as to Leased Sites, this Sublease is a grant of a subleasehold interest in each Leased Site also subject to all matters affecting title to Sublessoreach BellSouth Entity's leasehold interest, leasehold estate or other possessory interest therein (including without limitation, Existing Subleases and the interests interest of a third parties party as to any Leased Sites that are subject to Colocation Agreements).
(d) TowerCo hereby acknowledges that, as to the Subleased Property of each Leased Site, this Sublease is a sublease by each BellSouth Entity under the provisions of, and is subject and subordinate to all of the terms and conditions of, the applicable Ground Lease of such Leased Site. As to any Leased Site, no BellSouth Entity shall be deemed to have assumed any duty or obligation of the Ground Lessor under the applicable Ground Lease nor shall be liable or responsible in any manner whatsoever for any failure of such Ground Lessor to perform any such duty or obligation. Except as provided in SECTION 3(F) or 3(H), TowerCo shall abide by, comply in all respects with, and fully and completely perform all terms, covenants, conditions, and provisions of each Ground Lease (including, without limitation, terms, covenants, conditions, and provisions relating to maintenance, insurance and alterations) as if TowerCo were the "ground lessee" thereunder and, to the extent evidence of such performance must be provided to the Ground Lessor of the applicable Ground Lease, TowerCo shall provide such evidence to the applicable BellSouth Entity. TowerCo shall not engage in or permit any conduct that would: (i) constitute a breach of or default under any Ground Lease; or (ii) result in the Ground Lessor being entitled to terminate the applicable Ground Lease or to terminate any BellSouth Entity's right as ground lessee under such Ground Lease, or to exercise any other rights or remedies to which the Ground Lessor may be entitled for a default or breach under the applicable Ground Lease. During the Term of this Sublease, each BellSouth Entity agrees to exercise prior to the expiration thereof and in accordance with the provisions of the applicable Ground Lease, any and all renewal options existing as of the date of the Site Designation Supplement, and as may be further extended or renewed by such BellSouth Entity pursuant to the terms of this Sublease, for any Leased Site under the Ground Leases of such Leased Sites; provided, however, that such renewals shall not extend the Expiration Date for the Site Designations Supplements for such Leased Sites.
(e) Except as provided in SECTION 3(F), TowerCo shall not be entitled to act as agent for, or otherwise on behalf of, any BellSouth Entity or to bind such BellSouth Entity in any way whatsoever.
(f) Subject to the provisions of SECTION 8 and after the applicable BellSouth Entity has exercised all renewal options pursuant to SECTION 3(D), TowerCo, at TowerCo's sole cost and expense, shall be responsible for and shall negotiate and obtain any extension or renewal of the Ground Leases of the Leased Sites on behalf of and for the benefit of such BellSouth Entity, and such BellSouth Entity shall use commercially reasonable efforts to assist TowerCo in obtaining such extension or renewal, provided that such extension or renewal does not impose any liability on such BellSouth Entity for which TowerCo is not responsible under the terms of this Sublease. TowerCo shall commence its negotiations with the applicable Ground Lessor sufficiently in advance of any expiration of each Ground Lease and in any event, not later than two (2) years prior to such expiration. Notwithstanding anything to the contrary contained herein, if at any time during the twelve-month period immediately prior to any expiration of a Ground Lease of a Leased Site, TowerCo has not successfully effected the extension or renewal of such Ground Lease, BSPCI shall have the right to take responsibility for conducting and completing negotiations for such extension or renewal on its own behalf and upon BSPCI's exercise of such right by written notice thereof, TowerCo shall cease participating in any negotiations with the applicable Ground Lessor as to such Site. Until such time as BSPCI so exercises its right to conduct and complete negotiations for such extension or renewal, TowerCo shall be exclusively responsible for conducting and completing such negotiations and BSPCI shall not participate, except to the extent reasonably requested by TowerCo, in any negotiations with the applicable Ground Lessor as to such Site. In the event BSPCI completes negotiations for such extension or renewal, TowerCo shall have the option, exercisable within thirty (30) days of receipt of notice of the terms of the extension or renewal, of (i) assuming all payments for the extension or renewal and retaining its sublease interest in such Site or (ii) assigning all of its interests in such Site to BSPCI as of the date the Ground Lease would have expired had BSPCI not extended or renewed such Ground Lease, and the Site Maintenance Charge and TowerCo's obligation to pay Rent, if any, shall terminate effective that date. If neither TowerCo on behalf of and for the benefit of BSPCI nor BSPCI is able to extend or renew any Ground Lease in accordance with this SECTION 3(F), then the Parties shall permit such Ground Lease to expire on the applicable expiration date and this Sublease shall have no further force and effect as to the Subleased Property of the Leased Site to which such Ground Lease applies. Each of TowerCo and CCIC agrees that neither it, nor any of its Affiliates, shall seek to obtain, obtain or hold, any interest in any Ground Lease or its underlying fee interest that is superior or prior to BellSouth Entity's interests in such Ground Lease. TowerCo shall have the right, up to the date on which BSPCI exercises its right to conduct and complete negotiations with the applicable Ground Lessor, to acquire the fee simple interest in the Site from the Ground Lessor and transfer such fee simple interest to BSPCI for $1.00, in which event there shall be no Rent for that Site as of the date fee simple title vests in BSPCI; provided that, if there is a continuing unwaived event of default by the applicable BellSouth Entity with respect to the Ground Lease of any Site, TowerCo shall have no obligation to transfer to BSPCI the fee simple interest in such Site. Except as provided above or as TowerCo may otherwise agree, no BellSouth Entity shall take any action to amend any Ground Lease, other than to exercise renewals expressly provided therein. If any subdivision is required for the transfer of such fee simple interest, each BellSouth Entity shall cooperate with TowerCo to the extent reasonably requested, including without limitation by executing any applications required for such subdivision, all at TowerCo's sole cost and expense.
(g) Subject to SECTION 25 and SECTION 26, BSPCI's right to sell, convey, transfer, assign or otherwise dispose of BSPCI's interest in and to any Site (including BSPCI's interest in and to the Subleased Property of such Site) shall be unrestricted.
(h) Notwithstanding anything to the contrary contained herein, each BellSouth Entity represents to TowerCo that as of the date of the applicable Site Designation Supplement, the applicable Ground Lease for a Leased Site will be in full force and effect and no BellSouth Entity will be in default under any such Ground Lease in any material respect as a result of such BellSouth Entity's acts or omissions. Each BellSouth Entity further agrees that it will promptly pay or cause to be paid the Ground Rent under the applicable Ground Leases of the Leased Sites during the Term of this Sublease when such payments become due and payable. Each BellSouth Entity shall pay the Ground Rent in respect of the applicable Site, for so long as this Sublease is in effect as to such Site, notwithstanding that TowerCo may be in default of its obligations hereunder. Each BellSouth Entity shall otherwise perform any obligations under and comply with the terms of the applicable Ground Leases, but only if such obligations are expressly reserved to such BellSouth Entity for its performance under the terms of this Sublease. Upon receipt by any BellSouth Entity of any notice of default or notice of an act or omission which could with the passing of time and/or the giving of notice constitute an event of default under a Ground Lease or non- compliance with a term of a Ground Lease (the "DEFAULT NOTICE"), BSPCI shall, within five (5) days after receipt of the Default Notice, provide TowerCo with a copy of the Default Notice. If such default or non-compliance with a term of a Ground Lease is caused by TowerCo or any Space Subtenant, TowerCo shall, and shall cause the applicable Space Subtenant, cure or otherwise remedy such default or non-compliance. If any such default or non-compliance with a term of a Ground Lease (in respect of an obligation expressly reserved for performance by any BellSouth Entity) is caused by the applicable BellSouth Entity, then BSPCI shall, on behalf of such BellSouth Entity, within two (2) days after the expiration of the aforementioned 5-day period, provide TowerCo a letter stating that (i) the default or non-compliance, if a payment default, or if the default is in respect of an obligation expressly reserved for performance by such BellSouth Entity, has been cured or remedied, (ii) if the default is in respect of an obligation expressly reserved for performance by such BellSouth Entity, the default (other than a payment default) has not been cured but will be cured within the time period provided under the Ground Lease, together with a reasonably detailed explanation of the actions such BellSouth Entity intends to take to effect such cure, its basis for concluding that such actions will be accepted by the Ground Lessor as an adequate cure or (iii) the basis, if any, for such BellSouth Entity's good faith position that there is no default or non- compliance if the default is in respect of an obligation expressly reserved under this Sublease for performance by such BellSouth Entity ("BELLSOUTH ENTITY'S NOTICE"). If BSPCI does not or cannot provide the BellSouth Entity's Notice or if, subsequent to delivery of the BellSouth Entity's Notice to TowerCo, such BellSouth Entity is unable to effect an appropriate cure, then TowerCo has the right, but not the obligation, to take such action as may reasonably be necessary to cure or otherwise remedy such default or non-compliance and, in such event, TowerCo will have the right to demand prompt reimbursement from such BellSouth Entity of any and all amounts expended by TowerCo or on TowerCo's behalf, together with interest at the rate of eighteen percent (18%) per annum from the date of TowerCo's payment until the date repaid by such BellSouth Entity. TowerCo's failure to take any such action shall not constitute or be deemed a waiver of any rights it may have to assert Claims against such BellSouth Entity for a breach of its obligations under this Sublease. Notwithstanding anything in this Sublease to the contrary, unless an obligation under a Ground Lease represents a payment default by BSPCI or is expressly reserved under this Sublease for performance by the applicable BellSouth Entity, any default referred to in the Default Notice shall constitute a default by TowerCo under this Sublease.
(i) Notwithstanding anything to the contrary contained herein, TowerCo shall have the right, at TowerCo's cost and expense, to make Alterations to any Site and to expand a Site, including the expansion of the Land, as TowerCo deems reasonably necessary for the conduct of its business pursuant to this Sublease, including but not limited to the extension of the Tower, the re-enforcement of the Tower, and the construction of additional Towers on such Site; provided, however, that such Alterations or expansions shall be subject to TowerCo's performance of its obligations pursuant to this Sublease, including but not limited to SECTIONS 13 and 15 and shall not disrupt or otherwise adversely affect any BellSouth Entity's Permitted Use of its Reserved Space. TowerCo covenants and agrees that any such Alterations or expansions shall be made in a workmanlike manner in compliance with standard industry practices and with all applicable Laws.
Appears in 1 contract
Subleased Property. (a) Subject to the terms and conditions of this Sublease, each Sublessor BMI hereby lets, leases and demises unto TowerCo, and except as otherwise provided in Sections 3(h) and 22(b23(b), TowerCo hereby leases, takes and accepts from Sublessor BMI the Subleased Property of all of the Sites owned or leased by such Sublessoreach Site, in its "AS IS" condition, without any representation, warranty or covenant of or from SBCW BMI or any SBCW Affiliate of SBCW BMI whatsoever as to the condition thereof or the suitability thereof for any particular use, except as may be expressly set forth in the Agreement to Sublease. To SBCWBMI's knowledge, the Towers are satisfactory in all material respects for SBCWBMI's and its Affiliates' continuing use consistent with its Permitted Use of such Towers. Except as set forth above, TowerCo hereby acknowledges that neither SBCW BMI nor any Affiliate or agent of SBCW BMI has made any representation or warranty, express or implied, with respect to any of the Subleased Property, or any portion thereof, or the suitability or fitness for the conduct of TowerCo's business or for any other purpose, including the Permitted Use, ; and TowerCo further acknowledges that it has had or by its execution and delivery of a Site Designation Supplement, will have had sufficient opportunity to inspect and approve the condition of the Subleased Property of the Siteseach Site.
(b) Each Site in addition to the Initial Sites shall be made subject to this Sublease Sublease, and the subleased portions thereof added to the Subleased Property, by the execution and delivery of a Site Designation Supplement with respect thereto between Sublessor BMI and TowerCo. SBCW BMI and TowerCo acknowledge that a Site Designation Supplement is being executed and delivered with respect to each Initial Site contemporaneously with the execution and delivery of this Sublease. BMI and TowerCo acknowledge and agree that this Sublease is intended to constitute a single sublease covering the Subleased Property of all of the Sites and a single agreement covering all the Sites, and not a separate sublease and agreement covering the individual Sites.
(c) This Sublease is a grant of a leasehold interest in each Owned Site subject to all matters affecting SublessorBMI's right, title and interest in and to each any Owned Site (including without limitation, Existing Subleases and the interests of third parties as to any Owned Sites that are subject to any Colocation Agreements); and, as to Leased Sites, this Sublease is a grant of a subleasehold interest in each Leased Site also subject to all matters affecting title to SublessorBMI's leasehold interest, leasehold estate or other possessory interest therein (including without limitation, Existing Subleases and the interests interest of a third parties party as to any Leased Sites that are subject to Colocation Agreements).
(d) TowerCo hereby acknowledges that, as to the Subleased Property of each Leased Site, this Sublease is a sublease by BMI under the provisions of, and is subject and subordinate to all of the terms and conditions of, the applicable Ground Lease of such Leased Site. As to any Leased Site, BMI shall not be deemed to have assumed any duty or obligation of the Ground Lessor under the applicable Ground Lease and shall not be liable or responsible in any manner whatsoever for any failure of such Ground Lessor to perform any such duty or obligation. Except as provided in Section 3(f) or 3(h), TowerCo shall abide by, comply in all respects with, and fully and completely perform all terms, covenants, conditions, and provisions of each Ground Lease (including, without limitation, terms, covenants, conditions, and provisions relating to maintenance, insurance and alterations) as if TowerCo were the "ground lessee" thereunder and, to the extent evidence of such performance must be provided to the Ground Lessor of the applicable Ground Lease, TowerCo shall provide such evidence to BMI. TowerCo shall not engage in or permit any conduct that would: (i) constitute a breach of or default under any Ground Lease; or (ii) result in the Ground Lessor being entitled to terminate the applicable Ground Lease or to terminate BMI's right as ground lessee under such Ground Lease, or to exercise any other rights or remedies to which the Ground Lessor may be entitled for a default or breach under the applicable Ground Lease. During the Term of this Sublease, BMI agrees to exercise prior to the expiration thereof and in accordance with the provisions of the applicable Ground Lease, any and all renewal options existing as of the date of the Site Designation Supplement, and as may be further extended or renewed by BMI pursuant to the terms of this Sublease, for any Leased Site under the Ground Leases of such Leased Sites; provided, however, that such renewals shall not extend the Expiration Date for -------- ------- the Site Designations Supplements for such Leased Sites.
(e) Except as provided in Section 3(f), TowerCo shall not be entitled to act as agent for, or otherwise on behalf of, BMI or to bind BMI in any way whatsoever.
(f) Subject to the provisions of Section 8 and after BMI has exercised all renewal options pursuant to Section 3(d), TowerCo, at TowerCo's sole cost and expense, shall be responsible for and shall negotiate and obtain any extension or renewal of the Ground Leases of the Leased Sites on behalf of and for the benefit of BMI, and BMI shall use commercially reasonable efforts to assist TowerCo in obtaining such extension or renewal, provided that such extension or renewal does not impose any liability on BMI for which TowerCo is not responsible under the terms of this Sublease. TowerCo shall commence its negotiations with the applicable Ground Lessor sufficiently in advance of any expiration of each Ground Lease and in any event, not later than two (2) years prior to such expiration. Notwithstanding anything to the contrary contained herein, if at any time during the twelve-month period immediately prior to any expiration of a Ground Lease of a Leased Site, TowerCo has not successfully effected the extension or renewal of such Ground Lease, BMI shall have the right to take responsibility for conducting and completing negotiations for such extension or renewal on its own behalf and upon BMI's exercise of such right by written notice thereof, TowerCo shall cease participating in any negotiations with the applicable Ground Lessor as to such Site. Until such time as BMI so exercises its right to conduct and complete negotiations for such extension or renewal, TowerCo shall be exclusively responsible for conducting and completing such negotiations and BMI shall not participate, except to the extent reasonably requested by TowerCo, in any negotiations with the applicable Ground Lessor as to such Site. In the event BMI completes negotiations for such extension or renewal, TowerCo shall have the option, exercisable within thirty (30) days of receipt of notice of the terms of the extension or renewal, of (i) assuming all payments for the extension or renewal and retaining its sublease interest in such Site or (ii) assigning all of its interests in such Site to BMI as of the date the Ground Lease would have expired had BMI not extended or renewed such Ground Lease, and BMI's Site Maintenance Charge and TowerCo's obligation to pay Rent, if any, shall terminate effective that date. If neither TowerCo on behalf of and for the benefit of BMI nor BMI is able to extend or renew any Ground Lease in accordance with this Section 3(f), then the Parties shall permit such Ground Lease to expire on the applicable expiration date and this Sublease shall have no further force and effect as to the Subleased Property of the Leased Site to which such Ground Lease applies. Each of TowerCo and CCIC agrees that neither it, nor any of its Affiliates, shall seek to obtain, obtain or hold, any interest in any Ground Lease or its underlying fee interest that is superior or prior to BMI's interests in such Ground Lease. TowerCo shall have the right, up to the date on which BMI exercises its right to conduct and complete negotiations with the applicable Ground Lessor, to acquire the fee simple interest in the Site from the Ground Lessor and transfer such fee simple interest to BMI for $1.00, in which event there shall be no Rent for that Site as of the date fee simple title vests in BMI; provided that, if there is a continuing unwaived event of default by BMI with respect to the Ground Lease of any Site, TowerCo shall have no obligation to transfer to BMI the fee simple interest in such Site. Except as provided above or as TowerCo may otherwise agree, BMI shall not take any action to amend any Ground Lease, other than to exercise renewals expressly provided therein. If any subdivision is required for the transfer of such fee simple interest, BMI shall cooperate with TowerCo to the extent reasonably requested, including without limitation by executing any applications required for such subdivision, all at TowerCo's sole cost and expense.
(g) Subject to Section 25 and Section 26, BMI's right to sell, convey, transfer, assign or otherwise dispose of BMI's interest in and to any Site (including BMI's or such Affiliates interest in and to the Subleased Property of such Site) shall be unrestricted.
(h) Notwithstanding anything to the contrary contained herein, BMI represents to TowerCo that as of the date of the applicable Site Designation Supplement, each Ground Lease for a Leased Site will be in full force and effect and BMI will not be in default under any such Ground Lease in any material respect as a result of BMI's acts or omissions. BMI further agrees that it will promptly pay or cause to be paid the Ground Rent under each of the Ground Leases of the Leased Sites during the Term of this Sublease when such payments become due and payable. BMI shall pay the Ground Rent in respect of each Site, for so long as this Sublease is in effect as to such Site, notwithstanding that TowerCo may be in default of its obligations hereunder. BMI shall otherwise perform any obligations under and comply with the terms of each of the Ground Leases, but only if such obligations are expressly reserved to BMI for its performance under the terms of this Sublease. Upon receipt by BMI of any notice of default or notice of an act or omission which could with the passing of time and/or the giving of notice constitute an event of default under a Ground Lease or non-compliance with a term of a Ground Lease (the "Default Notice"), BMI shall, within five (5) days after receipt of the Default Notice, provide TowerCo with a copy of the Default Notice. If such default or non-compliance with a term of a Ground Lease is caused by TowerCo or any Space Subtenant, TowerCo shall, and shall cause the applicable Space Subtenant, cure or otherwise remedy such default or non- compliance. If any such default or non-compliance with a term of a Ground Lease (in respect of an obligation expressly reserved for performance by BMI) is caused by BMI, then BMI shall, within two (2) days after the expiration of the aforementioned 5-day period, provide TowerCo a letter stating that (i) the default or non-compliance, if a payment default, or if the default is in respect of an obligation expressly reserved for performance by BMI, has been cured or remedied, (ii) if the default is in respect of an obligation expressly reserved for performance by BMI, the default (other than a payment default) has not been cured but will be cured within the time period provided under the Ground Lease, together with a reasonably detailed explanation of the actions BMI intends to take to effect such cure, its basis for concluding that such actions will be accepted by the Ground Lessor as an adequate cure or (iii) the basis, if any, for BMI's good faith position that there is no default or non-compliance if the default is in respect of an obligation expressly reserved under this Sublease for performance by BMI ("BMI's Notice"). If BMI does not or cannot provide BMI's Notice or if, subsequent to delivery of BMI's Notice to TowerCo, BMI is unable to effect an appropriate cure, then TowerCo has the right, but not the obligation, to take such action as may reasonably be necessary to cure or otherwise remedy such default or non-compliance and, in such event, TowerCo will have the right to demand prompt reimbursement from BMI of any and all amounts expended by TowerCo or on TowerCo's behalf, together with interest at the rate of eighteen percent (18%) per annum from the date of TowerCo's payment until the date repaid by BMI. TowerCo's failure to take any such action shall not constitute or be deemed a waiver of any rights it may have to assert Claims against BMI for a breach of its obligations under this Sublease. Notwithstanding anything in this Sublease to the contrary, unless an obligation under a Ground Lease represents a payment default by BMI or is expressly reserved under this Sublease for performance by BMI, any default referred to in the Default Notice shall constitute a default by TowerCo under this Sublease.
(i) Notwithstanding anything to the contrary contained herein, TowerCo shall have the right, at TowerCo's cost and expense, to make Alterations to any Site and to expand a Site, including the expansion of the Land, as TowerCo deems reasonably necessary for the conduct of its business pursuant to this Sublease, including but not limited to the extension of the Tower, the re- enforcement of the Tower, and the construction of additional Towers on such Site; provided, however, that such Alterations or expansions shall be subject to -------- ------- TowerCo's performance of its obligations pursuant to this Sublease, including but not limited to Sections 13 and 15 and shall not disrupt or otherwise adversely affect BMI's Permitted Use of its Reserved Space. TowerCo covenants and agrees that any such Alterations or expansions shall be made in a workmanlike manner in compliance with standard industry practices and with all applicable Laws.
Appears in 1 contract
Subleased Property. (a) Subject to the terms and conditions of this Sublease, each Sublessor hereby lets, leases and demises unto TowerCo, and except as otherwise provided in Sections 3(h) and 22(b), TowerCo hereby leases, takes and accepts from Sublessor the Subleased Property of all of the Sites owned or leased by such Sublessor, in its "AS IS" condition, without any representation, warranty or covenant of or from SBCW SBC or any SBCW SBC Affiliate of SBCW whatsoever as to the condition thereof or the suitability thereof for any particular use, except as may be expressly set forth herein or in the Agreement to Sublease. To SBCWSBC's knowledge, the Towers are satisfactory in all material respects for SBCWSBC's and its Affiliates' continuing use consistent with its Permitted Use of such Towers. Except as set forth aboveherein, TowerCo hereby acknowledges that neither SBCW SBC nor any Affiliate or agent of SBCW SBC has made any representation or warranty, express or implied, with respect to any of the Subleased Property, or any portion thereof, or the suitability or fitness for the conduct of TowerCo's business or for any other purpose, including the Permitted Use, and TowerCo further acknowledges that it has had or by its execution and delivery of a Site Designation Supplement, will have had sufficient opportunity to inspect and approve the condition of the Subleased Property of the Sites.
(b) Each Site in addition to the Initial Sites shall be made subject to this Sublease by the execution and delivery of a Site Designation Supplement with respect thereto between Sublessor and TowerCo. SBCW SBC and TowerCo acknowledge and agree that this Sublease is intended to constitute a single sublease covering the Subleased Property of all of the Sites and a single agreement covering all the Sites, and not a separate sublease and agreement covering individual Sites.
(c) This Sublease is a grant of a leasehold interest in each Owned Site subject to all matters affecting Sublessor's right, title and interest in and to each Owned Site (including without limitation, Existing Subleases and the interests of third parties as to any Owned Sites that are subject to any Colocation Agreements); and, as to Leased Sites, this Sublease is a grant of a subleasehold interest in each Leased Site subject to all matters affecting title to Sublessor's leasehold interest, leasehold estate or other possessory interest 17 15 therein (including without limitation, Existing Subleases and the interests of third parties as to any Leased Sites that are subject to Colocation Agreements).
(e) TowerCo shall not be entitled to act as agent for, or otherwise on behalf of, SBC or any SBC Affiliate or to bind SBC or any SBC Affiliate in any way whatsoever in connection with any Ground Lease or otherwise except as otherwise provided in this Section 3.
(f) exercise renewals as expressly provided herein which each Sublessor covenants to do as provided above. In addition to the foregoing, Sublessor agrees that it shall use its good faith efforts to cooperate with TowerCo's exercise of (or right to exercise any of) its rights under this Sublease with respect to the Ground Lease and the Ground Lessor, including, without limitation, pursuant to this Section 3.
(g) Subject to Section 18 and Section 25, Sublessor's right to sell, convey, transfer, assign or otherwise dispose of Sublessor's interest in and to any Site (including Sublessor's interest in and to the Subleased Property of such Site) shall be unrestricted.
(h) Notwithstanding anything to the contrary contained herein, SBC represents to TowerCo that, as of the applicable Site Commencement Date, each Ground Lease for a Leased Site is or will be in full force and effect and Sublessor is not or will not be in default under any such Ground Lease in any material respect as a result of Sublessor's (or any present or former SBC Affiliate's) acts or omissions. Each Sublessor shall perform any obligations under and comply with the terms of each of the Ground Leases, but only if such obligations are expressly reserved to Sublessor for its performance under the terms of this Sublease. Upon receipt by Sublessor of any notice of default or notice of an act or omission which could with the passing of time and/or the giving of notice constitute an event of default under a Ground Lease or non-compliance with a term of a Ground Lease (the "Default Notice"), SBC shall, within five (5) business days after receipt of the Default Notice or such shorter time as is reasonably necessary to avoid a termination of such Ground Lease, provide TowerCo with a copy of the Default Notice. If such default or non-compliance with a term of a Ground Lease is caused by TowerCo or any Space Subtenant, TowerCo shall, and shall cause the applicable Space Subtenant to, cure or otherwise remedy such default or noncompliance. Notwithstanding anything in this Sublease to the contrary, unless an obligation under a Ground Lease is expressly reserved under this Sublease for performance by a Sublessor, any default referred to in the Default Notice shall constitute a default by TowerCo under this Sublease.
(i) Unless an event of default by TowerCo shall have occurred and be continuing, TowerCo, at its own cost and expense, may from time to time make, subject to the requirements of Section 12, such Alterations that are not required pursuant to Section 11(a) as TowerCo may deem desirable in the proper conduct of its business, so long as (i) such Alteration shall not disrupt or otherwise adversely affect SBC's or any SBC Affiliate's Permitted Use of the Site or portion thereof and is made in accordance with the requirements set forth in Section 12 hereof, (ii) such Alteration shall not result in any material respect in (y) the value of the Site or portion thereof being less than the value thereof immediately prior to such Alteration, or (z) the economic life of the Site or portion thereof being less than the economic life of the Site or portion thereof immediately prior to such Alteration, (iii) such Alteration shall not cause the Site or portion thereof to constitute "limited use property" within the meaning of Rev. Proc. 76-30, 1976-2 C.B. 647, and (iv) no Alterations, taken together or separately, shall fail to comply with the provisions of Rev. Proc. 75-21, 1975-1 C.B. 715 or 79-48, 1979-1 C.B. 529. Notwithstanding anything to the contrary contained in this Section 3(i), TowerCo, at its own cost and expense, may from time to time make Alterations (including, without limitation, Nonseverable Improvements that may be required by Law), which do not comply with subclause (iv) of the immediately preceding sentence ("Non-Conforming Alterations") provided that (i) the Non-Conforming Alterations otherwise satisfy the terms and provisions of this 20 18 Section 3(i), and (ii) the applicable Sublessor does not make TowerCo's proposed Non-Conforming Alterations in accordance with the remainder of this Section 3(i). In the event that TowerCo desires to make Non-Conforming Alterations, TowerCo shall submit written notice to the applicable Sublessor describing such proposed Non-Conforming Alterations in reasonable detail. Such Sublessor shall elect whether to make or cause to be made, at such Sublessor's cost and expense, the Non-Conforming Alterations by written notice provided to TowerCo within ten (10) days after receipt of TowerCo's proposal regarding the Non-Conforming Alterations. Such Sublessor's failure to respond to TowerCo within such ten (10) day period shall be deemed to be such Sublessor's election not to make such Non-Conforming Alterations. In the event such Sublessor elects to make the Non-Conforming Alterations and such Sublessor and TowerCo agree on terms and conditions, including, but not limited to, the amount and timing of rent with respect to such Non-Conforming Alterations ("Additional Rent"), then such Sublessor shall make the Non-Conforming Alterations in accordance with plans and specifications, and according to a time schedule, provided by TowerCo and reasonably acceptable to such Sublessor. In the event that such Sublessor elects, or is deemed to have elected, not to make the Non-Conforming Alterations or such Sublessor and TowerCo shall not have agreed on terms and conditions, TowerCo may make such Non-Conforming Alterations and, notwithstanding anything to the contrary contained in this Sublease (other than the other conditions contained in this Section 3(i)), title to the Non-Conforming Alterations shall without further act or instrument act or instrument vest in TowerCo. Upon the expiration or earlier termination of this Sublease as to a Site at which Non-Conforming Alterations have been made, the following provisions shall apply: (i) if TowerCo has not exercised its option to purchase such Site and TowerCo has made any Non-Conforming Alterations, the applicable Sublessor may purchase such Non-Conforming Alterations from TowerCo at a price equal to the then fair market value of such Non-Conforming Alterations, (ii) if TowerCo has exercised its option to purchase such Site, TowerCo shall purchase such Site at a purchase price equal to the Option Purchase Price Amount, plus the then fair market value of the Non-Conforming Alterations and/or Sublessor Alterations, if any, made to such Site, and (iii) if TowerCo has not exercised its option to purchase such Site, TowerCo has made Non-Conforming Alterations, and the applicable Sublessor does not purchase such Non-Conforming Alterations from TowerCo, TowerCo shall continue to hold such Non-Conforming Alterations, and all rent and any sales proceeds attributed to such Site thereafter shall be allocated between the applicable Sublessor and TowerCo in accordance with their relative interests in such Site (as determined below). In each of subclauses (i) and (ii) of the immediately preceding sentence, the applicable party shall pay the purchase price in cash or immediately available funds. In each of the subclauses (i) and (ii), the then fair market value of the Non-Conforming Alterations and/or Sublessor Alterations shall equal the excess of the then fair market value of such Site including such Non-Conforming Alterations and/or Sublessor Alterations over the estimated then fair market value of such Site without such Non-Conforming Alterations and/or Sublessor Alterations. The applicable Sublessor and TowerCo shall attempt, in good faith, to agree on the then fair market value of the Non-Conforming Alterations and/or Sublessor Alterations (or the relative interests of the applicable Sublessor and TowerCo, if applicable) or, alternatively, shall attempt, in good faith, to agree on an independent qualified appraiser to determine such fair market value and the fair market values of the Non-Conforming Alterations and/or the Sublessor Alterations (or the relative interests of the applicable Sublessor and TowerCo, if applicable). Absent agreement on value or on an appraiser within thirty (30) days, each of such Sublessor and TowerCo shall identify an independent qualified appraiser 21 19 within ten (10) days thereafter. If either party fails to appoint an appraiser within such ten (10) day period, the appraiser appointed by the other party shall alone determine such fair market value (or relative interests). If two appraisers are appointed and such appraisers cannot agree on the then fair market value (or the relative interests of the applicable Sublessor and TowerCo, if applicable), such appraisers shall identify a third independent qualified appraiser who shall determine the then fair market value of the Non-Conforming Alterations and/or Sublessor Alterations and the relative fair market values of the Non-Conforming Alterations and/or the Sublessor Alterations (or the relative interests of Sublessor and TowerCo, if applicable) (collectively, the "Valuation Process"); provided that if such two appraisers cannot agree on the identity of such third appraiser within ten (10) days after the appointment of the second appraiser, either party may apply to the American Arbitration Association for the appointment of such appraiser. If TowerCo exercises its option to purchase the Site, the fair market value of the Non-Conforming Alterations and/or the fair market value of the Sublessor Alterations shall be paid to the party which made such Alterations.
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