EXHIBIT 10.6
OPTION TO DIRECT CONSTRUCTION OR ACQUISITION OF
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ADDITIONAL TOWER FACILITIES
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THIS OPTION TO DIRECT CONSTRUCTION OR ACQUISITION OF ADDITIONAL TOWER
FACILITIES (the "Option"), is made this ____ day of January, 1998, by and
between PINNACLE TOWERS INC. (as "Developer/Lessor") and SOUTHERN COMMUNICATIONS
SERVICES, INC. ("SoComm").
W I T N E S S E T H:
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WHEREAS, SoComm and Developer/Lessor have this day consummated a
transaction pursuant to which SoComm did convey to Developer/Lessor certain
rights and interests in communications tower sites and certain other, related
facilities and improvements in the States of Georgia, Alabama, Mississippi and
Florida;
WHEREAS, as a material element of such agreement for conveyance by
SoComm, without which SoComm would not have consummated a transaction conveying
such tower sites and facilities with Developer/Lessor, Developer/Lessor has
agreed with SoComm to provide certain further services to and for the benefit of
SoComm, related to the possible construction of further tower sites;
WHEREAS, SoComm's "Southern LINC" wireless communication source is
critical to the needs of affiliated electric utility users, as well as
commercial customers that include state, county and municipal government users
and emergency services users, and SoComm itself is and shall be an anchor tenant
on the any of the "Sites" (as herein defined) constructed or acquired under this
Option;
WHEREAS, SoComm and Developer/Lessor desire to enter into this Option,
to reflect the terms and conditions under which Developer/Lessor may, at the
direction and in the sole discretion of SoComm, perform certain services for
SoComm related to the construction or acquisition of certain telecommunications
tower facilities, as such services and facilities are further described herein.
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein, and for Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, paid by the parties hereto to one another, the receipt
and sufficiency of which are acknowledged by the parties hereto, the parties
hereto hereby covenant and agree as follows:
1. Term. The term of this Option shall commence on the date hereof
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and shall expire, unless sooner terminated in accordance with the terms hereof,
ten (10) years after the date hereof.
2. Option to Direct Acquisition and Construction. (a) SoComm shall
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have the right at any time and from time to time, at the sole option of SoComm,
by a notice to Developer/Lessor, to direct Developer/Lessor to use
Developer/Lessor's commercially reasonable efforts to construct or cause the
construction or acquisition (as applicable) of up to, but not in excess of,
eighty (80) new towers or existing towers, for the purpose of permitting the
placement thereon of communications antenna and related equipment (individually
a "Tower" and collectively the "Towers") for the benefit of SoComm or its
designees, on any one of the potential tower sites within an area, or "search
ring", (individually a "Site" or collectively the "Sites"), designated or
provided from time to time by SoComm, within the States of Florida, Alabama,
Mississippi or Georgia.
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(b) SoComm shall have the right to have notice of and to consent to
any and all contractors and subcontractors Developer/Lessor may use in
connection with or as a part of the fulfillment or achievement of the
obligations of Developer/Lessor hereunder, such consent of SoComm not to be
unreasonably withheld or delayed. Developer/Lessor shall not utilize any
contractor or subcontractor to which SoComm has not previously given its
consent. [PROVIDE PRE-APPROVED LIST OF VENDORS/CONTRACTORS.]
(c) Upon the notice from SoComm as provided in Paragraph 2(a) above,
Developer/Lessor hereby covenants and agrees to use Developer/Lessor's
commercially reasonable efforts to cause the construction or acquisition, as
applicable, of the Towers as contemplated herein; provided, however, that in
attempting to cause such construction or acquisition, Developer/Lessor shall not
be entitled to take into account the commercial viability or profitability of
the Tower, once constructed, as a part of Developer/Lessor's determination of
undertaking commercially reasonable efforts as required herein. As a part of
such Tower construction or acquisition, Developer/Lessor shall and hereby
covenants and agrees to use Developer/Lessor's commercially reasonable efforts
to acquire fee simple title or ground lease to the Site in question, without
encumbrances except for those which would not in any manner adversely impact
upon the use of such Tower by SoComm, as contemplated herein.
Developer/Lessor's site selected may be subject to a mortgage, deed to secure
debt or other such encumbrance, so long as the foreclosure thereof would not
terminate or otherwise adversely affect SoComm's rights under the "Lease" (as
herein defined).
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(d) To the extent new Towers are constructed by Developer/Lessor,
Developer/Lessor hereby covenants and agrees to construct such Towers in
accordance with the specifications and guidelines for the construction of such
Towers as currently used by Developer/Lessor.
(e) Developer/Lessor shall cause the Site so designated by SoComm to
be acquired and construction of the Tower on such Site to be commenced within
thirty (30) days after the "Permit" (as herein defined) is issued for the Site
in question. Developer/Lessor shall cause the Site to be acquired and the Tower
to be constructed and completed expediently and as soon as reasonably practical,
once the construction thereof has commenced.
(f) Developer/Lessor shall be responsible for and hereby covenants
and agrees to use its commercially reasonable efforts to obtain, achieve or
otherwise acquire, as quickly as is reasonable, any and all permits, licenses,
approvals (governmental, regulatory and otherwise) or consents (individually a
"Permit", and collectively the "Permits") necessary or appropriate for the
construction, development, use and operation of a Tower, at Developer/Lessor's
sole cost and expense. Developer/Lessor shall provide notice to SoComm of the
time, date and place for any hearings or meetings related to obtaining a Permit
for a Tower, as soon as Developer/Lessor has notice of such hearing or meeting,
and SoComm shall have the right, at the sole option and discretion of SoComm, to
attend such hearing or meeting. Developer/Lessor's delivery to SoComm of
possession of a portion of the Tower for use by SoComm under a Lease shall be
the representation and warranty by Developer/Lessor to SoComm that all such
Permits have, to Developer/Lessor's knowledge, been validly
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issued and obtained. Developer/Lessor shall deliver to SoComm a copy of all such
Permits obtained with respect to or in connection with any Tower, upon their
issuance. Developer/Lessor shall not, under any circumstances or for any
purposes, have the right to suggest, indicate or represent as a part of any
efforts, meetings or hearings to obtain a Permit, that Developer/Lessor is
acting on behalf of, at the request of or for SoComm or any of the affiliates or
subsidiaries of SoComm, and Developer/Lessor shall not disclose this
relationship, unless Developer/Lessor has been given the prior, express written
consent by SoComm to do so. A violation by Developer/Lessor shall give SoComm,
in addition to and not in lieu of, any of the remedies available to SoComm at
law or in equity, the right to immediately terminate this Option and all further
rights of the parties hereto under this Option.
3. Self-Help or Alternate Resolution Rights of SoComm. (a) If for
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any reason Developer/Lessor fails to commence the construction or acquisition of
a Tower, or once, commenced, fails to cause the completion of construction of
the Tower, in accordance with and within the time frames set forth on Paragraph
2 above, as a result of Developer/Lessor not using its commercially reasonable
efforts to do so, then SoComm, at its sole option and in its sole discretion,
may acquire the Site in question (if from Developer/Lessor, then at
Developer/Lessor's cost) and then construct such Tower or cause a third-party to
construct the Tower which SoComm has initially directed Developer/Lessor to
construct. In such event, SoComm shall give notice to Developer/Lessor of such
election. If such occurs, Developer/Lessor shall not be entitled to any
reimbursement or compensation of any nature, kind or amount whatsoever, whether
or not Developer/Lessor has commenced construction of the Tower in question.
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(b) (i) Any and all costs incurred by SoComm as a part of or in
connection with the acquisition of the Site or the construction of the Tower may
be, at the option of SoComm, off-set against any rents or other costs due under
the Lease, or, if SoComm acquires the Site in its own name such that SoComm owns
the Site and Tower, then no Lease shall be entered into, and SoComm may recover
its costs as contemplated in Paragraph 3(b)(ii) herein. However, no such
election by SoComm shall otherwise limit any rights SoComm has or might have at
law or in equity for Developer/Lessor's failure to comply with the terms of this
Option.
(ii) If the rent due under a Lease is not sufficient to cover
and reimburse SoComm's costs incurred, as described above, within a three (3)
year period, after the costs are first incurred, or if SoComm has not entered
into a Lease because Developer/Lessor does not own the Site in question, then
SoComm may, at SoComm's option and in SoComm's sole discretion, offset the
amounts due SoComm against any other amounts due to Developer/Lessor under any
other agreement or Lease, involving SoComm and Developer/Lessor.
(c) If Developer/Lessor fails to commence the construction of, or,
once commenced, fails to complete the construction of a Tower within the time
frames set forth above more than three (3) times, then SoComm may, at its sole
option and is its sole discretion, upon notice to Developer/Lessor, terminate
this Option upon not less than ten (10) days prior written notice, without
premium or penalty. Upon such termination, neither party shall have any further
rights hereunder, but no such termination shall effect the rights of either
party hereto under any "Lease" (as herein defined).
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4. Costs of Construction. Developer/Lessor shall pay for any and all
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costs of or incurred in connection with the construction of the Tower, or the
acquisition of any land or rights or entitlements associated therewith.
5. Lease. Upon the completion of the Tower, SoComm will enter into a
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lease for an antenna facility and related equipment on the Tower (a "Lease"),
the term of lease to commence on the date of completion of the Tower. Such
Lease shall be in the form attached hereto as Exhibit "B", by this reference
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incorporated herein, except that there shall be no rent due from SoComm
thereunder for the period from the Commencement date thereunder until [INSERT
DATE ONE (1) YEAR FROM CLOSING DATE]. This agreement to lease is the only
obligation SoComm shall have with respect to such Tower and any Lease, once duly
executed and delivered by all parties thereto, shall not be terminable if this
Option is terminated or otherwise expires.
6. Notices. All notices required or permitted hereunder shall be in
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writing and shall be sent, either by certified mail, return receipt requested,
postage prepaid, or by a recognized overnight national courier service, in
either event addressed as follows:
If to SoComm:
Mr. Xxxxxx Xxxxxx
Southern Communications Services, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx
0/xx/ Xxxxx
Xxxxxxx, XX 00000
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with a copy to:
Xxxxxx Xxxxxxxx, Esq.
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxx, XX 00000-0000
If to Developer/Lessor:
Pinnacle Towers Inc.
0000 Xxxxxxxx Xxxx. - Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
with a copy to:
Xxxx Xxxxxx, Esq.
Holland & Knight, LLP
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
and a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000-0000
or to such other address as either party hereto may provide to the other, in
accordance with the terms of this Paragraph.
7. Assignability; Limitations on Transfer. Neither party shall have
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the right to assign its interest under this Option without the prior written
consent of the other party hereto, which such party may withhold or grant in the
sole discretion of such party.
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Notwithstanding the above, a party hereto shall have the absolute right to
assign or otherwise convey, in whole or in part, its interest under this Option,
with notice to, but without the need to obtain the prior consent or approval of,
the other party hereto, to any affiliate or subsidiary of such party.
8. Transfers, Successors and Assigns. This Option shall, subject to
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the terms of Article 7 above, inure to the benefit of and be binding upon
SoComm, Developer/Lessor, and their respective transfers, successors and
assigns.
9. Georgia Law. This Option shall be construed and interpreted under
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the laws of the State of Georgia.
IN WITNESS WHEREOF, the undersigned have caused this Option to be
executed under seal and delivered, on the day and year first above written.
"SoComm"
Southern Communications Services, Inc.
By:_____________________________________
Its:____________________________________
Attest:_________________________________
Its:____________________________________
(CORPORATE SEAL)
"Developer/Lessor"
Pinnacle Towers, Inc.
By:_____________________________________
Its:____________________________________
Attest:_________________________________
Its:____________________________________
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(CORPORATE SEAL)
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