EXHIBIT 2.8
SUBLEASE
by and among
BELLSOUTH PERSONAL COMMUNICATIONS, INC.
ON ITS OWN BEHALF AND AS GENERAL PARTNER OF
BELLSOUTH CAROLINAS PCS, L.P.,
CROWN CASTLE INTERNATIONAL CORP.,
and
CROWN CASTLE SOUTH INC.
Dated August 1, 1999
TABLE OF CONTENTS
SECTION HEADING PAGE NO.
1. Definitions 1
2. Sublease Documents 12
3. Subleased Property 12
4. Existing Subleases and Colocation Agreements 16
5. Reserved Space 18
6. Permitted Use 19
7. Access 20
8. Term 20
9. Put Right 21
10. Withdrawal 22
11. Rent 23
12. Condition of the Sites 27
13. Work on the Site 29
14. Damage to the Site, Tower or the Improvements 32
15. Space Subtenants; Interference 33
16. Taxes and Assessments 35
17. Utilities. 35
18. Governmental Approvals 35
19. No Liens 36
20. Condemnation 37
21. Waiver of Subrogation; Indemnity 38
22. Subordination and Attornment 40
23. Environmental Covenants 40
24. Insurance 43
25. Right of First Refusal 46
26. Assignment and Subletting 48
27. Estoppel Certificate 50
28. Holding Over 50
29. Rights and Inspection of Entry 50
30. A Party's Right to Act for the Other Party 50
31. Defaults and Remedies 52
32. Quiet Enjoyment 56
33. No Merger 56
34. Broker and Commission 57
35. Recording of Site Designation Amendment 57
36. Compliance with Specific FCC Regulations 57
37. CCIC's and CCI's Guaranty 58
38. Several Liability 60
39. General Provisions 60
SUBLEASE
THIS SUBLEASE is made and entered into this 1st day of August, 1999
(this "SUBLEASE"), by and among BELLSOUTH PERSONAL COMMUNICATIONS, INC. a
Delaware corporation ("BSPCI") for itself, and as general partner of BELLSOUTH
CAROLINAS PCS, L.P., a Delaware limited partnership (the "CAROLINAS
PARTNERSHIP"), CROWN CASTLE INTERNATIONAL CORP., a Delaware corporation
("CCIC"), and CROWN CASTLE SOUTH INC., a wholly-owned subsidiary of CCIC and a
Delaware corporation ("TOWERCO").
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties to this Sublease agree as follows:
1. DEFINITIONS. For purposes of this Sublease, the following
capitalized terms have the following respective meanings:
"AFFILIATE" of a Person means any Person which, whether directly or
indirectly, Controls, is Controlled by, or is under common Control with the
subject Party.
"AGGREGATE RENT" has the meaning given to such term in SECTION 11(C).
"AGGREGATE SITE MAINTENANCE CHARGE" has the meaning given to such term
in SECTION 11(C).
"AGREEMENT TO SUBLEASE" means the Agreement to Sublease, by and among
CCIC, TowerCo, BSPCI and the Carolinas Partnership.
"ALTERATIONS" means the construction or installation of new Towers
and/or Improvements on any Site or any part thereof, or the alteration,
replacement, modification or addition to the existing Improvements or Tower on a
Site.
"AVAILABLE COLOCATION SPACE" has the meaning given to such term in
SECTION 4(B).
"AVAILABLE SPACE" means, as to any Site, a Tower location, a portion
of the Land, a portion of the Improvements or any other portion, space or area
of such Site that is available for further sublease by TowerCo to any Space
Subtenant (including BSPCI, in such capacity) and all rights appurtenant to such
portion, space or area.
"AWARD" means any amounts paid, recovered or recoverable as damages,
compensation or proceeds by reason of any taking on account of a Taking,
including all amounts paid pursuant to any agreement with such entity which has
been made in settlement or under threat of any such action or proceeding, less
the reasonable costs and expenses incurred in collecting such amounts.
"BELLSOUTH ENTITY" means BSPCI and/or the Carolinas Partnership, as
applicable.
"BELLSOUTH ENTITY AFFILIATES" means, collectively, Affiliates of
BSPCI, Affiliates of the Carolinas Partnership, any limited partner of the
Carolinas Partnership and any Person in which BellSouth Corporation, a Georgia
corporation, owns, directly or indirectly, more than thirty percent (30%) of the
Voting Stock of such Person or which BellSouth Corporation otherwise Controls.
"BELLSOUTH ENTITY COMPETITOR" means any Person whose revenues,
generated directly or indirectly, from providing wireline local exchange carrier
or wireless telephone provider telecommunications services, constitute at least
twenty percent (20%) of the total revenues of such Person.
"BELLSOUTH ENTITY'S IMPROVEMENTS" means each of the following, in each
case located on the Land portion of the Reserved Space, installed by or for the
benefit of the applicable BellSouth Entity and used by such BellSouth Entity:
(i) Communications Equipment; (ii) (v) equipment shelters or cabinets, equipment
buildings, and other constructions, (w) generators and associated fuel tanks,
(x) grounding rings for equipment shelters or cabinets, (y) connections for
utilities service from the meter to the BellSouth Entity's Communications
Equipment, and (z) one or more foundations, concrete equipment pads or raised
platforms for such Communications Equipment, equipment shelters or cabinets,
buildings and constructions and (iii) as to any BTS Site, Constructed
Improvements (as defined in the Construction Agreement) on such BTS Site.
"BELLSOUTH ENTITY INDEMNITEE" means BSPCI, the Carolinas Partnership,
their respective Affiliates, and the respective directors, officers, partners,
employees, contractors, subcontractors, advisors and consultants of BSPCI, the
Carolinas Partnership, and their respective Affiliates (except TowerCo and any
contractors, subcontractors, advisors and consultants of TowerCo).
"BELLSOUTH ENTITY'S NOTICE" has the meaning given to such term in
SECTION 3(H).
"BSPCI ENTITY WORK" has the meaning given to such term in SECTION
13(C).
"BTS SITE" has the meaning given to such term in the Construction
Agreement.
"BUSINESS DAY" means any week day on which the headquarters offices of
both CCIC and BSPCI are open for business.
"CAPITAL STOCK" means: (i) in the case of a corporation, corporate
stock; (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
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"CASH FLOW" means, as to any Person, the earnings before interest
expense, depreciation, amortization and taxes of such Person and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP.
"CLAIMS" means any claims, actions, suits, proceedings, disbursements,
judgments, demands, damages, penalties, fines, losses, liabilities, costs and
expenses, including reasonable attorneys' fees and amounts paid in settlements.
"COLOCATION AGREEMENTS" means any existing contractual arrangements
and agreements pursuant to which BSPCI, the Carolinas Partnership or any of
their Affiliates share any Site with other providers of wireless
telecommunications services and to which BSPCI, the Carolinas Partnership or
such Affiliate is a Party, as set forth in SCHEDULE A to EXHIBIT A attached
hereto.
"COMMUNICATIONS EQUIPMENT" means, as to any Site, transmitting and/or
receiving equipment and other equipment installed at the Reserved Space (as to
BSPCI) or any Available Space (as to a Space Subtenant), which is or will be
necessary in providing current and future wireless communication services,
including without limitation, switches, antennas, microwave dishes, panels,
conduits, flexible transmission lines, cables, radio, amplifiers, filters and
other transmission or communications equipment (including interconnect
transmission equipment, transmitter(s), receiver(s) and accessories) and such
other equipment and associated software as may be necessary in order to provide
such wireless communication services, including without limitation, voice or
data. Communications Equipment shall include any existing, replaced and
upgraded Communications Equipment.
"COMMUNICATIONS FACILITY" means, as to any Site, the Reserved Space
(as to BSPCI) or any Available Space (as to a Space Subtenant), together with
such BellSouth Entity's or such Space Subtenant's Improvements.
"COMPLETION" has the meaning given to such term in the Construction
Agreement.
"CONSTRUCTION AGREEMENT" means the Agreement to Build to Suit of even
date herewith among BSPCI, the Carolinas Partnership, TowerCo and CCIC.
"CONTROL" means the ownership, directly or indirectly, of sufficient
voting shares of an entity, or otherwise the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
an entity, or the power to veto major policy decisions of any such entity,
whether through the ownership of voting securities, by contract or otherwise.
"CPI" means the Consumer Price Index for all Consumers, U.S., City
Average (1982-84 = 100) All Items Index, published by the Bureau of Labor
Statistics, United States Department of Labor. If the CPI shall cease to be
compiled and published at any time during the term of this Sublease, but a
comparable successor index is compiled and published by the Bureau of Labor
Statistics, United States Department of Labor, the adjustments to the Rent
provided for
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in SECTION 11, if any, shall be computed according to such successor index, with
appropriate adjustments in the index to reflect any differences in the method of
computation from the CPI. If, at any time during the term of this Sublease,
neither the CPI nor a comparable successor index is compiled and published by
the Bureau of Labor Statistics, the index for "all items" compiled and published
by any other branch or department of the federal government shall be used as a
basis for calculation of the adjustments to the Rent provided for in SECTION 11,
and if no such index is compiled and published by any branch or department of
the federal government, the statistics reflecting cost of living increases as
compiled by any institution or organization or individual generally recognized
as an authority by financial and insurance institutions shall be used.
"CPI INCREASE" means an increase, if any, (expressed as a percentage)
in the most recently published CPI value as of January 1 of the applicable Site
Term Year, from the CPI value published for January 1 of the immediately
preceding Site Term Year.
"DATE OF TAKING" means the earlier of the date upon which title to
applicable Site, or any portion thereof, subject to a Taking is vested in the
condemning authority, or the date upon which possession of such Site or portion
thereof is taken by the condemning authority.
"DEFAULT NOTICE" has the meaning given to such term in SECTION 3(H).
"EFFECTIVE DATE" means the date of this Sublease, as set forth in the
caption of the Sublease.
"EMERGENCY" has the meaning given to such term in SECTION 30(B).
"EXISTING SUBLEASE" means, with respect to any Site, any subleases,
licenses, leases or other agreements for use of a Tower location and other space
on such Site between the applicable BellSouth Entity and any other Person that
is in effect as of the date of the Site Designation Supplement for such Site.
"FAA" means the United States Federal Aviation Administration.
"FCC" means the United States Federal Communications Commission.
"GROUND LEASE" means, as to a Leased Site, the ground lease or other
agreement, pursuant to which the applicable BellSouth Entity or BellSouth Entity
Affiliate holds a leasehold interest, leasehold estate or other real property
interest.
"GROUND LESSOR" means, as to a Leased Site, the "lessor" or "landlord"
under the Ground Lease thereof.
"GROUND RENTS" has the meaning given to such term in SECTION 11(C).
"INITIAL SITE" means any Site set forth in EXHIBIT A.
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"IMPROVEMENTS" means, as to each Site, (i) one or more concrete
equipment pads or raised platforms capable of accommodating exterior cabinets,
electrical service and access for the placement and servicing of a BellSouth
Entity's and, if applicable, each Space Subtenant's Improvements; (ii) shelters
or exterior cabinets; (iii) generators and associated fuel tanks; (iv) grounding
rings (other than those for BellSouth Entity equipment shelters); (v) fencing;
(vi) signage; (vii) connections for utility service up to the meter; (viii)
access road improvements; (ix) common shelters, if any; and (x) such other
customary equipment and improvements as may be installed on a Site (including
the Land and the Tower) by a BellSouth Entity, in each case only as installed or
constructed by TowerCo for shared use by such BellSouth Entity and Space
Subtenants. Improvements do not include Communications Equipment.
"INVESTMENT GRADE" means outstanding senior unsecured debt securities
rated BBB or higher by Standard & Poor's or Baa or higher by Xxxxx'x.
"LAND" means, as to each Site, the land constituting a portion of such
Site, together with all easements and other rights appurtenant thereto.
"LAWS" means all federal, state, county, municipal and other
governmental constitutions, statutes, ordinances, codes, regulations,
resolutions, rules, requirements and directives and all decisions, judgments,
writs, injunctions, orders, decrees or demands of courts, administrative bodies
and other authorities construing any of the foregoing.
"LEASED SITE" means a Site as to which any BellSouth Entity holds a
leasehold interest, leasehold estate or other possessory interest therein
pursuant to a Ground Lease.
"LESSOR" means, as to each Site, any BellSouth Entity or any of its
Affiliates that either: (i) owns fee simple title thereto; or (ii) holds a
leasehold interest, leasehold estate or other possessory interest therein
pursuant to a Ground Lease.
"LIENS" means, as to each Site, an interest or a claim by a Person
other than a BellSouth Entity or any of its Affiliates, whether such interest or
claim is based on the common law, statute or contract, including, without
limitations, liens, charges, Claims, leases, licenses, Mortgages, conditional
agreements, title retention agreements, preference, priority or other security
agreements or preferential arrangements of any kind, reservations, exceptions,
encroachments, covenants, conditions, restrictions and other title exceptions
and encumbrances affecting all or any part of the Land, the Tower or
Improvements thereof.
"MARKET CAPITALIZATION" means, as to any Person, as of any date of
determination, either (i) the number of issued and outstanding shares of such
Person's Capital Stock (as set forth in such Person's most recent filings with
the U.S. Securities and Exchange Commission) multiplied by the closing price of
the Capital Stock of such Person on any exchange on which such stock is listed
or (ii) the total market value of the equity of such Person, determined by a
commercially reasonable appraisal process.
"MARKET TRANSACTION" has the meaning given to such term in SECTION
26(B).
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"MORTGAGE" means, as to any Site, any mortgage, deed to secure debt,
deed of trust, trust deed or other conveyance of, or encumbrance against, the
Land or Improvements on such Site as security for any debt, whether now existing
or hereafter arising or created.
"MORTGAGEE" means, as to any Site, the holder of any Mortgage,
together with the heirs, legal representatives, successors, transferees and
assigns of the holder.
"NDA" means a non-disturbance, subordination and attornment agreement
executed between a Mortgagee and TowerCo.
"NET WORTH" means, with respect to a Person, the total assets minus
the total liabilities of such Person and its Subsidiaries on a consolidated
basis, as shown on the then current balance sheet of such Person and determined
in accordance with GAAP.
"OWNED SITE" means a Site in which any BellSouth Entity owns fee
simple title.
"PARTITIONING EVENT" means each closing of a transaction whereby a
BellSouth Entity Affiliate obtains, in its own name, a license from the FCC to
provide wireless communications service within a portion of the Territory and
purchases from the Carolinas Partnership the portion of the Carolinas
Partnership's wireless communications system that is located within such area
(i.e., towers and base station controllers) by making payment to the Carolinas
Partnership in reimbursement of its costs related thereto.
"PARTY" means each of BSPCI, the Carolinas Partnership, TowerCo and
CCIC, as appropriate. "PARTIES" means BSPCI, the Carolinas Partnership, TowerCo
and CCIC together.
"PERMITTED LIENS" has the meaning given to such term in SECTION 19(A).
"PERMITTED SUBLEASEHOLD MORTGAGEE" means a Mortgagee that has assets
at the time of the execution of the Permitted Subleasehold Mortgage of not less
than $2 billion, and is: (i) a national bank; (ii) a commercial, national or
state savings bank or trust company; (iii) an investment or merchant bank; (iv)
a foreign bank qualified to do business in the states in which the Sites are
located and authorized to make loans in the United States; (v) a charitable
foundation; (vi) a real estate investment fund; (vii) an insurance company;
(viii) a credit company; (ix) a pension or retirement fund or a fund which, in
turn, is funded substantially by a pension or retirement fund; (x) a real estate
investment trust; (xi) a venture capital firm; (xii) a mortgage banking house;
(xiii) an international bank or investment company; or (xiv) any other
institutional lender performing lending functions similar to any of the
foregoing. Notwithstanding the foregoing, in no event shall a Permitted
Subleasehold Mortgagee be a BellSouth Entity Competitor.
"PERMITTED TRANSFEREE" means: (i) a Person who has outstanding debt
that is Investment Grade; (ii) with respect to a Market Transaction involving
twenty percent (20%) or more of all Sites now or hereafter subject to this
Sublease and less than forty percent (40%) of all Sites now or hereafter subject
to this Sublease, a Person reasonably believed by BSPCI to have a current Net
Worth or Market Capitalization of at least $50 million or Cash Flow for the last
full
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fiscal year of such Person of at least $10 million; (iii) with respect to a
Market Transaction involving forty percent (40%) or more of all Sites now or
hereafter subject to this Sublease and less than eighty percent (80%) or more of
all Sites now or hereafter subject to this Sublease, a Person reasonably
believed by BSPCI to have a current Net Worth or Market Capitalization of at
least $250 million or Cash Flow for the last full fiscal year of such Person of
at least $50 million; or (iv) with respect to a Market Transaction or any other
transaction (including without limitation a transaction contemplated by SECTION
26(B)(III)(Z)) involving eighty percent (80%) or more of all Sites now or
hereafter subject to this Sublease, a Person reasonably believed by BSPCI to
have a current Net Worth or Market Capitalization of at least $500 million or
Cash Flow for the last full fiscal year of such Person of at least $100 million.
"PERMITTED TOWERCO TRANSFEREE" means: (i) a Person who has
outstanding debt that is Investment Grade; (ii) with respect to a Transfer of
the Subleased Property involving more than twenty percent (20%) but less than
forty percent (40%) of all Sites now or hereafter subject to this Sublease, a
Person reasonably believed by TowerCo to have a current Net Worth or Market
Capitalization of at least $50 million or Cash Flow for the last full fiscal
year of such Person of at least $5 million; (iii) with respect to a Transfer of
the Subleased Property involving forty percent (40%) or more of all Sites now or
hereafter subject to this Sublease and less than eighty percent (80%) or more of
all Sites now or hereafter subject to this Sublease, a Person reasonably
believed by TowerCo to have a current Net Worth or Market Capitalization of at
least $250 million or Cash Flow for the last full fiscal year of such Person of
at least $50 million; or (iv) with respect to a Transfer of the Subleased
Property or any other transaction of the types referred to in SECTION 26(A),
involving eighty percent (80%) or more of all Sites now or hereafter subject to
this Sublease, a Person reasonably believed by TowerCo to have a current Net
Worth or Market Capitalization of at least $500 million or Cash Flow for the
last full fiscal year of such Person of at least $100 million.
"PERMITTED USE" means use of the Subleased Property of each Site for
the purposes of: (i) constructing, installing, operating, managing, maintaining
and marketing the Tower and Improvements thereof and making further Improvements
to such Site, and (ii) for further use of such Subleased Property by Space
Subtenants (including BSPCI with respect to any Available Space), and the right
to use by Space Subtenants of any portions of the Land, Tower and Improvements
of each Site as are reasonably necessary for operation of the Communications
Facilities of such Space Subtenants.
"PERSON" means an individual, partnership, joint venture, limited
liability company, association, corporation, trust or any other legal entity.
"PROCEEDS" means all insurance moneys recovered or recoverable by
TowerCo or a BellSouth Entity as compensation for casualty damage to any Site
(including the Tower and Improvements thereof).
"PUT DATE" means the effective date of BSPCI's election to vacate and
terminate its interest in the Reserved Space of a Site and add such Reserved
Space to the Subleased Property of such Site, pursuant to the Put Notice.
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"PUT NOTICE" means a notice given by BSPCI pursuant to SECTION 9
exercising the Put Right.
"PUT RIGHT" means the right of BSPCI to elect to vacate and terminate
its interest in the Reserved Space with respect to a Site and add such Reserved
Space to the Subleased Property of such Site as described in and limited by
SECTION 9.
"REIMBURSABLE MAINTENANCE EXPENSES" has the meaning given to such term
in SECTION 30(A).
"RENT" has the meaning given such term in SECTION 11(C).
"RESERVED SPACE" means, as to each Site: (i) a portion of the Land
and Improvements of such Site used by a BellSouth Entity, designated and shown
by the Lessor thereof as such Lessor's area on a site plan attached to the
applicable Site Designation Supplement, as such site plan may be amended from
time to time pursuant to this Sublease, as reserved for exclusive use and
occupancy by such BellSouth Entity, including without limitation, MSC's and
other switches, such BellSouth Entity's Improvements located on the Land, and
parking spaces; (ii) the Tower location on the Tower of such Site used by a
BellSouth Entity, designated and shown by such BellSouth Entity as such
BellSouth Entity's area on a Tower plan attached to the applicable Site
Designation Supplement, as such Tower plan may be amended from time to time
pursuant to this Sublease, as reserved for exclusive use and occupancy of such
Site by such BellSouth Entity, including without limitation, any antennas
(depicting any antenna arrays and, if reasonably available, setting forth their
model numbers), antenna mounting hardware constituting a tower platform to hold
such antennas or a sector frame for such antennas, transmission lines,
amplifiers and filters located on the Tower subject to SECTION 5 hereof, and
consistent with other nine (9) panel antenna arrays currently existing on other
Towers on the date hereof; (iii) a portion of the Land, having an area of five
(5) feet, in the case of BTS Sites, and three (3) feet, in the case of all other
Sites around any equipment cabinet which is on or permitted to be on the Land
that is in the Reserved Space; and (iv) any and all rights pursuant to SECTION
5(B) and 25 and all appurtenant rights reasonably inferable to permit each
BellSouth Entity's full use and enjoyment of the Reserved Space, including
without limitation, the appurtenances specifically described in SECTION 5, all
in accordance with SECTION 5. Notwithstanding the foregoing, but subject to the
next succeeding sentence, the exclusive portion of the Land and Improvements is
limited to that portion of the Tower and the Land where a BellSouth Entity's
Communications Equipment and a BellSouth Entity's Improvements are located.
Notwithstanding anything to the contrary contained herein and regardless of the
actual number of antennas and other equipment existing or placed on the Reserved
Space of any Site on the date hereof, the Reserved Space of any Site (including
BTS Sites) shall include space for, and be capable of supporting: (i) up to
nine (9) panel antennas arrays and related equipment, (ii) up to twelve (12)
coaxial lines, (iii) a low profile platform consistent with platforms
customarily placed on other Towers, and (iv) as to any BTS Site only, a
microwave dish placed seventeen feet (17') below (measured center line to center
line) the location of such panels, subject to SECTION 5(E).
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"RESTORATION" means, as to a Site that has suffered casualty damage,
such restoration, repairs, replacements, rebuilding, changes and alterations,
including the cost of temporary repairs for the protection of such Site, or any
portion thereof, pending completion thereof, required to restore the applicable
Site (including the Tower and Improvements thereon) to a condition which is at
least as good as the condition which existed immediately prior to such damage,
and such other changes or alterations as may be reasonably acceptable to BSPCI
and TowerCo or required by Law.
"RIGHT OF FIRST REFUSAL" means the right of BSPCI, exercisable in its
sole discretion, to sublease any Available Space from TowerCo pursuant to
SECTION 25.
"RIGHT OF SUBSTITUTION" means the right of BSPCI, exercisable in its
sole discretion, to substitute the Reserved Space of any Site for an Available
Space on such Site by relocation of its Communications Facility on such Site to
such Available Space, all pursuant to SECTION 25.
"SITE" means any site now or hereafter subject to this Sublease,
including without limitation: (i) any Initial Site; and (ii) any Site added to
this Sublease pursuant to a Site Designation Supplement with respect thereto.
Reference to a Site shall include the Land thereof, and the Tower and
Improvements on the Land, but shall not include Communications Equipment
thereon.
"SITE COMMENCEMENT DATE" means the date on which the Term of this
Sublease commences as to such Site, as set forth in the applicable Site
Designation Supplement.
"SITE DESIGNATION SUPPLEMENT" means, as to any Site, a supplement to
this Sublease, in substantially the form of EXHIBIT B attached hereto and
otherwise in recordable form, pursuant to which such Site is made subject to
this Sublease, and the subleased portions thereof added to the Subleased
Property.
"SITE MAINTENANCE CHARGE" has the meaning given to such term in
SECTION 11(C).
"SITE PAYMENT" has the meaning given to such term in SECTION 11(C).
"SITE EXPIRATION DATE" means, as to any Site, the date on which the
Term of this Sublease expires.
"SITE TERM YEAR" means, as to each Site: (i) if the Site Commencement
Date is the first day of a calendar month, the twelve (12) calendar month period
commencing on the Site Commencement Date, and ending on the day immediately
preceding the first anniversary of the Site Commencement Date, and each
succeeding such twelve (12) calendar month period during the term of this
Sublease; or (ii) if the Site Commencement Date is not the first day of a
calendar month, the twelve (12) calendar month period commencing on the first
day of the first calendar month following the Site Commencement Date, and ending
on day immediately preceding the first anniversary of such date, and each
succeeding such twelve (12) calendar month period during
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the term of this Lease, provided, however, that, if the Site Commencement Date
is a day other than the first day of a calendar month, the first Site Term Year
shall include the period from the Site Commencement Date through the last day of
the calendar month during which the Site Commencement Date occurs.
"SPACE SUBTENANT" means, as to any Site, any Person (including BSPCI
in respect of any Available Space), which: (i) is a "sublessee" under an
Existing Sublease affecting such Site; or (ii) subleases, licenses or otherwise
acquires from TowerCo the right to use an Available Space on such Site.
"SPACE SUBTENANT'S IMPROVEMENTS" means, as to any Space Subtenant at
any Site, such Space Subtenant's Communications Equipment, together with
equipment buildings, equipment shelters and other constructions located on the
Land of the Available Space of such Site and used by such Space Subtenant.
"SUBLEASE" means this Sublease, together with any and all Exhibits,
Schedules and attachments hereto, as the same may hereafter be modified and
amended, including, without limitation, pursuant to Site Designation
Supplements. References to this Sublease in respect of a particular Site shall
include the Site Designation Supplement therefor; and references to this
Sublease in general and as applied to all Sites shall include all Site
Designation Supplements.
"SUBLEASED PROPERTY" means each Site that is now or hereafter subject
to this Sublease, including the Land, Tower and Improvements thereof, LESS AND
EXCEPT in each instance the Reserved Space thereof, the applicable BellSouth
Entity's and Space Subtenants' Improvements on such Site and improvements of
Space Subtenants under the Existing Subleases.
"SUBLEASE YEAR" means each succeeding twelve (12) calendar month
period commencing on the date hereof.
"SUBLEASEHOLD ESTATE" means: (i) the rights, title, interest, powers,
privileges, benefits and options of TowerCo under this Sublease (whether as
lessee of an Owned Site or as sublessee of a Leased Site); and (ii) all of the
right, title and interest of TowerCo in and to the Sites under this Sublease
(whether as lessee of an Owned Site or as sublessee of a Leased Site).
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture or other entity in which such Person owns, either
directly or indirectly, more than fifty percent (50%) of the outstanding Capital
Stock or other ownership or equity interests therein, as the case may be, or has
the power to direct or cause the direction of the management and policies
thereof.
"SUBSTANTIAL PORTION OF SITE" means, as to a Site, so much of such
Site (including the Land, Tower and Improvements thereof, or any portion
thereof) as, when subject to a Taking, leaves the untaken portion unsuitable for
the continued feasible and economic operation of such Site for the Permitted
Use.
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"SUBSTITUTION" means the relocation by BSPCI on a Site, pursuant to
its Right of Substitution.
"TAKING" means, as to any Site, any condemnation or exercise of the
power of eminent domain by any public authority vested with such power, or any
taking in any other manner for public use, including a private purchase, in lieu
of condemnation, by a public authority vested with the power of eminent domain.
"TAXES AND ASSESSMENTS" means, as to each Site, any and all of the
following levied, assessed or imposed upon, against or with respect the Site
(including the Reserved Space), any part of the Site (including the Reserved
Space), or the use and occupancy of the Site (including the Reserved Space) at
any time during the Term as to such Site: (i) real property and personal
property ad valorem taxes and assessments, except as relates specifically to the
BellSouth Entity's Communications Equipment; (ii) charges made by any public or
quasi-public authority for improvements or betterments related to the Site;
(iii) sanitary taxes or charges, sewer or water taxes or charges; (iv) any tax
levied, assessed or imposed upon or against the Rent reserved hereunder or upon
the BellSouth Entity's interest in the Site or this Sublease (other than income
taxes or any future tax which is established in lieu of income taxes); and (v)
any other governmental or quasi-governmental impositions, charges, encumbrances,
levies, assessments, fees or taxes of any nature whatsoever related to the Site,
whether general or special, whether ordinary or extraordinary, whether foreseen
or unforeseen and whether payable in installments or not, except as it relates
specifically to the BellSouth Entity's Communications Equipment.
"TERM" means: (i) as to this Sublease, the term set forth in SECTION
8(A); and (ii) as to each Site, the term during which this Sublease is
applicable to such Site.
"TOWER" means a radio tower structure or structures on a Site.
"TOWERCO INDEMNITEE" means TowerCo, its Affiliates, and the respective
directors, officers, employees, agents, contractors, subcontractors, advisors
and consultants of TowerCo or its respective Affiliates (except BSPCI and any
contractors, subcontractors, advisors and consultants of BSPCI).
"TOWERCO WORK" has the meaning given to such term in SECTION 13(B).
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WITHDRAWAL DATE" means the effective date of BSPCI's election to
terminate its reservation of the Reserved Space and add such Reserved Space to
the Subleased Property of such Site pursuant to Withdrawal Notice.
"WITHDRAWAL NOTICE" means a notice given by BSPCI pursuant to SECTION
10 exercising the Withdrawal Right.
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"WITHDRAWAL RIGHT" means the right of BSPCI to elect to terminate its
reservation of the Reserved Space with respect to a Site and add such Reserved
Space to the Subleased Property of such Site as described in SECTION 10.
Any other capitalized terms used in this Sublease shall have the
respective meanings given to them elsewhere in this Sublease.
2. SUBLEASE DOCUMENTS.
(a) This Sublease shall consist of the following documents, as amended
from time to time as provided herein:
(i) this Sublease document;
(ii) the following Exhibits, which are incorporated herein by
this reference:
Exhibit A List of Sites
Exhibit B Form of Site Designation Supplement
Exhibit C Site Maintenance Obligations
Exhibit D Standard Procedures
(iii) Schedules to the Exhibits, which are incorporated herein
by reference; and
(iv) such additional documents as are incorporated by reference.
(b) If any of the foregoing are inconsistent, this Sublease shall
prevail over the Exhibits, the Schedules and additional incorporated documents.
3. SUBLEASED PROPERTY.
(a) Subject to the terms and conditions of this Sublease, each
BellSouth Entity hereby lets, leases and demises unto TowerCo, and except as
otherwise provided in SECTIONS 3(H) and 23(B), TowerCo hereby leases, takes and
accepts from each BellSouth Entity the Subleased Property of each Site, in its
"AS IS" condition, without any representation, warranty or covenant of or from
any BellSouth Entity or any of 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 each BellSouth Entity's
knowledge, the Towers are satisfactory in all material respects for its
continuing use consistent with its Permitted Use of such Towers. Except as set
forth above, TowerCo hereby acknowledges that neither BSPCI, the Carolinas
Partnership nor any agent of 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
12
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 each Site.
(b) Each Site shall be made subject to this 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 the
applicable BellSouth Entity and TowerCo. 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 subject to all matters affecting each BellSouth
Entity's right, title and interest in and to 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 also subject to all matters affecting title to each
BellSouth Entity's leasehold interest, leasehold estate or other possessory
interest therein (including without limitation, Existing Subleases and the
interest of a third 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;
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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
14
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
15
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.
4. EXISTING SUBLEASES AND COLOCATION AGREEMENTS.
(a) Without limiting the generality of SECTION 3, TowerCo expressly
acknowledges that, as to each Site, this Sublease is subject to all Existing
Subleases affecting such Site, including, without limitation, Existing Subleases
executed prior to the applicable Site Commencement Date pursuant to any
Colocation Agreement. In respect of each Site, the applicable BellSouth Entity
does hereby transfer, assign and convey over unto TowerCo, for the Term of this
Sublease in respect of such Site, all of its rights, title and interest as
"sublandlord" or "sublessor" in, to or under all, if any, Existing Subleases
affecting such Sites and does hereby delegate all of its duties, obligations and
responsibilities under the Existing Subleases to TowerCo. TowerCo does hereby
assume and agree to pay and perform all of the duties, obligations, liabilities
and responsibilities of each BellSouth Entity as "sublandlord" or "sublessor"
under the Existing Subleases affecting each Site arising from and after the date
of the Site Designation Supplement for such Site. By virtue of the foregoing
assignment, and during the Term of this Sublease, as to each Site, all Existing
Subleases affecting such Site shall constitute
16
Space Subleases for the purposes hereof, and commencing on the Site Commencement
Date for such affected Site, TowerCo shall receive all rents payable thereunder.
Each BellSouth Entity shall allow each Colocation Agreement in effect on the
date hereof to expire and shall not renew or amend any such Colocation
Agreement, and shall not enter into any new Colocation Agreement.
(b) Notwithstanding anything to the contrary contained herein, TowerCo
shall sublease any Available Space of any Site to the other party to a
Colocation Agreement under and in accordance with the terms and conditions of
such Colocation Agreement and not this Sublease, including without limitation,
terms respecting rent under such Colocation Agreement, except that TowerCo will
have the right to sublet any Available Space to such other party to a Colocation
Agreement under terms and conditions different from the terms and conditions of
such Colocation Agreements, so long as such different terms do not affect any of
BSPCI's rights under such Colocation Agreement. TowerCo shall receive all rents
and other economic benefits from parties to Colocation Agreements that occupy
any Available Space. BSPCI retains and reserves all rights under the Colocation
Agreements to occupy any space on any cell site location (including towers and
improvements thereof) of any other parties to the Colocation Agreements that is
available for occupancy pursuant to such Colocation Agreements (the "AVAILABLE
COLOCATION SPACE"). TowerCo shall have no right or obligation to amend or
modify any Colocation Agreement, except as to the terms applicable to the
occupancy of any Available Space by the party to such Colocation Agreement;
provided, however, that such amendment or modification does not affect BSPCI's
rights thereunder. From time to time, BSPCI shall give TowerCo written notice
of the intent of third parties to Colocation Agreements to occupy any Available
Space, and promptly following receipt of such notice, TowerCo shall cooperate
with BSPCI and the applicable third party so as to facilitate such third party's
occupancy of such Available Colocation Space.
(c) TowerCo shall, and does hereby agree to, indemnify, defend and
hold each BellSouth Entity Indemnitee harmless from, against and in respect of
any and all Claims, paid, suffered, incurred or sustained by such BellSouth
Entity Indemnitee and in any manner arising out of, by reason of, or in
connection with any failure of the duties, obligations, liabilities and
responsibilities of any BellSouth Entity as "sublandlord" or "sublessor" under
any of the Existing Subleases affecting each Site and arising from and after the
date of the Site Designation Supplement for such Site, to be fully and
completely performed pursuant to the Existing Subleases, except to the extent
caused by such BellSouth Entity or a BellSouth Entity Indemnitee.
(d) The assignment by each BellSouth Entity to TowerCo of the Existing
Subleases in respect of each Site shall automatically terminate and expire, such
Existing Subleases shall automatically be assigned to such BellSouth Entity, and
such BellSouth Entity shall accept such assignment, upon the expiration of the
Term of, or earlier termination of, this Sublease in respect of such Site.
17
5. RESERVED SPACE. (a) TowerCo expressly acknowledges that, as to
any Site, the Subleased Property of such Site does not include, and that 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
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 such
BellSouth Entity. As an appurtenance to, and a part of, the Reserved Space of
each Site, 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-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 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 such BellSouth Entity's Improvements; provided, however, that such storage
shall not have a material adverse effect on Space Subtenants' Permitted Use.
(b) (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, BSPCI may at any time expand the number of antennas at the Reserved
Space on Towers up to nine (9) panels consistent with other typical nine (9)
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.
(ii) Subject to the availability of Available Space on the applicable
Tower (including Towers on BTS Sites) at the time of the proposed expansion of
the number of antennas, 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 weight and sail area are exceeded by more than ten
percent (10%), 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 $1,600
per Tower. Such amounts 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(H).
18
(c) 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 the
applicable BellSouth Entity as of the date hereof for the use, enjoyment,
operation or maintenance of such BellSouth Entity's Communications Facility on
such Site for the Permitted Use.
(d) Not later than five (5) business days before BSPCI or its
Affiliate adds or relocates any antennas to the Tower location of any Site,
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 the applicable BellSouth
Entity's cost and expense, unless the Parties otherwise agree.
(e) With respect to any space which, pursuant to the definition of
"RESERVED SPACE", is reserved on a BTS Site for installation of a microwave dish
(the "RESERVED MICROWAVE SPACE"), if BSPCI or the Carolinas Partnership has not
installed a microwave dish in such space 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), BSPCI shall have ten (10) days from receipt of written notice from
TowerCo to confirm that BSPCI or 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. In the event that such Reserved
Microwave Space is released, BSPCI 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 BSPCI of any
such space, BSPCI shall be entitled to replacement space (also, "REPLACEMENT
MICROWAVE SPACE") located seventeen (17) feet below such released space.
6. PERMITTED USE.
(a) TowerCo shall use, and shall permit the use of, the Subleased
Property of each Site only for the Permitted Use.
(b) TowerCo shall not use, or permit to be used, the Subleased
Property of any Site, or any portion thereof, by TowerCo, any Person (other than
a BellSouth Entity) or the public in such manner as might reasonably tend to
impair any BellSouth Entity's title to or interest in such Site, or any portion
thereof, or in such manner as might reasonably make possible a Claim or Claims
of adverse usage or adverse possession by the public, as such, or any Person
(other than a BellSouth Entity), or of implied dedication of such Subleased
Property, or any portion thereof. Nothing contained in this Sublease and no
action or inaction by any BellSouth Entity shall be deemed or construed to mean
that any BellSouth Entity has granted to TowerCo any right,
19
power or permission to do any act or make any agreement that may create, or give
rise to or be the foundation for any such right, title, interest, lien, charge
or other encumbrance upon the estate of such BellSouth Entity in any Site.
(c) No BellSouth Entity shall use, or permit to be used, the Reserved
Space of any Site, or any portion thereof, by any Person (other than TowerCo and
Space Subtenants) or the public in such manner as might reasonably tend to
impair TowerCo's title to or interest in such Site, or any portion thereof, or
in such manner as might reasonably make possible a Claim or Claims of adverse
usage or adverse possession by the public, as such, or any Person (other than
TowerCo and Space Subtenants), or of implied dedication of such Reserved Space,
or any portion thereof. Nothing contained in this Sublease and no action or
inaction by TowerCo shall be deemed or construed to mean that TowerCo has
granted to any BellSouth Entity any right, power or permission to do any act or
make any agreement that may create, or give rise to or be the foundation for any
such right, title, interest, lien, charge or other encumbrance upon the estate
of TowerCo in any Site.
7. ACCESS.
The Subleased Property of a Site includes, as an appurtenance thereto,
a non-exclusive right for access to the Subleased Property of each Site on a 24-
hour, seven (7) day per week basis, on foot or motor vehicle, including trucks
and other heavy equipment, for the installation and maintenance of the Tower and
Improvements thereof and the Communications Facilities of Space Subtenants. The
Parties acknowledge and agree that the right to access the Subleased Property of
each Site, or any portion thereof, granted pursuant to this SECTION 7 shall be
granted to TowerCo and its authorized contractors, subcontractors, engineers,
agents, advisors, consultants, representatives, or other persons authorized by
TowerCo and under TowerCo's direct supervision, and to Space Subtenants.
8. TERM.
(a) The term of this Sublease, as to each Site, shall commence on the
Site Commencement Date set forth in the Site Designation Supplement with respect
thereto and shall expire on the Site Expiration Date therefor, which shall be
(i) in respect of an Owned Site (including any Site which becomes an Owned Site
after the date hereof, if any), one hundred (100) years from the date of the
Site Commencement Date, and (ii) in respect of a Site (other than an Owned
Site), one day before the Ground Lease with respect to such Site expires, as the
term of such Ground Lease may be renewed or extended pursuant to SECTION 3 (the
"TERM"). After the applicable BellSouth Entity has exercised all rights to
extend a Ground Lease as a matter of right pursuant to the terms of the existing
Ground Lease, and if BSPCI or TowerCo has successfully negotiated a new or
extended Ground Lease pursuant to SECTION 3(F), then the term of the Site
Designation Supplement under such Ground Lease for purposes of SECTION 10(A) and
all other purposes of this Sublease shall be deemed to recommence as of the
commencement date of the new or extended Ground Lease.
(b) No surrender by TowerCo to any BellSouth Entity of the Subleased
Property of any Site or any portion thereof, prior to the expiration of the Term
as to such Site shall be valid or effective unless agreed to and accepted in
writing by BSPCI, and no act by any
20
BellSouth Entity, other than such a written acceptance, shall constitute an
acceptance by BSPCI, of any such surrender.
(c) As to any Site, upon expiration or earlier termination of this
Sublease, TowerCo shall, at its cost and expense and upon instructions from
BSPCI, (i) within a reasonable period of time, but in no event less than thirty
(30) days, stop and cease, and cause the Space Subtenants on such Site to stop
and cease, the operation of their respective Communications Facilities on such
Site and shall remove, and cause all Space Subtenants to remove, all of
TowerCo's and such Space Subtenant's Improvements from such Site, including
without limitation, the Tower and the Improvements on such Site, and (ii) (A)
restore each Site that is a Leased Site to the condition required by the Ground
Lease, including, without limitation removal of the Tower and the Improvements
thereof (if required by the applicable Ground Lease) or restore each Site that
is an Owned Site to the condition it was in on the applicable Site Commencement
Date, or (B) vacate such Site leaving it in "AS IS" condition at the time of
such expiration or earlier termination of this Sublease as to such Site.
9. PUT RIGHT.
In addition to and not in limitation of the provisions of SECTION 10 or 31(D),
BSPCI will have the Put Right, exercisable in its sole discretion, in respect of
any Site, at any time during the Term of this Sublease; provided, however, that
the number of Sites in respect of which BSPCI may exercise its Put Right over
the Term shall not exceed an aggregate of the greater of: (i) two (2%) of the
number of all Sites then and theretofore under this Sublease; or (ii) fifteen
(15) Sites. Notwithstanding the foregoing, BSPCI shall have no Put Right in
respect of any BTS Site within ten (10) years of the Site Commencement Date for
that BTS Site. To exercise any such Put Right, BSPCI shall give TowerCo not less
than six (6) months' prior written notice of such exercise (a "PUT NOTICE"). If
BSPCI exercises the Put Right as to any Site, then BSPCI's obligation to pay any
Site Maintenance Charge with respect to such Site shall terminate as of the Put
Date and the Put Date as to such Site shall be the date specified in the
applicable Put Notice. Not later than the Put Date of any Site, the applicable
BellSouth Entity shall vacate the Reserved Space of such Site if such Reserved
Space is occupied whereupon such BellSouth Entity's right to use the Reserved
Space of such Site shall be terminated. The applicable BellSouth Entity shall
assign to TowerCo all its interest in the Ground Lease as to such Site and any
Improvements thereon (other than any such BellSouth Entity Improvements that
such BellSouth Entity elects to retain and remove), subject to such BellSouth
Entity's receipt of any consent required for such assignment, whereupon such
BellSouth Entity shall be released from any and all further obligations under
such Ground Lease and under this Sublease in respect of such Site, including,
without limitation such BellSouth Entity's obligations to renew or extend the
Ground Lease and pay the Ground Rent with respect to such Site and TowerCo
hereby acknowledges and consents to such release. If the applicable BellSouth
Entity does not receive any such required consent, such Reserved Space shall be
deemed subleased to TowerCo pursuant to the terms of this Sublease, and shall be
added to the Subleased Property of such Site effective without further act of
the Parties; provided, however, that the Parties shall use reasonable efforts to
cause the Site Designation Supplement for such Site to be amended by a written
instrument in recordable form to reflect such sublease.
21
10. WITHDRAWAL .
(a) Notwithstanding anything to the contrary contained herein, and
without limiting the provisions of SECTION 9, BSPCI will have the Withdrawal
Right, exercisable in respect of any Site on the tenth anniversary of the Site
Commencement Date of such Site and on each five-year anniversary of such Site
Commencement Date thereafter. To exercise any such Withdrawal Right, BSPCI
shall give TowerCo written notice of such exercise not less than ninety (90)
days, in the case of the exercise of a Withdrawal Right in respect of less than
twenty percent (20%) of all Sites now or hereafter under this Sublease and one
hundred eighty (180) days, in the case of the exercise of a Withdrawal Right in
respect of twenty percent (20%) or more of all Sites now or hereafter under
this Sublease, prior to any such anniversary ("WITHDRAWAL NOTICE"). If BSPCI
exercises the Withdrawal Right as to any Site, then BSPCI's obligation to pay
any Site Maintenance Charge with respect to such Site shall terminate as of the
Withdrawal Date and the Withdrawal Date as to such Site shall be the date
specified in the applicable Withdrawal Notice. Not later than the Withdrawal
Date of any Site, the applicable BellSouth Entity shall vacate the Reserved
Space of such Site if such Reserved Space is occupied and shall assign to
TowerCo all its interest in the Ground Lease and any Improvements thereon (other
than such BellSouth Entity's Improvements that such BellSouth Entity elects to
retain and remove), subject to such BellSouth Entity's receipt of any consent
required for such assignment, whereupon such BellSouth Entity shall be released
from any and all further obligations under such Ground Lease and under this
Sublease in respect of such Site, including, without limitation such BellSouth
Entity's obligations to renew or extend the Ground Lease and pay the Ground Rent
with respect to such Site and TowerCo hereby acknowledges and consents to such
release. If the applicable BellSouth Entity does not receive any such required
consent, such Reserved Space shall be deemed subleased to TowerCo pursuant to
the terms of this Sublease and shall be added to the Subleased Property of such
Site, effective without further act of the Parties; provided, however, that the
Parties shall use reasonable efforts to cause the Site Designation Supplement
for such Site to be amended by a written instrument in recordable form to
reflect such sublease.
(b) In addition to and not in limitation of any right of BSPCI under
SECTION 10(A), each BellSouth Entity will have the right, exercisable at any
time during the Term of this Sublease, to cease occupying the Reserved Space of
any Site, and retain its right to such Reserved Space and may permit any
BellSouth Entity's Affiliate to occupy such Site, so long as BSPCI (i) has not
exercised its Put Right with regard to that Site pursuant to SECTION 9 and (ii)
continues to pay the Site Maintenance Charge in respect of such Site.
(c) If BSPCI elects to assign, sublet, transfer or dispose of any
interest in any Reserved Space to or in favor of any Person (other than an
Affiliate of any BellSouth Entity), then, prior to such assignment, subletting,
transfer or disposition, BSPCI shall give TowerCo written notice of such
election ("DISPOSITION NOTIFICATION") and any such assignment, subletting or
disposal shall be subject to TowerCo's rights under SECTION 10(D). If TowerCo
does not exercise its right to acquire any interest in such Reserved Space prior
to such assignment, subletting or disposition, then BSPCI may, at its option,
assign, sublet or dispose of such interest
22
in such Reserved Space or retain its interest in such Reserved Space, free of
any right of TowerCo to acquire any interest in the Reserved Space.
(d) Notwithstanding anything to the contrary contained herein, TowerCo
will have the right and option, exercisable by written notice given to BSPCI at
any time (whether before or after such assignment) following BSPCI's giving of a
Disposition Notice as to any Reserved Space (regardless of whether such Reserved
Space has been assigned), to purchase from the applicable BellSouth Entity such
Reserved Space and all of such BellSouth Entity's retained rights in that Site
for consideration equal to: (i) $5,000 (such amount to increase each calendar
year after 1999 by the amount of the CPI Increase), payable in immediately
available funds on the effective date of such sublease, plus (ii) the grant to
such BellSouth Entity of the right to receive thirty-five percent (35%) of all
Gross Revenues payable to TowerCo each year during the Term from any Person's
use or occupancy of such Reserved Space. Upon exercise of such purchase right
by TowerCo, the applicable BellSouth Entity shall assign to TowerCo all its
interest in the Ground Lease and any Improvements thereon (other than any such
BellSouth Entity's Improvements that it elects to retain and remove), subject to
such BellSouth Entity's receipt of any consent required for such assignment,
whereupon such BellSouth Entity shall be released from any and all further
obligations under such Ground Lease and under this Sublease in respect of such
Site, including, without limitation its obligations to renew or extend the
Ground Lease and pay the Ground Rent with respect to such Site and TowerCo
hereby acknowledges and consents to such release. If such BellSouth Entity does
not receive any such required consent, such Reserved Space shall be deemed
subleased to TowerCo pursuant to the terms of this Sublease and shall be added
to the Subleased Property of such Site, effective without further act of the
Parties; provided, however, that the Parties shall use reasonable efforts to
cause the Site Designation Supplement for such Site to be amended by a written
instrument in recordable form to reflect such sublease. Upon any such
assignment or sublease, the applicable BellSouth Entity's obligations under this
Sublease in respect of such Reserved Space shall cease, including without
limitation, BSPCI's obligation to provide any alarm monitoring data feed. Under
no circumstances will any BellSouth Entity be required to account for or pay to
TowerCo any amount received from any sublessee or other transferee of any
Reserved Space subleased or transferred upon the exercise of a Withdrawal
Notice, received prior to the date on which TowerCo exercised its rights under
this SECTION 10(D) in respect of such Reserved Space. TowerCo will have no
obligation to lease any such Reserved Space to any third party.
11. RENT.
(a) TowerCo shall pay BSPCI monthly Rent in respect of the Subleased
Property of each Site, for each Site Term Year as provided in this SECTION 11.
Each month during the Term of this Sublease, the applicable Site Payment (as
defined below) shall be determined and paid pursuant to this SECTION 11. If, as
to any month, the Aggregate Rent exceeds the Aggregate Site Maintenance Charge
(each as defined in SECTION 11(C)), TowerCo shall pay the amount of such excess
to BSPCI, at the address specified in this Sublease or at such other place as
BSPCI may specify in writing. If, as to any month, the Aggregate Site
Maintenance Charge exceeds the Aggregate Rent, BSPCI shall pay the amount of
such excess to
23
TowerCo, at the address specified in this Sublease or at such other place as
TowerCo may specify in writing.
(b) Any amount payable by TowerCo or BSPCI, as the case may be,
pursuant to SECTION 11(A) is referred to herein as a "SITE PAYMENT." Each Site
Payment shall be due and payable, in advance, beginning on the date hereof and
continuing on the first day of each succeeding month thereafter throughout the
Term.
(c) For purposes of calculating the Site Payment, the following terms
shall have the following definitions:
"AGGREGATE RENT" means the aggregate amount of all Rents for the Sites
then subject to this Sublease, which shall be payable by TowerCo to BSPCI
pursuant to this Sublease;
"AGGREGATE SITE MAINTENANCE CHARGE" means, as to any month in any
Sublease Year, (i) the number of Sites subject to this Sublease multiplied by
the applicable Site Maintenance Charge, minus (ii) the aggregate amount of the
Reimbursable Maintenance Expenses (as defined in SECTION 30(A)), if any, minus
(iii) the aggregate amount of unreimbursed Taxes and Assessments;
"GROUND RENTS" means, as to any Site (other than an Owned Site), all
rents, fees and other charges payable by BSPCI or the Carolinas Partnership, as
applicable, to the Ground Lessor under the Ground Lease for such Site calculated
in accordance with SECTION 11(D);
"RENT" means, (i) as to any Site other than Owned Sites, the amount of
all Ground Rents, and (ii) as to any Owned Site, $1.00;
"SITE MAINTENANCE CHARGE" means as to any Site, in any Sublease Year,
an amount equal to $1,200 per month subject to an increase of the lesser of (x)
the applicable CPI Increase plus four percent (4%) or (y) five percent (5%) per
year (but never less than zero percent (0%)) on each anniversary of the
applicable Site Commencement Date, for each month in such Sublease Year,
representing a payment by BSPCI for services performed by TowerCo for the
benefit of BSPCI and the Carolinas Partnership pursuant to this Sublease.
(d) If the Site Commencement Date for any Site is a day other than the
first day of a calendar month, the applicable Ground Rent and Site Maintenance
Charge for the period from such Site Commencement Date through the end of the
calendar month during which such Site Commencement Date occurs shall be prorated
on a daily basis, and shall be included in the calculation of the Ground Rent or
Site Maintenance Charge, as the case may be, for the first full calendar month
of the Term, on the first day of the first calendar month following such Site
Commencement Date.
(e) On each anniversary of the date hereof, and from time to time upon
BSPCI's request, within ten (10) days after BSPCI's giving of such request,
TowerCo shall
24
deliver a certificate duly executed by an officer of TowerCo certifying, as of
the date of such certificate, the calculation of the aggregate amount of the
Site Payment for such Sublease Year. BSPCI shall have the right (i) to request
any substantiation of any such certification and TowerCo shall provide BSPCI
with such substantiation within ten (10) days after such request, and (ii) to
audit the books and records of TowerCo relating to each Site from time to time
during normal business hours to determine the accuracy of any such certificate
and calculation of the Site Payment. BSPCI shall notify TowerCo in writing of
any dispute it may have with TowerCo relating to any such calculation, not later
than thirty (30) days after its receipt of such certificate and the Parties
shall resolve such dispute within ten (10) days thereafter. Notwithstanding
anything to the contrary contained herein, at any time and from time to time at
BSPCI's request, but not less than each calendar month, TowerCo shall provide
BSPCI sufficient back up information necessary to determine whether the
calculation of the Site Payment as to each Site is accurate. If TowerCo fails to
supply BSPCI with such information as to any Site, the Site Maintenance Charge
for such Site shall be deemed not to exceed the amount of the Ground Rent for
such Site; provided, however, that upon submission of such information by
TowerCo, BSPCI shall be liable to TowerCo for the outstanding amount of the Site
Maintenance Charge applicable to such Site and shall reimburse TowerCo for any
amount such Entity may owe to TowerCo.
(f) TowerCo's covenant to pay Rent in respect of the Subleased
Property of each Site hereunder is independent of any other covenant, condition,
provision or agreement of this Sublease and all payments of Rent shall be
payable without previous demand therefor and without any right of abatement,
setoff or deduction, counterclaim, or suspension, and in case of nonpayment of
any Rent with respect to the Subleased Property of any Site by TowerCo when the
same is due, BSPCI shall have, in addition to all its other rights and remedies,
all of the rights and remedies available to BSPCI under the provisions of this
Sublease or at law or in equity in the case of nonpayment of Rent. The
performance and observance by TowerCo of all the terms, covenants, conditions
and agreements to be performed or observed by TowerCo hereunder shall be
performed and observed by TowerCo at TowerCo's sole cost and expense. TowerCo
shall pay a late charge of five percent (5%) of any monthly Rent payable by
TowerCo under the provisions of this Sublease, which shall be paid within ten
(10) days after the date the same is due; provided, however, that the late
charge shall not be assessed in respect of the first late payment occurring in
any twelve (12) month period. In addition to and not in limitation of the
foregoing, Rent not paid on or before the due date in respect of the Subleased
Property of any Site shall be subject to a late charge equal to the amount of
any interest or fees that would be payable by the applicable BellSouth Entity if
such BellSouth Entity were to make a late payment under the applicable Ground
Lease.
(g) BSPCI shall pay a late charge of five percent (5%) of any Site
Payment payable by BSPCI under the provisions of this Sublease, which shall be
paid within ten (10) days after the date the same is due; provided, however,
that the late charge shall not be assessed in respect of the first late payment
occurring in any twelve (12) month period. Notwithstanding the foregoing, if
BSPCI fails to pay any portion of a Site Payment because BSPCI, acting in good
faith, reduced the amount of Site Maintenance Charges payable to TowerCo due to
a mistaken belief that it was entitled to Reimbursable Maintenance Expenses
under SECTION 30(A), no late charge shall be payable in respect thereof.
25
(h) Notwithstanding anything to the contrary contained herein, if
after the tenth (10th) anniversary of each Site Designation Supplement, the then
current Site Maintenance Charge payable by BSPCI to TowerCo with respect to any
Site is below the market rate agreed upon by the Parties at the time of
determination, then such Site Maintenance Charge shall automatically be
increased on such anniversary and on each anniversary thereafter, based on the
CPI Increase effective as of date of such anniversary. If, however, the then
Site Maintenance Payment with respect to such Site is above the market rate,
then such Site Maintenance Charge shall be automatically reset at ninety percent
(90%) of such agreed upon market rate effective as of date of such tenth (10th)
anniversary of the Site Designation Supplement and shall increase on each
following anniversary at the then current annual market rate of increase for
comparable properties. Notwithstanding anything to the contrary contained
herein, the Parties shall agree as to the market rate not later than sixty (60)
days prior to such tenth anniversary of the applicable Site Designation
Supplement. If the Parties are unable to agree upon the market rate, then BSPCI
shall have an option, exercisable by written notice to TowerCo, to: (i) refer
such dispute to arbitration pursuant to SECTION 38(E) hereof, or (ii) exercise
its Withdrawal Right in accordance with SECTION 10(A). Notwithstanding anything
to the contrary contained herein, the provisions of this SECTION 11(H) with
respect to all BTS Sites shall apply on the tenth (10th) anniversary of June 1,
2001, rather than the tenth (10th) anniversary of the Site Designation
Supplement.
(i) (i) Subject to SECTION 11(I)(II) below, if the Annual Gross
Revenues for a Sublease Year in respect of any individual Site exceeds $60,000,
then the Site Maintenance Charge in respect of such Site shall be reduced by an
amount (the "SITE REDUCTION AMOUNT") equal to twenty percent (20%) of the amount
by which the Annual Gross Revenues exceed $60,000, such $60,000 amount being
increased from and after the fifth Sublease Year at a rate of 3% per annum. The
Site Maintenance Charge shall be reduced each month pursuant to this SECTION
11(I)(I) in the next subsequent Sublease Year by an amount equal to one-twelfth
of the Site Reduction Amount for the immediately preceding Sublease Year;
provided, however, that under no circumstances will the Site Maintenance Charge
for any Site be reduced to an amount below zero.
(ii) If the Annual Gross Revenues averaged over the average of the
number of Sites for any Sublease Year exceeds $56,000, then the Aggregate Site
Maintenance Charge shall be reduced by an amount (the "OVERALL REDUCTION
AMOUNT") equal to (x) the average of the number of Sites during such Sublease
Year, multiplied by (y) twenty-five percent (25%) of the amount by which the
average Annual Gross Revenues exceed $56,000, such $56,000 amount being
increased from and after the fifth Sublease Year at a rate of 3% per annum;
provided, however, that (A) if during any Sublease Year, the aggregate Site
Reduction Amount exceeds the Overall Reduction Amount, the provisions of SECTION
11(I)(I) shall apply or (B) if during any Sublease Year, the Overall Reduction
Amount exceeds the aggregate Site Reduction Amount, as to any individual Site
where the Site Reduction Amount exceeds the average Overall Reduction Amount,
the provisions of SECTION 11(I)(I) shall apply to such Site, the applicable
BellSouth Entity shall receive the benefit of such Site Reduction Amount, the
amount of any such benefit shall be subtracted from the Overall Reduction Amount
and the balance, if any, remaining, shall be applied pursuant to this SECTION
11(I)(II) to the other Sites by
26
dividing the balance by the number of such other Sites. Any average number of
Sites determined under this SECTION 11(I)(II) shall be calculated by adding the
number of Sites as of the last day of each calendar month in such Sublease Year
and dividing such sum by twelve (12). The Aggregate Site Maintenance Charge
shall be reduced each month pursuant to this SECTION 11(I)(II) in the next
subsequent Sublease Year by an amount equal to one-twelfth of the Overall
Reduction Amount for the immediately preceding Sublease Year; provided, however,
that under no circumstances will the Site Maintenance Charge for any Site be
reduced to an amount below zero.
For purposes of this SECTION 11, the following terms shall have the
following definitions:
"ANNUAL GROSS REVENUES" means, as to any Site, the Gross Revenues in
respect of such Site in a Sublease Year.
"GROSS REVENUES," as to each Site in any Sublease Year, shall be equal
to the sum of: (i) an aggregate amount of Space Subtenant Rents payable by all
Space Subtenants on such Site in respect of such Sublease Year; plus (ii) the
Site Maintenance Charge payable by BSPCI with respect to the Reserved Space of
such Site in respect of any Sublease Year.
"SPACE SUBTENANT RENT," as to each Site, shall be the amount of the
rent and other amounts payable each month for the use or occupancy by a Space
Subtenant of any Available Space on any Site pursuant to a lease, sublease,
license or other possessory interest or right obtained from TowerCo, including
without limitation any ongoing monthly payments for the use or occupancy of such
Available Space, however characterized. For the purpose of calculating Gross
Revenues, any "bolt-on fees" and other up-front payments by such third party
("UP-FRONT PAYMENTS") shall be deemed to have occurred on a straight-line basis
over 120 months, commencing on the first day of the next month following the
month in which the Up-front Payment was made. Separately charged and stated
payments for installation or construction services rendered by TowerCo to such
Space Subtenant for such Site, valued on the basis of the fair market value of
such services, shall be excluded from the calculation of Gross Revenues.
12. CONDITION OF THE SITES AND OBLIGATIONS OF TOWERCO.
(a) TowerCo acknowledges that, as between TowerCo and the applicable
BellSouth Entity, in respect of each Site, TowerCo has the obligation, right
and responsibility to repair and maintain such Site, including without
limitation, an obligation to monitor each Tower to maintain the structural
integrity of the Tower and the ability of the Tower to hold and support all
Communications Equipment then mounted on the Tower, in accordance with standard
industry practices. Subject to the other provisions contained in this Sublease,
TowerCo, at its sole cost and expense, except if such cost or expense arises out
of a negligent or wrongful act or omission of the applicable BellSouth Entity,
shall monitor, maintain and repair each Site such that each BellSouth Entity and
Space Subtenants may utilize such Site to the extent permitted
27
herein, including, without limitation, each Tower lighting system (to the extent
required by applicable Law) and markings and the structural integrity of each
Tower. Installation, maintenance and repair of each Site must comply with all
Laws applied in a manner consistent with standard industry practices. TowerCo's
duties include, without limitation, subject to the other provisions contained in
this Sublease, maintenance of appropriate records and notification to the FAA of
any failure on TowerCo's part and repairs and correction of same. TowerCo
assumes all responsibilities, as to each Site, for any fines, levies, and/or
other penalties imposed as a result of non-compliance with said requirements of
said authorities. TowerCo shall maintain and repair each Site, and cause Space
Subtenants to maintain and repair all Communications Equipment on each Site, in
accordance with the requirements of this Sublease including without limitation
as set forth in EXHIBIT C; provided, however, that nothing in this Sublease
shall require TowerCo to maintain BellSouth Entity's Communications Equipment.
(b) For each Site, TowerCo, at its sole cost and expense, shall obtain
all of the certificates, permits, and other approvals which may be required from
any federal, state, or local authority and/or any easements or consents which
are required from any third parties with respect to its operation of such Site,
including the lighting system serving such Site. Each BellSouth Entity shall
cooperate with TowerCo in connection therewith, as contemplated by SECTION 18.
Nothing in this Sublease shall require TowerCo to obtain any certificate, permit
or other approval relating specifically and only to BellSouth Entity's
Communications Equipment. If, as to any Site, or any portion thereof, any
certificate, permit, license, easement, or approval relating to the operation of
such Site is canceled, expires, lapses, or is otherwise withdrawn or terminated
or, if due to technological changes or if TowerCo has breached its obligation
under this SECTION 12(B), then BSPCI shall have the right, in addition to its
other remedies pursuant to this Sublease, at law, or in equity, to take
appropriate action to remedy any such noncompliance and invoice TowerCo, and/or
to terminate such this Sublease as to such Site subject to SECTIONS 30 and 31.
(c) For each Site, TowerCo agrees to monitor the lighting system
serving such Site and will notify the appropriate FAA service office of any
lighting failure within thirty (30) minutes of discovering such failure. In
addition, TowerCo agrees, as soon as practicable, to begin a diligent effort to
repair the failed lighting on an Emergency basis, and to notify BSPCI upon
successful completion of the repair. Notwithstanding anything to the contrary
contained in SECTION 31, TowerCo's failure to successfully repair the lighting
system within the Lighting Repair Period (as hereinafter defined) constitutes
default by TowerCo under this Sublease. "LIGHTING REPAIR PERIOD" means as to
any lighting system failure, a period beginning on the date of such failure and
ending two (2) Business Days prior to (i) the fifteenth (15th) day following the
date of such failure, or (ii) the expiration of any extension period approved by
the FAA, provided that in no event shall the Lighting Repair Period extend
beyond two (2) Business Days prior to the last date under applicable FAA
regulations (including any FAA extension) by which a lighting repair must be
made, whether longer or shorter than fifteen (15) calendar days after the date
of such failure. Promptly after receiving any extension from the FAA of any
Lighting Repair Period, Crown shall give an appropriate BSPCI representative
telephonic notice thereof, followed promptly thereafter with a copy to BSPCI of
such extension or other evidence of the extension. Notwithstanding anything to
the contrary contained herein, if TowerCo fails to
28
repair any failed lighting pursuant to this SECTION 12(C), then TowerCo agrees
to indemnify, defend and hold each BellSouth Entity Indemnitee harmless from and
against any Claims arising out of or by reason of TowerCo's failure to comply
with the provisions of this SECTION 12(C). In addition to and not in limitation
of SECTIONS 31(D) and (E), if TowerCo defaults under this SECTION 12(C), BSPCI,
in addition to its other remedies pursuant to this Sublease, at law, or in
equity, may either elect to take appropriate action to repair or replace lights
and invoice TowerCo, or terminate this Sublease as to such Site [in the event]
that such default is not cured within the aforementioned. Without in any way
affecting TowerCo's obligations relating to lighting: (i) in order to
accommodate TowerCo's needs during the transition period, BSPCI agrees to
monitor the lighting system serving the Towers or the Improvements of the Sites
from the respective dates of the Site Designation Supplements until the
expiration of four (4) calendar months after the applicable Closing Date (as
defined in the Agreement to Sublease); (ii) BSPCI shall have the right, at its
expense, to install and maintain equipment for the purpose of monitoring (x) the
lighting system serving the Tower or the Improvements of each Site, and/or (y)
any device of TowerCo's used to monitor the lighting system serving each Tower;
and (iii) TowerCo shall have the right, at its expense, to install and maintain
equipment for the purpose of monitoring any device of BSPCI used to monitor the
lighting system servicing any Tower. At TowerCo's election, BSPCI shall (i)
provide TowerCo a data feed for a fee and on terms to be agreed (x) from all
appropriate security monitoring devices now at the Tower (it being understood
that these devices will be leased or subleased to TowerCo with each Tower, and
that TowerCo will be responsible for the repair and maintenance of the devices
and their wiring up to the point of hand-off to BSPCI's T1 at the Site) and (y)
from any additional devices which TowerCo wishes to install, at TowerCo's sole
cost and expense; (ii) permit TowerCo access to the contact point box at each
Tower where TowerCo may install, at TowerCo's sole cost and expense, its own
direct links to such devices; or (iii) permit TowerCo, where available, access
to the contact point for each Tower through BSPCI's regional switching (it being
understood that TowerCo shall be responsible for providing its own dedicated
telephone lines to the Site, that these monitoring devices will generally be
subleased to TowerCo with each Tower, and that TowerCo will be responsible for
the repair and maintenance of the devices and their wiring up to the point of
hand-off to TowerCo's dedicated lines).
13. WORK ON THE SITE. (a) Title to all Alterations shall vest in
the applicable BellSouth Entity immediately upon construction or installation
on, or affixation or annexation to, the Site.
(b) Whenever TowerCo is permitted or required to make Alterations to
any Site; construct, replace, maintain or repair the Tower and Improvements of
any Site; install, maintain or repair, or cause Space Subtenants to install,
maintain or repair, any Communications Equipment; or reconstruct or restore,
Subleased Property (hereinafter called the "TOWERCO WORK"), the following
provisions shall apply:
(i) No TowerCo Work shall be commenced until TowerCo has obtained
all certificates, licenses, permits, authorizations, consents and approvals
necessary for the TowerCo Work, from all governmental authorities having
jurisdiction with respect to any Site or the TowerCo Work, and BSPCI, at
29
TowerCo's sole cost and expense, shall reasonably cooperate with TowerCo in
obtaining any such certificate, license, permit, authorization, consent or
approval.
(ii) TowerCo shall commence and perform the TowerCo Work in
accordance with standard operating procedures agreed upon by the parties
substantially in the form of EXHIBIT D attached hereto ("STANDARD
PROCEDURES").
(iii) TowerCo shall cause the TowerCo Work to be done and
completed with industry standard materials and in a good, substantial and
workmanlike manner, free from faults and defects, and in compliance with
all Laws, and shall utilize only industry standard materials and supplies.
TowerCo shall be solely responsible for construction means, methods,
techniques, sequences and procedures, and for coordinating all activities
related to the TowerCo Work, and BSPCI shall have no duty or obligation to
inspect the TowerCo Work, but shall have the right to do so, at reasonable
times, upon reasonable prior notice and in a reasonable manner.
(iv) TowerCo shall promptly commence the TowerCo Work and, once
commenced, diligently and continually pursue the TowerCo Work and complete
the TowerCo Work within a reasonable time. TowerCo shall supervise and
direct the TowerCo Work utilizing commercially reasonable efforts and
reasonable care, and shall assign such qualified personnel to the TowerCo
Work as may be necessary to cause the TowerCo Work to be completed in an
expeditious fashion.
(v) All TowerCo Work shall be performed at TowerCo's sole cost
and expense. TowerCo shall provide and pay for all labor, materials,
goods, supplies, equipment, appliances, tools, construction equipment and
machinery and other facilities and services necessary for the proper
execution and completion of the TowerCo Work. TowerCo shall promptly pay
when due all costs and expenses incurred in connection with the TowerCo
Work. TowerCo shall pay, or cause to be paid, all fees and taxes required
by law in connection with the TowerCo Work.
(vi) TowerCo shall be responsible for the acts and omissions of
all of its employees, contractors, subcontractors, engineers, agents,
representatives, advisors and all other persons performing any of the
TowerCo Work. TowerCo shall be responsible for initiating, maintaining and
supervising all necessary safety precautions and programs in connection
with the TowerCo Work, and shall take all reasonable protection to prevent
damage, injury or loss to, the TowerCo Work, all persons performing TowerCo
Work on the Site, all other persons who may be involved in or affected by
the TowerCo Work, all materials and equipment to be incorporated in the
TowerCo Work, Tower and Improvements of such Site.
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(vii) TowerCo shall procure and maintain in full force and
effect, and shall cause its contractors and subcontractors to procure and
maintain in full force and effect, with respect to the TowerCo Work: (x)
full replacement cost "all-risk", "builder's risk" insurance, insuring the
TowerCo Work; and (y) the other types of insurance required to be
maintained pursuant to SECTION 24 of this Sublease. Such additional
insurance policies shall meet the requirements set forth elsewhere in this
Sublease with respect to the insurance policies otherwise required to be
obtained and maintained by TowerCo under this Sublease.
(c) Whenever BSPCI is permitted or required to construct, maintain and
repair the Reserved Space of any Site or reconstruct or restore, its
Communications Equipment (hereinafter called the "BSPCI WORK"), the following
provisions shall apply:
(i) No BSPCI Work shall be commenced until BSPCI has obtained all
certificates, licenses, permits, authorizations, consents and approvals
necessary for the BSPCI Work, from all governmental authorities having
jurisdiction with respect to any Site or the BSPCI Work, and TowerCo,
BSPCI's sole cost and expense, shall reasonably cooperate with BSPCI in
obtaining any such certificate, license, permit, authorization, consent or
approval.
(ii) BSPCI shall commence and perform the BSPCI Work in
accordance with the Standard Procedures.
(iii) BSPCI shall cause the BSPCI Work to be done and completed
with industry standard materials and in a good, substantial and workmanlike
manner, free from faults and defects, and in compliance with all Laws, and
shall utilize only industry standard materials and supplies. BSPCI shall
be solely responsible for construction means, methods, techniques,
sequences and procedures, and for coordinating all activities related to
the BSPCI Work, and TowerCo shall have no duty or obligation to inspect the
BSPCI Work, but shall have the right to do so, at reasonable times, upon
reasonable prior notice and in a reasonable manner.
(iv) BSPCI shall promptly commence the BSPCI Work and, once
commenced, diligently and continually pursue the BSPCI Work and complete
the BSPCI Work within a reasonable time. BSPCI shall supervise and direct
the BSPCI Work utilizing commercially reasonable efforts and reasonable
care, and shall assign such qualified personnel to the BSPCI Work as may be
necessary to cause the BSPCI Work to be completed in an expeditious
fashion.
(v) All BSPCI Work shall be performed at BSPCI's sole cost and
expense. BSPCI shall provide and pay for all labor, materials, goods,
supplies, equipment, appliances, tools, construction equipment and
machinery and other facilities and services necessary for the proper
execution and completion of the BSPCI Work. BSPCI shall promptly pay when
due all costs and expenses
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incurred in connection with the BSPCI Work. BSPCI shall pay, or cause to be
paid, all fees and taxes required by law in connection with the BSPCI Work.
(vi) BSPCI shall be responsible for the acts and omissions of all
of its employees, contractors, subcontractors, engineers, agents,
representatives, advisors and all other persons performing any of the BSPCI
Work. BSPCI shall be responsible for initiating, maintaining and
supervising all necessary safety precautions and programs in connection
with the BSPCI Work, and shall take all reasonable protection to prevent
damage, injury or loss to, the BSPCI Work, all persons performing the BSPCI
Work on the Site, all other persons who may be involved in or affected by
the BSPCI Work, all materials and equipment to be incorporated in the BSPCI
Work, Tower and Improvements of such Site.
(vii) BSPCI shall procure and maintain in full force and effect,
and shall cause its contractors and subcontractors to procure and maintain
in full force and effect, with respect to the BSPCI Work: (x) full
replacement cost "all-risk", "builder's risk" insurance, insuring the BSPCI
Work; and (y) the other types of insurance required to be maintained
pursuant to SECTION 24 of this Sublease. Such additional insurance
policies shall meet the requirements set forth elsewhere in this Sublease
with respect to the insurance policies otherwise required to be obtained
and maintained by BSPCI under this Sublease.
14. DAMAGE TO THE SITE, TOWER OR THE IMPROVEMENTS .
(a) As to each Site, if such Site (including the Tower and
Improvements thereon) are damaged for any reason so as to render such Subleased
Property substantially unusable for the Permitted Use, TowerCo, at its sole cost
and expense, shall promptly and diligently proceed with the adjustment of
TowerCo's insurance Claims in respect thereof within a period of six (6) months
after the date of the damage and, thereafter, if and to the extent required by
this SECTION 14, promptly commence, and diligently prosecute to completion, the
Restoration, repair, replacement and rebuilding of the same. The Restoration
shall be carried on and completed in accordance with the provisions and
conditions of this SECTION 14.
(b) All Proceeds shall be held by TowerCo for the mutual benefit of
TowerCo and BSPCI on account of such damage, shall be applied to the payment of
the costs of the Restoration and shall be paid out from time to time as the
Restoration progresses. Any portion of the Proceeds applicable to a particular
Site remaining after final payment has been made for work performed on such Site
shall be retained by and be the property of TowerCo. If the cost of Restoration
exceeds the Proceeds, TowerCo shall pay the excess cost.
(c) No damage to any Site (including the Tower and Improvements
thereon), or any portion thereof, by fire, casualty or otherwise shall permit
TowerCo to terminate this Sublease as to the affected Site or shall relieve
TowerCo from its liability to pay to BSPCI the Rent payable under this Sublease
with respect to the Subleased Property of such Site or from any of its other
obligations under this Sublease, and TowerCo waives any rights now or hereafter
32
conferred upon TowerCo by present or future law or otherwise to quit or
surrender this Sublease, the applicable Site Designation Supplement or the
Subleased Property, or any portion thereof, to any BellSouth Entity or to any
suspension, diminution, abatement or reduction of the applicable Rent on account
of any such damage. Without limiting TowerCo's obligations hereunder in respect
of a Site subject to a casualty, TowerCo shall make available to BSPCI a portion
of the Subleased Property of such Site for the purpose of BSPCI locating a
temporary communications facility, such as a "cell on wheels", and shall give
BSPCI priority over Space Subtenants at such Site as to the use of such portion;
provided, however, that: (i) the placement of such temporary communications
facility does not interfere in any material respect with TowerCo's Restoration
and repair of such Improvements; (ii) BSPCI obtains any permits and approvals,
at its cost, required for the location of such temporary communications facility
on such Site; and (iii) there is available space on the Site for placing such
temporary communications facility.
(d) The foregoing provisions of this SECTION 14 apply only to damage
of each Site by fire, casualty or other cause occurring after the applicable
Site Commencement Date.
(e) If any BellSouth Entity damages any Site as a result of such
BellSouth Entity's negligent or wrongful act or omission, or failure to perform
its obligations under this Sublease, such BellSouth Entity will, at its sole
expense, promptly repair and restore the Subleased Property of such Site to its
respective conditions prior to such damage. If any BellSouth Entity fails to
perform any such obligation under this SECTION 14(E), TowerCo shall have the
right to perform such obligation on behalf of such BellSouth Entity, pursuant to
and in accordance with SECTION 30(B).
(f) If TowerCo fails to complete the Restoration of the Subleased
Property of any Site required under this Sublease within two (2) months after
the date of the damage, BSPCI may terminate this Sublease as to the applicable
Site upon giving TowerCo written notice of its election to terminate within
fifteen (15) days following the expiration of such time period; provided,
however, that if TowerCo's failure to complete such Restoration within such two
(2)-month period is caused by: (i) failure to obtain a new permit; or (ii)
TowerCo's inability to have access to the affected Site, such 2-month period
shall be extended accordingly in order to allow TowerCo to complete the
Restoration.
15. SPACE SUBTENANTS; INTERFERENCE.
(a) TowerCo acknowledges and agrees that TowerCo will not permit the
addition of any Space Subtenants (other than BSPCI in respect of any Available
Space) at the Subleased Property of any Site to adversely affect any Reserved
Space and its operation, use or enjoyment of such Reserved Space on any Site,
taking into account customary and commercially reasonable practices for multi-
tenant wireless communication sites and towers thereon.
(b) TowerCo shall not and shall not permit any Space Subtenants (other
than BSPCI in respect of any Available Space) on the Subleased Property of any
Site to (i) install or change, alter or improve the frequency, power, or type of
the Communications Equipment that interferes with the operation of the Reserved
Space of such Site or is not authorized by Laws or
33
is not made or installed in accordance with good engineering practices; or (ii)
implement a configuration which interferes with the operation of the applicable
BellSouth Entity's Communications Equipment on such Site or the Reserved Space
thereof.
(c) In the event of any interference occurring as a result of actions
of TowerCo or Space Subtenants described in SECTIONS 15(B) above as to the
Subleased Property of any Site, TowerCo shall be responsible for coordinating
and resolving any such interference problems caused by TowerCo or Space
Subtenants (other than BSPCI in respect of any Available Space), including,
without limitation, using its best efforts to correct and eliminate the
interference within forty-eight (48) hours of receipt of notification from BSPCI
and perform interference study in accordance with the procedures set forth in
SCHEDULE 15. If the interference cannot be corrected or eliminated within such
48-hour period, TowerCo shall cause, at TowerCo's option, any of TowerCo's or
Space Subtenants' (other than BSPCI in respect of any Available Space)
Communications Equipment or Communications Facility that interferes with the
operation of BSPCI's Communications Facility or the Reserved Space, authorized
frequency spectrum or signal strength, to be immediately powered down or turned
off, with the right to turn such interfering equipment or facility back up or on
only during off-peak hours specified by BSPCI in order to determine whether such
interference continues or has been eliminated; provided, however, that if any
interference continues at the time the interfering equipment is powered down,
the Communications Equipment that interferes with the operation of the
applicable BellSouth Entity's Communication Facility or Reserved Space shall be
turned off. If TowerCo or any Space Subtenant (other than BSPCI in respect of
any Available Space) cannot correct or eliminate, to the satisfaction of BSPCI,
such interference within twenty (20) days of receipt of written notice from
BSPCI, TowerCo shall or shall cause such Space Subtenant (other than BSPCI in
respect of the Available Space) to cease the operations of the objectionable
Communications Equipment and to stop providing services from the applicable
Communication Facility or the Subleased Property of the applicable Site in its
entirety until the interference problems are resolved.
(d) No BellSouth Entity shall: (i) install or change, alter or
improve the frequency, power, or type of the Communications Equipment in a
manner that interferes with the operation of TowerCo's or any Space Subtenant's
Communications Equipment on a Site or is not authorized by Law or is not made or
installed in accordance with good engineering practices; or (ii) implement a
configuration which interferes with the operation of TowerCo's or any Space
Subtenant's Communications Equipment on such Site.
(e) In the event of any interference occurring as a result of actions
of any BellSouth Entity described in SECTION 15(D) above as to any Site, BSPCI
shall be responsible for coordinating and resolving any such interference
problems caused by such BellSouth Entity, including, without limitation, using
its best efforts to correct and eliminate the interference within forty-eight
(48) hours of receipt of notification from TowerCo. If the interference cannot
be corrected or eliminated within such 48-hour period, BSPCI shall cause, at
BSPCI's option, any Communications Equipment or Communications Facility that
interferes with the operation of TowerCo's or any Space Subtenant's
Communications Facility's authorized frequency spectrum or signal strength, to
be immediately powered down or turned off, with the right to turn
34
such interfering equipment or facility back up or on only during off-peak hours
specified by TowerCo or the affected Space Subtenant in order to determine
whether such interference continues or has been eliminated; provided, that if
any interference continues at the time the interfering equipment is powered
down, the Communications Equipment that interferes with the operation of TowerCo
or any Space Subtenant Communication Facility shall be turned off. If BSPCI
cannot correct or eliminate, to the satisfaction of TowerCo or the affected
Space Subtenant, such interference within twenty (20) days of receipt of written
notice from TowerCo, the applicable BellSouth Entity shall cease the operations
of the objectionable Communications Equipment and stop providing services from
the applicable Communications Facility or the Subleased Property of the
applicable Site in its entirety (including the Tower and Improvements) until the
interference problems are resolved.
(f) Notwithstanding anything in this SECTION 15 to the contrary, in
the event any interference occurs in respect of a Site and the source of such
interference is not readily determinable, it shall be assumed that TowerCo or a
Space Subtenant and not the BellSouth Entity is the cause of such interference,
TowerCo shall be responsible for the performance of its obligations under
SECTION 15(C) in respect of such interference, and the BellSouth Entity shall be
relieved of any obligations under SECTION 15(E) in respect of such interference,
unless and until it is determined that the BellSouth Entity is the cause of such
interference.
16. TAXES AND ASSESSMENTS.
(a) TowerCo is responsible for the payment of, as and when they shall
become due and payable, all Taxes and Assessments as to each Site, for each Site
Term Year during the term of this Sublease as to such Site.
(b) BSPCI shall pay all Taxes and Assessments with respect to the
Sites, and TowerCo shall reimburse BSPCI not later than thirty (30) days after
BSPCI delivers a copy of a notice setting forth the allocation with respect to
Taxes and Assessments to TowerCo. Notwithstanding anything to the contrary
contained herein, the Parties agree that all Taxes and Assessments due and
payable by TowerCo hereunder, may be included at BSPCI's sole option and
discretion exercisable upon written notice to TowerCo, into the calculation of
the Aggregate Site Maintenance Charge.
17. UTILITIES.
Prior to the Site Commencement Date as to each Site, TowerCo shall
make all arrangements for, and thereafter shall pay, or cause to be paid, when
due all charges for connection of all utilities and services to such Site,
including, but not limited to, electricity, telephone, power, and other utility
used or consumed by the applicable BellSouth Entity occupying the Reserved Space
and all Space Subtenants of such Site. As among each BellSouth Entity and all
Space Subtenants, TowerCo shall cause utility charges to be separately metered,
and each BellSouth Entity shall be separately responsible for its own utility
charges.
18. GOVERNMENTAL APPROVALS.
(a) In addition to and not in limitation of the provisions of SECTION
13(A) of this Sublease, TowerCo shall, at its own cost and expense, obtain and
maintain in effect all certificates, permits, licenses and other approvals and
to comply with all Laws, required or
35
imposed by governmental authorities, in connection with operation and
maintenance of the Subleased Property of each Site (including Tower and
Improvements thereon), including, without limitation, zoning Laws and FAA
regulations.
(b) TowerCo shall cooperate with each BellSouth Entity in its efforts
to obtain and maintain in effect all certificates, permits, licenses and other
approvals and to comply with all Laws required or imposed by governmental
authorities, including, without limitation, the FCC and FAA, applicable to the
Reserved Space of each Site.
(c) In addition to and not in limitation of the provisions of SECTION
13(C) of this Sublease, each BellSouth Entity shall, at its own cost and
expense, obtain and maintain in effect all certificates, permits, licenses and
other approvals and to comply with all Laws, required or imposed by governmental
authorities, in connection with operation and maintenance of the Reserved Space
of each Site, including, without limitation, FAA regulations.
(d) Each BellSouth Entity shall cooperate with TowerCo in TowerCo's
efforts to obtain and maintain in effect all certificates, permits, licenses and
other approvals and to comply with all Laws required or imposed by governmental
authorities, including, without limitation, the FCC and FAA, applicable to each
Site.
19. NO LIENS.
(a) TowerCo shall not create or permit any Lien against any Site, or
any part thereof. If any Lien (other than Permitted Liens) is filed against all
or any part of any Site, TowerCo shall cause the same to be discharged by
payment, satisfaction or posting of bond within thirty (30) days after TowerCo
has obtained knowledge of such Lien. If TowerCo fails to cause any Lien (other
than Permitted Liens) to be discharged within the permitted time, BSPCI may
cause it to be discharged and may pay the amount of such Lien in order to do so.
If BSPCI makes any such payment, all amounts paid by BSPCI shall be payable by
TowerCo to BSPCI upon demand. "PERMITTED LIENS" means, as to each Site: (i)
Permitted Subleasehold Mortgages of TowerCo's Subleasehold Estate in such Site,
Tower or Improvements thereof; (ii) Space Subtenants' sublease interests in the
Subleased Space of such Site; (iii) Liens existing on the date of the Site
Designation Supplement for such Site; and (iv) Liens arising by, through or
under BSPCI or any other occupant of the Reserved Space.
(b) TowerCo may, at TowerCo's sole cost and expense, in its own name
and on its own behalf or in the name of and on behalf of the applicable
BellSouth Entity, in good faith, contest any claim of Lien and, in the event of
any such contest, may permit such claim of Lien so contested to remain unpaid,
unsatisfied and undischarged during the period of such contest and any appeal
therefrom; provided, however, that, if any Site, the Subleased Property of any
Site or any part thereof are subject to imminent danger of loss or forfeiture by
virtue of or by reason of such claim of Lien, such claim of Lien shall be
complied with forthwith or TowerCo shall deposit with BSPCI a sum of money
reasonably required by BSPCI as security to protect the Subleased Property of
such Site from any such loss or forfeiture. The applicable BellSouth
36
Entity, at the sole cost and expense of TowerCo, shall cooperate fully with
TowerCo in any such contest.
(c) Any Permitted Subleasehold Mortgage and all rights acquired by any
Permitted Subleasehold Mortgagee shall be subject to each and every term,
covenant, condition, agreement, requirement, restriction and provision set forth
in this Sublease and subject to all rights, title and interest of the BellSouth
Entities.
(d) Within ten (10) days after the granting of any Permitted
Subleasehold Mortgage, TowerCo shall deliver to BSPCI a true, correct and fully
executed copy of all documents pertaining thereto and the indebtedness secured
thereby. Promptly upon TowerCo's receipt of copies of recorded documents
evidencing the recordation thereof and bearing the recording information
therefor, TowerCo shall deliver to BSPCI a copy of such recorded documents.
(e) Each BellSouth Entity shall execute any necessary easement or
right of way for utilities for any Site promptly following any request by
TowerCo, provided such easement or right of way does not have an adverse effect
on such BellSouth Entity's use or enjoyment of the Reserved Space of such Site,
including without limitation the operation of such BellSouth Entity's
Communications Equipment thereon.
(f) No BellSouth Entity shall create or permit any Lien against the
Subleased Property of any Site, or any part thereof. If any Lien is filed
against all or any part of the Subleased Property of any Site, BSPCI shall cause
the same to be discharged by payment, satisfaction or posting of bond within
thirty (30) days after demand therefor by TowerCo. If BSPCI fails to cause any
Lien to be discharged within the permitted time, TowerCo may cause it to be
discharged and may pay the amount of such Lien in order to do so. If TowerCo
makes any such payment, all amounts paid by TowerCo shall be payable by BSPCI to
TowerCo upon demand. Nothing in this Sublease shall prohibit any BellSouth
Entity from permitting a Lien against its interest under the Ground Lease or
Reserved Space of any Site.
(g) BSPCI may, at BSPCI's sole cost and expense, in its own name and
on its own behalf or in the name of and on behalf of TowerCo, in good faith,
contest any claim of Lien and, in the event of any such contest, may permit such
claim of Lien so contested to remain unpaid, unsatisfied and undischarged during
the period of such contest and any appeal therefrom; provided, however, that, if
the Subleased Property of any Site or any part thereof are subject to imminent
danger of loss or forfeiture by virtue of or by reason of such claim of Lien,
such claim of Lien shall be complied with forthwith or BSPCI shall deposit with
TowerCo a sum of money reasonably required by TowerCo as security to protect the
Subleased Property of such Site from any such loss or forfeiture. TowerCo, at
the sole cost and expense of BSPCI, shall cooperate fully with BSPCI in any such
contest.
20. CONDEMNATION.
(a) If there occurs a Taking of all or a Substantial Portion of any
Site, other than a Taking for temporary use, that impairs or adversely affects
any BellSouth Entity's full use
37
and enjoyment of the Reserved Space, then this Sublease shall automatically
terminate as to such Site unless otherwise agreed by the Parties, and the Term
shall automatically expire as to such Site, on the Date of Taking, as if such
date were the Site Expiration Date as to such Site, and all Rent and other sums
payable by TowerCo and BSPCI in respect of such Site shall be apportioned and
paid through and including the Date of Taking.
(b) If there occurs a Taking of less than a Substantial Portion of any
Site, then this Sublease and all duties and obligations of TowerCo under this
Sublease in respect of such Site shall remain unmodified, unaffected and in full
force and effect; provided, however, that the Rent in respect of such Site
payable after the Taking shall be reduced to an amount which bears the same
ratio to the Rent payable immediately prior to the Taking as the rental value of
the Subleased Property of such Site after taking bears to the rental value of
the Subleased Property of that Site immediately prior to the Taking. TowerCo
shall promptly proceed to reconstruct, restore and repair the remaining portion
of the Subleased Property of such Site (to the extent feasible) to a condition
substantially equivalent to the condition thereof prior to the Taking. TowerCo
shall be entitled to apply the Award received by TowerCo to the reconstruction,
Restoration and repair of any Subleased Property of any Site from time to time
as such work progresses. If the cost of the repair work exceeds the Award
recovered by TowerCo, TowerCo shall pay the excess cost.
(c) If there occurs a Taking of any Subleased Property of any Site or
any portion thereof, for temporary use, then this Sublease shall remain in full
force and effect as to such Site for the remainder of the then current term;
provided, however, that during such time as TowerCo shall be out of possession
of such Subleased Property by reason of such Taking, the failure to keep,
observe, perform, satisfy and comply with those terms and conditions of this
Sublease compliance with which are effectively impractical or impossible as a
result of TowerCo's being out of possession of such Subleased Property (and
which shall not include payment of Rent) shall not be an event of default
hereunder. The Award for any such temporary Taking payable for any period prior
to the Site Expiration Date shall be paid to TowerCo and, for any period
thereafter, to BSPCI.
21. WAIVER OF SUBROGATION; INDEMNITY.
(a) Except as provided in this Sublease, to the extent permitted by
applicable Laws, TowerCo and each BellSouth Entity hereby waive any and all
rights of recovery, claim, action or cause of action against each other, their
respective agents, officers and employees, for any loss or damage that may occur
to the Subleased Property of each Site, by reason of fire, the elements, or any
other cause insured against, or required to be insured against, under the terms
of policies of insurance maintained, or required to be maintained, for the
Subleased Property of such Site, by TowerCo or such BellSouth Entity (as the
case may be) under the terms of this Sublease, regardless of cause or origin.
(b) Subject to the provisions of SECTION 21(A) above, TowerCo agrees
to indemnify and to hold each BellSouth Entity Indemnitee harmless from any and
all Claims, with respect to bodily injury, personal injury or property damage
suffered or incurred by such
38
BellSouth Entity Indemnitee by reason of, or arising out of TowerCo's ownership,
operation and maintenance of each Site (including the Tower and Improvements
thereon), including, without limitation: (i) any default, breach, performance or
nonperformance by TowerCo of its respective obligations and covenants under this
Sublease; (ii) any Claims against BellSouth Entity Indemnitee arising out of or
resulting from (x) TowerCo's use, operation, maintenance or occupancy of any
part of the Site or resulting from the condition of the Site or (y) any Space
Subtenant's use, operation, maintenance or occupancy of its Communications
Facility; (iii) any failure of TowerCo to comply with any applicable Laws or
with the directives of FCC and FAA that TowerCo is required to comply with
pursuant to this Sublease or under applicable Laws; (iv) any Claims arising out
of or resulting from TowerCo's or any Space Subtenant's acts or omissions or the
negligence or intentional acts or omissions of any of their respective agents,
employees, engineers, contractors, subcontractors, licensees, or invitees in or
about the Subleased Property of each Site, and (v) any other provision of this
Sublease which provides that TowerCo shall indemnify and hold harmless any
BellSouth Entity or a BellSouth Entity Indemnitee in respect of the matters
contained in such provision. If any action or proceeding is brought against any
BellSouth Entity Indemnitee by reason of any such Claim, TowerCo upon notice
from BSPCI covenants and agrees to defend such action or proceeding at its
expense.
(c) Subject to the provisions of SECTION 21(A) above, each BellSouth
Entity agrees to indemnify and to hold each TowerCo Indemnitee harmless from any
and all Claims with respect to bodily injury, personal injury or property damage
suffered or incurred by TowerCo by reason of, or arising out of (i) any default,
breach, performance or nonperformance of such BellSouth Entity's obligations and
covenants under this Sublease; (ii) any Claims against TowerCo arising out of or
resulting from such BellSouth Entity's use, operation, maintenance or occupancy
of its Communications Equipment or the Reserved Space, to the extent TowerCo is
not responsible therefor under the terms of this Sublease; (iii) such BellSouth
Entity's failure to comply with any applicable Laws or with the directives of
FCC and FAA as to such BellSouth Entity's Communications Equipment; (iv) any
Claims against TowerCo arising out of or resulting from any acts or omissions or
the negligence or intentional actions or omissions of any of such BellSouth
Entity's agents, employees, engineers, contractors, subcontractors, licensees or
invitees; and (v) any other provision of this Sublease which provides that a
BellSouth Entity shall indemnify and hold harmless TowerCo in respect of the
matters contained in such provision. If any action or proceeding is brought
against TowerCo by reason of any such Claim, the applicable BellSouth Entity
upon notice from TowerCo covenants and agrees to defend such action or
proceeding at its expense.
39
22. SUBORDINATION AND ATTORNMENT.
(a) This Sublease and all rights of TowerCo therein, and all interest
or estate of TowerCo in the Subleased Property of each Site, or any portion
thereof, shall be subordinate to any and all Mortgages, which at any time during
the Term, may be placed upon the Subleased Property, or any portion thereof, by
any BellSouth Entity or any of its Affiliates, and to any replacements,
renewals, amendments, modifications, extensions or refinancing thereof, and to
each and every advance made under any Mortgage; provided, however, that the
subordination and attornment contained herein shall not be effective unless the
existing or any future Mortgagee thereunder shall execute and deliver an NDA in
favor of TowerCo, providing that: (i) such Mortgagee will at all times fully
recognize TowerCo's rights under this Sublease, and in the event of a
foreclosure under any such Mortgage, so long as no event of default shall have
occurred and be subsisting hereunder, and so long as TowerCo shall attorn to the
purchaser upon such foreclosure, and so long as TowerCo continues to pay the
Rent with respect to all Sites covered by this Sublease and to fully and
completely keep, observe, satisfy, perform and comply with all agreements,
terms, covenants, conditions, requirements, provisions and restrictions of this
Sublease, such Mortgagee shall not disturb TowerCo's possession of the Subleased
Property; and (ii) that upon Mortgagee acquiring title to the Subleased
Property, TowerCo shall attorn directly to such Mortgagee. TowerCo shall agree
to such other terms and conditions in the NDA as may be reasonably required by
such Mortgagee, provided that such terms and conditions do not affect TowerCo's
rights, nor increase or alter any of TowerCo's obligations, under this Sublease.
(b) Subject to the provision of SECTION 22(A), TowerCo shall execute
in a timely manner instruments that may be required to evidence this
subordination clause, in respect of the Subleased Property of each Site.
23. ENVIRONMENTAL COVENANTS.
(a) For purposes of this Sublease, the following terms shall have the
following meanings: (i) "HAZARDOUS MATERIAL" or "HAZARDOUS MATERIALS" means and
includes petroleum products, flammable explosives, radioactive materials,
asbestos or any material containing asbestos, polychlorinated biphenyls, or any
hazardous, toxic or dangerous waste, substance or material defined as such or
defined as a hazardous substance or any similar term, by, in or for the purposes
of the Environmental Laws, including, without limitation Section 101(14) of
CERCLA (hereinafter defined); provided that the term "HAZARDOUS MATERIALS" shall
exclude quantities of materials or substances maintained by any BellSouth
Entity, its Affiliates, TowerCo and Space Subtenants on or about any Site
(including Tower and Improvements thereon) in the ordinary course of business,
so long as such materials are maintained in accordance with the applicable
Environmental Laws; (ii) "RELEASE" shall have the meaning given such term, or
any similar term, in the Environmental Laws, including, without limitation
Section 101(22) of CERCLA; and (iii) "ENVIRONMENTAL LAW" or "ENVIRONMENTAL LAWS"
shall mean any "Super Fund" or "Super Lien" law, or any other federal, state or
local statute, law, ordinance, code, rule, regulation, order or decree,
regulating, relating to or imposing liability or standards of conduct concerning
any Hazardous Materials as may now or at any time hereafter be in effect,
including, without
40
limitation, the following, as same may be amended or replaced from time to time,
and all regulations promulgated thereunder or in connection therewith: the Super
Fund Amendments and Reauthorization Act of 1986 ("XXXX"); the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"); the
Clean Air Act ("CAA"); the Clean Water Act ("CWA"); the Toxic Substances Control
Act ("TSCA"); the Solid Waste Disposal Act ("SWDA"), as amended by the Resource
Conversation and Recovery Act ("RCRA"); the Hazardous Waste Management System;
and the Occupational Safety and Health Act of 1970 ("OSHA").
(b) As to each Site (other than BTS Sites), BSPCI represents and
warrants to TowerCo that, as of the date of the Site Designation Supplement for
such Site, (i) to the best of BSPCI's knowledge, no portion of the Land of such
Site is used for the storage, processing, treatment or disposal of Hazardous
Materials, except as set forth in an environmental report delivered to TowerCo;
(ii) to the best of BSPCI's knowledge, no Hazardous Materials have been
released, introduced, spilled, discharged or disposed of, nor has there been a
threat of release, introduction, spill, discharge or disposal of a Hazardous
Materials, on, in, or under the Land of such Site, except as set forth in an
environmental report delivered to TowerCo; (iii) to the best of such BSPCI's
knowledge, there are no pending Claims, administrative proceedings, judgments,
declarations, or orders, whether actual or threatened, relating to the presence
of Hazardous Materials on, in or under the Land of such Site; (iv) to the best
of BSPCI's knowledge, the Land of such Site is in compliance with all applicable
Environmental Laws; and (v) to the best of BSPCI's knowledge, there are no
pending or threatened or contemplated condemnation actions involving all or any
portion of the Land of such Site. For purposes of this Section, "TO THE BEST
KNOWLEDGE OF," or words of similar import with reference to BSPCI means actual
knowledge of the management of BSPCI and such actual knowledge will be imputed
to the management of BSPCI if the Hazardous Materials were brought to the Site
by BSPCI or its Affiliates.
(c) TowerCo covenants and agrees that: (i) TowerCo shall not conduct
or allow to be conducted upon any Site any business operations or activities, or
employ or use a Site, to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce, or process Hazardous Materials; provided
that TowerCo shall have the right to bring and keep and allow any Space
Subtenant to bring and keep on the Subleased Property of each Site in compliance
with all applicable Laws, batteries, generators and associated fuel tanks and
other substances commonly used in the industry necessary for the operation and
maintenance of each Site; (ii) TowerCo shall carry on its business and
operations at each Site in compliance in all respects with, and will remain in
compliance with, all applicable Environmental Laws; (iii) TowerCo shall not
create or permit to be created any Lien against any Site for the costs of any
response, removal or remedial action or clean-up of Hazardous Materials; (iv)
TowerCo shall promptly conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal, and other actions necessary to
clean up and remove all Hazardous Materials on, from or affecting each Site in
accordance with all applicable Environmental Laws; (v) TowerCo shall promptly
notify BSPCI in writing if TowerCo receives any notice, letter, citation, order,
warning, complaint, injury, claim or demand that: (w) TowerCo has violated, or
is about to violate, any Environmental Law, (x) there has been a Release or
there is a threat of Release, of Hazardous
41
Materials at or from the applicable Site, (y) TowerCo may be or is liable, in
whole or in part, for the costs of cleaning up, remediating, removing or
responding to a Release of Hazardous Materials, or (z) a Site are subject to a
Lien favor of any governmental entity for any liability, cost or damages under
any Environmental Law.
(d) Each BellSouth Entity covenants and agrees that as to each Site
(other than with respect to any BTS Site, prior to Completion of such Site):
(i) such BellSouth Entity shall not conduct or allow to be conducted upon any
Reserved Space of any Site any business operations or activities, or employ or
use a Reserved Space of any Site, to generate, manufacture, refine, transport,
treat, store, handle, dispose of, transfer, produce, or process Hazardous
Materials; provided that such BellSouth Entity shall have the right to bring and
keep on the Reserved Space of any Site in compliance with all applicable Laws,
batteries, generators and associated fuel tanks and other substances commonly
used in the industry necessary for the operation and maintenance of each
Reserved Space of any Site; (ii) such BellSouth Entity shall carry on its
business and operations on the Reserved Space of any Site in compliance in all
respects with, and will remain in compliance with, all applicable Environmental
Laws; (iii) such BellSouth Entity shall not create or permit to be created any
Lien against any Reserved Space of any Site for the costs of any response,
removal or remedial action or clean-up of Hazardous Materials; (iv) such
BellSouth Entity shall promptly conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal, and other actions
necessary to clean up and remove all Hazardous Materials on, from or affecting
the Reserved Space of each Site in accordance with all applicable Environmental
Laws; (v) such BellSouth Entity shall promptly notify TowerCo in writing if such
BellSouth Entity receives any notice, letter, citation, order, warning,
complaint, injury, claim or demand that: (w) such BellSouth Entity has
violated, or is about to violate, any Environmental Law, (x) there has been a
Release or there is a threat of Release, of Hazardous Materials at or from the
Reserved Space of any Site, (y) such BellSouth Entity may be or is liable, in
whole or in part, for the costs of cleaning up, remediating, removing or
responding to a Release of Hazardous Materials, or (z) the Reserved Space of any
Site is subject to a Lien in favor of any governmental entity for any liability,
cost or damages under any Environmental Law.
(e) Unless resulting or arising solely from the negligent or willful
acts or omissions of a BellSouth Entity or BellSouth Entity's employees, agents,
engineers, contractors, subcontractors, licensees or invitees, TowerCo agrees to
indemnify and hold each BellSouth Entity harmless from and against any and all
Claims, including Claims of any and every kind whatsoever paid, incurred,
suffered by, or asserted against such BellSouth Entity or the Site for, with
respect to, or as a result of the following: (i) the presence in, on, over or
under, or the escape, seepage, leakage, spillage, discharge, emission or Release
on or from the Site of any Hazardous Materials prior to the applicable Site
Expiration Date or earlier date of termination of this Sublease; (ii) the
violation of any Environmental Laws relating to or affecting the Site prior to
the applicable Site Expiration Date or earlier date of termination of this
Sublease; (iii) the violation of any of the Environmental Laws prior to the
applicable Site Expiration Date or earlier date of termination of this Sublease
in connection with any other property owned by TowerCo, which violation gives or
may give rise to any rights whatsoever in any Party with respect to the
42
Site by virtue of any of the Environmental Laws; (iv) any warranty or
representation made by TowerCo in this SECTION 23 is or becomes false or untrue
in any material respect; or (v) the violation or breach of, or the failure of
TowerCo to fully and completely keep, observe, satisfy, perform and comply with,
any agreement, term, covenant, condition, requirement, provision or restriction
of this SECTION 23.
(f) Unless resulting or arising from the negligent or willful acts or
omissions of TowerCo or TowerCo's employees, agents, engineers, contractors,
subcontractors, licensees or invitees, each BellSouth Entity agrees to indemnify
and hold TowerCo harmless from and against any and all Claims, including Claims
of any and every kind whatsoever paid, incurred, suffered by, or asserted
against TowerCo or the Reserved Space of the applicable Site for, with respect
to, or as a result of the following, except as to any BTS Site, to the extent
arising prior to Completion thereof: (i) the presence in, on, over or under, or
the escape, seepage, leakage, spillage, discharge, emission or Release on or
from the Reserved Space of any Site of any Hazardous Materials prior to the
applicable Site Expiration Date or earlier date of termination of this Sublease;
(ii) the violation of any Environmental Laws relating to or affecting the
Reserved Space of any Site prior to the applicable Site Expiration Date or
earlier date of termination of this Sublease; (iii) the violation of any of the
Environmental Laws prior to the applicable Site Expiration Date or earlier date
of termination of this Sublease in connection with any other property owned by
TowerCo, which violation gives or may give rise to any rights whatsoever in any
Party with respect to the Reserved Space of any Site by virtue of any of the
Environmental Laws; (iv) any warranty or representation made by BSPCI in this
SECTION 23 is or becomes false or untrue in any material respect; or (v) the
violation or breach of, or the failure of BSPCI to fully and completely keep,
observe, satisfy, perform and comply with, any agreement, term, covenant,
condition, requirement, provision or restriction of this SECTION 23.
(g) Notwithstanding anything to the contrary in this Sublease, in the
event any Claim of a type giving rise to indemnification obligations under
SECTION 23 is asserted against a TowerCo Indemnitee and it cannot be readily
determined that it was the act or omission of a BellSouth Entity that gave rise
to such Claim, it shall be assumed for all purposes hereof that it was TowerCo's
or a Space Subtenant's act or omission, TowerCo shall indemnify BellSouth Entity
Indemnitees in respect of such Claim pursuant to SECTION 23(E), and no BellSouth
Entity shall have obligation or liability to any TowerCo Indemnitee in respect
of such Claim unless and until it is finally determined that a BellSouth
Entity's act or omission gave rise to such Claim. The provisions of this
SECTION 23 shall survive the applicable Site Expiration Date or earlier
termination of this Sublease. The foregoing provisions of this SECTION 23 are
not intended to limit the generality of any of the other provisions of this
Sublease.
24. INSURANCE.
(a) From and after the Site Commencement Date as to each Site, the
applicable BellSouth Entity shall procure, and shall maintain in full force and
effect at all times during the Term as to such Site, the following types of
insurance with respect to the Reserved Space of each Site, and, if applicable,
any of the Available Space subleased to BSPCI pursuant to SECTION 25(D), paying
as the same become due all premiums therefor:
43
(i) commercial general public liability insurance insuring
against all liability of such BellSouth Entity and such BellSouth Entity's
officers, employees, agents, licensees and invitees arising out of, by
reason of or in connection with the use or occupancy of the Reserved Space
of the applicable Site and, if applicable, any of the Available Space
subleased to BSPCI pursuant to SECTION 25(D), if any, in an amount of not
less than $1,000,000 for bodily injury or property damage as a result of
one occurrence, and not less than $2,000,000 for bodily injury or property
damage in the aggregate;
(ii) umbrella or excess liability insurance with limits not less
than $5,000,000 per occurrence and in the aggregate; and
(iii) workers' compensation insurance covering all employees of
such BellSouth Entity to the extent required by any Laws.
(b) Each BellSouth Entity shall pay all premiums for the insurance
coverage which such BellSouth Entity is required to procure and maintain under
this Sublease. Each insurance policy: (i) shall name TowerCo as an additional
insured; provided that such requirement shall only apply to liability policy and
shall have no application to workers' compensation policies; and (ii) shall
provide that the policy cannot be canceled as to TowerCo except after the
insurer endeavors to give TowerCo thirty (30) days' written notice of
cancellation. TowerCo agrees that each BellSouth Entity may, at such BellSouth
Entity's option and election self insure with respect to all or a portion of the
risks required to be insured against by such BellSouth Entity under this SECTION
24. If any BellSouth Entity elects to be covered by and participate in its self
insurance and risk management programs, BSPCI shall notify TowerCo of such
election. From time to time, upon reasonable request by TowerCo, such BellSouth
Entity shall furnish to TowerCo the information concerning its risk management
and self insurance policies and programs in effect at the time of such request.
(c) For each Site, TowerCo shall procure, and shall maintain in full
force and effect at all times during the Term as to the applicable Site, the
following types of insurance with respect to each Site, including the Tower and
Improvements thereon, paying as the same become due all premiums therefor:
(i) commercial general public liability insurance insuring
against all liability of TowerCo and TowerCo's officers, employees, agents,
licensees and invitees arising out of, by reason of or in connection with
the use, occupancy or maintenance of each Subleased Property (including
Tower and the Improvements), in an amount of not less than $1,000,000 for
bodily injury or property damage or as a result of one occurrence, and not
less than $2,000,000 for bodily injury or property damage in the aggregate;
(ii) umbrella or excess liability insurance with limits not less
than $5,000,000 per occurrence and in the aggregate; and
44
(iii) insurance in an amount not less than full replacement cost
of the Tower and Improvements of each Site, against direct and indirect
loss or damage by fire and all other casualties and risks covered under
"All Risk" insurance; and
(iv) workers' compensation insurance covering all employees of
TowerCo or its Affiliates to the extent required by any Laws.
(d) TowerCo shall pay all premiums for the insurance coverage which
TowerCo is required to procure and maintain under this Sublease. Each insurance
policy (i) shall name BSPCI as an additional insured; provided that such
requirement shall only apply to liability policy and shall have no application
to workers' compensation policies; and (ii) shall provide that the policy cannot
be canceled as to BSPCI except after the insurer gives BSPCI ten (10) days'
written notice of cancellation.
(e) All policy amounts set forth in this SECTION 24 shall be reset
every five (5) years during the Term to increase by an amount not less than the
CPI Increase over the five (5) year period, except to the extent the Parties
otherwise agree.
(f) TowerCo shall not, on its own initiative or pursuant to request or
requirement of any Space Subtenants or other Person, take out separate insurance
concurrent in form or contributing in the event of loss with that required in
SECTION 24(C), unless BSPCI is named therein as an additional insured. The
Parties agree that, with respect to Parties, the outstanding publicly traded
debt of which is rated investment grade by Standard & Poor's or Xxxxx'x, all
policies of insurance required by this SECTION 24 may contain such loss
retention provisions or deductibles as is reasonable in light of financial
conditions of the Parties. TowerCo shall immediately notify BSPCI whenever any
such separate insurance is taken out and shall deliver to BSPCI original
certificates evidencing the same.
(g) As to the Subleased Property of each Site, all policies of
insurance shall be written on companies rated A+ by AM Best or a comparable
rating and licensed in the State where such Site is located. Certificates
evidencing insurance shall be in a form reasonably acceptable to the recipient
Party, shall be delivered to such Party upon commencement of the Term and prior
to expiration of such policy, new certificates evidencing such insurance, shall
be delivered to such Party not less than twenty (20) days prior to the
expiration of the then current policy term. The Parties agree that all policies
of insurance required by this SECTION 24, including from Space Subtenants, may
contain such loss retention provisions or deductibles as is reasonable in light
of financial conditions of the Parties.
(h) Nothing in this SECTION 24 shall prevent any BellSouth Entity or
TowerCo from obtaining insurance of the kind and in the amount provided for
under this SECTION 24 under a blanket insurance policy or policies (evidence
thereof reasonably satisfactory to the other Party shall be delivered to the
other Party by the insuring Party) which may cover other properties owned or
operated by the insuring Party as well as the Subleased Property or the
Available Space; provided, however, that any such policy of blanket insurance
shall: (i) specify the
45
amounts thereof to the extent such amounts are used to meet the initial limits
required pursuant to this SECTION 24, it being understood that such
specification shall not diminish or limit the availability of the entire amount
of the blanket insurance policy; and (ii) provide that such policies of blanket
insurance shall, as respects the Subleased Property of each Site, contain the
various provisions required of such an insurance policy by the foregoing
provisions of this SECTION 24.
25. RIGHT OF SUBSTITUTION; RIGHT OF FIRST REFUSAL.
(a) Notwithstanding anything to the contrary contained herein and
subject to SECTION 5(B), each BellSouth Entity shall have the right to modify
and/or replace, at such BellSouth Entity's expense, its Communications Equipment
at any Site provided said replacement Communications Equipment does not increase
the weight or sail area by more than ten percent (10%) of the weight or sail
area on the applicable Site Commencement Date.
(b) Notwithstanding anything to the contrary contained herein, if
during the Term, there is any Available Space in respect of the Subleased
Property of any Site, then BSPCI shall have the Right of Substitution as to such
Available Space, provided that the relocation shall not violate the requirements
of SECTION 25(A). The Right of Substitution pursuant to this SECTION 25(B) may
be exercised by BSPCI at any time, and from time to time, without limit, upon
written notice to TowerCo. If BSPCI elects to exercise its Right of
Substitution, then, upon completion of the relocation of the Communications
Equipment of BSPCI on the Tower and Improvements thereon, the previously
existing Reserved Space of the applicable Site shall automatically be released
by BSPCI and become a part of the Subleased Property of such Site, subject to
the terms of this Sublease, and concurrently therewith, the Available Space on
such Site to which the Communications Equipment of BSPCI has been relocated
shall, upon the amendment of the Site Designation Supplement, automatically
become and constitute the Reserved Space of such Site subject to SECTION 5. The
terms of this SECTION 25(B) shall be self-operative, and no further instrument
shall be required to evidence any Substitution; provided, however, that upon the
request of either BSPCI or TowerCo, the Parties shall promptly execute such
instruments as may be reasonably required to further evidence such Substitution,
including without limitation an amendment to the applicable Site Designation
Supplement and cause such amendment to be recorded at BSPCI's cost and expense.
BSPCI shall, at BSPCI's cost and expense, complete the relocation of its
Communications Equipment within thirty (30) days of the exercise of its Right of
Substitution and return the previously existing Reserved Space to its original
condition, ordinary wear and tear excepted.
(c) Notwithstanding anything to the contrary contained herein, if
during the Term, TowerCo intends to sublease any Available Space of the
Subleased Property of any Site to a potential Space Subtenant, TowerCo shall
send BSPCI a copy of any letter-offer, letter of intent, or other correspondence
with the potential Space Subtenant together with a summary of the economic terms
of the proposed lease or sublease as contained in such documents, which economic
terms shall include at least the number and location of all Sites subject to the
proposed lease or sublease, the number, type, and location of each antenna on
each Tower, the rent payable for such antenna at each location on the Tower
(including any escalation provisions), and the
46
term of each Space Subtenant lease or sublease and each of any renewals thereof
(the "ECONOMIC OFFER"). BSPCI may, in its sole discretion, by providing written
notice thereof to TowerCo within ten (10) days after receipt of the Economic
Offer from TowerCo (x) exercise its Right of Substitution pursuant to SECTION
25(B) in respect of such Available Space, or (y) exercise its Right of First
Refusal in respect of such Available Space pursuant to SECTIONS 25(E) and (F),
or (z) exercise both, if with respect to multiple Sites. If TowerCo intends to
sublease Available Space at multiple Sites, BSPCI shall not be entitled to
exercise either its Right of Substitution and/or its Right of First Refusal as
to any Available Space unless BSPCI exercises such Right in respect of a minimum
of the greater of (i) five percent (5%) or (ii) two (2) of the total number of
Available Spaces for those multiple Sites that TowerCo intends to sublease.
(d) If BSPCI exercises its Right of Substitution as to any Available
Space, then such Available Space shall become the Reserved Space for all
purposes of this Sublease and be subject to the provisions of SECTION 5. If
BSPCI exercises its Right of First Refusal as to such Available Space, then
TowerCo shall sublease the Available Space to BSPCI subject to the terms and
conditions set forth in the applicable Economic Offer and BSPCI and TowerCo
shall execute a sublease agreement in the form of EXHIBIT B, as modified to
reflect the terms and conditions of the applicable Economic Offer, or in any
other form acceptable to TowerCo and BSPCI and, BSPCI shall, for all purposes of
this Sublease, become a Space Subtenant of such Available Space.
(e) If BSPCI fails to notify TowerCo as to its election under SECTION
25(D), then BSPCI's options referred to in SECTION 25(D) with respect to such
Available Space shall expire and TowerCo shall be entitled to sublease such
Available Space to a potential Space Subtenant upon the terms and conditions
contained in the applicable Economic Offer.
(f) If TowerCo exercises its right to sublease any Available Space of
any Site to a potential Space Subtenant in accordance with the Economic Offer,
whether or not BSPCI exercises all or part of its Right of Substitution or Right
of First Refusal with respect thereto, TowerCo shall promptly provide BSPCI copy
of the final definitive lease or sublease with the Space Subtenant (the "FINAL
AGREEMENT"). If the economic terms of the Economic Offer are not the same or
better than those of the Final Agreement, then, in addition to any other
remedies BSPCI have, BSPCI may require that any Site Maintenance Charge, if it
exercised its Right of Substitution, or rent, if it exercised its Right of First
Refusal, and all other economic terms, be reduced to and conformed with those of
the Final Agreement.
(g) If such Available Space has not been so subleased to such Space
Subtenant within one hundred and twenty (120) days after BSPCI receipt of the
applicable Economic Offer, then the restrictions provided in this SECTION 25
shall again become effective with respect to such Available Space, and TowerCo
shall have no right to sublease any such Available Space without again offering
such Available Space to BSPCI in accordance with the provisions of this SECTION
25.
47
26. ASSIGNMENT AND SUBLETTING.
(a) Without the prior written consent of BSPCI, TowerCo may not assign
this Sublease or any of TowerCo's rights hereunder in whole or in part, or
sublet this Sublease in whole, or any of TowerCo's rights hereunder; except that
TowerCo may assign this Sublease or sublet all or any portion of the Subleased
Property of each Site, without the requirement of any consent by BSPCI, to a
successor corporation or entity, by way of merger, consolidation or other
reorganization, or to any parent, subsidiary or Affiliate of TowerCo, or to any
Person acquiring all or substantially all of TowerCo's assets, or to any Person
acquiring and continuing that portion of TowerCo's business operations conducted
at or from the Subleased Property; provided, however, in each case that such
assignee: (i) is a Permitted TowerCo Transferee; and (ii) is not a BSPCI
Competitor. The foregoing restriction shall not limit the right of TowerCo,
without notice to or consent of BSPCI, to sublease, license or otherwise
transfer rights to utilize all or any part of the Subleased Property of any Site
or any Available Space on such Site to Space Subtenants.
(b) Notwithstanding anything to the contrary contained in this
Sublease, the parties acknowledge and agree that BSPCI and the Carolinas
Partnership shall have the unrestricted right to sell, convey, transfer, assign,
sublease or otherwise dispose its respective Reserved Space in any Site to any
of its Affiliates. The parties further agree that in connection with a
Partitioning Event in respect of a BellSouth Entity Affiliate, the Carolinas
Partnership may sublease or assign the Reserved Space of the affected Sites to
such BellSouth Entity Affiliate and upon such sublease or assignment the
Carolinas Partnership shall vacate such Reserved Space, but for all purposes
hereof shall remain responsible for the performance of any and all of its
obligations hereunder. After the tenth (10th) anniversary of the date hereof,
BSPCI shall have the unrestricted right to sell, convey, transfer, assign,
sublease or otherwise dispose of BSPCI's interest in and to any Site (including
BSPCI's or its Affiliate's interest in and to the Subleased Property of such
Site), in whole or in part (a "TRANSFER"). Subject to the first two (2)
sentences of this SECTION 26(B), prior to the tenth (10th) anniversary of the
date hereof, BSPCI may Transfer BSPCI's interest in and to any Site (including
BSPCI's or its Affiliate's interest in and to the Subleased Property of such
Site), in whole or in part, if any such Transfer is to: (i) a BellSouth Entity
Affiliate; (ii) any Person that is not a BellSouth Entity Affiliate and does not
qualify as a Permitted Transferee (a "NON-QUALIFYING TRANSFEREE"), so long as
the aggregate number of Sites that are the subject of one or more Transfers
pursuant to this clause (ii) at any time during the Term does not exceed twenty
percent (20%) of the Sites now or hereafter subject to this Sublease; or (iii) a
Permitted Transferee or, subject to the further restrictions set forth in the
last paragraph of this SECTION 26(B), a Non-Qualifying Transferee, (x) in
connection with a Market Transaction (as hereinafter defined), (y) in connection
with the Transfer of a single Site, subject to TowerCo's rights under SECTION
10(D), or (z) in connection with a Transfer of all or a substantial portion of
the Sites subject to this Sublease. In the event of any such Transfer by BSPCI
or its Affiliate, except in the case of a Transfer to a Non-Qualifying
Transferee pursuant to clause (iii), all obligations under this Sublease of the
Person effecting such Transfer shall cease and terminate, and TowerCo shall look
only and solely to the Person to whom or which BSPCI's or such Affiliate's
interest in and to such Site (including BSPCI's or such Affiliate's interest in
and to the Subleased Property thereof or
48
any portion thereof) (a "TRANSFEREE") is Transferred for performance of all of
BSPCI's or such Affiliate's duties and obligations under this Sublease.
The term "MARKET TRANSACTION" means any Transfer of Site(s) between a
BellSouth Entity or BellSouth Entity Affiliates, on the one hand, and other
providers of telecommunications services who are not BellSouth Entity
Affiliates, on the other hand, for the primary purpose of allowing a BellSouth
Entity or a BellSouth Entity Affiliate to enter a new market, to expand an
existing market, to exit an existing market, or to exit part of an existing
market, including, without limitation, any transfer of Sites(s) by a BellSouth
Entity or BellSouth Entity Affiliates to other providers of telecommunications
services who are not BellSouth Entity Affiliates within one or more geographic
locations, in each case regardless of whether such market is defined in terms of
geographic locations or new services.
Notwithstanding the foregoing, in the event of a Transfer by BSPCI or
its Affiliate pursuant to clause (iii) of this SECTION 26(B) to a Non-Qualifying
Transferee, BSPCI or such Affiliate shall remain liable under this Sublease for
such Non-Qualifying Transferee's performance of BSPCI's obligations hereunder;
provided, however, that if either (x) such Non-Qualifying Transferee ultimately
becomes a Permitted Transferee or (y) no unwaived event of default on the part
of such Non-Qualifying Transferee occurs in respect of such Sites for three (3)
years after the date of such Transfer to such Transferee, BSPCI or such
Affiliate, as applicable, shall be released from any and all obligations under
this Sublease as to such Sites, pursuant to SECTION 26(C), and upon BSPCI's
request TowerCo shall confirm such release in writing.
(c) Except as expressly provided in SECTION 26(B), wherever under or
in connection with this Sublease BSPCI assigns its right, title or interest, in
whole or in part, in or to this Sublease or any Site, BSPCI shall be released
from performing any and all obligations under this Sublease in respect of the
right, title or interest so assigned and under the applicable Ground Lease, from
and after the date of such assignment, subject only to the applicable BellSouth
Entity's receipt of any consent or approval required from the applicable Ground
Lessor, and TowerCo hereby acknowledges such release. At or prior to any
partial assignment of this Sublease, BSPCI and such assignee shall have entered
into one or more agreements, including without limitation, a sublease and site
designation supplements (collectively, the "NEW SUBLEASE DOCUMENTS"), that
afford BSPCI and its Affiliates relative rights (including, without limitation,
provisions relating to the calculation of the Site Payment and the right of
BSPCI to act for TowerCo), vis-a-vis BSPCI rights and obligations under the New
Sublease Documents no less favorable to BSPCI and its Affiliates than those
afforded by the Sublease and the Site Designation Supplements with respect to
the rights and obligation of BSPCI and its Affiliate, and are otherwise in form
and substance reasonably satisfactory to BSPCI.
(d) Without limiting the generality of the other provisions of this
Sublease, any assignment of interest pursuant to this Sublease shall be
effectuated by ten (10) days' written notice of such assignment, which notice
shall include the name, address, and telephone number of assignee. Each Party
hereby agrees that any attempt of the other Party to assign its interest in
49
this Sublease or any of its rights hereunder, in whole or in part, in violation
of Section 26(A) shall constitute a default under this Sublease and shall be
null and void ab initio.
27. ESTOPPEL CERTIFICATE. Either Party, from time to time upon ten
(10) days' prior request by the other Party, shall execute, acknowledge and
deliver to the requesting Party, or to a person designated by such requesting
Party, a certificate stating that this Sublease is unmodified and in full effect
(or, if there have been modifications, that this Sublease is in full effect as
modified, and setting forth such modifications) and the dates to which Rent and
other sums payable under this Sublease have been paid, and either stating that
to the knowledge of the signer of such certificate no default exists hereunder
or specifying each such default of which the signer has knowledge. The
requesting Party, at such Party's cost and expense, shall cause such certificate
to be prepared for execution by the requested Party. Any such certificate may
be relied upon by any prospective Mortgagee or purchaser of the Subleased
Property of each Site.
28. HOLDING OVER. If TowerCo remains in possession of the Subleased
Property of any Site after expiration or termination of the then current Term as
to such Site without any express written agreement by BSPCI, then TowerCo shall
be and become a tenant at sufferance, and there shall be no renewal or extension
of this Sublease by operation of law.
29. RIGHTS OF ENTRY AND INSPECTION. (a) TowerCo shall permit BSPCI and
its representatives, agents and employees to enter the Subleased Property of any
Site at all reasonable times for the purposes of inspecting such Subleased
Property, showing the Site to prospective purchasers, tenants and Mortgagees,
making any repairs or replacements or performing any maintenance, and performing
any work on the Site that BSPCI may consider necessary to prevent or cure
deterioration, waste or unsafe conditions. Nothing in this SECTION 29 shall
imply or impose any duty or obligation upon BSPCI to enter upon any Site at any
time for any purpose, or to inspect the Subleased Property at any time, or to
perform, or pay the cost of, any work which TowerCo is required to perform under
any provision of this Sublease, and no BellSouth Entity has such duty or
obligation.
(b) Each BellSouth Entity shall permit TowerCo and TowerCo's
representatives to inspect such BellSouth Entity Communications Equipment for
the purpose, in the event of an Emergency only, for making repairs or
replacements to address such Emergency. The foregoing shall not limit TowerCo's
rights pursuant to SECTION 7 hereof.
30. A PARTY'S RIGHT TO ACT FOR THE OTHER PARTY.
(a) In addition to and not in limitation of any other remedy BSPCI may
have under this Sublease, if TowerCo fails to make any payment or to take any
other action when and as required under this Sublease, including without
limitation SECTION 12(A) and EXHIBIT C, BSPCI may, without demand upon TowerCo
and without waiving or releasing TowerCo from any duty, obligation or liability
under this Sublease, make any such payment or take any such other action
required of TowerCo. Unless TowerCo's failure results in or relates to an
Emergency, BSPCI shall give TowerCo at least ten (10) days prior written notice
of BSPCI's action and TowerCo shall have
50
the right to cure such failure within such 10-day period. No such notice shall
be required in the event of an Emergency. The actions which BSPCI may take shall
include, but are not limited to, the performance of maintenance or repairs and
the making of replacements to the Towers and Improvements on each Site, the
payment of insurance premiums which TowerCo is required to pay under this
Sublease and the payment of Taxes and Assessments which TowerCo is required to
pay under this Sublease, other than Taxes and Assessments that are paid pursuant
to SECTION 16(B) and reimbursed in the calculation of the Site Maintenance
Charge. BSPCI may pay all incidental costs and expenses incurred in exercising
its rights hereunder, including, without limitation, reasonable attorneys' fees
and expenses, penalties, re-instatement fees, late charges, and interest. One
hundred twenty percent (120%) of the total amount of the costs and expenses
(including salaries and benefits of BSPCI employees charged on a one time basis
but excluding any overhead) attributable to BSPCI's rights under this SECTION
30, is referred to as the "REIMBURSABLE MAINTENANCE EXPENSES" of BSPCI. All
amounts paid by BSPCI pursuant to this SECTION 30(A), and all costs and expenses
incurred by BSPCI in exercising BSPCI's rights under this SECTION 30(A), shall
bear interest at the rate of eighteen percent (18%) per annum from the date of
payment by BSPCI until paid by TowerCo.
(b) If BSPCI fails to pay any Ground Rent or to make any other payment
or to take any other action when and as required under this Sublease, TowerCo
may, without demand upon BSPCI and without waiving or releasing BSPCI from any
duty, obligation or liability under this Sublease, pay any such Ground Rent,
make any such other payment or take any such other action required of BSPCI.
Unless BSPCI's failure results in or relates to an Emergency, TowerCo shall give
BSPCI at least ten (10) days prior written notice of TowerCo's action. No such
notice shall be required in the event of an Emergency. The actions which
TowerCo may take shall include, but are not limited to, the payment of insurance
premiums which the applicable BellSouth Entity is required to pay under this
Sublease and the payment of Taxes and Assessment which such BellSouth Entity is
required to pay under this Sublease. TowerCo may pay all incidental costs and
expenses incurred in exercising its rights hereunder, including, without
limitation, reasonable attorneys' fees and expenses, penalties, reinstatement
fees, late charges, and interest. All amounts paid by TowerCo pursuant to this
SECTION 30(B), and all costs and expenses incurred by TowerCo in exercising
TowerCo's rights under this SECTION 30(B), shall bear interest at the rate of
eighteen percent (18%) per annum from the date of payment by TowerCo and shall
be payable by BSPCI to TowerCo upon demand. For purposes of this Section, the
term "EMERGENCY" means any event that causes, has caused or is likely to cause:
(i) as to BSPCI or its Affiliate, any bodily injury, personal injury or property
damage; (ii) as to BSPCI or its Affiliate, suspension, revocation, termination
or any other adverse material effect on such BellSouth Entity's or such
Affiliates' licenses and/or permits; (iii) as to BSPCI, any adverse effect on
the ability of BSPCI or its Affiliate to operate its Communication Facility on
such Site; (iv) as to TowerCo, any adverse effect on the ability of TowerCo to
operate its Subleased Property on such Site; and (v) as to TowerCo, a
termination of the Ground Lease with respect to such Site.
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31. DEFAULTS AND REMEDIES.
(a) The following events shall constitute events of default by the
applicable BellSouth Entity:
(i) if such BellSouth Entity fails to timely pay Ground Rent as
provided in SECTION 3(H) within any applicable grace period thereunder
or to perform any other material obligations pursuant to the
applicable Ground Lease for a Site that such BellSouth Entity is
expressly required to perform pursuant to the terms of this Sublease
and shall not cure such failure by the later of (x) the expiration of
any applicable cure period, or (y) thirty (30) days after TowerCo
gives BSPCI written notice thereof; or
(ii) if such BellSouth Entity shall violate or breach, or shall
fail fully and completely to observe, keep, satisfy, perform and
comply with, any agreement, term, covenant, condition, requirement,
restriction or provision of this Sublease in respect of any Site
(which violations, breaches or failures may be different for each
Site), and shall not cure such violation, breach or failure within
thirty (30) days after TowerCo gives BSPCI written notice thereof, or,
if such failure shall be incapable of cure within thirty (30) days, if
such BellSouth Entity shall not commence to cure such failure within
such thirty (30) day period and continuously prosecute the performance
of the same to completion with due diligence; or
(iii) subject to SECTION 31(I), if such BellSouth Entity breached
any material representation or warranty in this Sublease as to any
Site as of the date when made.
(iv) if such BellSouth Entity becomes insolvent as defined in the
Uniform Commercial Code under the Laws applicable to this Sublease or
makes an assignment for the benefit of creditors; or if any action is
brought by such BellSouth Entity seeking its dissolution or
liquidation of its assets or seeking the appointment of a trustee,
interim trustee, receiver or other custodian for any of its property;
or if such BellSouth Entity commences a voluntary proceeding under the
Federal Bankruptcy Code; or if any reorganization or arrangement
proceeding is instituted by such BellSouth Entity for the settlement,
readjustment, composition or extension of any of its debts upon any
terms; or if any action or petition is otherwise brought by such
BellSouth Entity seeking similar relief or alleging that it is
insolvent or unable to pay its debts as they mature; or if any action
is brought against such BellSouth Entity seeking its dissolution or
liquidation of any of its assets, or seeking the appointment of a
trustee, interim trustee, receiver or other custodian for any of its
property, and any such action is consented to or acquiesced in by such
BellSouth Entity or is not dismissed within ninety (90) days after the
date upon which it was instituted; or if any proceeding under the
Federal Bankruptcy Code is instituted against such BellSouth Entity
and
52
(1) an order for relief is entered in such proceeding, or (2) such
proceeding is consented to or acquiesced in by such BellSouth Entity
or is not dismissed within ninety (90) days after the date upon which
it was instituted; or if any reorganization or arrangement proceeding
is instituted against such BellSouth Entity for the settlement,
readjustment, composition or extension of any of its debts upon any
terms, and such proceeding is consented to or acquiesced in by such
BellSouth Entity or is not dismissed within ninety (90) days after the
date upon which it was instituted; or if any action or petition is
otherwise brought against such BellSouth Entity seeking similar relief
or alleging that it is insolvent, unable to pay its debts as they
mature or generally not paying its debts as they become due, and such
action or petition is consented to or acquiesced in by such BellSouth
Entity or is not dismissed within thirty (30) days after the date upon
which it was brought.
(b) Upon the occurrence of any event of default by any BellSouth
Entity under SECTION 31(A)(IV), TowerCo may terminate this Sublease by giving
BSPCI written notice of termination, and this Sublease shall be terminated at
the time designated by TowerCo in its notice of termination to BSPCI. Upon the
occurrence of any event of default by any BellSouth Entity under SECTIONS
31(A)(I)-(A)(III) as to the Reserved Space of a Site, TowerCo may terminate this
Sublease as to such Site by giving BSPCI written notice of termination, and this
Sublease shall be terminated as to the applicable Site at the time designated by
TowerCo in its notice of termination to BSPCI. Notwithstanding the foregoing,
if BSPCI fails to pay any portion of a Site Payment because BSPCI, acting in
good faith, reduced the amount of Site Maintenance Charges paid to TowerCo in
giving effect to a mistaken belief that it made Reimbursable Maintenance
Expenses under SECTION 30(A) that BSPCI was not permitted to make, such failure
shall not constitute an event of default hereunder. Upon TowerCo's demand after
any resolution of any dispute as to the amount of such Reimbursable Maintenance
Expenses, BSPCI shall pay such amount to TowerCo, with interest thereon at the
rate of eighteen percent (18%) per annum, from the date such amount was due
until the date paid.
(c) TowerCo's remedy stated in SECTION 31(B) above shall not preclude
pursuit of any other remedy or remedies provided in this Sublease or any other
remedy or remedies provided for or allowed by law or in equity, separately or
concurrently or in any combination.
(d) The following events shall constitute events of default by
TowerCo:
(i) if TowerCo fails to make payment of any Rent or other amount
hereunder and such failure continues for thirty (30) days after the
date such payment was due and payable; or
(ii) (x) TowerCo shall violate or breach, or shall fail fully and
completely to observe, keep, satisfy, perform and comply with, any
term, covenant, condition, requirement, restriction or provision of
this Sublease with
53
respect to any Site (which violations, breaches or failures may be
different for each Site), and shall not cure such violation, breach or
failure within thirty (30) days after BSPCI gives TowerCo written
notice thereof, or, if such failure shall be incapable of cure within
thirty (30) days, if TowerCo shall not commence to cure such failure
within such thirty (30) day period and continuously prosecute the
performance of the same to completion with due diligence, or (y) the
aggregate amount of Reimbursable Maintenance Expenses in respect of
any Site pursuant to SECTION 30(A) exceeds $2,000 on at least two
occurrences within the same Sublease Year, whether or not reimbursed
by TowerCo or included in the calculation of the Site Payment; or
(iii) subject to SECTION 31(I), any representation or warranty
made by TowerCo in this Sublease or any Site Designation Supplement
shall be false or misleading in any material respect on the date as of
which made (or deemed made); or
(iv) TowerCo or CCIC shall violate or breach, or shall fail fully
and completely to observe, keep, satisfy or perform any obligation for
money borrowed in connection with this Sublease, including, without
limitation, Mortgages, or any obligation under notes payable or drafts
accepted, or any obligation of any other agreement, term or condition
contained in any indenture or agreement under which any such
obligation is created, guaranteed or secured if the effect of such
default is to cause such obligation to become due prior to its stated
maturity; or
(v) if TowerCo becomes insolvent as defined in the Uniform
Commercial Code under the Laws applicable to this Sublease or any Site
or makes an assignment for the benefit of creditors; or if any action
is brought by TowerCo seeking its dissolution or liquidation of its
assets or seeking the appointment of a trustee, interim trustee,
receiver or other custodian for any of its property; or if TowerCo
commences a voluntary proceeding under the Federal Bankruptcy Code; or
if any reorganization or arrangement proceeding is instituted by
TowerCo for the settlement, readjustment, composition or extension of
any of its debts upon any terms; or if any action or petition is
otherwise brought by TowerCo seeking similar relief or alleging that
it is insolvent or unable to pay its debts as they mature; or if any
action is brought against TowerCo seeking its dissolution or
liquidation of any of its assets, or seeking the appointment of a
trustee, interim trustee, receiver or other custodian for any of its
property, and any such action is consented to or acquiesced in by
TowerCo or is not dismissed within ninety (90) days after the date
upon which it was instituted; or if any proceeding under the Federal
Bankruptcy Code is instituted against TowerCo and (1) an order for
relief is entered in such proceeding, or (2) such proceeding is
consented to or acquiesced in by TowerCo or is not dismissed within
ninety (90) days after the date upon which it was instituted; or if
any reorganization or arrangement proceeding is instituted against
TowerCo for the settlement, readjustment,
54
composition or extension of any of its debts upon any terms, and such
proceeding is consented to or acquiesced in by TowerCo or is not
dismissed within ninety (90) days after the date upon which it was
instituted; or if any action or petition is otherwise brought against
TowerCo seeking similar relief or alleging that it is insolvent,
unable to pay its debts as they mature or generally not paying its
debts as they become due, and such action or petition is consented to
or acquiesced in by TowerCo or is not dismissed within thirty (30)
days after the date upon which it was brought.
(e) Upon the occurrence of any event of default by TowerCo under
SECTION 31(D) or SECTION 12(C) in respect of any Site, BSPCI may terminate this
Sublease as to the applicable Site by giving TowerCo written notice of
termination, and this Sublease shall be terminated as to such Site, at the time
designated by BSPCI in its notice of termination to TowerCo, unless otherwise
provided herein. Upon the occurrence of unwaived events of default (whether of
the same or different types) by TowerCo under SECTION 31(D) in respect of more
than twenty (20) Sites during any consecutive five (5) year period, BSPCI may
terminate this Sublease as to all Sites, by giving TowerCo written notice of
termination, and this Sublease shall be terminated as to all Sites at the time
designated by BSPCI in its notice of termination to TowerCo.
(f) BSPCI's pursuit of any remedy or remedies provided in this
Sublease, including without limitation SECTION 31(E), or any remedy or remedies
provided for or allowed by law or in equity, separately or concurrently or in
any combination, including, without limitation, (i) specific performance or
other equitable remedies; (ii) money damages arising out of such default; (iii)
BSPCI may exercise the Withdrawal Right as to any Site immediately and without
further act, pursuant to SECTION 10; or (iv) BSPCI may perform, on behalf of
TowerCo, TowerCo's obligations under the terms of this Sublease pursuant to
SECTION 30, in which event BSPCI shall have the right to set off all
Reimbursable Maintenance Expenses against the Site Payment BSPCI is required to
make. If the amount of Reimbursable Maintenance Expenses exceeds the Site
Payment payable by BSPCI hereunder and TowerCo does not reimburse BSPCI the full
amount of such excess within ten (10) days following BSPCI's written demand
therefor, BSPCI may terminate this Sublease in respect of all or any of the
Sites pursuant to SECTION 31(E).
(g) A Party's pursuit of any one or more of the remedies provided in
this Sublease shall not constitute an election of remedies excluding the
election of another remedy or other remedies, or a forfeiture or waiver of any
Site Payment, Rent or other amounts payable under this Sublease as to the
applicable Site by such Party or waiver of any relief or damages or other sums
accruing to such Party by reason of the other Party's failure to fully and
completely keep, observe, perform, satisfy and comply with all of the
agreements, terms, covenants, conditions, requirements, provisions and
restrictions of this Sublease. TowerCo shall be entitled to injunctive relief
and reasonable attorneys' fees and costs in respect of any event of default by
the applicable BellSouth Entity under SECTION 3(H). Notwithstanding anything to
the contrary contained herein, neither Party shall be liable to the other
parties for indirect, incidental, special or consequential damages, including
but not limited to lost profits, however arising, even if a Party has been
advised of the possibility of such damages.
55
(h) Either Party's forbearance in pursuing or exercising one or more
of its remedies shall not be deemed or construed to constitute a waiver of any
event of default or of any remedy. No waiver by either Party of any right or
remedy on one occasion shall be construed as a waiver of that right or remedy on
any subsequent occasion or as a waiver of any other right or remedy then or
thereafter existing. No failure of either Party to pursue or exercise any of
it's powers, rights or remedies or to insist upon strict and exact compliance by
the other Party with any agreement, term, covenant, condition, requirement,
provision or restriction of this Sublease, and no custom or practice at variance
with the terms of this Sublease, shall constitute a waiver by either Party of
the right to demand strict and exact compliance with the terms and conditions of
this Sublease.
(i) Notwithstanding the foregoing, no event of default shall be deemed
to have occurred in respect of any BellSouth Entity under SECTION 31(A)(III) or
in respect of TowerCo under SECTION 31(D)(III), if the other Party gives notice
after one (1) year following:
(i) the applicable Site Commencement Date in the case of a
representation or warranty made under this Sublease or the applicable
Site Designation Supplement, as to any Site;
(ii) the date hereof, in the case of any other representation or
warranty made under this Sublease; or
(iii) in the case of representation or warranty made under the
Agreement to Sublease, as provided therein.
32. QUIET ENJOYMENT. TowerCo shall, subject to the terms and
conditions of this Sublease, peaceably and quietly hold and enjoy the Subleased
Property of each Site during the Term without hindrance or interruption from any
BellSouth Entity, so long as TowerCo fully and completely keeps, observes,
performs, satisfies and complies with all of the agreements, terms, covenants
and conditions, requirements, provisions and restrictions of this Sublease to be
kept, observed, performed, satisfied and complied with by TowerCo and pays all
Rent and other amounts required to be paid by TowerCo under this Sublease and
any other agreements between such BellSouth Entity and TowerCo.
33. NO MERGER. There shall be no merger of this Sublease or the
subleasehold interest or estate created by this Sublease in any Site with the
superior estate held by the Lessor thereof, by reason of the fact that the same
person or entity may acquire, own or hold, directly or indirectly, both the
subleasehold interest or estate created by this Sublease in any Site and such
superior estate; and this Sublease shall not be terminated, in whole or as to
any Site, except as expressly provided herein.
56
34. BROKER AND COMMISSION.
(a) All negotiations in connection with this Sublease have been
conducted by and between TowerCo and BSPCI without the intervention of any
person or other Party as agent or broker.
(b) TowerCo and BSPCI warrant and represent to each other that there
are no broker's commissions or fees payable in connection with this Sublease by
reason of their respective dealings, negotiations or communications. TowerCo
and BSPCI shall, and do hereby indemnify, defend and hold harmless each other
from and against the Claims, demands, actions and judgments of any and all
brokers, agents and other intermediaries alleging a commission, fee or other
payment to be owing by reason of their respective dealings, negotiations or
communications in connection with this Sublease.
35. RECORDING OF SITE DESIGNATION SUPPLEMENT. Subject to the
applicable provisions of the Agreement to Sublease, upon the execution of this
Sublease, TowerCo shall, at its cost and expense (i) cause the Ground Leases or
memorandum of Ground Leases for the Sites to be filed in the appropriate County
property records, unless such Ground Leases expressly prohibit such recording;
and (ii) promptly following the execution of each Site Designation Supplement
for any Site, cause such Site Designation Supplement to be filed in the
appropriate County property records.
(b) In addition to and not in limitation of any other provision of
this Sublease, the Parties shall have the right to review and make corrections,
if necessary, to any and all exhibits to the Site Designation Supplements after
the date hereof. After making such corrections, TowerCo shall re-record any
such Site Designation Supplements to reflect such corrections, if requested by
BSPCI or its Affiliate. The Parties shall cooperate with each other to cause
changes to be made in the documentation for any Site, and in the Site
Designation Supplement for such Site, if such changes are requested by BSPCI or
its Affiliate to evidence any permitted changes in the description of the
Reserved Space respecting such Site, including, without limitation changes in
BSPCI's or its Affiliate's antennas or other parts of its Communications
Facility at such Site. In addition to and not in limitation of the foregoing,
BSPCI or its Affiliate shall have the right, at its sole expense, to cause any
amendment to a Site Designation Supplement to be recorded, including without
limitation in connection with such changes.
36. COMPLIANCE WITH SPECIFIC FCC REGULATIONS.
(a) TowerCo understands and acknowledges that Space Subtenants are
engaged in the business of operating communications equipment, including,
without limitation, Communications Equipment at each Site. The Communications
Equipment is subject to the regulations of the FCC, including without limitation
regulations regarding exposure by workers and members of the public to the radio
frequency emissions generated by any BellSouth Entity's Communications
Equipment. TowerCo acknowledges that such regulations prescribe the permissible
exposure levels to emissions from the Communications Equipment which can
57
generally be met by maintaining safe distances from such Communications
Equipment. In order to comply with such regulations, TowerCo shall install, or
cause the Space Subtenants to install, at its or their expense, such marking,
signage or barriers to restrict access to any Subleased Property of each Site as
TowerCo deems necessary in order to comply with the applicable FCC regulations.
TowerCo further agrees to post, or to cause the Space Subtenants to post,
prominent signage at all points of entry to the Subleased Property of each Site
containing instructions as to any potential risk of exposure and methods for
minimizing such risk. TowerCo shall cooperate in good faith with each BellSouth
Entity to minimize any confusion or unnecessary duplication that could result in
similar signage being posted with respect to any of such BellSouth Entity's
transmission equipment at or near any Site in respect of any Reserved Space on
such Site.
(b) TowerCo further agrees to alert all personnel working at or near
each Site, including TowerCo's maintenance and inspection personnel, to heed all
of TowerCo's or Space Subtenant's signage or restrictions with respect to the
Subleased Property of a Site, to maintain the prescribed distance from the
Communications Equipment, and to otherwise follow the posted instructions.
TowerCo further agrees to alert each Space Subtenant in advance of any repair or
maintenance work to be performance on any Site which would require work in
closer proximity to the Subleased Property than prescribed by the signage or
restrictions.
(c) TowerCo agrees to cooperate with each Space Subtenant on a going-
forward basis with respect to each Site in order to insure that such Space
Subtenant complies with the applicable FCC regulations.
(d) Each BellSouth Entity acknowledges and agrees that its
Communications Equipment at each Site is subject to the regulations of the FCC,
including without limitation regulations regarding exposure by workers and
members of the public to the radio frequency emissions generated by such
BellSouth Entity's Communications Equipment. Each BellSouth Entity acknowledges
that such regulations prescribe the permissible exposure levels to emissions
from its Communications Equipment which can generally be met by maintaining safe
distances from such Communications Equipment. Each BellSouth Entity shall
cooperate in good faith with TowerCo to minimize any confusion or unnecessary
duplication that could result in similar signage being posted with respect to
any of transmission equipment of any BellSouth Entity at or near any Site in
respect of any Reserved Space on such Site.
(e) Each BellSouth Entity further agrees to alert all personnel
working at or near each Site, including such BellSouth Entity's maintenance and
inspection personnel, to maintain the prescribed distance from the
Communications Equipment, and to otherwise follow the posted instructions of
TowerCo.
37. CCIC'S GUARANTY.
(a) CCIC unconditionally guarantees to each BellSouth Entity the full
and timely payment and performance and observance of all of the terms,
provisions, covenants and obligations of TowerCo under this Sublease and each
Site Designation Supplement (the "OBLIGATIONS"). CCIC agrees that if TowerCo
defaults at any time during the Term of this
58
Sublease and any Site Designation Supplement in the performance of any of the
Obligations, CCIC shall faithfully perform and fulfill all Obligations and shall
pay to each BellSouth Entity all attorneys' fees, court costs, and other
expenses, costs and disbursements incurred by such BellSouth Entity on account
of any default by TowerCo and on account of the enforcement of this guaranty.
(b) If TowerCo defaults under this Sublease or any Site Designation
Supplement, and any BellSouth Entity elects to enforce the provisions of this
SECTION 37, such BellSouth Entity shall promptly give CCIC written notice
thereof, which notice shall constitute an exercise of such BellSouth Entity's
rights against CCIC pursuant to this SECTION 37. Following the receipt of such
notice by CCIC, CCIC shall have the same period of time as is afforded to
TowerCo under this Sublease or the applicable Site Designation Supplement to
cure such default, but no such cure period shall diminish the obligations of
CCIC under this SECTION 37.
(c) This guaranty obligation of CCIC shall be enforceable by any
BellSouth Entity in an action against CCIC without the necessity of any suit,
action, or proceedings by such BellSouth Entity of any kind or nature whatsoever
against TowerCo, without the necessity of any notice to CCIC of TowerCo's
default or breach under this Sublease or the applicable Site Designation
Supplement, and without the necessity of any other notice or demand to CCIC to
which CCIC might otherwise be entitled, all of which notices CCIC hereby
expressly waives. CCIC hereby agrees that the validity of this guaranty and the
obligations of CCIC hereunder shall not be terminated, affected, diminished, or
impaired by reason of the assertion or the failure to assert by such BellSouth
Entity against TowerCo any of the rights or remedies reserved to such BellSouth
Entity pursuant to the provisions of this Sublease or the applicable Site
Designation Supplement or any other remedy or right which such BellSouth Entity
may have at law or in equity or otherwise.
(d) CCIC covenants and agrees that this guaranty is an absolute,
unconditional, irrevocable and continuing guaranty. The liability of CCIC
hereunder shall not be affected, modified, or diminished by reason of any
assignment, renewal, modification or extension of this Sublease and any Site
Designation Supplement or any modification or waiver of or change in any of the
covenants and terms of this Sublease or any Site Designation Supplement by
agreement of any BellSouth Entity and TowerCo, or by any unilateral action of
either such BellSouth Entity or TowerCo, or by an extension of time that may be
granted by such BellSouth Entity to TowerCo or any indulgence of any kind
granted to TowerCo, or any dealings or transactions occurring between such
BellSouth Entity and TowerCo, including, without limitation, any adjustment,
compromise, settlement, accord and satisfaction, or release, or any bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit of
creditors, receivership, or trusteeship affecting TowerCo. CCIC does hereby
expressly waive any suretyship defense it may have by virtue of any statute,
law, or ordinance of any state or other governmental authority.
59
(e) All of each BellSouth Entity's rights and remedies under this
guaranty are intended to be distinct, separate, and cumulative and no such right
and remedy herein is intended to be the exclusion of or a waiver of any other.
(f) CCIC hereby waives presentment, demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, and notice of
acceptance. CCIC further waives any right to require that an action be brought
against TowerCo or any other person or to require that resort be had by a
BellSouth Entity to any security held by such BellSouth Entity.
38. SEVERAL LIABILITY.
Notwithstanding any other provision of this Sublease, the Agreement to
Sublease, the Construction Agreement or any other agreement to the contrary, and
notwithstanding any liability or obligation that BSPCI would have as a general
partner of the Carolinas Partnership under this Sublease or any other agreement
(in each case, whether or not expressly set forth herein or thereon), by
operation of law or otherwise, (i) BSPCI will have no personal liability for the
payment or performance of any obligation of the Carolinas Partnership under this
Sublease or any other agreement (the "CAROLINAS PARTNERSHIP OBLIGATIONS"), and
(ii) CCIC and TowerCo may proceed only against, and rely solely on, the
Carolinas Partnership for payment or performance of any of the Carolinas
Partnership Obligations, and shall not xxx or otherwise proceed against BSPCI,
for or in respect of the Carolinas Partnership's failure to pay or perform any
Carolinas Partnership Obligation.
39. GENERAL PROVISIONS.
(a) NOTICES. Whenever any notice, demand or request is required or
permitted under this Agreement, such notice, demand or request shall be in
writing and shall be delivered by hand, be sent by registered or certified mail,
postage prepaid, return receipt requested, or be sent by nationally recognized
commercial courier for next business day delivery, to the addresses set forth
below, or to such other addresses as are specified by written notice given in
accordance herewith, or shall be transmitted by facsimile to the number for each
Party set forth below their respective executions hereof, or to such other
numbers as are specified by written notice given in accordance herewith. All
notices, demands or requests delivered by hand shall be deemed given upon the
date so delivered; those given by mailing as hereinabove provided shall be
deemed given on the date of deposit in the United States Mail; those given by
commercial courier as hereinabove provided shall be deemed given on the date of
deposit with the commercial courier; and those given by facsimile shall be
deemed given on the date of facsimile transmittal. Nonetheless, the time
period, if any, in which a response to any notice, demand or request must be
given shall commence to run from the date of receipt of the notice, demand or
request by the addressee thereof. Any notice, demand or request not received
because of changed address or facsimile number of which no notice was given as
hereinabove provided or because of refusal to accept delivery shall be deemed
received by the Party to whom addressed on the date of hand delivery, on the
date of facsimile transmittal, on the first calendar day after deposit with
commercial courier, or on the third calendar day following deposit in the United
States Mail, as the case may be.
60
If to TowerCo: If to BSPCI or the Carolinas Partnership
Crown Castle South Inc. BellSouth Personal Communications, Inc.
000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000/5020
Attention: General Counsel Attention.: General Counsel
with a copy to: with a copy to:
Xxxxxx, Xxxxxxx & Wratcher BellSouth Entity Corporation.
1515 Xxxxx Building 0000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx. Attention: E. Xxxx Xxxxxxxx, Esq.
If to CCIC:
Crown Castle International Corp.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile No.: 000-000-0000
Attention: Chief Executive Officer
General Counsel
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
(b) FACSIMILE AS WRITING. The Parties expressly acknowledge and agree
that, notwithstanding any statutory or decisional law to the contrary, the
printed product of a facsimile transmittal shall be deemed to be "written" and a
"writing" for all purposes of this Sublease.
(c) BINDING EFFECT. This Sublease shall be binding upon and enforceable
against, and shall inure to the benefit of, the Parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
(d) HEADINGS. The use of headings, captions and numbers in this Sublease
is solely for the convenience of identifying and indexing the various provisions
in this Sublease and
61
shall in no event be considered otherwise in construing or interpreting any
provision in this Sublease.
(e) ARBITRATION. (i) Any and all disputes arising out of or in
connection with the negotiation, execution, interpretation, performance or
nonperformance of this Sublease (other than the payment of moneys) shall be
solely and finally settled by arbitration which shall be conducted in Washington
DC, in accordance with the Rules for Non-Administered Arbitration of Business
Disputes (the "RULES") as promulgated from time to time by the CPR Institute for
Dispute Resolution in New York, New York (the "CPR"), by a panel of three
arbitrators selected by the CPR in accordance with the Rules (the
"ARBITRATORS"). The Arbitrators shall be lawyers experienced in real estate and
corporate transactions in the tower industry and shall not have been employed by
or affiliated with any of the Parties or their Affiliates. The Parties hereby
renounce all recourse to litigation and agree that the award of the Arbitrators
shall be final and subject to no judicial review; provided however, that neither
the provisions of this SECTION 38(E) nor the recourse to arbitration, shall
prejudice the right of any Party to apply to any court of ordinary jurisdiction
for the request of temporary or permanent injunctive or similar judicial relief.
A written transcript shall be kept of all proceedings. The Arbitrators shall
decide the issues submitted to them, in writing, stating the reasons for their
decision, in accordance with: (A) the provisions and purposes of this Sublease;
and (B) the laws of the State of Georgia (without regard to its conflicts of
laws rules).
(ii) The parties agree to facilitate the arbitration by: (A) making
available to one another and to the Arbitrators for examination, inspection and
extraction all documents, books, records and personnel under their control if
determined by the Arbitrators to be relevant to the dispute; (B) conducting
arbitration hearings to the greatest extent possible on successive days; and (C)
observing strictly the time periods established by the Rules or by the
Arbitrators for submission of evidence or briefs.
(iii) Judgment on the award of the Arbitrators may be entered in any
court having jurisdiction over the Party against which enforcement of the award
is being sought. The Arbitrators are expressly authorized to enter orders of
interim or provisional relief each of which may be enforced as a final award.
The Arbitrators shall divide all costs (other than fees of counsel) incurred in
conducting the arbitration in their final award in accordance with what they
deem just and equitable under the circumstances.
(f) EXHIBITS. Each and every exhibit referred to or otherwise
mentioned in this Sublease is attached to this Sublease and is and shall be
construed to be made a part of this Sublease by such reference or other mention
at each point at which such reference or other mention occurs, in the same
manner and with the same effect as if each exhibit were set forth in full and at
length every time it is referred to or otherwise mentioned.
(g) DEFINED TERMS. Capitalized terms used in this Sublease shall have
the meanings ascribed to them at the point where first defined, irrespective of
where their use occurs, with the same effect as if the definitions of such terms
were set forth in full and at length every time such terms are used.
62
(h) PRONOUNS. Wherever appropriate in this Sublease, personal
pronouns shall be deemed to include the other genders and the singular to
include the plural.
(i) SEVERABILITY. If any term, covenant, condition or provision of
this Sublease, or the application thereof to any person or circumstance, shall
ever be held to be invalid or unenforceable, then in each such event the
remainder of this Sublease or the application of such term, covenant, condition
or provision to any other person or any other circumstance (other than those as
to which it shall be invalid or unenforceable) shall not be thereby affected,
and each term, covenant, condition and provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.
(j) NON-WAIVER. Failure by any Party to complain of any action, non-
action or breach of any other Party shall not constitute a waiver of any
aggrieved Party's rights hereunder. Waiver by any Party of any right arising
from any breach of any other Party shall not constitute a waiver of any other
right arising from a subsequent breach of the same obligation or for any other
default, past, present or future.
(k) RIGHTS CUMULATIVE. All rights, remedies, powers and privileges
conferred under this Sublease on the Parties shall be cumulative of and in
addition to, but not restrictive of or in lieu of, those conferred by law.
(l) TIME OF ESSENCE. Time is of the essence of this Sublease.
Anywhere a day certain is stated for payment or for performance of any
obligation, the day certain so stated enters into and becomes a part of the
consideration for this Sublease. If any date set forth in this Sublease shall
fall on, or any time period set forth in this Sublease shall expire on, a day
which is a Saturday, Sunday or federal holiday, such date shall automatically be
extended to, and the expiration of such time period shall automatically to be
extended to, the next day which is not a Saturday, Sunday, federal or state
holiday or other non-business day. The final day of any time period under this
Sublease or any deadline under this Sublease shall be the specified day or date,
and shall include the period of time through and including such specified day or
date.
(m) APPLICABLE LAW. This Sublease shall be governed by, construed
under and interpreted and enforced in accordance with the laws of the State of
Georgia, without regard of conflicts of law.
(n) ENTIRE AGREEMENT. This Sublease contains the entire agreement of
the Parties with respect to the subject matter hereof, and all representations,
warranties, inducements, promises or agreements, oral or otherwise, between the
Parties not embodied in this Sublease shall be of no force or effect.
(o) MODIFICATIONS. This Sublease shall not be modified or amended in
any respect except by a written agreement executed by the Parties in the same
manner as this Sublease is executed.
63
(p) COUNTERPARTS. This Sublease may be executed in several
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
(q) ATTORNEYS' FEES. In the event of any litigation arising under or
in connection with this Sublease, the prevailing Party shall be entitled to
recover from the other Party the expenses of litigation (including reasonable
attorneys' fees, expenses and disbursements) incurred by the prevailing Party.
(r) AUTHORITY. Each Party hereto warrants and represents that such
Party has full and complete authority to enter into this Sublease and each
individual executing this Sublease on behalf of a Party warrants and represents
that he has been fully authorized to execute this Sublease on behalf of such
Party and that such Party is bound by the signature of such representative.
(s) COUNSEL. Each Party hereto warrants and represents that such
Party has been afforded the opportunity to be represented by counsel of its
choice in connection with the execution of this Sublease and has had ample
opportunity to read, review, and understand the provisions of this Sublease.
(u) NO CONSTRUCTION AGAINST PREPARER. No provision of this Sublease
shall be construed against or interpreted to the disadvantage of any Party by
any court or other governmental or judicial authority by reason of such Party's
having or being deemed to have prepared or imposed such provision.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
64
IN WITNESS WHEREOF, the Parties have caused this Sublease to be
executed and sealed by their duly authorized representatives, all effective as
of the day and year first written above.
TOWERCO:
CROWN CASTLE SOUTH INC.
By:
--------------------------------
Name:
Title:
CCIC:
CROWN CASTLE INTERNATIONAL CORP.
By:
--------------------------------
Name:
Title:
65
BSPCI:
BELLSOUTH PERSONAL COMMUNICATIONS,
INC.
By:
--------------------------------
Name:
Title:
THE CAROLINAS PARTNERSHIP:
BellSouth Carolinas PCS, L.P., by
BellSouth Personal Communications,
Inc., its general partner
By:
--------------------------------
Name:
Title:
66
