EXHIBIT 10.5
SOUTHERN COMMUNICATIONS
MASTER ANTENNA SITE LEASE AGREEMENT
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This Southern Communications Master Antenna Site Lease Agreement ("Lease")
is entered into this _____ day of __________, 1998, between Pinnacle Towers Inc.
("Lessor"), and Southern Communications Services, Inc. ("Lessee").
Now, Therefore, in consideration of the following representations,
warranties, covenants and agreements, the parties hereto agree as follows:
Preamble. This Lease is intended to operate as a master set of terms and
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and conditions governing the relationship between Lessor and Lessee as to
multiple telecommunications towers and related parcels of real property, each of
which is identified separately in the several Exhibits A and B hereto, and as to
each of which this Lease is intended to operate separately unless a contrary
intent is expressly stated with respect to a particular provision hereof.
1. Lease and Easement
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A. Lessor is the owner of a telecommunications tower (the "Tower")
located on a parcel of land (the "Land") which is [ALTERNATIVE 1] leased by
Lessor pursuant to that certain Lease Agreement (the "Underlying Lease") by and
between Lessor and the owner or other landlord of such Land (the "Master
Lessor"). Such Land is as described on Exhibit "A" annexed hereto. (The Tower
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and the Land are collectively the "Property"). Lessor subleases to Lessee space
on the Land, which Land includes adequate space thereon for Lessee to install
its equipment shelter, gas tank and other equipment and space upon the Tower
(collectively, the "Premises") in such amounts and in such locations as
described on Exhibit "B" annexed hereto, subject to the terms and conditions of
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this Lease. The Premises are leased together with a non-exclusive easement from
the public right-of-way nearest to the Land, for the Term, over, upon and across
the Land for the purpose of parking, pedestrian and vehicular access to and from
the Premises twenty-four (24) hours a day seven (7) days per week and a non-
exclusive easement for the Term, over, upon, under and across the Land (so long
as such easement is specifically located in a manner that does not interfere
with Lessor's or its tenants' use of the Land and the Tower) for the purpose of
the installation, construction, maintenance and operation of utility lines
including, but not limited to, co-axial cables, fiber optic cables, electrical
wires and other lines used for communications. [ALTERNATIVE 2] owned in fee by
Lessor as such Land is more particularly described on Exhibit "A" annexed
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hereto. (The Tower and the Land are collectively the "Property"). Lessor
leases to Lessee space on the Land, which Land includes adequate space thereon
for Lessee to install its equipment shelter, gas tank and other equipment and
space upon the Tower (collectively, the "Premises") in such amounts and in such
locations as are more particularly described on Exhibit "B" annexed hereto,
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subject to the terms and conditions of this Lease. The Premises are leased,
together with a non-exclusive easement from the public right-of-way nearest to
the Land, for the Term, over, upon and across the Land (so long as such easement
is specifically located in a manner
that does not interfere with Lessor's or its tenants' use of the Land and the
Tower) for the purpose of parking, pedestrian and vehicular access to and from
the Premises twenty-four (24) hours a day seven (7) days per week and a non-
exclusive easement for the Term, over, upon, under and across the Land for the
purpose of the installation, construction, maintenance and operation of utility
lines including but not limited to co-axial cables, fiber optic cables,
electrical wires and other lines used for communications.
X. Xxxxxx hereby covenants and agrees to maintain, at Lessor's sole
cost and expense, in good order and repair in accordance with Lessee's past
practice, any and all roadways, driveways or access roads on the Land
(collectively the "Roads") which are used to service or otherwise provide access
to the Premises.
2. Term. For each Premises, this Lease shall be for a period of ten (10)
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years, commencing on the effective date set forth in Exhibit B (the "Effective
Date") and terminating at midnight ten (10) years thereafter (the "Initial
Term"). Lessee shall have the absolute and unconditional right to extend the
Initial Term for five (5) successive periods of five (5) years each (each a
"Renewal Term") on the terms and conditions set forth herein. This Lease shall
automatically be extended unless Lessee notifies Lessor not less than thirty
(30) days prior to the expiration date of the Initial Term or the then-current
Renewal Term of Lessee's intention to so terminate this Lease. In no event shall
the Initial Term together with any Renewal Term extend beyond the term of the
Underlying Lease, as the term of such Underlying Lease shall be extended by
Lessor to accommodate and permit use by Lessee of the full Term of this Lease
(including Renewal Terms). In addition, Lessee shall not have the right to
exercise any Renewal Term in the event that there has occurred any default by
Lessee which has not been cured within any applicable notice and cure period, or
which cure Lessee is not diligently pursuing to completion. (The Initial Term
and each Renewal Term are sometimes collectively referred to herein as the
"Term").
3. Use. The Premises shall be used by Lessee for the installation,
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construction, repair, maintenance, operation, removal, replacement,
modification, upgrade and enhancement on the Premises of the "Lessee Facilities"
(as defined in Paragraph 8 and Exhibit "C" herein), for the transmission and
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reception of communication signals on various frequencies and for the
construction, maintenance and operation of necessary facilities, including,
without limitation, antennas and an equipment shelter.
4. Rent; Utilities.
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A. Commencing on the date hereof (the "Rent Commencement Date") and
continuing thereafter during the Term (expressly including Renewal Terms, if
any), Lessee shall pay Lessor as rent One Thousand Five Hundred and No/100
Dollars ($1,500.00) [NOTE: $2,100.00 FOR THE FIRST YEAR OF THE TERM FOR THOSE
PREMISES LEASED AT CLOSING OF THE PURCHASE AND SALE AGREEMENT] per month for
each Premises, exclusive of electricity (the "Rent"). Rent shall be payable on
the first day of each month in advance at the address set forth in Paragraph 18
herein.
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B. Lessee shall be responsible for, shall cause to be separately
metered, and shall promptly pay in full for all utilities (including, but not
limited to, electricity) consumed by Lessee at the Premises. Upon request by
Lessee, Lessor shall promptly enter into such easements with utility companies
which are required in order to provide service to Lessee Facilities located on
the Premises. Lessor reserves the right to designate reasonable locations for
such easements. In the event Lessor fails promptly to enter into such
easements, Lessor hereby consents to the execution of such easements by Lessee
on Lessor's behalf. Lessor shall, however, reimburse Lessee for the costs on
the Property for electricity and an emergency power generator (gas, diesel or
otherwise) used to monitor, support and operate "Tower Lights" (as defined and
described in Paragraph 16 herein).
C. If this Lease is terminated prior to its expiration, Rent and all
other amounts due from Lessee hereunder shall be prorated for any partial month
as of the date of termination, and any Rent already paid by Lessee for a portion
of the Term which was cancelled shall immediately be returned to Lessee.
5. Assignment.
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A. Lessee may assign this Lease and its rights hereunder at any time
upon notice to, but without the need for the consent or approval of, Lessor, if
such assignment is made to an affiliate of Lessee or as part of the transfer of
all or substantially all of Lessee's assets. Lessee may assign this Lease and
its rights hereunder, or sublease its interest in the Property, to any assignee
or subtenant upon the prior written consent of Lessor, such consent not to be
unreasonably withheld. Lessor may assign this Lease and its rights hereunder at
any time upon notice to, but without the need for the consent or approval of,
Lessee, if such assignment is made as part of the transfer of all or
substantially all of Lessor's assets to a transferee other than another wireless
communications service provider or affiliate thereof. Lessor may assign this
lease and its rights hereunder to any assignee upon the prior written approval
of Lessee, such consent not to be unreasonably withheld. Lessee shall be
released from liability hereunder arising subsequent to the date of such an
assignment, if such assignment is to an affiliate of Lessee, or provided that
Lessor approves of the financial condition of such assignee, which approval
shall not be unreasonably withheld or delayed following Lessor's review of
financial information with respect to such assignee, as reasonably requested by
Lessor.
B. Each party shall have the further right, at its sole option, at
any time, to pledge, hypothecate or otherwise assign its rights hereunder in
connection with or as a part of a financing transaction entered into by such
party in which its interest under this Lease is pledged or conveyed as
collateral, with no prior consent required by the other party; provided,
however, that any recipient of such pledge, hypothecation or assignment shall
take subject to the non-assigning party's rights hereunder.
6. Tower Maintenance, Marking and Lighting Requirements.
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A. Lessor acknowledges that it, and not Lessee, shall be responsible
for compliance with all tower marking and lighting requirements of the Federal
Aviation
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Administration ("FAA") or the Federal Communications Commission ("FCC"). Lessor
shall provide Lessee with a copy of the FCC Form 854R as evidenced by Exhibit
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"D" annexed hereto. Lessor shall indemnify and hold Lessee harmless from any
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fines, penalties, claims, causes of action, suits, costs and expenses (including
without limitation reasonable attorneys' fees and courts costs) caused by or
resulting from Lessor's failure to comply with such requirements. Lessee shall
cooperate with Lessor to obtain or transfer FCC tower registrations.
X. Xxxxxx shall maintain the Tower, Land and Premises, except for
that which is under the express terms hereof to be maintained by Lessee, in
good order and repair, and at least in accordance with the standards set forth
in Exhibit E. Further, Lessor shall comply with all local, city, county, state
and federal laws, rules, ordinances, statutes and regulations materially
affecting Lessee's right to use the Premises hereunder. Notwithstanding the
foregoing, Lessor shall not be in default hereunder for failing to comply with
any such rule, ordinance, statute or regulation the validity of which is
challenged by Lessor or others, until such challenge has been finally
adjudicated or otherwise resolved.
X. Xxxxxx shall permit Lessee to have access to the Property at all
times in connection with and as a part of Lessee's rights hereunder. If Lessor
controls entry to the Property in any manner, then Lessor shall provide Lessee
the means to gain entry thereon, either by card access, key, code, or otherwise,
as applicable. If, for any reason, Lessee requires access to the Property but
is not able to gain such access promptly after an "Emergency Notice" (as that
term is defined herein) has been provided to Lessor, Lessee may take whatever
actions are necessary or appropriate to gain such access, which actions may
include the neutralization or removal of the means of limiting access to the
Property, without cost to or claim against Lessee.
7. Interference With Lessee Facilities and Operations.
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A. Lessor shall ensure that no facilities on the Property interfere
with or otherwise impact upon the Lessee Facilities in any manner.
B. If Lessor enters into lease or license agreements with others for
or upon the Property, Lessor agrees such leases or license agreements shall
include the following provisions:
(i) That the party contracting to use the Property (the
"User") will install equipment of types and frequencies that will not cause
interference to the Lessee Facilities or any communications operations of Lessee
being conducted from the Premises;
(ii) that if such User interferes with or impairs the Lessee
Facilities or with Lessee's operations, then such User shall take all steps
necessary to correct and eliminate the interference or impairment;
(iii) that if such interference or impairment is not eliminated
within forty-eight (48) hours after such User's receipt of notice of the
existence of interference or impairment, then such User shall disconnect the
electric power and shut down such User's equipment (except for intermittent
operation for the purpose of testing, after performing maintenance, repair,
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modification, replacement, or other action taken for the purpose of correcting
such interference or impairment) until such interference or impairment is
corrected and eliminated; and
(iv) that if such interference or impairment is not completely
corrected and eliminated within thirty (30) days after such User's receipt of
such notice, then such User shall remove such User's antennas and equipment from
the Property.
C. If Lessor, or any party acting by, through or under Lessor,
installs, upgrades, enhances or relocates buildings or structures upon the Land
or equipment upon the Tower the same shall not interfere with or impair the
Lessee Facilities or any communications operations being conducted by Lessee
from the Premises. If Lessee notifies Lessor of such interference or
impairment, Lessor shall take all necessary steps to eliminate the interference
or impairment. If such interference or impairment cannot be eliminated within
forty-eight (48) hours after notice, Lessor shall cause the interfering or
impairing party to shut down the interfering or impairing operation (except for
intermittent operation for the purpose of testing, after performing maintenance,
repair, modification, replacement, or other action taken for the purpose of
correcting such interference or impairment) until such interference or
impairment is corrected or eliminated. If the same cannot be completely
corrected and eliminated within thirty (30) days after the notice, Lessor shall
remove the interfering building, structures or equipment from the Property.
D. Lessee shall have the right to, at any time or from time to time,
move the Lessee Facilities higher or lower upon the Tower, and to attach and re-
attach such Lessee Facilities as a part of such relocation, without the
obligation to pay any additional Rent or other charges, upon notice to Lessor.
To the extent Lessee so desires to relocate Lessee Facilities in a manner such
that another antenna located on the Tower must be moved, then Lessor shall use
reasonable efforts to assist in obtaining any consent necessary for such
relocation at Lessee's expense. Lessee shall pay all costs directly related to
the physical relocation of such Lessee Facilities or other antenna on the Tower.
However, Lessee may at Lessee's sole cost and expense, at any time and from time
to time, with notice to but without the need for the consent of Lessor, convert
or replace such Lessee Facilities with a sectored site on the Tower, with no
additional Rent due from Lessee. If Lessor has received an offer from a third
party for the space to which Lessee desires to relocate such that the provisions
of Paragraph 17.B would apply, then the provisions of Paragraph 17.B shall
govern.
E. Lessee's buildings or structures upon the Land or equipment upon
the Tower shall not interfere with or impair the facilities or any
communications operations being conducted by other tenants on the Tower to the
extent such operations preceded the operation of Lessee causing such
interference or impairment. If Lessor notifies Lessee of such interference or
impairment, Lessee shall take all necessary steps to eliminate the interference
or impairment. If such interference or impairment cannot be eliminated within
forty-eight (48) hours after notice, Lessee shall shut down the interfering or
impairing operation (except for intermittent operation for the purpose of
testing, after performing maintenance, repair, modification, replacement, or
other action taken for the purpose of correcting such interference or
impairment) until such interference or impairment is corrected or eliminated.
If the same cannot be completely corrected and
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eliminated within thirty (30) days after the notice, Lessee shall remove the
interfering building, structures or equipment from the Property.
8. Improvements; Liability.
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A. Lessee has the right to install, construct, repair, maintain,
operate, remove, replace, upgrade, modify and enhance on the Premises
communications facilities as the same are more particularly described on Exhibit
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"C" annexed hereto ("Lessee Facilities"), including, but not limited to, an
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equipment shelter, transmitters and receivers and all related equipment, radio
transmitting and receiving antennas and supporting structures thereto. In
connection therewith, Lessee has the right to do all work necessary to prepare,
maintain and alter the Premises for Lessee's business operations and to install
transmission lines, connecting the antennas to the transmitters and receivers.
All of Lessee's construction and installation work ("Lessee's Work") shall be
performed at Lessee's sole cost and expense and in a good and workmanlike manner
in accordance with Lessee's specifications, which specifications shall not be
inconsistent with the standards set forth in Exhibit E. Title to the Lessee
Facilities shall be in Lessee. Lessee has the right to remove all Lessee
Facilities at its sole expense before the expiration or earlier termination of
the Term, provided Lessee repairs any damage to the Premises caused by such
removal. Upon expiration or earlier termination of the Term, Lessee shall remove
all Lessee Facilities, with the exception of foundations, at its sole expense
and shall repair all damage to the Premises caused by such removal, all within
sixty (60) days after such expiration or termination.
B. Subject to the provisions of Xxxxxxxxx 0.X, Xxxxxx has the right
to improve the present utilities on the Premises and to install new utilities,
including the right, at Lessee's sole option, to install an emergency or
supporting generator to serve the Lessee Facilities.
C. If Lessor permits any other parties to attach to be located on or
otherwise use the Tower, then Lessor shall provide Lessee either (i) copies of
the engineering drawings, or (ii) a letter from a certified, licensed structural
engineer, stating that the additional facilities are within the load-bearing
capabilities of the Tower (and in any event at least comply with the most
current EIA/TIA RS 222 standards, with a 1/2 inch radial ice load), and will
not in any manner interfere with Lessee's use of the Lessee Facilities. The
attachment or location of such other facilities shall generally be subject to
the terms of Paragraph 15 herein.
9. A. Defaults By Lessee. The occurrence of any of the following
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instances shall be considered to be a default of this Lease by Lessee:
(i) any failure of Lessee to pay any installment of Rent or
any other charge for which Lessee has the responsibility of payment under
this Lease within ten (10) days of the date notice is given to Lessee that
such payment has not been made on a timely basis;
(ii) any failure of Lessee to perform or observe any term,
covenant, provision or condition of this Lease which failure is not
corrected or cured by Lessee immediately upon notice for circumstances to
which Paragraph 7.E applies, and
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otherwise within thirty (30) days of receipt by Lessee of written notice by
Licensee from Lessor of the existence of such a default; except such thirty
(30) day cure period shall be extended as reasonably necessary to permit
Lessee to complete a cure so long as Lessee commences the cure within such
thirty (30) day cure period and thereafter continuously and diligently
pursues and completes such cure;
X. Xxxxxx'x Remedies. If there occurs an event of default by Lessee
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pursuant to this Paragraph 9, Lessor's remedies shall be either or both of
the following:
(i) Lessor, with or without terminating this Lease, may
perform, correct or repair any condition which shall constitute a failure on
Lessee's part to keep, observe, perform, satisfy, or abide by any term,
condition, covenant, agreement, or obligation of this Lease, and Lessor may
reenter the Premises for such purposes, and Lessee shall fully reimburse and
compensate Lessor on demand for all costs and expenses incurred by Lessor in
such performance, correction or repair.
(ii) Lessor may immediately or at any time thereafter terminate
this Lease upon ten (10) business days' written notice to Lessee, whereupon this
Lease shall be deemed to have been terminated. If Lessor elects to terminate
this Lease, then Lessor may recover from Lessee Lessor's actual direct damages
including, without limitation:
(a) The unpaid Rent which had been earned at the time of such
termination; plus
(b) Any other amount incurred by Lessor for its reasonable
expenses (including reasonable attorneys' fees) incurred in connection
with re-entering, repossession, and repairing the Premises.
C. Default By Lessor. (i) Any failure of Lessor to perform or
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observe any term, covenant, provision or condition of this Lease, which failure
is not corrected or cured by Lessor immediately upon notice for circumstances to
which Paragraphs 6(C) and/or 7(C) apply, and otherwise within thirty (30) days
of receipt by Lessor of written notice by Licensor from Lessee of the existence
of such a failure, shall be considered to be a default of this Lease by Lessor.
Such thirty (30) day cure period, if applicable, shall be extended as reasonably
necessary to permit Lessor to complete a cure so long as Lessor commences the
cure promptly within such thirty (30) day cure period and thereafter
continuously and diligently pursues and completes such cure.
(ii) Notwithstanding anything to the contrary contained herein, if Lessor
fails to comply with the terms of Paragraphs 1(B), 6, 7 or 12(B) hereunder and
does not cure such failure within the time expressly allowed, if any, then,
Lessee may, at Lessee's option, cure or cause to be cured such failure by Lessor
and charge Lessor (payable by Lessor within ten (10) days after demand therefor)
the cost incurred by Lessee in effectuating such cure, pursue any equitable
remedy available to it or terminate this Lease by giving written notice to
Lessor, stating the date upon which such termination shall be effective in such
notice in which latter event Lessee may recover from Lessor Lessee's actual
direct damages.
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D. All rights of termination arising under this Paragraph 9 shall
extend only to the Premises that are the subject of the default or defaults
giving rise to such termination.
E. To the extent an affiliate of Lessee is obligated by contract
with Lessor to provide services to Lessor, Lessor shall not be liable to Lessee
by virtue of such affiliate's failure to provide such service to Lessor.
10. Taxes. Lessor shall pay and discharge punctually, as and when the same
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shall become due and payable, all taxes and other governmental impositions and
charges of every kind and nature whatsoever, extraordinary as well as ordinary
which shall or may during the Term be charged, levied, laid, assessed, imposed,
become due and payable, or liens upon or for or with respect to the Tower or the
Land or any part thereof, or any of Lessor's buildings, appurtenances or
equipment thereon or therein or any part thereof, together with all interest and
penalties thereon, under or by virtue of all present or future laws, ordinances,
requirements, orders, directives, rules or regulations of the federal, state,
and local governments and of all other governmental authorities whatsoever. If
personal property or other (including real property) taxes are increased or
assessed against land owner (if other than Lessor), Lessor's landlord (if
applicable), Lessor, or Lessee due to the installation of Lessee's Facilities at
the Premises, Lessee shall pay such increases in taxes as are directly
attributable to Lessee's Facilities. Lessee shall pay and discharge punctually
all taxes due, if any, in connection with the Lessee Facilities, unless Lessee
in good faith elects to contest such taxes.
11. Insurance.
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A. Lessee shall maintain insurance with respect to the Lessee
Facilities and Lessee's activities on the Property in such coverages and with
such limits as Lessee, in its sole, reasonable discretion, elects. In any
event, Lessee shall maintain general liability insurance or programs of self-
insurance to the level of at least $1,000,000 covering Lessee's operations upon
the Property.
X. Xxxxxx shall maintain commercial general liability insurance,
including contractual liability coverage, covering Lessor's operations upon the
Property expressly including the Property, with a reputable insurance company
licensed to do business in the State in which the Property is located, with
combined single limits of not less than $1,000,000 per occurrence for bodily
injury or property damage, naming Lessee as an addition insured. Such insurance
may be provided under a blanket policy so long as coverage for the Property is
not limited or otherwise affected by circumstances or events occurring
elsewhere. Such policies shall be non-cancellable and may not be amended in any
material manner, except with at least thirty (30) days prior notice to Lessor
and Lessee. Lessor shall provide Lessee with copies of any such insurance
policies.
12. Destruction of Premises. A. If the Premises or the Lessee Facilities
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are destroyed, or damaged so as to have a material adverse effect on Lessee's
use thereof, Lessee may elect to terminate the Lease as of the date of the
damage or destruction by notice given to Lessor no more
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than forty-five (45) days following the date of any such damage or destruction.
In such event, Rent and all other amounts due from Lessee hereunder shall be
prorated and paid in full as of the date of said casualty and, thereafter, all
rights and obligations of the parties, except for Paragraph 14 herein, and the
obligation to pay accrued but unpaid Rent and other charges actually due
hereunder, shall cease as of the date of the damage or destruction. If any
portion of the Property is damaged or destroyed and Lessor actually terminates
the Underlying Lease, Lessor shall have the right to terminate this Lease upon
thirty (30) days written notice to Lessee.
X. Xxxxxx shall be required to construct or rebuild a Tower or any
other improvements on the Land if the same are damaged or destroyed as soon as
reasonably possible. Rent shall xxxxx until the Premises are restored.
C. If for any reason Lessor fails to so complete the reconstruction
or restoration of a Tower or improvements on the Land within the time period set
forth in Paragraph 12(B) above, then Lessee shall have the right, at its sole
option and in its sole discretion, either itself or through its designee, to
restore or cause the restoration of such Tower or improvements. If Lessee does
so elect, then any and all costs of any nature or kind whatsoever incurred by
Lessee in connection with or as a part of such restoration shall be reimbursed
to Lessee within thirty (30) days after demand therefor is made. If such amount
is not so paid within such time, then Lessee shall have the right, in addition
to and not in lieu of any other rights, to offset such costs against the Rent
next due under this Lease.
D. In the event the Premises or the Lessee Facilities are damaged or
destroyed, Lessee shall also have the right, in Lessee's sole discretion, to
establish a temporary facility on the Property to provide such service as Lessee
deems necessary or desirable, expressly including, without limitation, a cell on
wheels on the Property.
13. Condemnation. If the whole of the Tower, or such portion of the Tower
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or the Land as will make the Tower unusable, or if the whole of the Premises, or
such portion thereof as will make the Premises unusable for the purposes herein
leased, is condemned by any legally constituted authority, or conveyed to such
authority in lieu of such condemnation, then in any of said events, Lessor shall
immediately provide notice to Lessee of such condemnation action, together with
any and all copies of any correspondence, pleadings, claims or other information
received by Lessor with respect to or in connection with such condemnation. This
Lease shall end on the date when possession thereof is taken by the condemning
authority, and rental shall be accounted for between Lessor and Lessee as of
such date and Lessor shall pay Lessee a refund of any prepaid Rent. If any
portion of the Premises is taken by condemnation or a conveyance in lieu thereof
in any way that will make the Premises unusable for the purposes intended (other
than as set forth in the preceding sentence), at Lessee's option, Lessee may (i)
terminate this Lease, or (ii) elect to continue this Lease and reduce the Rent
in proportion to the portion of the Premises so taken. Nothing in this Paragraph
13 shall be construed to limit or affect Lessee's right to an award of
compensation of any Eminent Domain proceeding for the taking of Lessee's
leasehold interest hereunder, or for the impairment, or the loss of use of any
of the Lessee Facilities.
14. Hold Harmless and Limitation of Damages.
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A. EXCEPT AS TO INDEMNIFICATION PURSUANT TO PARAGRAPH 14.B, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, PUNITIVE OR
INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST PROFITS, REGARDLESS OF
WHETHER OR NOT EITHER SUCH PARTY WAS ADVISED BY THE OTHER PARTY OF THE
POSSIBILITY OF SUCH CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS.
X. Xxxxxx and Lessee shall each be responsible for and shall
indemnify and hold harmless the other and its parent and affiliates and their
respective employees, agents and contractors against any and all loss, cost,
damage or expense, including, but not limited to, court costs and attorneys
fees, incurred by the indemnified party as a result of or in connection with any
claim of violation of any environmental law, ordinance or regulation arising on
or in connection with the Premises to the extent caused by the act of the
indemnifying party after the Effective Date. The indemnifying party shall pursue
and effectuate the cure of any claim of such violation in a manner which causes
the least amount of disruption to the Premises.
15. Engineering Standards.
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A. Any and all work done by, through or under Lessor on the Property
shall conform to the engineering standards and practices for Towers described in
Exhibit "E", by this reference incorporated herein.
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X. Xxxxxx shall also maintain, at Lessor's sole cost or expense, the
current level of grounding for the Tower, as indicated in drawings provided by
Lessee to Lessor. Lessee shall have the right, at any time, to provide
additional grounding for the Tower, and, in connection therewith, to place,
locate, relocate or replace any lines, equipment or facilities on the Property,
at no additional cost or expense to Lessor.
16. Tower Lights. To the extent the lights on the tower (the "Tower
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Lights") are controlled or have power supplied through the Lessee Facilities and
are monitored through Lessee's building meter, then the following provisions
shall be in force and effect:
A. Lessor shall reimburse Lessee, in advance, on or before the first
(1/st/) of each year, for Lessee's costs of power used for Tower Lights, and
Lessee's costs associated with an emergency power generator, if one is present,
that may provide emergency power to said Tower Lights. Such costs shall be, for
the initial Term of the Lease, Three Hundred and No/100 Dollars ($300.00) per
year. Such amount may be increased by Lessee at the time of any renewal of the
Term, by an amount equal to Lessee's increased costs to provide such service.
Notwithstanding the above, Lessee shall under no circumstances have any
responsibility or liability for the actual supply of electricity to the Tower
Lights or any failure thereof.
X. Xxxxxx shall have all responsibility for the operation,
maintenance, replacement, monitoring and reporting of such Tower Lights.
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C. Lessee shall have the right at any time or from time to time,
upon not less than ninety (90) days prior notice, to cease to provide the
service contemplated under this Paragraph 16 to or for Lessor. The reimbursement
paid to Lessee as set forth in Paragraph 16(A) above shall cease as of the date
Lessee ceases to provide such service.
17. Rights to Other Space on Tower.
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A. Lessee may, at any time, upon notice to Lessor, lease additional
or any other available space on the Tower at any time, at the lower of the Rent
and charges as set forth in Paragraph 4 herein or the rent and charges charged
by Lessor or others for similar space. If Lessee desires to transfer the Lessee
Facilities to another tower of Lessor, Lessor shall cooperate with Lessee in
identifying and making available appropriate space on such tower in the same
manner as set forth in Paragraph 7.D, and in the event such transfer is made
this Lease shall continue in effect as to such new premises in lieu of the
Premises, with appropriate modifications to Exhibits A, B and C to reflect such
transfer.
X. Xxxxxx shall not lease any other unoccupied space on the Tower to
a third-party with first giving Lessee notice of such intent to lease space,
with such notice also including the rent for such location and the other
material economic terms related to such lease. Lessee may, at Lessee's option,
lease such additional space on the Tower at the same rate offered by a third-
party for such space, as evidenced by a bona-fide written offer from a third-
party independent of Lessor, delivered in good faith to Lessor. Lessee shall
have five (5) business days after notice from Lessor of Lessor's intent to lease
such other space on the Tower, to elect whether or not Lessee intends to instead
lease such space on the terms offered. If Lessee elects to lease such space on
such terms, then Lessee shall have leased such space on such terms as stated in
the third party offer, but otherwise subject to the terms of this Lease.
18. Notices.
--------
A. All notices, requests, demands and other communications
hereunder, except for an "Emergency Notice" (as provided below), shall be in
writing and shall be deemed given on the first (1/st/) business day after the
sending hereof if personally delivered by an overnight courier providing proof
of service, to the following addresses:
If to Lessor: Pinnacle Towers Inc.
___________________________
___________________________
___________________________
With a copy to:
___________________________
___________________________
___________________________
___________________________
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If to Lessee: Southern Communications Services, Inc.
___________________________
___________________________
___________________________
With a copy to:
Xxxxxx Xxxxxxxx, Esq.
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
B. Additionally, any notices which require immediate response or
attention (an "Emergency Notice"), including any notices for the need for repair
to the Tower or the need for access to the Property, may be given by a party
hereto to the other by a telecopy sent immediately afterwards, at the following
telephone or telecopy numbers (with a copy of such notice then sent, for
informational purposes only, in accordance with Paragraph 18(A) above):
If to Lessor: ___________________________
___________________________
___________________________
If to Lessee: ___________________________
___________________________
___________________________
___________________________
Either party hereto may change the notice address for all notices or for
Emergency Notices, by a notice given to the other under the terms of Paragraph
18(A) above.
19. Title and Quiet Enjoyment. Lessor warrants that it has full right,
--------------------------
power, and authority to execute this Lease. Lessor further warrants that,
provided Lessee is not in default, Lessor shall not disturb Lessee's possession
of the Premises, except as is permitted in Paragraph 9 of this Lease.
20. Underlying Lease.
-----------------
A. If Lessor has only a leasehold interest in the Land, Lessee
agrees and acknowledges that (i) Lessor has only a leasehold interest in the
Land; (ii) all of Lessee's rights under this Lease are subject and subordinate
to the Underlying Lease; (iii) Lessee has no rights which are in excess of or
conflict with those rights granted Lessor in the Underlying Lease; and (iv) to
the extent provided in the Underlying Lease, Lessee's rights and Lessor's
obligations under this Lease are contingent upon Master Lessor's approval of
this Lease. If any event of default by Lessor
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under this Lease is a direct result of the acts or omissions of Master Lessor,
that Lessee shall have the right to terminate this Lease upon thirty (30) days
prior written notice if such default is not cured within sixty (60) days of
receipt of written notice of default.
X. Xxxxxx agrees to provide Lessee with copies of any notice of
default received by Lessor under the Underlying Lease immediately upon Lessor's
receipt of same. Lessor's failure to provide such notice to Lessee shall be a
default under this Lease by Lessor. Notwithstanding anything contained herein to
the contrary, Lessor agrees to perform all duties and obligations of Lessor
arising under the Underlying Lease. Further, Lessor hereby covenants and agrees
that Lessor shall not modify the terms of the Underlying Lease in any way that
would impair Lessor's ability to perform its obligations under this Lease
without Lessee's prior written consent so long as this Lease shall remain in
force and effect, and Lessor hereby covenants and agrees to extend the term of
any such Underlying Lease as and when the time for such extension is permitted
or required under such Underlying Lease to the extent necessary to enable it to
perform its obligations under this Lease, unless at the time for such extension
this Lease is no longer in force or effect.
C. Lessee shall have the further right, at Lessee's sole option and
in Lessee's sole discretion to cure any default on the part of Lessor under any
Underlying Lease or to extend the term thereof, if Lessor fails to do so, if the
extension thereof is necessary for Lessee to extend the Term of or otherwise
enjoy a Renewal Term under this Lease. In such event, Lessee may deduct any and
all costs therefrom from any Rent otherwise due from Lessee hereunder.
21. Successors and Assigns. This Lease shall run with the Land. This
-----------------------
Lease shall be binding upon and inure to the benefit of the parties, their
respective successors and assigns.
22. Representations and Warranties of the Parties. Each party hereto
----------------------------------------------
hereby represents and warrants to the other party hereto the following:
A. Such party is a corporation or other business entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation and has the corporate or other
power and authority to enter into and perform its obligations under this Lease.
B. This Lease has been duly authorized by all necessary action on
the part of such party, has been duly executed and delivered by a duly
authorized officer or representative of such party and constitutes the legal,
valid and binding obligation of such party enforceable in accordance with its
terms.
23. Miscellaneous.
--------------
A. This Lease constitutes the entire agreement and understanding
between the parties, and supersedes all offers, negotiations and agreements with
respect to the Property. There are no representations or understandings of any
kind not set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
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B. If any provision of this Lease is invalid or unenforceable with
respect to any party, the remainder of this Lease or the application of such
provision to persons other than those as to whom it is held invalid or
unenforceable, shall not be affected and each provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
C. This Lease and the performance hereof shall be governed,
interpreted, construed and regulated by and under the laws of the State in which
the Premises are located.
D. If either party institutes any action or proceeding in court to
enforce any provision(s) hereof, or any action for damages by reason of any
alleged breach of any of the provisions hereof, then the prevailing party in any
such action or proceeding shall be entitled to receive from the losing party
such amount as the court may adjudge to be reasonable attorneys' fees for the
services rendered to the prevailing party, together with its other reasonable
litigation costs and expenses.
E. In the event of any act of God, hurricane, tornado, rain, flood,
sink hole, wind, hail, lightning, earthquake, snow or ice, extreme high or low
temperatures, water or gas main break, fire, explosion, riot, terrorist act,
military action, failure to act on the part of a governmental authority, strike,
lockout or other labor problem, transportation delay, unavailability of supplies
or materials or change in or in the interpretation of any law or regulation
resulting in either party's inability to perform the obligations required of
such party hereunder, this Lease shall not terminate but such party's
performance hereunder of the affected obligations shall be excused for a period
equal to such delay and such party shall not be considered to be in default
under this Lease with respect to the obligation, performance of which has thus
been delayed.
F. This Lease is confidential and shall not be disclosed to any
third party without the prior express written consent of Lessor or Lessee.
However, if requested by Lessee, Lessor agrees to promptly execute and deliver
to Lessee a recordable Memorandum of this Lease, expressly referencing, by way
of illustration, but not limitation, the purchase option, refusal rights and
length and extension of the Term, as contained herein. Lessee may, at Lessee's
sole option, record or cause to be recorded such memorandum in the public
records of the County in which the Property is located.
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DATED as of the date first above written.
LESSOR:
PINNACLE TOWERS INC.
By:_____________________________________
Its:____________________________
Attest: ________________________________
Its:____________________________
(CORPORATE SEAL)
LESSEE:
SOUTHERN COMMUNICATIONS SERVICES, INC.
By:_____________________________________
Title:__________________________________
Attest:_________________________________
Title:__________________________________
(CORPORATE SEAL)
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EXHIBIT "A"
Premises No.:______________
Effective Date:______________
The Land shall consist of the following:
EXHIBIT "B"
Premises No.:______________
Effective Date:______________
The Premises shall consist of the following:
(a) Ground space area on the Land of approximately _______ +/- _______, as
shown on Exhibit "B-1" annexed hereto, which shall include space for an
equipment building and gas tank.
(b) Space on the Tower antenna mounts at the approximate height of _____ feet
for __________ (___) antenna mounts for the installation, maintenance and
operation of transmitting and receiving antennas and cables.
(c) Together with an easement for the purpose of ingress and egress and the
construction, installation and maintenance of utility lines, pipes and
conduit (including co-axial cable lines or fiber optic lines) over, under,
upon, across and along (i) such portions of the Tower and the land located
below the lower horizontal boundary of the leased tower space as shall be
necessary to provide ingress and egress to the leased tower space and
utility service to the communications equipment located upon the Tower; and
(ii) the Property more particularly described on Exhibit "B-1" hereto.
-------------
EXHIBIT "C"
The "Lessee Facilities"
The Lessee Facilities currently consist of _____________.
[Note: description should include maximum loading allowances]
EXHIBIT "D"
The "FCC Form 854R"
EXHIBIT "E"
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Lessee Engineering Standards and Practices
