EXHIBIT 10.38
SITE MARKETING AGREEMENT
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THIS AGREEMENT, made this 25th day of June, 1998, between BELLSOUTH
MOBILITY INC, Georgia corporation with its principal office located at 0000
Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, hereinafter
designated "BellSouth" and CROWN COMMUNICATION INC., D/B/A CROWN COMMUNICATIONS,
a Delaware corporation with its principal offices located at Southpointe, 000
Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, hereinafter designated
"Crown".
WITNESSETH:
WHEREAS, BellSouth, through various related entities operates a wireless
communications network in the states of Indiana, Kentucky, Tennessee,
Mississippi, Alabama, Georgia, Florida and Louisiana which is comprised in part
of cellular communications tower sites as to which BellSouth owns the fee or has
a ground lease (or a license or easement similar in effect to a ground lease),
which cellular tower sites include structures such as freestanding towers, guyed
towers and monopoles, hereinafter referred to as "Tower Sites" (the term "Tower
Sites" shall exclude buildings, equipment shelters, huts, or sheds and space
occupied by BellSouth at the Tower Sites);
WHEREAS, Crown is in the business of managing, developing, constructing,
maintaining, marketing and operating networks of communications tower
facilities, including the management of wireless communications sites and
networks owned by third party providers of wireless communications services;
WHEREAS, BellSouth desires to optimize the utilization and value of its
Tower Sites by leasing space at the Tower Sites for the co-location of
communications equipment for any type of wireless and broadcast communications
services;
WHEREAS, BellSouth and Crown intend to engage in additional negotiations to
explore the formation of a more permanent entity to serve their mutual interests
with regard to the ownership, management and utilization of the Tower Sites; and
WHEREAS, BellSouth and Crown are desirous of establishing terms and
conditions which will apply to the marketing of the Tower Sites by Crown
initially in the State of Kentucky.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, BellSouth and Crown agree as follows:
1. SITE MARKETING AGREEMENT
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1.1 MARKETING SITES.
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(a) BellSouth hereby agrees that Crown shall serve as BellSouth's
exclusive marketing agent of the Tower Sites in the state(s) listed on Exhibit
"A" hereto (the "Territory") for the purpose of leasing, subleasing or licensing
certain spaces for wireless communications antennas and related space for
equipment sheds at the Tower Sites which now exist or may exist or may exist in
the future in the Territory and as BellSouth's agent for collecting rent on the
terms and conditions hereinafter set forth. The parties by mutual agreement may
add other states to the Territory by appropriately amending Exhibit "A" hereto.
(b) BellSouth retains the right as principal to lease tower space at the
Tower Sites in the Territory for its own account. Without limitation of this
right, BellSouth does not presently anticipate exercising this right except as
necessary to obtain space on a reciprocal basis with owners of other towers.
(c) Crown's rights as exclusive marketing agent shall also be subject to
existing agreements between BellSouth and third party providers of wireless
communications services, all of which are identified in Exhibit "A" attached
hereto, and to future agreements which BellSouth may identify to Crown and which
when so identified shall be deemed listed on Exhibit "A" attached hereto. These
future agreements shall be additional co-location agreements on terms and
conditions substantially similar to the terms of the co-location agreements
listed on Exhibit "A", and agreements relating to Tower Sites resulting from
build-to-suit agreements with persons other than Crown, particularly Tower Sites
where BellSouth has a ground lease (or a license or easement similar in effect
to a ground lease).
(d) As consideration for the execution of this Agreement and for serving
as exclusive marketing agent of the Tower Sites, Crown agrees to actively market
available space for wireless communications antennas and related space for
equipment sheds at the Tower Sites, on the same basis as Crown markets Crown's
owned wireless communications tower facilities, in order to lease, sublease or
license such available space at the Tower Sites to third party providers or
users of wireless communications services.
(e) As exclusive marketing agent of the Tower Sites in the Territory,
Crown shall provide all sales and marketing functions, along with the receipt of
all third party payments as set forth in Section 5 below.
(f) As consideration for Crown's being designated as the exclusive
marketing agent of the Tower Sites in the Territory, Crown agrees that during
the term of this Agreement, Crown and Crown's subsidiaries, affiliates and
assigns shall not market, within the states encompassed by this Agreement, any
wireless communications tower sites unless such tower sites are owned or
developed by Crown or Crown's subsidiaries, affiliates or assigns; provided
however that any such tower sites developed by Crown (or its subsidiaries,
affiliates or assigns) after the date hereof in the State or States listed on
Exhibit "A" hereto shall be designed so as not to compete
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with BellSouth's then existing Tower Sites. For purposes of this Agreement,
the term "affiliate" shall be defined as any person which controls the named
party, is controlled by the named party or is under common control with the
named party.
1.2 INFORMATION TO MARKET SITES. In order to assist Crown in its efforts
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to actively market BellSouth's Tower Sites, BellSouth agrees to furnish to
Crown, within ten (10) business days of the date first written above, at no cost
to Crown, all information regarding the Tower Sites which has been compiled by
BellSouth and is located at its offices at 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx,
Xxxxxxx 00000 as of the date of this Agreement and to continue to furnish all
such future information to Crown as it becomes available at said location.
BellSouth shall not be required to request information from its offices in the
field unless it elects to do so in its sole discretion. Such information shall,
if available, include but not be limited to Prime Leases (as defined below),
construction drawings of compound and antenna support structures, surveys,
environmental assessments, mechanical drawings (power, telco, HVAC, grounding,
etc.), soils investigations and reports, permits and approvals.
2. MASTER LEASE AGREEMENT
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2.1 MASTER LEASE. Simultaneously with the execution of this Agreement,
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BellSouth and Crown shall enter into the Master Lease Agreement attached hereto
as Exhibit "B". This Master Lease Agreement contains the terms and conditions
upon which spaces for wireless communications antennas and related space for
equipment sheds at a Tower Site will be leased or licensed by BellSouth to Crown
and, in turn, subleased or sublicensed by Crown to third parties. That portion
of a Tower Site which is leased or licensed by BellSouth pursuant to this
Agreement will be individually referred to as a "Tower Space Site".
2.2 TOWER SPACE SITE LEASE ACKNOWLEDGMENTS. Crown shall not lease a Tower
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Space Site from BellSouth unless at the same time it has a third party (the
"Sublessee") willing to lease, sublease or license the same, Tower Space Site
from Crown. When Crown and a Sublessee agree on the particular terms for the
lease or license of a Tower Space Site complying with the Master Lease
Agreement, BellSouth, Crown and the Sublessee will execute a Site Lease
Acknowledgment ("SLA") in the form attached to the Master Lease Agreement.
Instead of having the Master Lease apply to the SLA, Crown and a Sublessee which
is a party to an agreement listed in Exhibit "A" may elect to have the agreement
to which the Sublessee is a party apply, in which case said master agreement
shall govern all relations among BellSouth, Crown, and the Sublessee as if it
were the Master Lease.
2.3 SLA PROCESS. Crown shall indicate that it has a third party with an
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interest in subleasing a particular Tower Space Site by completing an SLA,
having the Sublessee execute the SLA, and forwarding it to BellSouth for
execution, subject to compliance with Section 1.2 of the Master Lease Agreement.
Crown shall execute the SLA when received from BellSouth and return it to
BellSouth. Crown shall not have any right to any marketing fees in respect of
any
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SLA that it has not fully executed and returned to BellSouth in accordance with
Section 1.2 of the Master Lease Agreement.
3. TERM
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3.1 TERM. Except as provided on Exhibit "C" hereto or in Section 3.2
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below, the term of this Agreement shall be for one hundred (100) days from the
date first written above (such one hundredth (100/th/) day is referred to herein
as the "Termination Date") after which the provisions of Section 18.2.1 shall
apply.
3.2 EXTENSION TO FACILITATE FORMATION OF PERMANENT ENTITY. In the event
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that within one hundred (100) days of the date first written above, the parties
have entered into an agreement to form a permanent entity as contemplated by
Section 17, the term of this Agreement shall extend to the time of the last
closing to occur under said agreement of the tower assets in the states listed
on Exhibit "A" hereto or the abandonment or termination of said agreement at
which time this Agreement shall automatically terminate, and Sections 18.2.2 or
18.2.3, as applicable, shall apply. Notwithstanding the termination of this
Agreement, Crown shall be entitled to its marketing fee due to Crown pursuant to
the provisions of Section 5 hereof in respect of SLAs which are executed by
BellSouth during the term of this Agreement.
4. ASSIGNMENT OF CROWN'S RIGHTS AND OBLIGATIONS IN SLAS
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At any time after the Commencement Date as defined in an SLA, BellSouth may
elect pursuant to Sections 1.3 and 19.2 of the Master Lease Agreement to have
Crown to assign to it all Crown's rights and obligations under the SLA, after
which Crown shall cease to be the lessee of BellSouth and the Sublessor of
Sublessee, and BellSouth shall be the direct lessor of Sublessee, and Sublessee
shall be the direct lessee of BellSouth. With respect to an SLA governed by one
of the agreements listed on Exhibit "A", upon BellSouth's providing a notice to
Crown that it elects to receive an assignment from Crown of an SLA, Crown shall
be deemed similarly to have assigned its rights and obligations under such SLA
to BellSouth without further act. Crown shall ensure that all SLAs provide that,
by virtue of such assignments BellSouth shall assume all the obligations of
Crown to Sublessee set forth in the SLA and the Master Lease Agreement or the
other applicable master agreement, and recognize all the rights of Sublessee,
including the right to quiet enjoyment of the Tower Space Site, and Sublessee
shall attorn to BellSouth, agreeing to pay rent directly to BellSouth or as
BellSouth may direct, and agreeing with BellSouth to comply with all other
provisions of the Master Lease Agreement or the other applicable master
agreement and the SLA. Upon BellSouth's request as to any assignment, Crown
shall execute an Assignment in the form of Exhibit "7" to the Master Lease
Agreement to evidence such assignment.
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5. FEES
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5.1 THIRD PARTY RENTALS. Crown shall receive a marketing fee as
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calculated in Section 5.3 for any SLA which is executed by Crown and Tenant
pursuant to this Agreement and the Master Lease Agreement, so long as such
Tenant utilizes a Tower Site within six months after such Tenant executes such
SLA and (a) with respect to which SLA Crown was the actual procuring cause or
(b) with respect to which SLA any of the entities listed on Exhibit "B" hereto
is the third party, regardless whether Crown is the actual procuring cause and
regardless of the process through which such third party may occupy a Tower
Site. For purposes of this Agreement, "Third Party Rentals" shall be defined as
gross rents or other consideration paid by third parties, commencing at any time
from the date first written above and continuing for so long as such third
party, its successors and assigns, utilizes the Tower Site. Third Party Rentals
shall specifically include gross rents or other recurring consideration paid by
Sublessees who have, prior to the expiration or termination of this Agreement,
who have executed an SLA to either Crown or BellSouth. The calculation of such
Third Party Rentals shall not include payments to BellSouth for services such as
installation fees, maintenance fees, professional service fees, site development
fees, tap-in fees, bolt-on fees, or fees for any services provided for or on
behalf of such third parties by BellSouth or its agents (not including Crown,
its affiliates or agents) in connection with their installations, all of which
amounts shall be paid directly to BellSouth, and not through Crown.
5.2 ELECTION BY BELLSOUTH TO RECEIVE PAYMENTS DIRECTLY. At any time
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BellSouth may elect to have all the Sublessees make payments directly to
BellSouth, by notifying Crown and the Sublessees of such election.
5.3 DISTRIBUTION OF THIRD PARTY RENTALS. Crown shall receive a marketing
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fee of [*] percent ([*]) of Third Party Rentals. The remaining [*] percent ([*])
of the Third Party Rentals shall be paid to or retained by BellSouth, as
applicable.
5.4 COLLECTIONS; PAYMENT OF FEES. Payments due Crown and BellSouth
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pursuant to the terms of this Agreement shall be made in the following manner:
At the-beginning of each month, the party receiving the Third Party Rentals (the
"Receiving Party shall calculate the total amount of Third Party Rentals
actually collected during the prior month. Crown, if applicable, shall collect
Third Party Rentals solely as the agent of BellSouth and not for its own
account. The Receiving Party shall use commercially reasonable efforts to
collect the Third Party Rentals in the same manner as it would collect from its
own tenants. Any reasonable out-of-pocket expenses actually and necessarily
(based on standards the Receiving Party applies in its own collections) incurred
by the Receiving Party in collection, including by or through an attorney, shall
be reimbursable to the Receiving Party out of and shall reduce the Third Party
Rentals. In the event Crown is the Receiving Party, Crown shall remit to
BellSouth the Third Party Rentals, less the amount of Crown's marketing fee in
respect thereof, within thirty (30) days of the end of the prior month, free and
clear of any claims and without any set-off or recoupment. In the event
BellSouth is the Receiving Party, BellSouth shall remit to Crown the
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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Third Party Rentals, less the amount retained by BellSouth as set forth in
Section 5.3, within thirty (30) days of the end of the prior month, free and
clear of any claims and without any set-off or recoupment. Overdue amounts from
the Receiving Party shall bear interest at a rate of one and one-half percent
(1.5%) per month on such amount. All monthly payments shall be predicated upon
actual Third Party Rentals collected by the Receiving Party during the prior
month. Crown and BellSouth specifically acknowledge that they shall have no
recourse against the other as a result of a failure of payment or other breach
of obligation by any third party related to Third Party Rentals. The calculation
of Third Party Rentals shall not include payments to either BellSouth or Crown
by Sublessees for services such as installation, maintenance fees, professional
service fees, site development fees, tap-in fees, bolt-on or fees for any third
party services provided by that party to said Sublessees, subject to that
party's compliance with Section 4.3 of the Master Lease Agreement as to such
payments.
6. EXAMINATION OF RECORDS
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The Receiving Party agrees to, at all times during this Agreement and
during the existence of any SLAs related thereto, maintain financial records,
including books of account, which detail all Third Party Rentals and all out of
pocket expenses incurred by the Receiving Party in connection with the
collection of Third Party Rentals. The Receiving Party shall make the same
available to the other party upon request, and that party may conduct or cause
to be conducted, at its sole expense, an independent audit of the Receiving
Party's financial records, books of account, and other records and documents
related to the calculation and payment of gross rental and license payments
pursuant to the terms set forth above. If any such audit concludes that in any
month the Receiving Party's calculation of Third Party Rentals is more than five
percent (5%) less than the actual amount thereof, the Receiving Party shall
reimburse the other party for all fees, costs and expenses paid by that party
for the audit.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
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7.1 MUTUAL. Each of Crown and BellSouth represents, warrants and
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covenants to the other:
7.1.1 It has full right, power and authority to make this Agreement
and to enter into the Master Lease Agreement and the SLAs;
7.1.2 The making of this Agreement and the performance thereof will
not violate any laws, ordinances, restrictive covenants or
other agreements under which either party is bound;
7.1.3 Each party is or will be qualified to do business in all states
in which the Tower Sites are located;
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7.1.4 All persons signing on behalf of either party are authorized to
do so by appropriate corporate or partnership action; and
7.1.5 Neither party shall engage in any activity which serves to
impede the performance of any process embodied in this
Agreement and each party agrees to act in good faith and to
utilize commercially reasonable efforts to accomplish the
purposes of this Agreement. Examples of a breach of this
provision are the lack of a good faith marketing effort by
Crown or the arbitrary denial by BellSouth of approvals of SLAs
pursuant to this Agreement.
7.2 NO BROKERS. BellSouth and Crown represent to each other that neither
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has had any dealings with any real estate brokers or real estate agents in
connection with this Agreement. Each party shall be responsible for the payment
of any fees, commissions, costs, expenses or other sums due with respect to any
other advisor or agents retained by that party.
8. DEFAULT
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8.1 CROWN'S DEFAULT. The occurrence of any one or more of the following
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events shall constitute an "event of default" by Crown under this Agreement:
8.1.1 If Crown fails to pay any sums payable by Crown pursuant to
this Agreement within five (5) business days of Crown's receipt
of written request for payment;
8.1.2 If any petition is filed by or against Crown, under any section
or chapter of the present or any future federal Bankruptcy Code
or under any similar law or statute of the United States or any
state thereof (and with respect to any petition filed against
Crown, such petition is not dismissed within ninety (90) days
after the filing thereof), or Crown is adjudged bankrupt or
insolvent in proceedings filed under any section or chapter of
the present or any future Bankruptcy Code or under any similar
law or statute of the United States or any state thereof;
8.1.3 If a receiver, custodian or trustee is appointed for Crown or
for any of the assets of Crown and such appointment is not
vacated within sixty (60) days of the date of appointment;
8.1.4 If Crown makes a transfer in fraud of creditors;
8.1.5 If there is a breach of any representation, warranty or
covenant set forth in this Agreement excluding any SLA and the
non-payment of any sums by Crown, which is not cured within the
Cure Period; for purposes hereof,
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during the first 100 days of this Agreement, the "Cure Period"
shall mean within ten (10) days of receipt of written notice,
and thereafter (if the Agreement is not terminated after 100
days) the "Cure Period" shall mean within sixty (60) days of
receipt of written notice;
8.1.6 If there is a breach of any representation, warranty or
covenant of Crown set forth in any SLA or in the Master Lease
Agreement, excluding the nonpayment of any sums by Crown, which
is not cured within sixty (60) days of receipt of written
notice.
8.2 BELLSOUTH'S REMEDIES. If an event of default occurs with respect to
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Section 8.1.2, 8.1.3, or 8.1.4 above, without limiting any other remedies it may
have, BellSouth may terminate this Agreement and the Master Lease Agreement, in
which event Crown shall immediately assign its rights and obligations under all
SLAs to BellSouth and BellSouth shall accept such assignments. If an event of
default occurs with respect to Section 8.1.1, 8.1.5 or 8.1.6 above, BellSouth
may terminate such SLAs as to Crown, in which event Crown shall assign only its
rights and obligations under the applicable SLAs to BellSouth and BellSouth
shall accept such assignments; provided however that if Crown is or has been in
default of the lesser of: five percent (5%) of the total SLAs in any one State
or fifty (50) SLAs then in effect, BellSouth may terminate this Agreement as
provided in the first sentence of this Section 8.2.
8.3 BELLSOUTH'S DEFAULT. If BellSouth is in breach of any representation,
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warranty or covenant set forth in this Agreement and such breach is not cured
within sixty (60) days of receipt of written notice thereof.
8.4 CROWN'S REMEDIES. In the event of a default by BellSouth, Crown may,
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without limiting any other remedies it may have, at Crown's option upon written
notice:
8.4.1 Terminate the applicable SLA as to Crown; and
8.4.2 Assign to BellSouth all its improvements in the Tower Space
Sites to which the SLAs relate.
Crown may elect any one or more of the foregoing remedies with respect to
any particular SLA.
8.5 REMEDIES FOR BREACH OF GOOD FAITH. In the event of a breach by either
---------------------------------
party of the covenant set forth in Section 7.1.5, the other party may
unilaterally terminate this Agreement and the Master Lease Agreement upon five
(5) business days written notice to the breaching party. In addition to any
other remedies available as described above in this Section 8, or in Section
18.2, or otherwise, the party breaching Section 7.1.5 shall be liable to the
other party, notwithstanding any other provision in this Agreement to the
contrary, for that party's actual damages, plus costs and attorneys' fees, but
not for any special, incidental or consequential damages of any nature
whatsoever. The party alleged to have breached Section 7.1.5 may, in order to
preclude the
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unilateral termination of this Agreement, bring an action in equity, including a
request for preliminary injunctive relief, challenging the alleged breach of
Section 7.1.5.
8.6 DUTY TO MITIGATE DAMAGES. BellSouth and Crown shall endeavor in good
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faith to mitigate damages arising under this Agreement
8.7 NOTICES AS TO OTHER DEFAULTS. If, with respect to any indebtedness or
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obligation to pay money in excess of $10,000,000, the lender or payee shall
assert that Crown or Crown Castle (as defined below) is in default as to any
required payment, or if Crown or Crown Castle should default in making any such
payment timely, or in the observance of any other covenants or obligations with
respect to such indebtedness or obligation to pay money, or if Crown or Crown
Castle should be required to notify any lender of the existence of any such
default then Crown shall give BellSouth prompt notice of such circumstances,
describing them with particularity.
8.8 CROWN'S ENTITLEMENT TO MARKETING FEES. Notwithstanding any provision
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to the contrary contained in this Agreement, the Master Lease Agreement and any
SLA, Crown shall be entitled to its marketing fees as set forth in Section 5 so
long as Crown or BellSouth receives the payment of Third Party Rentals,
notwithstanding any event of default by either party and regardless whether such
event of default result in the termination of this Agreement, the Master Lease
Agreement and any SLA; provided however that Crown shall not be entitled to
receive any further marketing fees from BellSouth with respect to the SLAs if
Crown fails to perform with respect to the acquisition of the Tower Sites in the
event of a BellSouth election to put its Tower Sites as described in Exhibit "C"
attached hereto. In such event, the right to withhold any further payment of
the marketing fees otherwise payable to Crown shall be BellSouth's sole legal
remedy and no further legal or equitable remedies shall be available to
BellSouth.
9. ENTIRE AGREEMENT
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It is agreed and understood that this Agreement, including the Master Lease
Agreement and all SLAs, contain all the agreements, promises and understandings
between BellSouth and Crown and that no verbal or oral agreements, promises or
understandings shall be binding upon either BellSouth or Crown in any dispute,
controversy or proceeding at law, and any addition, variation or modification to
this Agreement shall be void and ineffective unless made in writing signed by
the parties.
10. GOVERNING LAW
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The laws of the State of Georgia, disregarding conflict of law principles,
shall govern this Agreement. Each party submits to the jurisdiction of any
federal or state court sitting in Xxxxxx County, Georgia with the exception that
disputes pertaining exclusively to the real estate interests of a particular
Site shall be litigated in the jurisdiction in which the Site is located.
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11. ASSIGNMENT
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(a) This Agreement may not be sold, subleased, assigned or transferred by
Crown without prior approval or consent of BellSouth; provided, however, that
Crown may assign its interest to its parent company, any subsidiary or affiliate
or to any successor-in-interest or entity acquiring 51% or more of its stock or
assets, subject to this Agreement.
(b) This Agreement may not be sold, subleased, assigned or transferred by
BellSouth without prior approval or consent of Crown; provided, however, that
BellSouth may sublease, assign or transfer its interest to (i) a third party so
long as such party has a net worth (computed in accordance with generally
accepted accounting principles) equal to or greater than $25 million or (ii) its
parent company, any subsidiary or affiliate or to any successor-in-interest or
entity acquiring 51% or more of its stock or assets, subject to this Agreement.
(c) BellSouth consents to the assignment by Crown of the marketing fees
payable to Crown pursuant to this Agreement. Any such assignment shall be
subject and subordinate to all rights and interests of BellSouth under this
Agreement including, without limitation, BellSouth's-rights to collect directly
from the Sublessees set forth in Section 5.4; provided that, such assignment
shall not constitute assumption by the Financing Entity of any obligations under
this Agreement unless and until the Financing Entity elects to assume Crown's
rights and obligations herein in the event Crown defaults under the Financing
Agreement or any agreement with the Financing Entity related thereto. Any
attempted assignment by Crown of any of its rights as BellSouth's lessee under
the Master Lease Agreement, or as the Sublessee's sublessor under the Master
Lease Agreement, except as expressly permitted pursuant to the terms of the
Master Lease Agreement, shall be absolutely null and void ab initio, and without
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any force and effect. Crown shall not have any interest under this Agreement or
the Master Lease Agreement which is capable of being pledged or assigned as
security to the Financing Entity, other than Crown's marketing fees, as
described and subject to the limitations set forth above. Any such assignment
of Crown's marketing fees to the Financing Entity as security does not relieve
Crown of any liabilities or obligations for performance identified in this
Agreement.
12. SEVERABILITY
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If any provision of this Agreement or any SLA is invalid or unenforceable
with respect to any party, the remainder of this Agreement, or the application
of such provision to persons other than those as to whom it is held invalid or
unenforceable, is not to be affected and each provision of this Agreement is
valid and enforceable to the fullest extent permitted by law.
13. NO WAIVER
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No provision of this Agreement shall be deemed to have been waived by
either party unless the waiver is in writing and signed by the party against
whom enforcement is attempted. The rights granted in this Agreement are
cumulative of every other right or remedy that the enforcing party
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may otherwise have at law or in equity or by statute and the exercise of one or
more rights or remedies will not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
14. REPRESENTATION
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The parties acknowledge and agree that they have been represented by
counsel and that each of the parties has participated in the drafting of this
Agreement. Accordingly, it is the intention and agreement of the parties that
the language, terms and conditions of this Agreement are not be construed in any
way against or in favor of any party hereto by reason of the responsibilities in
connection with the preparation of this Agreement.
15. NOTICES
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Any notice or demand required to be given in this Agreement shall be made
by first class mail, or reliable overnight courier, to the address of the other
party set forth below:
As to Crown: Crown Communications
Southpointe
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Legal Department
With a copy to: Xxxxxx, Xxxxxxx & Wratcher
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx.
As to BellSouth: BellSouth Mobility Inc
0000 Xxxxxxxxx Xxxxxx, XX, 00/xx/ Xxxxx
Xxxxxxx, XX 00000
Attn: President
With a copy to: BellSouth Mobility Inc
Legal Department
0000 Xxxxxxxxx Xxxxxx, XX, 00/xx/ Xxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Any such notice or demand by mail shall be deemed to be received two (2)
business days following deposit in the United States first class mail addressed
as required above or, if delivered
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by overnight courier, one (1) business day following deposit with such
courier. BellSouth or Crown may from time to time designate any other address
for this purpose by giving written notice to the other party.
16. BINDING EFFECT
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This Agreement shall extend to and bind the heirs, personal
representatives, successors and permitted assigns of the parties hereto.
17. ADDITIONAL NEGOTIATIONS
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Crown and BellSouth, by execution of this Agreement, acknowledge their
mutual intent to explore the formation of a permanent entity to serve their
mutual interests regarding the future ownership, management and utilization of
the Tower Space Sites. In the event that no successor entity is created by
Crown and BellSouth, the terms and conditions set forth herein and in each SLA
shall continue in full force and effect subject only to the expiration and
termination provisions set forth herein. The foregoing represents an expression
of the parties' mutual intent and shall not be construed to represent a binding
or enforceable agreement of the parties or create any obligations of the parties
to form any such entity or enter into any binding or enforceable agreement in
respect thereof. No such obligations of the parties shall arise unless and
until the parties enter into definitive written agreements with respect thereto.
18. TERMINATION
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18.1 TERMINATION UPON CERTAIN DEFAULTS.
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18.1.1 In the event BellSouth exercises its rights to terminate this
Agreement and the Master Lease Agreement upon Crown's default as set forth in
Section 8.5, the appointment of Crown as BellSouth's exclusive marketing agent
and as BellSouth's agent to collect rents shall be terminated, Crown shall be
deemed to have assigned all its SLAs to BellSouth, without further act, and
BellSouth shall be deemed to have accepted such assignments, the restrictions on
Crown's right to market towers for others in the Territory shall terminate, and
BellSouth shall no longer have any obligation to pay any marketing fees
whatsoever to Crown under this Agreement.
18.1.2 In the event Crown exercises its rights to terminate this Agreement
and the Master Lease upon BellSouth's default as set forth in Section 8.5, or in
the event BellSouth exercises its rights to terminate this Agreement and the
Master Lease Agreement under Section 8.2, the appointment of Crown as
BellSouth's exclusive marketing agent and as BellSouth's agent to collect rents
shall be terminated, Crown shall be deemed to have assigned all its SLAs to
BellSouth, without further act, and BellSouth shall be deemed to have accepted
such assignments, the
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restrictions on Crown's right to market towers for others in the Territory shall
terminate, but BellSouth shall continue to be obligated to pay marketing fees
due to Crown under this Agreement with respect to Third Party Rentals.
18.2 TERMINATION IN THE EVENTS FORESEEN IN SECTION 3.
-----------------------------------------------
18.2.1 In the event this Agreement terminates by the expiration of its
term pursuant to Section 3.1, the appointment of Crown as BellSouth's exclusive
marketing agent and as BellSouth's agent to collect rents shall be terminated,
Crown shall be deemed to have assigned all its SLAs to BellSouth, without
further act, and BellSouth shall be deemed to have accepted such assignments,
the restrictions on Crown's right to market towers for others in the Territory
shall terminate, but BellSouth shall continue to be obligated to pay marketing
fees due to Crown under this Agreement with respect to Third party Rentals.
18.2.2 In the event that the parties have entered the agreement to form
a permanent entity as contemplated by Section 17, and the closings of the tower
assets in all the states listed on Exhibit "A" hereto have occurred under that
agreement, then the appointment of Crown as BellSouth's exclusive marketing
agent and as BellSouth's agent to collect rents shall be terminated, Crown shall
be deemed to have assigned all its SLAs to BellSouth, without further act, and
BellSouth shall be deemed to have accepted such assignments, the restrictions on
Crown's right to market towers for others in the Territory shall terminate, and
BellSouth shall no longer have any obligation to pay any marketing fees
whatsoever to Crown under this Agreement.
18.2.3 In the event that the parties have entered the agreement to form a
permanent entity as contemplated by Section 17, and that agreement has been
abandoned or terminated, then, with respect to this Agreement, the appointment
of Crown as BellSouth's exclusive marketing agent and as BellSouth's agent to
collect rents shall be terminated, Crown shall be deemed to have assigned all
its SLAs to BellSouth, without further act, and BellSouth shall be deemed to
have accepted such assignments, the restrictions on Crown's right to market
towers for others in the Territory shall terminate, but BellSouth shall continue
to be obligated to pay marketing fees due to Crown under this Agreement with
respect to Third Party Rentals.
19. PRIOR AGREEMENTS
----------------
This Agreement revokes and supersedes any other oral or written agreements
between the parties, whether or not in writing, that pertain to the subject
matter described herein, except for that certain Mutual Nondisclosure Agreement
entered into between BellSouth Corporation and Crown Castle International Corp.
("Crown Castle") as of April 17,1998 (the "Nondisclosure Agreement") and the
Master Lease Agreement.
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20. NON-DISCLOSURE
--------------
The parties agree that without the express written consent of the other
party, neither party shall reveal, disclose or promulgate to any third party the
terms of this Agreement or any portion thereof, except to such third party's
auditor, accountant, attorney or investment-banker or to a governmental agency
if required by regulation, subpoena or government order to do so. Any such
disclosure shall be made in compliance with the terms and conditions of the
Nondisclosure Agreement. The foregoing two sentences shall survive any
termination of this Agreement. Crown has indicated to BellSouth that Crown
Castle contemplates filing a Form S-1 with the Securities and Exchange
Commission to register common stock. Prior to filing such Form S-1, Crown shall
cause Crown Castle to provide BellSouth with an opportunity to review and
comment on any disclosures of this Agreement in said Form S-1. If Crown Castle
intends to name BellSouth in the Form S-1 as party to this Agreement, BellSouth
shall have the right to approve any such disclosures, which approval shall not
be unreasonably withheld or delayed.
21. SURVIVAL
--------
All those sections whose survival is required to give effect to all
continuing obligations set forth in the termination provisions of this Agreement
shall survive the termination of this Agreement, and in case of doubt, a section
shall be construed as having survived.
22. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts with the same
effect as if all signing parties had signed the same document. All counterparts
shall be construed together and constitute the same instrument. Signatures by
facsimile shall have the same force and effect as original signatures.
(SIGNATURES ON PAGE 15)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first written above.
ATTEST: BELLSOUTH MOBILITY INC.
/s/ Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
----------------------------- ----------------------------
Xxxx X. Xxxxxxx
President
ATTEST: CROWN COMMUNICATION INC. d/b/a
CROWN COMMUNICATIONS
_____________________________ By: /s/ Xxxxxx X. Crown
-------------------------
Xxxxxx X. Crown
President and Chief Executive Officer
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
Crown Castle International Corp. ("CCIC") hereby guarantees the performance of
all duties and obligations of Crown Communication Inc. with respect to the terms
of this Agreement. CCIC further warrants that the signatories below possess the
requisite authority to execute this Guaranty.
ATTEST: CROWN CASTLE
INTERNATIONAL CORP.
_____________________________ By: /s/ Xxxxx X. Xxx
-------------------------
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Exhibit "A" to the Site Marketing Agreement
-------------------------------------------
LIST OF STATES AS TO WHICH THIS SITE
MARKETING AGREEMENT IS APPLICABLE
Kentucky, only.
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Exhibit "B" to the Site Marketing Agreement
-------------------------------------------
EXISTING BELLSOUTH THIRD PARTY AGREEMENTS
1. Master Antenna Site Lease Agreement between AT&T Wireless Services, Inc.
d/b/a AT&T Wireless Services and BellSouth Cellular Corp. dated March
9,1998;
2. Master Antenna Site Lease Agreement between Nextel South Corp. and
BellSouth Cellular Corp. dated November 21, 1997;
3. Master Antenna Site Lease Agreement between BellSouth Cellular Corp. and
American Cellular Communications Corporation and RAM Mobile Data USA
Limited Partnership dated March 13, 1998;
4. Master Antenna Site Lease Agreement between ALLTEL Communications, Inc. and
BellSouth Cellular Corp. dated April 2,1998;
5. Master Antenna Site Lease Agreement between BellSouth Cellular Corp. and
Powertel, Inc. dated March 26, 1998; and
6. Master Antenna Site Lease Agreement between Sprint Spectrum L.P. and
BellSouth Cellular Corp. dated February 24, 1998.
7. Master Antenna Site Lease Agreement between Telecorp Holding Corp. and
BellSouth Cellular Corp. dated May 13, 1999.
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Exhibit "C" to the Site Marketing Amendment
-------------------------------------------
SPECIAL TERMINATION PROVISIONS AS TO
TOWERS SITES LOCATED IN THE STATE OF KENTUCKY
In the event that the parties fail to timely enter into an agreement to form the
permanent entity described in Section 3.2, BellSouth shall, in BellSouth's
discretion, elect one of the three following options: (i) to put to Crown all of
BellSouth's Tower Sites in the state of Kentucky, for a price to be agreed upon
based upon the fair market value of the Tower Sites, which price, however, shall
in no event be less than $75,000,000; (ii) to extend the term of this Agreement
for an additional term of five (5) years, or (iii) to form a joint venture with
Crown on mutually agreed terms whereby BellSouth will put its Tower Sites to the
joint venture in the manner and for the values, described below, as if BellSouth
had exercised its put to Crown, and Crown will make a cash contribution to the
joint venture equal to the value of BellSouth's Tower Sites, determined in the
same manner as below, as if BellSouth had exercised its put to Crown, but in no
event shall such values be less than $75,000,000. Prior to the Termination Date,
BellSouth must notify Crown of its election. In the event BellSouth fails to
timely provide such notice, the term of this Agreement, as to the Tower Sites
located in the State of Kentucky only, will automatically be extended for an
additional term. of five (5) years. In the event BellSouth timely notifies Crown
of its election to put its Tower Sites in the state of Kentucky to Crown, the
term of this Agreement, as to the Tower Sites located in the state of Kentucky
only, will automatically be extended until the time of closing on the sale to
Crown of BellSouth's Tower Sites in Kentucky. Such put of Tower Sites shall be
in the form of subleases of the Tower Sites whereby all the economic interest
(and burdens) in the Tower Sites are transferred to Crown, BellSouth reserving
to itself all space it currently occupies and a right of first refusal on any
new spaces proposed to be leased to others. In such event, BellSouth shall pay
rent to Crown for the space that it currently occupies on each Tower Site at the
rate of $[*] per month, as adjusted from time to time according to a formula to
be agreed upon, plus an additional amount to be mutually agreed upon for
sectorized Tower Sites if applicable. As to Tower Sites where BellSouth cannot
obtain any required consent of the ground lessor or of the minority holders in
any affiliate of BellSouth which is the ground lessee, BellSouth shall retain
the Tower Sites, and the acquisition price will be reduced pro rata based on the
number of Tower Sites retained over the total of Tower Sites in Kentucky. In
addition, the acquisition price shall be reduced by the present value of current
payments due to Crown over the balance of the terms of the applicable SLAs with
respect to Tower Sites being transferred, which present value shall be reduced
by historical bad debt experience. In the event that Crown and BellSouth cannot
agree upon a fair market value for said Tower Sites within fifteen (15) days of
the Termination Date, then Crown and BellSouth agree; that Xxxxxx Brothers shall
act as an independent third party appraiser to establish the fair market value
of the Tower Sites. It is understood that the fair market value of the Tower
Sites shall include all revenues arising from the Tower Sites on an undivided
basis. The decision of the independent third party appraiser shall be final and
binding and shall be construed as and enforced in the same manner as a decision
rendered pursuant to binding arbitration. Crown shall purchase the Tower Sites
as soon as practicable after the decision of the independent third party
appraiser and all regulatory and contractual consents are obtained, but in no
event later than ninety (90) days after determination of the fair market value
by the independent third party appraiser.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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After the closing of Crown's purchase of the Tower Sites, this Agreement shall
terminate, with the following consequences: the appointment of Crown as
BellSouth's exclusive marketing agent and as BellSouth's agent to collect rents
shall be terminated, Crown shall be deemed to have assigned all its SLAs to
BellSouth, without further act, and BellSouth shall be deemed to have accepted
such assignments, the restrictions on Crown's right to market towers for others
in Kentucky shall terminate, and BellSouth shall no longer have any obligation
to pay any marketing fees whatsoever to Crown under this Agreement. If after the
expiration of such ninety (90) days Crown does not purchase the Tower Sites,
this Agreement shall terminate, with the following consequences; the appointment
of Crown as BellSouth's exclusive marketing agent and as BellSouth's agent to
collect rents shall be terminated, Crown shall be deemed to have assigned all
its SLAs to BellSouth, without further act, and BellSouth shall be deemed to
have accepted such assignments, the restrictions on Crown's right to market
towers for others in Kentucky shall terminate, and BellSouth shall not be
obligated to pay any marketing fees due to Crown under this Agreement. In any
event, BellSouth and Crown shall each pay one-half of Xxxxxx Brothers'
reasonable fees and expenses.
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