EXECUTION COPY
GLOBAL LEASE AGREEMENT
This Global Lease Agreement ("Agreement"), made this 31st day of March,
1999 between Crown Atlantic Company, LLC, with its principal offices
located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, with a Tax ID#
00-0000000, hereinafter designated LESSOR and Cellco Partnership, a
Delaware general partnership, d/b/a Xxxx Atlantic Mobile, with its
principal offices at 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, hereinafter designated LESSEE.
W I T N E S S E T H:
WHEREAS, LESSOR is the owner of certain buildings, towers, facilities
and/or real property, at which LESSEE may from time to time desire to
install and maintain communications facilities as hereinafter described;
and
WHEREAS, the LESSOR and LESSEE desire to enter into this Agreement to
define the general terms and conditions which would govern their
relationship with respect to particular sites at which the LESSOR and
LESSEE may wish to permit LESSEE to lease certain space for the
installation of its facilities as hereinafter set forth; and
WHEREAS, the LESSOR and LESSEE acknowledge that they will enter into a
lease supplement, substantially in the form of Exhibit A hereto
("Supplement") with respect to any particular location or site which the
parties agree to lease,
WHEREAS, the parties acknowledge that different related entities may
operate or conduct the communications business of the LESSEE in different
areas. As a result, the parties agree that each Supplement will be signed
by the LESSEE or by an entity which is LESSEE's principal, affiliate (which
for these purposes shall include without limitation, any entity with
respect to which LESSEE or LESSEE's parent or subsidiary, is a general
partner, manager or occupies a similar position of control, regardless of
ownership interest), subsidiary or subsidiary of its principal (any of the
foregoing, "LESSEE'S Affiliate").
NOW, THEREFORE, for ten dollars ($10) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration and mutual covenants contained herein
and intending to legally bound hereby, the parties hereto agree as follows:
1. LESSOR agrees to lease to LESSEE that certain space on LESSOR's
building, tower and/or parcel of property, which space and/or parcel is
hereinafter referred to as "Property" more fully described in a Supplement
to be executed by the parties. The leasing of the Property shall only
become effective upon the full execution of a Supplement by the parties.
The parties acknowledge that different related entities may operate or
conduct the communications business of the LESSEE in different areas. As a
result, the parties agree that each Supplement will be signed by the LESSOR
on the one hand and on the other hand may be signed by either the LESSEE or
by any of LESSEE's Affiliates. The parties further agree that any
Supplement may be executed by the LESSOR and the LESSEE or any of the
LESSEE's Affiliates, as the case may be, by a stamped, photocopied or
electronically-generated signature of the officer authorized to sign on
behalf of such entity, and that such stamped, photocopied or
electronicallly generated signature shall signify such party's approval and
acceptance of the terms and conditions of such Supplement. The parties
further agree that such signatures may be stamped or electronically
generated on, or photocopies made of, any such Supplement by the applicable
authorized officer or such other person that such officer authorizes to
stamp, photocopy or generate such signature.
2. The LESSEE shall have the non-exclusive right of access and ingress
and egress, seven (7) days a week, twenty-four(24) hours a day, on foot or
motor vehicle, including trucks, to the Property, subject, however, to
LESSOR'S right to install and maintain a security gate or other security
system for which LESSEE will be given keys or other necessary access
devices, and which will be suitable for ingress and
egress by LESSEE as provided for hereunder. LESSOR also grants to LESSEE
the easement and right to install and maintain wires, cables, conduits and
pipes either within, over, under or along the Property, or any other lands,
property, or structure in which the LESSOR has right, title or interest
which are adjacent to the Property or upon which the Property is located,
as shown in the Supplement. Additionally, the LESSOR grants to LESSEE any
specific right of way for access to the Property as described in the
Supplement. In the event any public utility is unable to use the
aforementioned rights-of-way or easement, the LESSOR hereby agrees to grant
an additional right-of-way, satisfactory to such public utility, either to
the LESSEE or to the public utility at no cost to the LESSEE.
2. This Agreement shall be for a term of twenty nine (29) years and
eleven (11) months and shall be effective upon execution by both the LESSOR
and the LESSEE after which term, the terms and conditions shall survive and
govern any remaining Supplements until their termination.
3. The initial term for each particular Supplement shall be for ten
(10) years and shall be subject to extension as provided in this Agreement.
4. The term of each particular Supplement shall automatically be
extended for three (3) additional five (5) year terms and one (1)
additional term of four years and eleven (11) months unless LESSEE
terminates it at the end of the then current term by giving LESSOR written
notice of the intent to terminate at least six (6) months prior to the end
of the then current term.
With respect to each Property (a) for which a Supplement has been
executed by the parties, and (b) subject to a Right of Use Agreement,
hereinafter defined in Paragraph 17 below, LESSOR shall provide LESSEE with
written notice (i) one hundred eighty (180) days prior to the termination
date of any Right of Use Agreement (which does not include provisions for
renewal of such agreement beyond the termination date) or (ii) ninety (90)
days prior to the latest date upon which LESSOR would be required to give
notice of exercise of any rights of renewal or extension of the term of
such Right of Use Agreement. The notice will state (a) with respect to a
terminating Right of Use Agreement, LESSOR's intention to negotiate a new
Right of Use Agreement (or an extension of the existing Agreement) (in
which case, the LESSOR will provide subsequent notification of the progress
of such negotiations, including the successful completion of the
negotiations); (b) with respect to a renewal, LESSOR's intent to exercise
its renewal rights (in which case, LESSOR will furnish LESSEE with a copy
of the renewal notice); or (c) if LESSOR does not intend to continue to
occupy the Property and/or any real property or structure upon which the
Property is located, the notice will set forth LESSOR's intention to
provide a replacement Property which in all material respects, is suitable
for LESSEE's use and at no additional cost to LESSEE; and provided further
such notice will describe how LESSOR intends to provide for the relocation
of LESSEE's equipment in a fashion which will result in no costs to LESSEE
or interruption of LESSEE's business. If LESSOR fails to deliver such
notice (or any subsequent notice required by this Paragraph), or if LESSEE,
in its sole discretion, determines that LESSOR's plans for an alternative
facility are not acceptable, LESSEE shall have the right, but not the
obligation, to cause, upon notice to LESSOR, LESSOR to (and LESSOR shall)
assign its rights in the Right of Use Agreement to LESSEE, and LESSOR shall
not remove any tower or similar structure which is located on the Property
or upon which the Property is located, provided, however, that failure of
LESSOR to deliver to provide the notices referred to above shall not
constitute a LESSOR default of allow the LESSEE to exercise the remedies
set out in this Paragraph if the terminating Right of Use Agreement is
nevertheless renewed or extended by LESSOR prior to its termination. In the
event that a terminating Right of Use Agreement cannot be extended by the
LESSOR or assigned to and extended by the LESSEE and plans for an alternate
site are not acceptable to LESSEE, then, as the LESSEE's option and sole
remedy, the particular Supplement may be terminated by the LESSEE so
notifying the LESSOR. Notwithstanding anything to the contrary in the
foregoing, LESSOR shall exercise any renewal options provided for in any
Right of Use Agreement and shall use commercially reasonable efforts to
obtain extensions of any terminating Right of Use Agreement for any
Property subject to a Supplement. For purposes of the foregoing sentence,
LESSOR's commercially reasonable obligations shall not require it to pay
rent or other fees in amounts which would exceed markets rates for
properties of the type and general location of the real estate
subject to such Right of Use Agreement, unless the benefits which LESSOR
reasonably expects to receive from continued use of such real estate would
reasonably justify a greater payment.
6. The annual rental for each particular Supplement's initial term and
each extension term is set forth in the particular Supplement. On each
anniversary of the commencement date during the initial term, the annual
rent shall be increased as set forth on Schedule A, attached hereto and
incorporated herein by reference for all purposes. On each anniversary of
the commencement date during the extension terms, the annual rent shall be
increased as set forth on Schedule B, attached hereto and incorporated
herein by reference for all purposes.
7. LESSEE shall use the Property for the purpose of constructing,
maintaining and operating a Communications Facility or facilities and uses
incidental thereto, together with all necessary appurtenances (including
without limitation, the construction of a facility to house LESSEE's
equipment), or for any other use permitted at the Property under zoning or
other governmental regulations. If applicable, a security fence consisting
of chain link construction or similar but comparable construction may be
placed around the perimeter of the Property at the discretion of LESSEE
(not including the access easement). All improvements shall be at LESSEE's
expense and the installation of all improvements shall be at the discretion
and option of the LESSEE. LESSEE will maintain the Property in a reasonable
condition, reasonable wear and tear, fire and other insured casualty and
LESSOR's obligations excepted. LESSEE's use of the Property shall be in
compliance, in all material respects, with all laws, orders, ordiances,
regulations, and directives of applicable federal, state, county and
municpal authorities and regulatory agencies, including, without
limitation, the FCC, applicable to the operation of equipment owned by
LESSEE or LESSEE's use of the Property. It is understood and agreed that
LESSEE's ability to use the Property is contingent upon its obtaining after
the execution date of any Supplement all of the certificates, permits and
other approvals that may be required by any Federal, State or Local
authorities which will permit LESSEE use of the Property as set forth
above. LESSOR shall cooperate with LESSEE in its effort to obtain such
approvals and shall take no action which would adversely affect the status
of the Property with respect to the proposed use thereof by LESSEE. In the
event that any of such applications should be finally rejected or any
certificate, permit, license or approval issued to LESSEE is canceled,
expires, lapses, or is otherwise withdrawn or terminated by governmental
authority (due to no fault of LESSEE) or soil boring tests are found by
LESSEE to be unsatisfactory so that LESSEE in its sole discretion will be
unable to use the Property for its intended purposes, LESSEE shall have the
right to terminate the Supplement which is applicable to such Property.
Notice of the LESSEE's exercise of its right to terminate shall be given to
LESSOR in writing by certified mail, return receipt requested, and shall be
effective upon the mailing of such notice by the LESSEE. All rentals paid
prior to said termination date shall be retained by the LESSOR. Upon such
termination, the applicable Supplement shall become null and void and all
the parties shall have no further obligations including the payment of
money, to each other under that Supplement.
In the event the LESSOR requires additional or modified regulatory
approvals (including without limitation, zoning permits or approvals,
approvals or authorizations from the Federal Communications Commission
and/or the Federal Aviation Administration) (herein "Additional Approvals")
with respect to any Property which is subject to a Supplement, and (a) such
Additional Approvals relate to a modification to the Property and/or
LESSEE's use of such Property or (b) the failure to obtain such Additional
Approvals would adversely impact LESSEE's ability to utilize the Property
to conduct its business) then LESSOR shall obtain said additional approvals
at LESSOR's sole cost and expense. If LESSOR fails to obtains such
approvals, LESSEE shall at LESSEE's sole option, have the right to assume
responsibility for obtaining such Additional Approvals at LESSOR's sole
cost and expense. In the event that LESSEE declines to assume
responsibility, LESSOR shall nonetheless keep LESSEE informed of the status
of its efforts to obtain the Additional Approvals. In addition, LESSOR
shall not retain any third parties to assist LESSOR or act on LESSOR's
behalf in obtaining Additional Approvals of the type described in clause
(a) or (b) above, without obtaining LESSEE's prior written approval, which
will not be unreasonably withheld or delayed.
8. In the event the Property which is the subject of any applicable
Supplement consists of space on a tower owned by LESSOR, then it is further
understood and agreed that the LESSOR must approve of the
installation contractor or personnel chosen by LESSEE to install, maintain
and operate the equipment and that said installation, maintenance and
operation will in no way damage or interfere with any other lessee's or the
LESSOR's use of the tower, antennas and appurtenances. The LESSOR's
approval of the installation contractor or personnel shall be withheld only
for good cause and in no event shall be unreasonably delayed. LESSOR
covenants that it will at all times, keep the tower in good repair as
required by federal law H.R. 6180/S. 2882, the Telecommunications
Authorization Act of 1992 including amendments to Paragraphs 303(q) and
503(b)(5) of the Communications Act of 1934 and such other laws,
regulations, ordinances or other provisions applicable to LESSOR's
operation of the tower for its intended purposes. The LESSOR shall also
comply with all rules and regulations enforced by the Federal
Communications Commission with regard to the lighting, marking and painting
of towers. If the LESSOR fails to make such repairs the LESSEE may, after
notice to LESSOR, and provided that with respect to any repairs other than
those necessary to comply with FCC rules and regulations, LESSOR has not
made such repairs within fifteen (15) days following such notice, make the
repairs and the costs thereof shall be payable to the LESSEE by the LESSOR
on demand. If the LESSOR does not make payment to the LESSEE within ten
(10) days after such demand, the LESSEE, without limitation of its rights
to pursue any other remedies, shall have the right to deduct the costs of
the repairs from the succeeding monthly rental amounts normally due from
the LESSEE to the LESSOR. Further, LESSOR shall furnish LESSEE with any
necessary keys for the purpose of ingress and egress to the tower in order
to ensure that the LESSEE shall have free access to the tower at all times.
It is agreed, however, that only authorized engineers, employees or
properly authorized contractors of LESSEE or persons under their direct
supervision will be permitted to enter the Premises.
In the event LESSEE utilizes LESSOR's tower, LESSOR agrees to perform,
at its sole cost and expense, any structural work necessary for the LESSEE
to utilize the tower in accordance with its intended purpose as described
in the Supplement.
In the event that LESSOR intends to employ any third parties to
perform repairs and/or maintenance functions with respect to any structures
used and occupied by LESSEE under a Supplement, LESSOR will, unless the
third party has been previously approved by LESSEE to perform work
generally, first provide LESSEE with prior notice (except in cases of
emergency), which notice will include the name of the person or entity (in
the case of an entity, the identity of the owner, principal operator or
persons exercising significant control) and the qualifications of such
party to perform the contemplated services. LESSEE shall have ten (10)
business days from receipt of such notice to object to the retention of
such person or entity, which objection shall be based upon the
qualifications and/or commercial reputation of the person or entity. If
LESSEE makes such an objection, LESSOR will make a good faith attempt to
retain another party to perform the required service. If LESSEE does not
provide timely notice of objection, LESSOR may proceed to perform the work
with the designated person or entity, but LESSEE's lack of an objection
shall not constitute its consent to such relationship nor constitute a
defense to any claim by LESSEE based upon or arising out of the acts or
omissions of such party.
9. LESSEE shall indemnify and hold LESSOR harmless against any claim
of liability or loss from personal injury or property damage resulting from
or arising out of the use and occupancy of the Property by the LESSEE,
LESSEE's Affiliates or their respective servants, employees or agents,
excepting, however, such claims or damages as may be due to or caused by
the acts of the LESSOR or its servants or agents or any other party taking
title or right to the Property by, through or under the LESSOR, or any
other occupier of the tower utilized by LESSEE.
LESSOR shall indemnify and hold LESSEE harmless against any claim of
liability or loss from personal injury or property damage resulting from or
arising out of the use and occupancy of any structure or parcel of real
property upon which the Property is located by LESSOR, any third-party
lessee or licensee of LESSOR (other than LESSEE) or their respective
servants, agents or employees.
Notwithstanding anything to the contrary herein, each party hereto
waives the right to recover consequential (including lost profits and
business interruption), punitive, exemplary and similar damages
and the multiplied portion of damages except to the extent such damages are
suffered by such party in a third-party proceeding.
10. The parties hereby waive (for themselves and for any party which
may have a right of subrogation or similar right, including, without
limitation, any insurer) any and all rights of action for negligence
against the other which may hereafter arise on account of damage to the
premises or to property, resulting from any fire, or other casualty of the
kind covered by standard fire insurance policies with extended coverage,
regardless of whether or not, or in what amounts, such insurance is now or
hereafter carried by the parties, or either of them. LESSOR agrees that
LESSEE may self-insure against any loss or damage which could be covered by
a comprehensive general public liability insurance policy.
Notwithstanding the foregoing, LESSOR shall at all times, maintain adequate
insurance covering its properties and other assets used in connection with
performing its obligations hereunder, in at least the amounts and types of
coverage customary in the wireless telecommunications industry. In the
event of any accident, casualty or occurrence which results in damage to,
or impairment of use of the Property, LESSOR shall take all actions
necessary to promptly restore the Property to a condition fit for LESSEE's
intended use, utilizing the proceeds of any applicable insurance proceeds
in addition to any other sums which may be required. From and after any
such event, including, without limitation, during the period of any
restoration, LESSEE is unable to fully utilize the Property, there shall be
an abatement of rent proportionate to the amount of nonutilization suffered
by the LESSEE, and if the restoration process takes longer than sixty (60)
days, LESSEE shall have the right, at its sole option, to terminate the
applicable Supplement; provided, however at LESSOR's request, the period
for restoration may be extended for an additional sixty (60) day period if
the nature of the restoration is such that it reasonably requires more than
sixty (60) days, the LESSOR commences the restoration within the sixty (60)
day period and thereafter continuously and diligently pursues the
restoration to completion and the LESSEE determines in good faith that an
extension of the time period for restoration will not have a material
adverse effect on its use of the Property or the conduct of its business.
In addition to the foregoing, the LESSEE at its sole option, shall have the
right to place a temporary cell site, temporary antenna structure and/or
other temporary equipment, which are collectively referred to hereinafter
as "Temporary Facilities" from and after the occurrence of any event of the
type described above, including, without limitation, during the period of
any restoration. In the event any such Temporary Facilities are installed
and the LESSEE commences utilization of the same, any abatement of rent
based upon non-utilization shall cease as of the commencement of use of the
Temporary Facilities by the LESSEE, provided however, the LESSEE shall have
the right to deduct during any continued period of restoration, the cost of
installing the Temporary Facilities from the rental which would otherwise
be due. The right of the LESSEE to install Temporary Facilities shall not
in any way affect or limit the LESSEE's right to terminate in the event the
restoration process takes longer than sixty (60) days, subject to extension
as noted above.
11. Notwithstanding anything to the contrary contained herein, and
provided LESSEE is not in default hereunder after the giving of notice and
the expiration of any applicable cure period, and shall have paid all rents
and sums due and payable to the LESSOR by LESSEE, LESSEE shall have the
right to terminate, after the initial ten (10) year term, any Supplement
upon the annual anniversary of the Supplement provided that three (3)
months prior notice is given the LESSOR.
12. LESSEE agrees to have installed radio equipment of the type and
frequency which will not cause measurable interference to LESSOR, or other
current (defined for these purposes as the date of any applicable
Supplement) lessees of the premises. In the event LESSEE's equipment causes
such interference, and after LESSOR has notified LESSEE in writing of such
interference, LESSEE will take all steps necessary to correct and eliminate
the interference at LESSEE's sole cost and expense. For purposes of
application of the foregoing sentence, LESSOR agrees that any equipment of
LESSEE located on any
Property as of the date of this Agreement is deemed not to cause
interference which must be corrected or eliminated. LESSOR agrees that
LESSOR and/or any other lessees or occupiers of the property who currently
have or in the future take possession of LESSOR's property will be
permitted to install only such radio equipment that is of the type and
frequency which will not cause measurable interference to LESSEE. LESSEE
hereby acknowledges and agrees that LESSEE's equipment which is installed
and operating pursuant to any Supplement executed as of the date first
written above is hereby deemed not to be experiencing any measurable
interference from any equipment as presently operated by any third party
tenant on any structure or real property upon which the Property is located
which must be corrected or eliminated, unless LESSEE has provided notice of
such interference on or before the date hereof to LESSOR. In the event any
such LESSOR's, lessee's or occupier's equipment causes such interference,
then, in addition to any other rights LESSEE may have at law or at equity,
LESSOR will see that the party causing the interference will take all steps
necessary to promptly correct and eliminate the interference.
13. LESSEE, upon termination of any Supplement, shall, within a
reasonable period (not to exceed forty-five (45) days, unless LESSEE can
demonstrate that such period would cause undue hardship), remove, to the
extent applicable, its equipment, building, antenna(s), fixtures and all
personal property and otherwise restore the Property to its original
condition, reasonable wear and tear, fire or other insured casualty and
LESSOR's obligations excepted. If such time for removal causes LESSEE to
remain on the Property after termination of this Agreement, LESSEE shall
pay rent at the then existing monthly rate or on the existing monthly
prorata basis if based upon a longer payment term, until such time as the
removal of the building, fixtures and all personal property is completed
and the Property is restored as provided for above.
14. Should the LESSOR, at any time during the term of any Supplement,
decide to sell all or any part of the Property and/or any real property
(including, without limitation any leasehold interest) or structure upon
which the Property is located, to a purchaser other than LESSEE, such sale
shall be under and subject to this Agreement and the applicable Supplement
and LESSEE's rights hereunder, and any sale by the LESSOR of the portion of
this Property and/or any real property (including, without limitation any
leasehold interest) or structure upon which the Property is located,
underlying the right-of-way herein granted shall be under and subject to
the right of the LESSEE in and to such right-of-way.
With respect to any Property subject to a Supplement, LESSOR shall
not, without LESSEE's prior written consent, which may be withheld for any
reason or no reason, enter into, or consummate any agreement to sell,
assign or otherwise directly or indirectly dispose of such Property, or any
real property (including, without limitation any leasehold interest) or
structure upon which the Property is located except: (i) pursuant to a
transaction in which all or substantially all of the LESSOR's assets,
businesses and properties in the Metropolitan Statistical Areas or Rural
Service Area (as defined by the Federal Communications Commission) in which
the Property is located are being transferred; (ii) if the LESSOR and the
prospective purchaser or assignee provide evidence, satisfactory to LESSEE,
regarding (X) the purchaser's or assignee's financial capacity (including,
without limitation its financial capacity to perform its obligations as a
lessor, as well as its ability to satisfy any other financial obligations
it may have), (Y) its technical and operating ability to perform it's
obligations as Lessor under the Global Lease (including, if applicable,
historical information relating to its conduct of any similar business and
any disputes with lessees) and (Z) its general reputation in the financial
community, the communities in which it conducts operations and the wireless
communications industry; and (iii) the prospective purchaser or assignee
executes an agreement, in form and substance satisfactory to LESSEE,
pursuant to which it undertakes to observe and comply with all provisions
of the Global Lease (as applicable to the Property being conveyed), as it
may be amended from time to time. In the event that LESSOR intends to sell,
assign or otherwise directly or indirectly dispose of any Property subject
to a Supplement, or any real estate (including, without limitation any
leasehold interest) or structure upon which such Property is located,
(whether or not LESSEE's consent is required hereunder), it shall provide
LESSEE with reasonable prior written notice of such intention and shall, at
LESSEE's request, enter into good faith discussions and negotiations with
LESSEE to permit LESSEE to acquire such Property and/or real property
(including, without limitation any leasehold interest) or structure upon
which such Property is located; provided, however, that LESSOR shall not be
obligated to sell to LESSEE, and LESSEE shall be under no obligation to
offer to acquire, or acquire, such Property and/or real property or
structure upon which such Property is located. LESSEE's failure to make an
offer to acquire or to acquire the Property and/or real property or
structure upon which such Property is located shall not constitute a waiver
of any of its rights hereunder or relieve LESSOR of any obligations
hereunder with respect to such Property.
Notwithstanding the foregoing, the consent of LESSEE shall not be
required for a sale or transfer of the Property (i) to an entity which
controls, is controlled by, or is under common control with LESSOR (any of
the foregoing, a "LESSOR Affiliate"), or (ii) any merger, consolidation, or
other business reorganization (other than a reorganization for the benefit
of creditors or a similar proceeding under Title 11 of the United States
Code, or any rules or regulations promulgated thereunder) of LESSOR or a
LESSOR Affiliate (including, without limitation, a change in control of any
entity which is the ultimate parent of the LESSOR).
15. LESSOR warrants and covenants that, so long as LESSEE is not in
default hereunder after giving of notice and the expiration of any
applicable cure periods provided for herein, LESSEE shall be entitled to,
subject to the provisions of this Agreement and the applicable Supplement,
quiet use and enjoyment of the benefits of the Property, including, without
limitation, uninterrupted possession and use of the Property. LESSOR
further warrants and covenants that it shall not take, or permit to be
taken, any action which would limit or adversely impact LESSEE's use and
enjoyment of the Property, other than actions to enforce LESSOR's remedies
in the event of a default by LESSEE hereunder (but only with respect to the
applicable Supplement).
16. LESSOR covenants that LESSOR is seized of good and sufficient
title and interest to the Property and any real property (including,
without limitation any leasehold interest) or structure upon which such
Property is located and has full authority to enter into and execute this
Agreement and all Supplements. LESSOR further warrants and covenants that
there are no other liens, judgments or impediments of title on the Property
and any real property (including, without limitation any leasehold
interest) or structure upon which such Property is located, other than
Permitted Liens (as defined in the Formation Agreement) in existence on the
date hereof and any liens identified in an SLA (as defined in the Master
Build to Suit Agreement) and that there are no covenants, easements or
restrictions (other than Permitted Liens) which prevent the use of the
Property by the LESSEE as set forth above.
In the event LESSOR does not have clear title or authority as set
forth herein which adversely impacts LESSEE's use of the Property, or there
are liens, judgments or impediments to LESSEE's use, in addition to, and
not in lieu of, any other remedy available to LESSEE, LESSEE may following
written notice to LESSOR and LESSOR's failure to correct such condition
within thirty (30) days after notice is given, withhold rental payments
until such time as LESSOR demonstrates that it has clear title or authority
and/or there are no liens, judgments or impediments to LESSEE's use; or
terminate the applicable Supplement immediately and LESSOR will return all
rent paid by LESSEE. Notwithstanding the foregoing LESSEE may not exercise
its rights under this Paragraph 16 to withhold or receive a return of
rental payments or terminate the applicable supplement with respect to any
Property which was conveyed to LESSOR pursuant to the Formation Agreement
(or any agreement executed in connection with the Formation Agreement) and
as to which: (a) the lien, judgment, defect of title or other similar
impediment existed at the time the Property was conveyed by LESSEE or any
of its Affiliates to LESSOR; and (b) LESSOR is using commercially
reasonable efforts to resolve or remove any lien, encumbrance, cloud or
impediment to title or authority or other condition which adversely impacts
LESSEE's rights or ability to use the Property as provided for herein.
17. With respect to each Property (a) for which a Supplement has been
executed by the party, and (b) which is situated on any structure or parcel
of real property occupied by LESSOR pursuant to any (i) ground lease or
sublease; (ii) easement; (iii) premises lease (e.g., a lease of space on
the roof of a structure) or (iv) similar agreement pursuant to which
LESSOR's right to occupy the underlying real property is other than a fee
simple ownership) (any of the foregoing, a "Right of Use Agreement"),
LESSOR shall promptly provide (but in no event more than three (3) business
days after receipt thereof) copies of any notice or other correspondence to
LESSOR from any counter-party to such Right of Use Agreement, to the extent
that such notice or communication relates to (X) LESSOR's failure to
perform (including, without limitation, failure to perform on a timely
and/or adequate basis) any of its obligations under the Right of Use
Agreement; (Y) An
alleged act or omission by LESSOR (other than acts which LESSOR was
required to perform) or (Z) the occurrence of any event which could
reasonably be expected to adversely impact LESSOR's rights to continue to
enjoy its rights under the Right of Use Agreement. Whenever practicable,
LESSOR shall obtain the agreement of the counter-party to provide copies of
such notices or correspondence directly to LESSEE simultaneously with the
transmittal of such notices to LESSOR.
18. Upon receipt by LESSOR of any notice of default (or notice of an
act or omission by LESSOR which could with the passing of time and/or the
giving of notice constitute an event of default) under a Right of Use
Agreement or noncompliance with the terms of a Right of Use Agreement,
LESSOR shall, within five (5) business days after receipt by it of such
notice, provide LESSEE with a letter stating that (i) the default or
noncompliance has been cured or remedied; (ii) the default (if other than a
payment default) has not been cured but will be cured within time periods
provided under the Right of Use Agreement, together with a reasonably
detailed explanation of the actions LESSOR intends to take to effect such
cure, its basis for concluding that it can effect the cure within the
requisite time periods and its basis for concluding that such actions will
be accepted by its counter-party as an adequate cure; or (iii) the basis,
if any for LESSOR's good faith position that there is no default or
noncompliance. In the event that LESSOR does not, or can not, provide such
notice (or in the event that, subsequent to delivery of a notice of the
type referred to in clause (ii) and (iii), LESSOR is unable to effect an
appropriate cure or LESSOR concludes that it no longer has a good faith
basis for contesting the assertion of a default or noncompliance) then
LESSEE has the right, but not the obligation, to take such actions as it
may reasonably deem necessary or appropriate to cure or otherwise remedy
such default or compliance, and in such event LESSEE shall have the right
to demand prompt reimbursement from LESSOR of any and all amounts expended
by LESSEE (or on its behalf), together with interest at a rate equal to
LESSEE's average cost of funds or to set off such sums against any payment
obligations it may have to LESSOR under this Agreement, which interest
shall accrue and be payable from the date of LESSEE's payment. LESSEE's
failure to take any such actions shall not constitute or be deemed a waiver
of any rights it may have to assert claims against LESSOR for a breach of
its obligations under this Agreement.
19. With respect to any Property subject to a Supplement and Right of
Use Agreement, the LESSOR shall use its reasonable best efforts to cause
(and with respect to any Right of Use Agreement entered into subsequent to
the date hereof shall cause) each counter-party under such Right of Use
Agreement to enter into an agreement, in form and substance satisfactory to
LESSEE, providing that in the event that such counter-party terminates the
Right of Use Agreement other than as a result of the expiration of its
term, such party will permit LESSEE to continue to occupy the Property
pursuant to the terms and conditions contained in this Agreement and the
applicable Supplement, provided that LESSEE performs all future obligations
under the Right of Use Agreement.
20. It is agreed and understood that this Agreement and any
Supplements under it contain all agreements, promises and understandings
between the LESSOR and LESSEE and that no verbal or oral agreements,
promises or understandings shall be binding upon either the LESSOR or
LESSEE in any dispute, controversy or proceeding at law, and any addition,
variation or modification to this Agreement or Supplements under it shall
be void and ineffective unless made in writing and signed by the parties.
21. Each Supplement, and the performance thereof shall be governed,
interpreted, construed, and regulated by the laws of the State in which the
Property covered by the Supplement is located. This Agreement and the
performance thereof shall be governed, interpreted, construed and regulated
by the laws of the State of New Jersey. Notwithstanding the foregoing,
LESSOR acknowledges and agrees that for purposes of 11 U.S.C. ss. 365 (h)
or any successor statute, rule or regulation, this Agreement shall be
deemed to be a lease of real property.
22. A trial by jury is specifically waived and the LESSOR and LESSEE
agree that any disputes, interpretation or questions of performance under
this Agreement or any Supplement to it shall be determined and resolved
without submission to a jury.
23. Except as set forth below, LESSEE may not, without LESSOR's prior
written consent, which shall not be unreasonably withheld or delayed,
sublease all or a portion of a Property, or assign this Agreement or any
rights under a Supplement. Notwithstanding anything to the contrary herein,
LESSEE may, without LESSOR's consent, assign this Agreement or any
Supplement, provided that LESSEE shall remain liable to LESSOR for LESSEE's
obligations hereunder until the earlier of (i) expiration of the initial
term of the relevant Supplement(s), or (ii) ten (10) years from the date of
such assignment unless LESSOR otherwise agrees in writing, which agreement
shall not be unreasonably withheld or delayed, to (a) any of Lessee's
Affiliates, (b) pursuant to any sale of all or substantially all of
LESSEE's assets or properties, merger, consolidation, or other transfer of
control of the LESSEE, or (c) pursuant to a transaction in which all or
substantially all of the LESSEE's (or its Affiliate, as applicable) FCC
licenses or interest in Commercial Mobile Radio Service ("CMRS") properties
in the Metropolitan Statistical Areas or Rural Service Area (as defined by
the Federal Communications Commission) in which the Property is located, or
a controlling interest therein, are being transferred by LESSEE. Upon such
permitted assignment, such assignee shall succeed to all obligations,
rights and options (including renewal options) of LESSEE hereunder.
Notwithstanding the foregoing, no assignment by LESSEE shall affect the
rights and obligations of LESSOR under this Agreement. The resale of
capacity or CMRS by LESSEE or the appointment of a third party to act as
agent for, to provide management or other services to, LESSEE or its
Affiliates shall not constitute a sublease, assignment or transfer subject
to the provisions of this paragraph. The sale, merger, reorganization,
consolidation, or change in control of any entity which, directly or
indirectly controls LESSEE or its Affiliates shall not constitute an
assignment or transfer subject to the provisions of this paragraph.
24. All notices hereunder must be in writing and shall be deemed
validly given if sent by certified mail, return receipt requested, on the
third (3rd) day after deposit in the U.S. mail, or by overnight courier,
signature required, on the day of delivery, addressed as follows (or any
other address that the party to be notified may have designated to the
sender by like notice):
LESSOR: Crown Atlantic Company, LLC
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
Fax No: (000) 000-0000
With copies to:
Crown Castle International Corp.
000 Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: CEO and General Counsel
Fax No: (000) 000-0000
and:
Crown Communication Inc.
USA Headquarters
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx, President
Fax No: (000) 000-0000
LESSEE: Cellco Partnership c/x Xxxx Atlantic Mobile
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Network Real Estate
LESSOR will promptly provide copies of any notice, communication or
other form of correspondence from any local, state or federal agency,
commission, board or governing or regulatory body relating to any Property
subject to a Supplement, to the extent that the subject of such notice
relates in any way to LESSEE's use or occupancy of the Property or LESSOR's
continuing ability to make the Property available for such use. In the
event any such notice, communication or other form of correspondence
requires action or conduct on behalf of the LESSOR and in the event the
LESSOR fails to take such action within five (5) business days of such
notice, then LESSEE shall have the right to act as outlined in Paragraph 18
herein.
25. This Agreement and any Supplement shall extend to and bind the
heirs, personal representatives, successors and assigns of the parties
hereto.
26. LESSOR shall not pledge, encumber, grant a security interest in or
permit a lien to exist with respect to any Property subject to a Supplement
(an "Encumbrance") without LESSEE's prior written consent unless the party
holding such Encumbrance has entered into an agreement, in form and
substance satisfactory to LESSEE, which expressly permits LESSEE to
continue to occupy and use the Property in accordance with the terms of the
Agreement in the event that such party exercises any rights it may have to
take title to the Property or otherwise divest LESSOR of its interest in
the Property, and such party further agrees that it shall not transfer the
Property to any third party unless such third party agrees to permit LESSEE
to continue to occupy and use the Property subject to the terms and
conditions of this Agreement and the applicable Supplements. In the event
any Encumbrances affects the Property as of the time of the execution of
the applicable Supplement, the LESSOR shall immediately after execution of
the particular Supplement obtain and furnish to LESSEE an agreement in the
form set forth in the preceding sentence. In addition, LESSOR shall have
the same obligations to give notice of, and cure any defaults or breaches
under the Encumbrances as provided for in Paragraphs 17 and 18 above with
respect to Right of Use Agreements and LESSEE shall have the same rights to
cure any defaults and noncompliance, and be reimbursed for the costs of
such cure, under any Encumbrance.
27. LESSOR acknowledges that LESSEE and/or its affiliates currently or
in the future may be a holder of debt and/or equity instruments issued by
LESSOR (or its affiliates) and, as a consequence of holding such
instruments may be in a position to influence the conduct of LESSOR's
business. LESSOR agrees that no action, inaction, exercise or rights or
pursuit by LESSEE or its affiliates of any remedies available to any of
them, pursuant to the terms of such instruments or otherwise, shall
constitute a waiver of any rights LESSEE may have under this Agreement, be
deemed to excuse any failure by LESSOR to perform its obligations hereunder
or otherwise form the basis for any defense asserted by or on behalf of
LESSOR in response to any action taken by LESSEE to enforce its rights
hereunder.
28. LESSOR agrees that it shall not grant any third-party rights with
respect to any structure, building, or parcel of real property upon which
the Property may be located, the exercise of which would be inconsistent
with LESSEE's rights hereunder or otherwise impede or prevent LESSEE from
exercising any rights hereunder in the future.
29. LESSOR (or LESSEE upon LESSOR's request) agrees to execute a
Memorandum or Notice of this Agreement and Supplement upon the execution of
an applicable Supplement, which Memorandum or Notice the LESSEE (or LESSOR
as applicable) may record with the appropriate Recording Officer. The date
set forth in such Memorandum or Notice is for recording purposes only and
bears no reference to commencement of either term or rent payments.
30. In the event there is a default by the LESSEE with respect to any
provisions of this Agreement or any Supplement under it, including the
payment of rent, the LESSOR shall give LESSEE written notice of
such default. After receipt of such written notice, LESSEE shall have
fifteen (15) days in which to cure any monetary default and thirty (30)
days in which to cure any nonmonetary default, provided the LESSEE shall
have such period extended as may be required beyond the thirty (30) days if
the nature of the cure is such that it reasonably requires more than thirty
(30) days and the LESSEE commences the cure within the thirty (30) day
period and thereafter continuously and diligently pursues the cure to
completion. In the event the LESSEE has failed to cure a default as set
forth in this Paragraph, then, in addition to any other rights or remedies
specifically provided to the LESSOR herein, the LESSOR shall have the right
to terminate the Supplement applicable to the Property from which the
default has emanated; provided, however, this Agreement and any other
Supplements shall remain in full force and effect and provided further,
however, that such rights to terminate and an action to: (i) recover lost
rent (consisting of any past due rent and any rents due for the balance of
the applicable Supplement Term) and (ii) recover any reasonable
out-of-pocket costs incurred to take possession of the Property, in the
event of such termination, shall constitute LESSOR's sole remedy with
respect to such default. LESSOR agrees to use its commercially reasonable
efforts to mitigate its damages or losses as a result of LESSEE's default;
provided that for purposes of this section only, commercially reasonable
efforts shall consist of using the same efforts to market the Property as
LESSOR undertakes with respect to other vacant tower capacity and not
encouraging prospective tenants to lease other available tower space and
provided further that mitigation shall be determined by actual
consideration received for the use of the Property.
In the event there is an uncured material default by the LESSOR with
respect to any of the provisions of this Agreement or any Supplement under
it, the LESSEE shall have the right to terminate the Supplement applicable
to the Property from which the default has emanated; provided that LESSEE
shall have first given written notice to LESSOR of its intent to terminate
(unless LESSEE has already provided notice of default) and LESSOR shall
have failed to cure such default within the time periods provided for
herein, or where no such time period has been provided (other than for
default under Section 12), LESSOR has not cured such default within thirty
(30) days of delivery of notice; provided the LESSOR shall have such period
extended as may be required beyond the thirty (30) days if the nature of
the cure is such that it reasonably requires more than thirty (30) days,
the LESSOR commences the cure within the thirty (30) day period and
thereafter continuously and diligently pursues the cure to completion and
the LESSEE determines in good faith that an extension of the time period
for cure will not have a material adverse effect on its use of the Property
or the conduct of its business. The right to terminate for a material
default as set forth in the preceding sentence shall be in addition to any
and all other rights and remedies which the LESSEE has or may have as a
result of such material default. In the event the LESSEE has terminated the
Supplement applicable to the Property from which the material default has
emanated, then this Agreement and any other Supplements shall remain in
full force and effect. In the event that, within any continuous twelve (12)
month period, LESSOR has defaulted under any of the provisions of this
Agreement with respect to three percent (3%) or more of the Supplements,
and such defaults have not been cured within the time periods provided for
herein with respect to any such Supplement which has not been terminated,
then in addition to any of the foregoing rights, LESSEE shall also have the
right to terminate this Agreement. In the event of any default by the
LESSOR with respect to any provision of this Agreement or any Supplement
under it, or in the event of any act or omission by LESSOR hereunder with
respect to which LESSEE has the right to reimbursement, damages or the
right to perform any act hereunder in the event LESSOR fails to, or elects
not to, take an action (including, without limitation, under Paragraph 18
of this Agreement), LESSEE shall have the right to deduct from, and set off
against, any payments payable by LESSEE under this Agreement and any
Supplement under it, any amounts incurred by LESSEE in the form of damages,
costs of curing any such act or omission, or otherwise, together with
interest, where applicable, at the rate specified in this Agreement from
the date of payment by LESSEE to the date of repayment by LESSOR. In the
event LESSEE exercises its rights of termination under this Section 30,
LESSEE will use commercially reasonable efforts to mitigate its damages.
Except as expressly provided for above or as otherwise agreed to by
LESSEE, LESSOR shall have no right to terminate any Supplement. For all
other purposes, including without limitation, any rights LESSOR has or may
have pursuant to 11 U.S.C. ss. 365, this Agreement and the Supplements
thereto shall be treated by LESSOR as one single integrated agreement.
31. Each party will be responsible for all obligations of compliance
with any and all environmental laws, including any regulations, guidelines,
standards, or policies of any governmental authorities regulating or
imposing standards of liability or standards of conduct with regard to any
environmental conditions or concerns as may now or at any time hereafter be
in effect, that are or were in any way related to activity conducted by
such party in, on, or in any way related to the Property, unless such
conditions or concerns are caused by the activities of the other, with the
LESSOR being responsible for activity formerly conducted on the Property
either by LESSOR or by other third parties.
Each party shall hold the other harmless and indemnify the other from
and assume all duties, responsibility and liability at its sole cost and
expense, for all duties, responsibilities, and liability (for payment of
penalties, sanctions, forfeitures, losses, costs, or damages) and for
responding to any action, notice, claim, order, summons, citation,
directive, litigation, investigation or proceeding which is in any way
related to: a) failure by the indemnifying party to comply with any
environmental law, including without limitation any regulations,
guidelines, standards, or policies of any governmental authorities
regulating or imposing standards of liability or standards of conduct with
regard to any environmental concerns or conditions as may now or at any
time hereafter be in effect; and b) any environmental conditions arising
out of or in any way related to the condition of the Property or activities
conducted thereon by the indemnifying party, unless such environmental
conditions are caused by the other. Further, LESSOR shall indemnify and
hold LESSEE harmless in all ways as set forth in this paragraph with
respect to activity formerly conducted on the Property; or to the extent
that the Property consists of space on a tower owned or operated by LESSOR,
with respect to the building, structure or parcel of land on which the
Property is located, any activity conducted or condition caused by any
party other than LESSEE, its agents or employees. Notwithstanding the
foregoing: (i)LESSOR shall have no indemnification obligations with respect
to any environmental conditions for which LESSEE is obligated to indemnify
LESSOR pursuant to the Formation Agreement; and (ii) nothing contained in
this Paragraph 31 shall have the effect of limiting or modifying LESSEE's
obligations to indemnify LESSOR for environmental conditions as set forth
in the Formation Agreement.
32. In the event the Property which is the subject of any applicable
Supplement consists of space on a tower owned by LESSOR, LESSOR agrees to
furnish LESSEE with written notice at such time as the remaining usable
capacity (ability of such structure to support additional communications
equipment without interference with any other tenant) is, in the reasonable
judgment of the Lessor, less than or equal to 25% of the total usable
capacity of such structure. The purpose of this Paragraph 32 is to provide
LESSEE with timely notice of possible restrictions on obtaining additional
capacity in the future.
33. As used in this Agreement, the term "Formation Agreement" shall
mean that certain agreement by and between Cellco Partnership, a Delaware
partnership doing business as Xxxx Atlantic Mobile, the Transferring
Partnerships (as defined therein), Crown Castle International Corp., a
Delaware corporation and CCA Investment Corp., a Delaware corporation,
dated as of December 8, 1998 (as amended from time to time), and the term
"Build to Suit Agreement" shall mean that certain agreement by and between
Cellco Partnership, a Delaware partnership doing business as Xxxx Atlantic
Mobile, and Crown Atlantic Company LLC, a Delaware limited liability
company, dated as of March 31, 1999 (as amended from time to time).
34. A default by a LESSEE Affiliate hereunder shall not constitute a
default by LESSEE and Landlord's rights and remedies shall be limited to
such LESSEE Affiliate. Notwithstanding the foregoing, LESSEE agrees that
for a period ending ten (10) years from the date hereof that, if LESSEE's
Affiliates or any assignee or transferee of LESSEE defaults hereunder and
LESSOR after using commercially reasonable efforts, fails to obtain the
required cure or payment from such entities (and provided that such
entities are not, in good faith, disputing such claim of default or have
not otherwise asserted a meritorious defense or counterclaim) or has not
otherwise settled or compromised such claim, then LESSOR may, by notice
make demand upon LESSEE to cure such default and subject to the provisions
of this Paragraph, LESSEE shall be obligated hereunder to cure such
default. LESSEE shall have the same time periods to cure such default as
were available to the LESSEE Affiliate or transferee or assignee hereunder,
commencing with the effective date of such notice and LESSEE shall
furthermore have the benefit of any and all defenses, claims or
counterclaims available to it or to such LESSEE Affiliate or transferee or
assignee.
In the event that LESSEE cures the default it shall succeed to all of LESSOR's
rights and remedies with respect to such LESSEE Affiliate, assignee or
transferee (other than rights to terminate a Supplement or take possession of
Property subject to a Supplement). In the event that LESSEE fails to cure any
default of a LESSEE Affiliate as to which proper demand was made as provided
hereunder and LESSEE was obligated to cure under the provisions of this
Paragraph, the Landlord shall have all of the rights and remedies available to
it hereunder with respect to such uncured default by LESSEE as it would have
against the LESSEE Affiliate.
IN WITNESS WHEREOF, the parties hereto have set their hands and
affixed their respective seals the day and year first above written.
LESSOR: CROWN ATLANTIC COMPANY LLC
/s/ Xxxxx X. Xxxxxxxxx BY: /s/ Xxxxx X. Xxxxx
------------------------- -----------------------------------
WITNESS
LESSEE: CELLCO PARTNERSHIP
By Xxxx Atlantic Mobile, Inc.
Its General Partner
/s/ Xxxxxx X. Xxxxxxx BY: /s/ X. X. Xxxxxx
------------------------- -----------------------------------
WITNESS X. X. Xxxxxx
Vice President
Network Plannines and Administration
