EXECUTION COPY
MASTER LEASE FOR TRANSMITTER SYSTEMS SPACE
LESSOR: PINNACLE TOWERS INC. LESSEE: MOBILEMEDIA
0000 Xxxxxxxx Xxxx. COMMUNICATIONS, INC.
Xxxxx Xxxxx Xxxxx 000
Xxxxxxxx, XX 00000 0000 Xxxxx X'Xxxxxx Xxxx.
Telecopy: (000) 000-0000 Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx Telecopy: (000) 000-0000
Attn: Site Lease
Administrator
DATE: September 3, 1998
A. Lessor or its Affiliates own, lease or manage the antenna tower sites
and the related underlying land as identified in Schedule A hereto ("Initial
Lessor Sites"). As used in this Master Lease For Transmitter Systems Space (this
"Lease"), "Lessor Sites" refers individually and collectively to the Initial
Lessor Sites and any other antenna tower sites and the related underlying land
("Additional Lessor Sites") that Lessor or its Affiliates may own, lease or
manage from time to time during the Initial Term (defined in Section 2(a) below)
or the Renewal Term (defined in Section 2(a) below). Schedule A indicates
whether the Lessor Site is owned, leased or managed by Lessor or a specified
Affiliate. The Lessor Sites include antenna tower sites and the related
underlying land at which, as of the date hereof, Lessee rents space from Lessor
as a tenant under other leases ("Existing Other Leases"). Each Lessor Site shall
include such portion of the related underlying land (the "Land") which shall
provide appropriate and adequate space thereon for Lessee to install its
Transmitter System (defined in Paragraph B below), and other equipment upon the
antenna tower (or towers) and in the equipment shelter at each Lessor Site, as
is commercially reasonable under the circumstances. Schedule A also lists the
existence of any mortgages or other liens which encumber any Lessor Sites as of
the date hereof. As used herein, "Affiliate" means, when used with reference to
a specific individual or entity, any individual or entity that, directly or
indirectly, or through one or more intermediaries, owns or controls, is owned or
controlled by, or is under common ownership or common control with, such
individual or entity. As used herein, "control" means the power to direct the
management or affairs of an entity, and "ownership" means the beneficial
ownership of more than 50% of the equity interests of such entity.
X. Xxxxxx desires to lease to Lessee and Lessee desires to lease from
Lessor space at all the Lessor Sites specified on Schedule B hereto (as such
Schedule may be amended periodically in connection with a substitution of Site
Spaces pursuant to Sections 1(c), 2(c), 2(d), 5(a), 5(d), 10(a), 10(d) or 11
below) (the "Premises Sites") for installation and operation of Lessee's
Transmitter Systems on the terms set forth herein (including the Schedules
hereto). As used herein, a "Transmitter System" means any radio frequency
transmission and reception equipment, including, but not limited to,
transmitter, receiver, satellite reception dish, transmit antenna, receive
antennas and associated cabinetry and cabling (including existing equipment and
any upgrades, enhancements and related substitutions, improvements, accessions
and additions thereto), but in any event, for purposes hereof, a single
Transmitter System shall not exceed a single cabinet (including a hot standby),
three (3) antennas, a satellite dish, a multicopuler, a multiplexer (or similar
devices if applicable), and battery back-up equipment, except to the extent that
from time to time Lessee makes changes to the composition thereof (which changes
shall not include installing an additional transmitter) that are consistent with
the prevailing industry practices and which changes do not materially detract
from the remaining capacity of the subject tower.
1. Leased Premises; Lessor Sites; Supplemental Sites. (a) Schedule B lists
the particular Premises Sites at which Lessor shall make space available on
towers (the "Towers") and the Land for the installation and operation by Lessee
of Transmitter Systems and related equipment, and indicates the number of such
spaces that will be available at each of the Premises Sites (the "Site Spaces",
2
as such list may from time to time be amended in connection with a substitution
of Site Spaces pursuant to Sections 1(c), 2(c), 2(d), 5(a), 5(d), 10(a), 10(d)
or 11 below). As used herein, "Site Space" includes the related Land at the
applicable Lessor Site. The Site Spaces shall be made available to Lessee at the
specific tower heights at which Lessee presently operates Transmitter Systems
thereon as of the date hereof, and as soon as reasonably practicable after the
date hereof, Schedule B shall be amended to list such specific tower heights.
For this Lease, there shall not be more than one (1) Transmitter System per
individual Site Space. Lessor hereby leases to Lessee space at the Site Spaces
for the Transmitter Systems and related equipment permitted hereunder on the
terms and conditions specified herein. If Lessee's equipment will be connected
to a multiplexer or similar device at any of the Site Spaces, Lessee shall be
responsible for all costs of multiplexer modules and other equipment required
for the connection.
(b) At any time and from time to time during the term of this Lease, upon
Lessee's request, Lessor shall promptly notify Lessee of the existence of all
Additional Lessor Sites in the locations requested by Lessee, and Schedule A
shall be automatically supplemented to include such Additional Lessor Sites (but
no such Additional Lessor Site shall be a Premises Site except in accordance
with the other terms hereof). Lessor shall furnish to Lessee from time to time
other information regarding Additional Lessor Sites as Lessee may reasonably
request.
(c) From time to time throughout the term of this Lease, Lessee shall have
the right to request that space at any Lessor Sites, at specific heights
designated by Lessee, be made available to Lessee as a "Site Space" in
substitution for an existing Site Space, on a one-for-one substitution basis.
Lessor shall use commercially reasonable efforts to facilitate and accommodate
all Lessee requests regarding the substitution of Site Spaces. The substitution
of Site Spaces shall become effective on the date designated by Lessee in its
substitution request notice, which date shall not be less than thirty (30) days
nor more than ninety (90) days following Lessee's delivery of the substitution
request notice and by the designated date Lessee shall remove its Transmitter
Systems and related equipment from such existing Site Space, unless Lessor
3
within twenty (20) days after it receives such request notice denies the request
by providing Lessee with a written explanation regarding the unavailability of
such space due to capacity constraints. Notwithstanding the foregoing, with
respect to space at a Lessor Site for which Lessor has denied a request by
Lessee for substitution space, Lessor shall be entitled to modify, renew or
extend any existing leases, provided, however, if space at the applicable
Tower(s) becomes available within six (6) months after Lessor has denied
Lessee's space substitution request, Lessor shall not otherwise be entitled to
enter into new leases, licenses or other similar arrangements for space at such
Lessor Site unless Lessor gives Lessee an opportunity of first refusal,
exercisable by Lessee within ten (10) days following written notice from Lessor,
entitling Lessee to designate a specific height at such Lessor Site (to the
extent of availability) as a substitution site space ("Substitution Site Space")
pursuant to the above provisions of this Section 1(c), and in its exercise
notice Lessee shall designate a date, which shall not exceed thirty (30) days
after the exercise notice date, when such substitution of Site Spaces shall
become effective and by when Lessee shall remove its Transmitter Systems and
related equipment from the existing Site Space. The lease term of any
substitution Site Space pursuant to this Section 1(c) or Sections 2(c), 2(d),
5(a), 5(d), 10(a), 10(d) or 11 below shall be a continuation of the
then-existing lease term of the predecessor Site Space. "Substitution Site
Space" includes the related Land at the applicable Lessor Site. Upon the
effectiveness of the substitution of a Site Space, the Substitution Site Space
shall become a Site Space for purposes of this Lease, including any substitution
of Site Spaces pursuant to Lessee designations of Other Lease Spaces (defined in
Section 2(c) below) as Site Spaces pursuant to Sections 1(f), 2(c), 2(d), 5(a),
5(d), 10(a), 10(d) or 11 below, and the parties shall as soon as practicable
amend Schedule B to reflect such substitution.
(d) Lessor shall provide Lessee with such information and officer's
certificates as Lessee may reasonably request of Lessor, from time to time, to
demonstrate Lessor's compliance with this Section l.
(e) With respect to any new lease that Lessee may enter into with Lessor
for antenna tower space at Lessor Sites that are not Site Spaces under this
4
Lease ("New Other Leases" and together with the Existing Other Leases, the
"Other Leases"), Lessor shall use commercially reasonable efforts to lease such
other space (the "Supplemental Sites") to Lessee at a rental rate which is at
least twenty percent (20%) less than the prevailing rental rate that Lessor is
then charging for the leasing of space for equivalent Transmitter Systems at the
applicable Supplemental Site, and the lease for the Supplemental Site shall
contain other commercially reasonable terms as Lessor and Lessee may agree upon
(and shall not be governed by the other terms of this Lease). Lessor and Lessee
shall in good faith negotiate New Other Leases regarding the leasing of antenna
tower space by Lessee at Lessor Sites for Lessee's Transmitter Systems and
related equipment, which as of the date hereof are installed on Towers
("Acquired Towers") that Lessor acquired under the Purchase Agreement dated as
of July 7, 1998 as amended (the "Purchase Agreement") among Lessor, Lessee and
certain of its Affiliates, and which Transmitter Systems are not listed on
Schedule B (but neither Lessor nor Lessee shall be under any obligation to enter
into any such lease).
(f) The provisions of this Section 1(f) shall be applicable only in the
event that as of the date hereof Lessee has installed fewer than 683 Transmitter
Systems on the Acquired Towers ("Site Space Shortfall"). The positive numerical
difference (if any) between 683 and the number of Transmitter Systems that
Lessee has installed on the Acquired Towers as of the date hereof is referred to
herein as the "Shortfall Number". In the event of a Site Space Shortfall, Lessee
may in its discretion (from time to time) designate such number of Other Lease
Spaces ("Shortfall Substitution Site Spaces") under any Other Leases up to the
Shortfall Number, which designated Other Lease Spaces shall become Site Spaces
under this Lease, the Other Leases shall terminate as to the Other Lease Spaces
and Lessee shall have no further rental or other obligation under the Other
Leases with respect thereto. The parties shall amend Schedule B to reflect such
substitution, as applicable. (In the event that pursuant to the above provisions
of this Section 1(f) Lessee has not designated Other Lease Spaces in an amount
equal to the Shortfall Number, Lessee shall remain obligated to pay any
Shortfall Monthly Payment pursuant to the below provisions of this Section
1(f).) The dollar amount difference, if any, between (i) $1,300 multiplied by
5
the Shortfall Number less (ii) the aggregate monthly rental payable by Lessee
for the Shortfall Substitution Site Spaces is referred to herein as the
"Shortfall Monthly Payment". As applicable under this Section 1(f), for each
month until the fifth (5th) anniversary of the date of this Lease, Lessee shall
pay to Lessor the amount (if any) of the Shortfall Monthly Payment. Each
Shortfall Monthly Payment shall be considered to be the payment of rent for
purposes of Sections 3(b), 3(c) and 15 below. Notwithstanding the foregoing, in
the event that Lessee terminates any lease of Site Spaces (including Shortfall
Substitution Site Spaces) hereunder pursuant to Sections 2(d), 5(d), 10(a),
10(d), 11 or 16 below prior to the fifth (5th) anniversary of the date of this
Lease, for purposes of calculating any Shortfall Payment Amount, the Shortfall
Number shall be reduced by the aggregate number of Site Spaces (including
Shortfall Substitution Site Spaces) as to which this Lease is so terminated.
There shall be no Shortfall Monthly Payment relating to any period on or after
the fifth (5th) anniversary of the date of this Lease.
2. Term.
(a) The initial lease term for each Site Space shall be fifteen (15)
years (the "Initial Term") from the date hereof; provided that the lease term
for each Site Space shall automatically renew for one (1) renewal period of five
(5) years (the "Renewal Term"), unless Lessee terminates this Lease with respect
to such Site Space (i) upon prior written notice by Lessee to Lessor no later
than ninety (90) days before the expiration of the Initial Term. Lessee in its
termination notice may designate any or all of the Site Spaces for termination.
(b) If Lessee holds over at a Site Space after the expiration of the
term with respect thereto, this Lease shall revert to a month-to-month term with
respect to such Site Space, and rent for such Site Space shall be the rent for
such Site Space during the last month of the preceding term. Each of Lessor and
Lessee shall have the right during any month-to-month term to terminate this
Lease with respect to such Site Space, without cause, upon thirty (30) days'
prior written notice to the other party.
6
(c) If with respect to a Premises Site (i) any ground lease ("Assigned
Ground Lease") that was assigned or deeded to Lessor under the Purchase
Agreement terminates on a date prior to the fifth (5th) anniversary of this
Lease because the stated term thereof ended prior to the fifth (5th) anniversary
of this Lease and Lessor has not committed a breach or default with respect
thereto or (ii) any other non-fee ownership possessory interest ("Assigned
Non-Fee Possessory Interest") that was assigned to Lessor under the Purchase
Agreement terminates on a date prior to the fifth (5th) anniversary of this
Lease and Lessor has not committed a breach or default in respect thereto,
Lessee shall remain obligated to pay the per month rent provided under Section
3(a) below for the duration of the Initial Term as to the Site Space(s) at such
Premises Sites ("Terminated Assigned Interest Site Space"), unless Lessee
occupies a Substitution Site Space pursuant to the below provisions of this
Section 2(c). (The Assigned Ground Leases and Assigned Non-Fee Possessory
Interests are referred to herein individually as an "Assigned Ground Lease or
Possessory Interest".) A "non-fee ownership possessory interest" includes any
real property which is referred to as an "Owned Site" under the Purchase
Agreement but as to which the "Sellers" thereunder have not conveyed fee title
to Purchaser. Lessor shall use commercially reasonable efforts to cause the
terms (including any options of renewal) of each Assigned Ground Lease or
Possessory Interest to be at least coextensive with the term of this Lease
(including the Renewal Term), and Lessee shall cooperate in connection therewith
as provided in Section 7.09(a) of the Purchase Agreement. With respect to any
Terminated Assigned Interest Site Space, for the duration of the Initial Term
following termination of the relevant Assigned Ground Lease or Possessory
Interest, unless there is a Substitution Site Space that is identified and made
available to Lessee, Lessor and Lessee shall in good faith attempt to determine
whether other space at any Lessor Site is comparable to such Terminated Assigned
Interest Site Space in terms of location and geography, functionality and other
relevant factors (except to the extent that Lessee waives the requirement of
comparability), and if such space can be identified by the parties Lessor shall
use commercially reasonable efforts to make such space available to Lessee as
soon as reasonably practicable, and such other space and the related land shall
become a Substitution Site Space in substitution for the Terminated Assigned
7
Interest Site Space. Lessee shall pay all the costs incurred by Lessee in moving
Transmitter Systems and related equipment to such Substitution Site Space. As an
alternative to the Site Space substitution procedures provided above, Lessee
shall have the option to designate space and the related land under any Other
Lease at which Lessee leases space for a Transmitter System and related
equipment ("Other Lease Space") as a Substitution Site Space, in which event
such Other Lease Space shall become a Substitution Site Space in substitution
for the Terminated Assigned Interest Site Space, such Other Lease Space shall
become a Substitution Site Space under this Lease, the Other Lease shall
terminate as to the Other Lease Space and Lessee shall have no further rental or
other obligation under the Other Lease with respect thereto.
(d) If with respect to a Premises Site where Lessor is a ground lessee
or Lessor is otherwise not the fee owner of the underlying land, if effective on
or after the fifth (5th) anniversary of the date hereof Lessor's leasehold or
other non-fee ownership possessory interest in the Premises Site expires or
terminates ("Early Termination Site Space"), Lessee shall have no further rental
or other obligation hereunder with respect to such Early Termination Site Space
(subject to Sections 8(b), 13(a)(ii) and 17 below). Lessor shall use
commercially reasonable efforts to cause the terms of such ground leases and
other non-fee ownership possessory interests to be at least coextensive with the
term of this Lease (including the Renewal Term). If this Lease expires or
terminates as to a Early Termination Site Space, Lessor and Lessee shall in good
faith attempt to determine whether other space at any Lessor Site is comparable
to such Early Termination Site Space in terms of location and geography,
functionality and other relevant factors, and if such space can be identified by
the parties and provided that Lessor is in a position to make such space
available to Lessee no later than (30) days after the expiration or other
termination of this Lease as to the Early Termination Site Space, such other
space and the related land shall become a Substitution Site Space in
substitution for the Early Termination Site Space. Lessor shall pay all the
reasonable costs incurred by Lessee in moving Transmitter Systems and related
equipment from the Early Termination Site Space to such Substitution Site Space.
As an alternative to the Site Space substitution procedures provided above,
Lessee shall have the option to designate any Other Lease Space as a
8
Substitution Site Space in substitution for the Early Termination Site Space, in
which event such Other Lease Space shall become a Substitution Site Space under
this Lease, the Other Lease shall terminate as to such Other Lease Space and
Lessee shall have no further rental or other obligation under the Other Lease
with respect thereto.
3. Rent.
(a) During the Initial Term, for each Site Space that is subject to
this Lease, Lessee shall pay rent at a rate equal to $1,300 per month. During
the Renewal Term, for each Site Space that is subject to this Lease, Lessee
shall pay the "fair market monthly rent" applicable to each Site Space. For
purposes of this Section 3(a), "fair market monthly rent" as to each Site Space
refers to the rent that is generally being charged at the time of commencement
of the Renewal Term in the market where such Site Space is located for making
tower space available for Transmitter Systems, at spaces and sites and with
respect to Transmitter Systems which are similar to the Site Space and Lessee's
Transmitter System that is then-installed at such Site Space. Between two
hundred forty (240) and one hundred eighty (180) days prior to the end of the
Initial Term, Lessor shall deliver to Lessee a proposal by Lessor as to the fair
market monthly rent for each Site Space for the Renewal Term. If Lessor and
Lessee cannot agree on the fair market monthly rent with respect to one or more
Site Spaces at least one hundred thirty (130) days prior to the end of the
Initial Term, then Lessor and Lessee shall at least one hundred twenty (120)
days prior to the end of the Initial Term each appoint an appraiser for purposes
of determining the fair market monthly rent as to such Site Spaces. If the
appraisers are unable to agree on the fair market monthly rent within the
succeeding thirty (30)-day period, they shall select a third appraiser within
fifteen (15) days thereafter. If they are unable to agree on the third
appraiser, either party, by giving ten (10) days' written notice to the other
can apply to the presiding judge of the trial court of the general jurisdiction
in the county in which the subject Site Space is situated, for the selection of
a third appraiser. The third appraiser, however selected, shall be a person who
has not previously acted in any capacity for either party. Within thirty (30)
days after the selection of the third appraiser, a majority of the appraisers
9
shall set the fair market monthly rent. If a majority of the appraisers are
unable to do so within such thirty (30) day period, the two closest appraisals
shall be added together and their total shall be divided by two, and the
resulting quotient shall be deemed to be the fair market monthly rent. Each
party shall be responsible for compensating their respective appraiser, and
shall bear equally the compensation payable to any third appraiser.
(b) Rent shall be due no later than the first day of each calendar
month with respect to which such rent is payable (subject to Section 3(c)
below). Rent for any fractional month at the beginning or end of a term shall be
prorated. If payment is not delivered by the 10th business day of such month,
Lessor has the option to charge a late fee not to exceed one and one-half
percent (1.5%) of the delinquent amount. Notice of the imposition of any such
late fee must be given in writing to Lessee within ten (10) business days after
such tenth (10th) business day. Failure to give such notice will result in
forfeiture of any late fee in such month.
(c) Lessee in its discretion from time to time may withhold and setoff
against rent payable hereunder the amount of any payments or reimbursements that
Lessor is delinquent in making under Section 6 below, and any such withholding
and setoff by Lessee shall not be deemed a breach by Lessee, and shall not limit
Lessee's other rights and remedies under this Lease or available to Lessee at
law or in equity.
4. Installation.
(a) Lessee shall install and operate at the Site Spaces only the
Transmitter Systems and related equipment, and the cost of Lessee's installation
and licensing fees shall be borne solely by Lessee.
(b) During the installation, repair or maintenance of a Transmitter
System and related equipment at a Premises Site, Lessee shall not cause material
interference to the activities of Lessor or other lessees at such Premises Site.
Lessee shall install its Transmitter Systems and related equipment in a manner
consistent with good engineering practices. If such interference is caused by
10
Lessee and cannot be reduced to levels reasonably acceptable to Lessor, Lessee
shall immediately halt all installation work, repair or maintenance and Lessor
may elect to terminate this Lease as to such Site Space by giving Lessee at
least ten (10) days written notice and thereafter Lessee's only obligation
hereunder with respect to such Site Space shall be the removal of the
Transmitter System and equipment in accordance with Section 16 below and the
payment of any past due rent remaining for such Site Space.
5. Uses of Leased Premises.
(a) Lessee shall use the Site Space and conduct its communications
operations thereon in compliance with the terms of its Federal Communications
Commission ("FCC") licenses and applicable regulations imposed by the FCC or any
other governmental agency and shall otherwise comply with all applicable laws
relating to its use of the Site Spaces. Lessee shall, if requested, provide
Lessor with copies of such licenses. If a license is denied or Lessee is
otherwise prohibited from operating a Transmitter System at a Site Space because
of any law, regulation, governmental decree, court order or similar action, and
Lessee notifies Lessor and provides evidence to Lessor of such denial or
prohibition, Lessee may terminate this Lease as to the applicable Site Space,
or, if the denial or prohibition relates to a Transmitter System, Lessee may
terminate this Lease as to such number of Site Spaces that equal the number of
denied or prohibited Transmitter Systems, as so designated by Lessee ("License
Termination Site Space"). Licensee shall use commercially reasonable efforts to
obtain and maintain any FCC licenses that Lessee is required to hold in order to
operate at such Site Space. The termination of this Lease with respect to a
License Termination Site Space shall become effective thirty (30) days following
written notification from Lessee to Lessor, and Lessee shall have no further
rental or other obligation hereunder with respect to such License Termination
Site Space (subject to Sections 8(b), 13(a)(ii) and 17 below). Notwithstanding
the foregoing, until the fifth (5th) anniversary of the date of this Lease,
Lessee shall continue to have rental obligations hereunder with respect to a
License Termination Site Space (although Lessee might not be operating a
Transmitter System at the License Termination Site Space) unless Lessee occupies
11
a Substitution Site Space pursuant to the provisions set forth below in this
Section 5(a). If this Lease terminates as to a License Termination Site Space,
Lessor and Lessee shall in good faith attempt to determine whether other space
at any Lessor Site is comparable to the License Termination Site Space in terms
of location and geography, functionality and other relevant factors, and if such
space can be identified by the parties and provided that Lessor is in a position
to make such space available to Lessee no later than thirty (30) days after the
termination of this Lease as to the License Termination Site Space, such other
space and the related land shall become a Substitution Site Space in
substitution for the License Termination Site Space. Lessee shall pay all the
costs incurred by Lessee in moving Transmitter Systems and related equipment
from the License Termination Site Space to such Substitution Site Space. As an
alternative to the Site Space substitution procedures provided above, Lessee
shall have the option to designate any Other Lease Space as a Substitution Site
Space in substitution for the License Termination Site Space, in which event
such Other Lease Space shall become a Substitution Site Space under this Lease,
the Other Lease shall terminate as to such Other Lease Space and Lessee shall
have no further rental or other obligation under the Other Lease with respect
thereto.
(b) Lessee shall have a non-exclusive right of access to all Site
Spaces and Premises Sites twenty-four (24) hours a day, 365 days a year for its
employees, agents, contractors or representatives; provided that with respect to
Substitution Site Spaces, Lessee shall be subject to any reasonable access
restrictions that apply uniformly to all tenants at the Substitution Site Space
if the restrictions are described on Schedule B prior to the date on which
Lessee commits to lease such Substitution Site Space pursuant to this Lease.
(c) Neither the Lessee nor the Lessor shall bring onto any of the
Premises Sites any hazardous substances or hazardous wastes in violation of
applicable laws.
(d) Lessee shall not cause objectionable interference of any kind to
the operations of Lessor or other lessees at any of the Premises Sites.
"Objectionable interference" means any material degradation of signal in excess
12
of levels permitted by the FCC, as well as interference to consumer electronic
devices and blanketing interference under the applicable FCC rules. If Lessee is
notified in writing by Lessor that Lessee's operations are causing such
objectionable interference, Lessee shall, at its expense, immediately undertake
all reasonable steps to determine the cause of and eliminate such interference.
If the interference continues for a period in excess of seventy-two (72)
consecutive hours following notification, Lessor shall have the right to cause
Lessee to promptly cease operating the offending equipment or to reduce the
power sufficiently to remove the interference until the condition can be
remedied. Lessee shall continue to be obligated to pay rent with respect to the
applicable Site Spaces (subject to the next sentence), and Lessor shall not be
held liable for any damages or loss of revenues resulting therefrom. If Lessee
is required to discontinue its operation at one (1) or more Site Spaces under
this Section 5(d) for a period in excess of sixty (60) days, and provided that
Lessee has diligently pursued all reasonable cures and is unable to eliminate
the interference, then Lessee shall have the right to terminate this Lease as to
the affected Site Space(s) ("Interference Site Spaces") at such Premises Site
and (commencing on the applicable termination date) Lessee shall have no further
rental or other obligation hereunder with respect to such Site Space (subject to
Sections 8(b), 13(a)(ii) and 17 below). If this Lease terminates as to an
Interference Site Space, Lessor and Lessee shall in good faith attempt to
determine whether other space at any Lessor Site is comparable to the
Interference Site Space in terms of location and geography, functionality and
other relevant factors, and if such space can be identified by the parties and
provided that Lessor is in a position to make such space available to Lessee
within thirty (30) days following the termination of this Lease as to the
Interference Site Space, such other space and the related land shall become a
Substitution Site Space in substitution for the Interference Site Space. Lessee
shall pay all the costs incurred by Lessee in moving Transmitter Systems and
related equipment from the Interference Site Space to such Substitution Site
Space. As an alternative to the Site Space substitution procedures provided
above, Lessee shall have the option to designate any Other Lease Space as a
Substitution Site Space in substitution for the Interference Site Space, in
which event such Other Lease Space shall become a Substitution Site Space under
13
this Lease, the Other Lease shall terminate as to such Other Lease Space and
Lessee shall have no further rental or other obligation under the Other Lease
with respect thereto. Provided that Lessee's equipment is operating properly, if
the operations of any equipment that is installed by another person or entity at
any Lessor Site subsequent to Lessee's installation of its Transmitter System
and related equipment at such Lessor Site causes objectionable interference to
Lessee's operations as reasonably determined by Lessee, then Lessor shall
require the interfering person or entity to remedy promptly the interference,
and Lessor and/or such other person or entity shall bear the costs thereof.
(e) Lessee understands that it is the intention of Lessor to
accommodate as many users as reasonably practicable at the Premises Sites
subject to the rights of Lessee hereunder. As reasonably requested by Lessor,
and provided that Lessor is not in material breach of this Lease, Lessee shall
in good faith cooperate with Lessor's reasonable requests with respect to
Lessee's rescheduling transmitting activities, reducing power or interrupting
its activities for limited periods of time in order to permit the safe
installation of new equipment on the Towers or to permit repair to the equipment
of any user of the Towers; provided, however, that any such work to be performed
by or on behalf of Lessor shall be performed between the hours of 11:00 p.m. and
5:00 a.m., except with respect to any emergency for which necessary work
relating thereto may be performed at any time as necessary under the
circumstances. Without limiting Lessee's installation and repair rights under
other Sections of this Lease, as reasonably requested by Lessee, and provided
that Lessee is not in material breach of this Lease, Lessor shall in good faith
cooperate with Lessee's reasonable requests that Lessor cause other tenants at
the applicable Premises Sites to reschedule transmitting activities, reduce
power or interrupt their activities for limited periods of time in order to
permit the safe installation by Lessee of new equipment on the Towers or to
permit repair to the equipment of Lessee on the Towers; provided, however, that
any such work to be performed by or on behalf of Lessee shall be performed
between the hours of 11:00 p.m. and 5:00 a.m., except with respect to any
emergency for which necessary work relating thereto may be performed at any time
as necessary under the circumstances.
14
(f) From time to time Lessee at its sole discretion may move and
substitute Transmitter Systems and related equipment among Site Spaces, subject
to the other applicable provisions of this Agreement.
(g) Lessor represents and warrants to Lessee that: (i) throughout the
Initial Term and any Renewal Term (x) with respect to any Lessor Sites which
Lessor acquired under the Purchase Agreement, Lessor will maintain the title
sufficient for Lessor to perform its obligations and for Lessee to have the
rights as contemplated hereunder; that Lessor acquired thereunder, and (y) with
respect to any Lessor Sites which Lessor did not acquire under the Purchase
Agreement, Lessor has and will maintain good and valid title thereto sufficient
for Lessor to perform its obligations and for Lessee to have the rights as
contemplated hereunder; (ii) neither Lessor nor any of its employees,
Affiliates, agents, representatives or mortgagees or lenders or other lessees
will interfere with Lessee's quiet enjoyment with respect to the use, operation
or occupancy of the Site Spaces (other than in connection with Lessor's exercise
of permitted eviction or dispossession remedies in the event of a default by
Lessee hereunder and following the expiration of applicable grace and cure
periods);and (iii) Lessor shall be deemed to have provided all representations
and warranties that a lessor is deemed to provide pursuant to applicable leasing
statutes. Lessee acknowledges and agrees that Lessee has sold and assigned to
Lessor under the Purchase Agreement various Towers, land and ground leaseholds
where Site Spaces hereunder are located (the "Acquired Sites"). Lessee hereby
holds harmless Lessor from and against, and waives, any and all claims of Lessee
relating to any real property title defect pertaining to the Acquired Sites
existing as of the date when the Acquired Sites were sold and assigned by Lessee
to Lessor.
6. Utilities. Lessee shall pay its pro rata share of installation costs for
any new electrical power feeds, phone lines, and other utilities to its
equipment. Lessee shall not pay any costs associated with any new, updated or
enhanced metering of its electrical usage at the Premises Sites. Lessor shall
pay for all of Lessee's electrical power usage at the Premises Sites, by direct
15
payment to the utility company, or, at Lessee's request by reimbursement to
Lessee for payments made by Lessee to the utility company.
7. Insurance.
(a) Before the commencement of and continuing through the lease term
Lessee shall procure and maintain comprehensive public liability and property
damage insurance with a responsible insurance company legally qualified to do
business in the States where the applicable Lessor Site Spaces are located,
covering its operations and activities on or in connection with the Site Spaces
with a single occurrence limit of not less than $1,000,000 and naming Lessor as
an "Additional Insured." Lessee shall furnish Lessor with a certificate
evidencing such insurance and stating that coverage shall be canceled or changed
only upon thirty (30) days' written notice to Lessor.
(b) Before the commencement of and continuing through the lease term
Lessor shall procure and maintain comprehensive public liability and property
damage insurance with a responsible insurance company legally qualified to do
business in the States where the applicable Site Spaces are located, covering
all its operations and activities on or in connection with the Site Spaces with
a single occurrence limit of not less than $1,000,000 and naming Lessee as an
"Additional Insured." Lessor shall furnish Lessee with a certificate evidencing
such insurance and stating that coverage shall be canceled or changed only upon
thirty (30) days' written notice to Lessee.
8. Maintenance of Sites.
(a) Lessor shall maintain the Lessor Sites in good repair, ordinary
wear and tear excepted, and in compliance with applicable rules and regulations
of the FCC, Federal Aviation Administration ("FAA") and other governmental
agencies pertaining to lighting (subject to Section 8(c) below), marking,
inspection, and maintenance. In cases where any governmental regulations require
the painting of Lessee's feedlines (including without limitation FAA
regulations), Lessee hereby consents to such painting. Without limiting the
foregoing, (i) Lessor shall comply with all of Lessee's reasonable instructions
or requests regarding Lessor compliance with any relevant rules, regulations or
16
standards promulgated by the FAA, FCC or other applicable governmental agencies
from time to time, including without limitation in connection with radio
frequency emission standards and lighting standards promulgated by the FCC or
FAA, (ii) Lessor shall comply with applicable Tower registration requirements of
the FCC and any other applicable governmental agencies, and Lessor shall
maintain such registrations in full force and effect, and (iii) Lessor shall
maintain appropriate climate control at each Site Space to assure proper
functioning of the Transmitter Systems and related equipment. With respect to
Acquired Sites, Lessor shall only be obligated to maintain the climate control
at no less than the quality levels existing thereon as of the date hereof.
Subject to the applicable provisions of Section 5 above, Lessor and its
authorized representatives, upon reasonable advance notice to Lessee as
practicable under the circumstances, shall have the right to enter upon the Site
Spaces as necessary in order to comply with Lessor's maintenance and compliance
obligations under this Section 8(a).
(b) Lessee shall maintain its equipment in accordance with standards
of good engineering practice and in material compliance with the rules and
regulations of the FCC, FAA and other applicable governmental agencies. At the
conclusion of the term with respect to a Site Space, Lessee shall surrender
possession to Lessor of such Site Space in substantially the same condition as
existed at the commencement of the leasing of such Site Space under this Lease,
ordinary wear and tear excepted. Lessor shall be entitled to charge Lessee the
reasonable cost of any and all maintenance and repair undertaken by Lessor,
which was the express obligation of Lessee under this Lease or which was
necessary as a direct result of a failure by Lessee to perform its obligations
under this Lease, if Lessee has not commenced and continued to use commercially
reasonable efforts to complete such maintenance and repair within thirty (30)
days after written notice from Lessor requesting such maintenance and repair and
providing sufficient detail of the basis for the Lessee maintenance and repair
obligation hereunder, or, in any event Lessee has not completed such maintenance
and repair within sixty (60) days after such notice, or such longer period as is
reasonably necessary not to exceed one hundred twenty (120) days provided that
17
Lessee is diligently proceeding with such repair and maintenance. Lessee shall
reimburse Lessor for all such maintenance and repair costs that are reasonably
incurred by Lessor under this Section 8(b) within thirty (30) days after
Lessor's delivery to Lessee of written invoices, receipts and similar bills
detailing and describing the costs and the related maintenance and repair work.
(c) Notwithstanding anything to the contrary in other Sections of this
Lease (but subject to Section 13 of this Lease), from the date hereof through
February 28, 1999, Lessee shall monitor the lighting of Towers at Site Spaces
for outages (including without limitation "Notems"), until Lessor assumes such
responsibility therefor (as provided below). Lessee's monitoring obligations
hereunder shall be based on Lessee using its lighting monitoring methodology
existing as of the date hereof, and for Lessee to report any outages to the FAA
as required by applicable rules and regulations, and for Lessee to notify Lessor
of any such outages within 24 hours after Lessee becomes aware thereof. Lessee
shall not charge Lessor for Lessee's monitoring services under this Section
8(c). As soon as reasonably practicable on and after the date hereof, Lessor
shall periodically (on a Site by Site basis) assume all of the lighting
monitoring obligations regarding Towers at Site Spaces (including without
limitation "Notems"), including compliance with all notifications required by
applicable FAA rules and regulations. Lessee shall have no further obligations
under this Section 8(c) as to monitoring lighting at Site Spaces for which
Lessor assumes such responsibility as provided herein. By March 1, 1999 Lessor
shall fully assume and be responsible for lighting monitoring at all Sites
Spaces. Throughout the term of this Lease, Lessor shall provide Lessee with
notice of all non-standard situation reports and related reports with respect to
the lighting monitoring system utilized by Lessor at the Sites Spaces.
Throughout the term of this Lease (including any period during which Lessee
performs lighting monitoring services under this Section 8(c)), Lessor shall be
and remain obligated to maintain the lighting in accordance with the rules and
regulations of the FAA and other applicable laws, and to repair or replace any
defective lighting. Lessor shall perform all of its obligations under this
Section 8(c) at no charge to Lessee. Pursuant to the indemnification provisions
under Section 13(b) below, Lessor shall indemnify and hold harmless Lessee and
18
its Affiliates from and against any and all costs, liabilities, penalties or
similar charges that may be assessed or charged against Lessee or its Affiliates
(or their assets) by the FAA or other persons, entities or agencies in
connection with Lessor failing to adequately maintain or monitor the lighting.
9. Alteration by Lessee.
Lessee may alter and replace its Transmitter Systems and related
equipment that are installed at a Site Space, provided that such alteration or
replacement does not materially increase the "wind loading" at the applicable
Tower. At Lessor's request and expense, Lessee will provide an independent
professional analysis of "wind loading" to determine whether the alteration or
replacement causes a material increase in "wind loading" at such Tower. Subject
to the terms of this Lease, Lessee may make improvements to the Site Space. Any
such improvements that are made by Lessee on a Transmitter System or other
property of Lessee at a Site Space shall be the property of Lessee (the "Lessee
Owned Improvements"). All other improvements made by Lessee at a Site Space
shall become the property of Lessor upon the termination or expiration of the
Lease. Lessee shall remove the Lessee Owned Improvements as provided in Section
17 below.
10. Site Damage; Damage to Lessee's Equipment; Service Interruption.
(a) If a Site Space is fully or partially destroyed or damaged,
Lessee, at its option, may elect to terminate this Lease with respect to such
Site Space ("Damaged Site Space") upon at least ten (10) days written notice to
Lessor, provided that Lessee has not been a primary cause of such destruction or
damage. In such event, Lessee shall owe rent only up to the date on which Lessee
was unable to conduct its normal operations at such Site Space because of the
damage or destruction, and Lessee shall have no further rental or other
obligation hereunder with respect to such Damaged Site Space (subject to Section
8(b) above and Sections 13(a)(ii) and 17 below). If this Lease is terminated as
to a Damaged Site Space, Lessor and Lessee shall in good faith attempt to
determine whether other space at any Lessor Site is comparable to the Damaged
Site Space in terms of location and geography, functionality and other relevant
19
factors, and if such space can be identified by the parties and provided that
Lessor is in position to make such space available to Lessee no later than
thirty (30) days after the termination of this Lease as to the Damaged Site
Space, such other space and the related land shall become a Substitution Site
Space in substitution for the Damaged Site Space. Provided that Lessee has not
been a primary cause of such destruction or damage, Lessor shall pay all the
reasonable costs incurred by Lessee in moving Transmitter Systems and related
equipment from the Damaged Site Space to such Substitution Site Space. As an
alternative to the Site Space substitution procedures provided above, Lessee
shall have the option to designate Other Lease Space as a Substitution Site
Space in substitution for the Damaged Site Space, in which event such Other
Lease Space shall become a Substitution Site Space under this Lease, the Other
Lease shall terminate as to such Other Lease Space and Lessee shall have no
further rental or other obligation under the Other Lease with respect thereto.
(b) Notwithstanding Section 10(a) above, Lessor, at its option by
notice to Lessee within ten (10) days after the occurrence of such damage or
destruction, may elect to repair or rebuild the Damaged Site Space, in which
case, Lessee shall not be entitled to terminate this Lease as to the Damaged
Site Space, and this Lease shall remain in force with respect to the Damaged
Site Space (although Lessee shall not be obligated to pay rent for any period
during which Lessee is unable to conduct its normal operations at the Damaged
Site Space because of the damage or destruction), as long as reconstruction or
repair can be promptly undertaken and diligently completed within thirty (30)
days following the occurrence of such damage or destruction and without
materially interrupting Lessee's business at such Site Space.
(c) Subject to Sections 5(d) and 5(g) above, Lessor shall not be
liable to Lessee for any loss or damage, actual or consequential, sustained by
Lessee, arising out of or related to any loss or interruption of communication
or the use of the Premises Sites, whatever the cause, or any diminution or
failure of the signal emanating from or being received at the Towers, except to
the extent that such events or circumstances are caused (in whole or part) by
20
any breach by Lessor of this Lease or by acts or negligent omissions of Lessor,
its Affiliates or their respective agents or representatives.
(d) Lessor and Lessee shall incur no liability to the other party, if
Lessor or Lessee (as the case may be) is prevented from performing its
obligations hereunder or conducting its operations at a Site Space as a result
of any of the following events beyond such performing party's reasonable
control: war, fire, flood, lightning, earthquake or other acts of God
(individually and collectively the "Force Majeure Events"). Without limiting the
foregoing, if either Lessor or Lessee is prevented from performing its
obligations hereunder or conducting its operations at a Site Space as a result
of Force Majeure Event, such party shall not be liable to the other party for
any financial loss due to business interruption, or be liable for any loss or
damage, actual or consequential, sustained by the other party or third parties
making claims against such other party arising out of or relating to any loss or
interruption of communication or the use of the Premises Site affected by the
Force Majeure Event or any diminution or failure of the signal emanating from or
being received at the Tower affected by the Force Majeure Event. Lessee shall be
entitled to a pro rata abatement of rent for the time it is unable to conduct
substantially normal operations at such Site Space as a result of a Force
Majeure Event except that Lessee shall not be entitled to any abatement for
outages of less than seventy-two (72) consecutive hours duration unless such
outages exceed 216 cumulative hours during any thirty (30)-day period; provided,
that if Lessee is unable to conduct such normal operations for more than fifteen
(15) consecutive days as a result of a Force Majeure Event ("Force Majeure
Termination Right Period"), Lessee at any time during the Force Majeure
Termination Right Period may terminate this Lease as to such affected Site Space
and Lessee shall have no further rental or other obligation hereunder with
respect to such Site Space (subject to Section 8(b) above and Sections 13(a)(ii)
and 17 below). If this Lease is terminated as to a Site Space affected by a
Force Majeure Event, Lessor and Lessee shall in good faith attempt to determine
whether other space at any Lessor Site is comparable to such Site Space in terms
of location and geography, functionality and other relevant factors, and if such
space can be identified by the parties and provided that Lessor is in a position
21
to make such space available to Lessee no later than thirty (30) days after the
termination of this Lease with respect to the affected Site Space, such other
space and the related land shall become a Substitution Site Space in
substitution for the Force Majeure Site Space. Lessor shall pay all the
reasonable costs incurred by Lessee in moving Transmitter Systems and related
equipment from the Force Majeure Site Space to such Substitution Site Space. As
an alternative to the Site Space substitution procedures provided above, Lessee
shall have the option to designate Other Lease Space as a Substitution Site
Space in substitution for such Site Space, in which event such Other Lease Space
shall become a Substitution Site Space under this Lease, the Other Lease shall
terminate as to such Other Lease Space and Lessee shall have no further rental
or other obligation under the Other Lease with respect thereto.
11. Overloading.
(a) This Section 11 shall not apply (and Lessee shall have no
obligation under this Section 11) as to the Acquired Towers which are listed as
Tower numbers 164, 165 and 166 on Schedule A. If within six (6) months after the
date hereof, Lessor determines that any of the Acquired Towers, based on the
antennae that are installed thereon as of the date hereof, is then overloaded in
excess of levels permitted by applicable laws (existing as of the date hereof),
and Lessor notifies Lessee thereof by Lessor providing reasonable detail in
respect of its conclusions as to overloading regarding the affected Towers, and
if Lessee in good faith disagrees with Lessor's conclusions, the parties shall
mutually select an engineering firm to conduct a study regarding overloading at
such Towers, at Lessor's expense. In the event of a determination of such
overloading, whether confirmed by Lessee agreement with Lessor's conclusions, or
pursuant to the findings of any such engineering firm, as to each such affected
Tower Lessee shall undertake any one of the following actions: (i) correct the
overloading (which correction may include, without limitation, making
improvements to the affected Tower to be or removing non-operable antennas);
(ii) remove such number of Lessee's Transmitter Systems from Site Spaces
("Overloaded Site Spaces") on the affected Tower to cause the affected Tower to
be in compliance with the loading levels permitted by applicable laws (existing
as of the date hereof), in which event the parties shall attempt to identify
22
appropriate Substitution Site Spaces pursuant to the procedures of Section 11(b)
below; or (iii) pay Lessor $10,000 in cash for each antenna that would need to
be removed to cause the affected Tower to be in compliance with the loading
levels permitted by applicable laws (existing as of the date hereof). Upon
Lessee removing its Transmitter Systems and related equipment from an Overloaded
Site Space pursuant to the preceding clause (ii), Lessee shall have no further
rental or other obligation under this Lease with respect to such Overloaded Site
Space (subject to Section 8(b) above and Section 13(a)(ii) below). If Lessee
does not so elect one of the options set forth in the preceding clauses (i)
through (iii) as to an affected Tower, or if Lessee elects to correct the
overloading pursuant to the preceding clause (i) or to remove Transmitter
Systems pursuant to the preceding clause (ii) but Lessee does not complete such
action by the one (1) year anniversary of the date hereof, then Lessee shall be
obligated to promptly pay Lessor the applicable amounts pursuant to the
preceding clause (iii) regarding such affected Tower (in lieu of Lessee's
performance of the act under clauses (i) or (ii)).
(b) If Lessee pursuant to clause (ii) of Section 11(a) above requests
that Lessor and Lessee attempt to identify Substitution Site Spaces, Lessor and
Lessee shall in good faith attempt to determine whether other space at any
Lessor Site is comparable to an Overloaded Site Space in terms of location and
geography, functionality and other relevant factors, and if such space can be
identified by the parties and provided that Lessor is in position to make such
space available to Lessee no later than one hundred twenty (120) days after
Lessee delivers its notice pursuant to clause (ii) of Section 11(a) above, such
other space and the related land shall become a Substitution Site Space in
substitution for the Overloaded Site Space. Lessee shall pay all the costs
incurred by Lessee in moving Transmitter Systems and related equipment from the
Overloaded Site Space to such Substitution Site Space. As an alternative to the
Site Space substitution procedures provided above, Lessee at its option shall
designate Other Lease Space as a Substitution Site Space in substitution for the
Overloaded Site Space, in which event such Other Lease Space shall become a
Substitution Site Space under this Lease, the Other Lease shall terminate as to
23
such Other Lease Space and Lessee shall have no further rental or other
obligation under the Other Lease with respect thereto.
12 Eminent Domain. If a Premises Site or the land upon which a Premises
Site is located or a Premises Site is acquired or condemned under the power of
eminent domain, whether by public authority, public utility, or otherwise, in an
amount that renders the Site Space materially unusable for Lessee's purposes,
then this Lease shall terminate with respect to the Site Spaces at such Premises
Site as of the date of the acquisition, and Lessee shall not be responsible for
rental or other obligation hereunder with respect to Site Spaces after such
termination. Lessor shall be entitled to the entire amount of any condemnation
award, and Lessee shall be entitled to make claim for and retain a condemnation
award based on and attributable to the expense and damage of removing its
fixtures.
13 Indemnification.
(a) Lessee shall indemnify, hold harmless, and defend Lessor (together
with Lessor's Affiliates, officers, directors, employees, agents and
representatives) from and against any and all liabilities, claims, demands,
suits, damages, actions, recoveries, judgments, and expenses (including court
costs, reasonable attorneys' fees, and costs of investigation) resulting (i)
from Lessee's breach of this Lease (including any representation, warranty or
covenant set forth herein), or (ii) from injury to or death of any person or any
damage to property or loss of rent due to discontinuance of operations at the
Site Spaces (excluding discontinuance of operations in connection with the
substitution of Site Spaces or as otherwise permitted hereunder), which injury,
death, damage or loss in the case of this clause (ii) results from the willful
misconduct or gross negligence of Lessee or its contractors, subcontractors,
agents or representatives in or around the applicable Site Spaces (individually
and collectively "Lessee Indemnity Liabilities"), except to the extent that any
such Lessee Indemnity Liabilities are directly caused by the willful misconduct
or gross negligence of Lessor, its Affiliates or their respective officers,
directors, employees, contractors, subcontractors, agents or representatives.
Notwithstanding the foregoing, Lessee shall have no indemnification obligation
24
under this Lease with respect to any activity that Lessee is to perform under
Section 8(c) of this Lease, other than for any Lessee Indemnity Liabilities
based upon the willful misconduct of Lessee, its Affiliates or their respective
officers, directors, employees, contractors, subcontractors, agents or
representatives.
(b) Lessor shall indemnify, hold harmless, and defend Lessee (together
with Lessee's Affiliates, officers, directors, employees, agents and
representatives) from and against any and all liabilities, claims, demands,
suits, damages, actions, recoveries, judgments and expenses (including court
costs, reasonable attorneys' fees, and costs of investigation) resulting (i)
from Lessor's breach of this Lease (including any representation, warranty or
covenant set forth herein), (ii) from injury to or death of any person or any
damage to property or loss of revenues due to discontinuance of operations at
the Site Spaces (excluding discontinuance of operations in connection with the
substitution of Site Spaces or as otherwise permitted hereunder), which injury,
death, damage or loss in the case of this clause (ii) results from the willful
misconduct or gross negligence of Lessor or its contractors, subcontractors,
agents or representatives in or around the applicable Site Spaces (individually
and collectively "Lessor Indemnity Liabilities"), or (iii) from any activity
that Lessee is to perform under Section 8(c) of this Lease, other than with
respect to the willful misconduct of Lessee, its Affiliates or their respective
officers, directors, employees, contractors, subcontractors, agents or
representatives, except to the extent that any such Lessor Indemnity Liabilities
are directly caused by the willful misconduct or gross negligence of Lessee, its
Affiliates or their respective officers, directors, employees, contractors,
subcontractors, agents or representatives.
14 Assignment. (a) With respect to any Site Space, Lessee shall not assign,
mortgage, or encumber Lessee's interest under this Lease and shall not sublet or
permit the leased premises or any part thereof to be used by others without the
express written approval of Lessor, which approval shall not be unreasonably
withheld or delayed, except that Lessee may assign or sublet its rights and
obligations hereunder or sublet the leased premises or any portion thereof (i)
to an Affiliate of Lessee or (ii) to any successor of all or substantially all
25
the operating assets of Lessee and its Affiliates, which Affiliate or successor
agrees to be bound hereby. No sublease or assignment or authorized use by others
shall relieve Lessee of its obligations under this Lease, except for an
assignment by Lessee pursuant to clause (ii) of the preceding sentence.
(b) With respect to a Site Space, Lessor shall not assign, mortgage,
or encumber the Lessor Sites nor Lessor's interest under this Lease (except for
mortgages or encumbrances which are identified on Schedule A) without the
express written approval of Lessee, which approval shall not be unreasonably
withheld or delayed, except that Lessor may assign its rights and obligations
hereunder (i) to an Affiliate of Lessor, (ii) to any successor of all or
substantially all the operating assets of Lessor and its Affiliates, which
Affiliate or successor agrees to be bound hereby, or (iii) to a lender of Lessor
or an agent for a group of lenders under a collateral assignment in form
reasonably satisfactory to Lessee, subject to the applicable provisions of
Section 18 below.
15 Default by Lessee. If, with respect to any Site Space, Lessee fails to
pay rent hereunder within ten (10) days after Lessor provides Lessee with a
written notice regarding such breach, or Lessee breaches Section 5(d) above by
not ceasing any objectionable interference at a Premises Site within three (3)
days after Lessor provides Lessee with notice of such interference, or Lessee
fails to comply with any other term of this Lease and does not cure such other
failure within thirty (30) days after Lessor provides Lessee with a written
notice regarding the applicable breach or for such longer period not to exceed
one hundred eighty (180) days if Lessee is using commercially reasonable efforts
to cure such breach, and provided that Lessee is not otherwise excused from
performing hereunder, Lessor shall have the option (i) (x) if such default is a
default in the payment of rent, to terminate this Lease as to the subject Site
Space or to terminate this Lease as to all Site Spaces, and (y) if such default
is a default other than a default in the payment of rent, to terminate this
Lease only as to the subject Site Space, in which event Lessee shall surrender
possession of such Site Space(s) within thirty (30) days after Lessor's delivery
of a termination notice, and (ii) to pursue any other remedy available to Lessor
26
under this Lease or otherwise provided by law or equity with respect to such
Site Spaces. Lessee shall be liable for reasonable expenses incurred by Lessor
for its recovery and repossession of the Site Space in accordance with the
provisions hereof. Repossession by Lessor shall terminate this Lease as to such
repossessed Site Space, including terminating all further rental and other
obligations of Lessee for the unexpired term with respect to such Site Space,
but any such termination shall not mitigate or xxxxx any payment obligation
under Section 2(c) above if applicable. Lessor shall use its commercially
reasonable efforts to re-lease any Site Space for which this Lease has been so
terminated, and Lessor shall use commercially reasonable efforts to mitigate
Lessor's damages and related costs.
16 Default by Lessor. If, with respect to a Site Space, Lessee's right to
quiet enjoyment is interfered with in contravention of Section 5(g)(ii) above or
otherwise under this Lease and Lessor does not cure such violation within ten
(10) days after Lessee provides Lessor with written notice regarding such
violation, or Lessor fails to comply with any other term of this Lease and does
not cure such failure within thirty (30) days after Lessee provides Lessor with
written notice regarding the applicable breach or for such longer period not to
exceed one hundred eighty (180) days if Lessor is using commercially reasonable
efforts to cure such breach, Lessee shall have the option (i) to terminate this
Lease as to such Site Space, in which event Lessee shall surrender possession of
such Site Space within ninety (90) days after Lessee's delivery of a termination
notice, and (ii) to pursue any other remedy available to Lessee under this Lease
or otherwise provided by law or equity with respect to such Site Space. Lessee
shall use commercially reasonable efforts to deliver to mortgagees which are
listed on Schedule A, copies of any default notices that Lessee delivers to
Lessor under this Section 15. In the event of a termination pursuant to this
Section 15, Lessor shall be liable for all reasonable expenses incurred by
Lessee in connection with the removal of Lessee's equipment and improvements
from the Site Space. Lessee shall use commercially reasonable efforts to
mitigate Lessee's damages and related costs.
17 Certain Transition Rights. Approximately ninety (90) days prior to the
end of the term of this Lease as to a Site Space (whether the Initial Term or
27
Renewal Term, as applicable) Lessor and Lessee shall in good faith agree upon a
plan to enable an orderly and efficient wind-down period ("Wind-Down Period")
during which Lessee will remove its Transmitter Systems and related equipment
from such Site Space(s) and the parties anticipate that the Wind-Down Period
will provide for Lessee to remove all of its Transmitter Systems and related
equipment from such Site Space(s) no later than one hundred eighty (180) days
following the end of such term. Lessee shall be deemed as holding over for
purposes of Section 2(b) above for any portion of the Wind-Down Period that
extends beyond the end of such term, provided that Lessee shall not be obligated
to pay rent for any partial month during which Lessee so holds over at any Site
Space. Except as otherwise provided in Section 1(c) above, the period for moving
Transmitter Systems and related equipment from a Site Space to a Substitution
Site Space shall be thirty (30) days, provided that Lessee shall remove its
Transmitter Systems and related equipment from a Terminated Assigned Interest
Site Space under Section 2(c) above promptly after Lessee has notice of such
termination thereunder ("Terminated Assigned Interest Removal Period"). Upon the
termination of this Lease with respect to a Site Space pursuant to Section 16
above, Lessee shall have up to ninety (90) days to remove its Transmitter
Systems and related equipment. (Each of such Wind-Down Period, applicable
removal period under Section 1(c) above, Terminated Assigned Interest Removal
Period, thirty (30)-day removal period or ninety (90)-day removal period are a
"Removal Period", as applicable.) Lessee shall pay all costs in connection with
the removal of its Transmitter Systems and related equipment (other than as
provided in Sections 2(d), 10(a), 10(d) and 16 above). Lessee's rental
obligation (if any) during a Removal Period regarding the substitution of Site
Spaces shall be governed by the applicable provisions of this Lease relating to
such substitution event. During any Removal Period Lessee may continue to
operate its Transmitter Systems and related equipment at such Site Space. If the
Transmitter Systems and equipment are not removed by Lessee during the
applicable Removal Period, and the failure to remove is caused by the
intentional, reckless or negligent acts or omissions of Lessor, then for all
days subsequent to the applicable Removal Period during which the Transmitter
Systems and related equipment remain on such Site Space, Lessee shall not be
28
deemed to be holding over and Lessee shall not be obligated to pay rent pursuant
to Section 2(b) above. The applicable Removal Period shall be extended by the
number of days that any Force Majeure Events prevent Lessee from working on the
removal of its Transmitter Systems and related equipment from a Site Space.
18 Subordination. (a) Subject to the terms and continuing conditions of
this Section 18(a), this Lease is and shall be subject and subordinate to all
existing or future mortgages, deeds of trust, security deeds or other similar
instruments (collectively "Security Instruments") that as of the date hereof or
at any time in the future encumber the Premises Sites and to all renewals,
modifications, consolidations, replacements, and extensions thereof, provided
that such subordination shall only be effective upon the following terms and
conditions:
(i) if judicial or non-judicial foreclosure proceedings or other
remedies are instituted under any such Security Instruments or
otherwise and Lessee is not in default under this Lease (following the
expiration of applicable grace and cure periods), then (a) Lessee shall
not be made a party defendant in any such proceedings or other action,
(b) this Lease shall not be terminated, and (c) Lessee's possession and
quiet enjoyment with respect to the use, operation or occupancy of the
Site Spaces shall not be disturbed by the holder of such Security
Instruments or by the purchaser at any such foreclosure proceedings or
other action nor shall Lessee's possession and quiet enjoyment with
respect to the use, operation or occupancy of the Site Spaces be
otherwise affected by such proceedings or other action;
(ii) upon the completion of any such foreclosure proceedings and the
sale of one(1) or more of the Lessor Sites, or if such the holder of
such Security Instrument should otherwise acquire any or all of the
Lessor Sites, Lessee shall attorn to the purchaser at foreclosure or to
the holder of such Security Instrument as the case may be, and shall
recognize such purchaser or the holder of such Security Instrument as
29
Lessee's landlord under this Lease, and from time to time, upon the
request of the purchaser at foreclosure or the holder of such Security
Instrument as the case may be, Lessee shall execute and deliver any
instrument reasonably specified in such request to evidence such
attornment or this subordination; and
(iii) upon an attornment by Lessee pursuant to the immediately
preceding clause (ii), this Lease shall continue in full force and
effect as a direct lease between the purchaser at foreclosure or
otherwise or the holder of such Security Instrument as the case may be,
and Lessee, upon all of the terms of this Lease, except that such
purchaser or the holder of such Security Instrument as the case may be,
shall not (a) be liable for any previous act or omission of Lessor
under this Lease, (b) be subject to any setoff which shall have
theretofore accrued to Lessee against Lessor under this Lease (provided
that Lessee shall be entitled to exercise set off rights under Section
3(c) above prior to the completion of any such foreclosure proceeding
and sale), or (c) be bound by any prepayment of more than one (1)
month's rent unless such prepayment shall have been approved by the
holder of such Security Instrument.
(b) Lessee shall retain all rights and remedies available to Lessee
under this Lease or at law or in equity relating to any disturbance of Lessee's
quiet enjoyment with respect to the use, operation or occupancy of Site Spaces.
(c) Subject to the terms and conditions of Sections 18(a) and 18(b)
above:
(i) this subordination shall be self-operative and no further
instrument of subordination and nondisturbance shall be required by the
holder of any such Security Instruments; and
(ii) upon written request from Lessor, Lessee shall execute a
certificate confirming such subordination in form reasonably satisfactory
to Lessee and the holder of such Security Instrument.
30
19 Mechanics' Liens.
(a) Lessee shall not suffer or permit any liens to stand against the
Premises Sites or any part thereof by reason of any work, labor, service, or
materials done for, or supplied for, or supplied to or claimed to have been done
for, or supplied to, Lessee or anyone holding Lessee's property or any part
thereof through or under Lessee ("Lessee's Mechanics' Liens"). If any Lessee's
Mechanics' Lien shall at any time be filed against the Premises Site, Lessee
shall cause it to be discharged of record within thirty (30) days after the date
of filing by either payment, deposit, or bond. If Lessee fails to discharge any
such Lessee's Mechanics' Lien within such period, then, in addition to any other
right or remedy of Lessor, Lessor may, but shall not be obligated to, procure
the discharge of the Lessee's Mechanics' Lien. All amounts incurred by Lessor,
including reasonable attorneys' fees, in procuring the discharge of such
Lessee's Mechanics' Lien, together with interest thereon at twelve percent (12%)
per annum from the date of incurrence, shall become due and payable immediately
by Lessee to Lessor.
(b) Lessor shall not suffer or permit any liens to stand against any
Transmitter System or any part thereof by reason of any work, labor, service, or
materials done for, or supplied for, or supplied to or claimed to have been done
for, or supplied to, Lessor or anyone holding Lessor's property or any part
thereof through or under Lessor ("Lessor's Mechanics' Liens"). If any Lessor's
Mechanics' Lien shall at any time be filed against the Transmitter System,
Lessor shall cause it to be discharged of record within thirty (30) days after
the date of filing by either payment, deposit, or bond. If Lessor fails to
discharge any such Lessor's Mechanics' Lien within such period, then, in
addition to any other right or remedy of Lessee, Lessee may, but shall not be
obligated to, procure the discharge of the Lessor's Mechanics' Lien. All amounts
incurred by Lessee, including reasonable attorneys' fees, in procuring the
discharge of such Lessor's Mechanics' Lien, together with interest thereon at
twelve percent (12%) per annum from the date of incurrence, shall become due and
payable immediately by Lessor to Lessee.
20 Estoppel Certificates. At any time, but not with less than ten (10) days
prior notice, Lessee shall execute, acknowledge, and deliver to Lessor a
31
statement in writing certifying that this Lease is unmodified and in full force
and effect (or, if there have been any modifications, that the Lease is in full
force and effect as modified and stating the modifications), and the dates to
which rent and other charges, if any, have been paid in advance.
21 Miscellaneous.
(a) The remedies provided herein shall be cumulative and shall not
preclude the assertion by any party hereto of any other rights or the seeking of
any other remedies against the other parties hereto; provided, that Lessor
acknowledges and agrees that any claim it may have in the chapter 11 bankruptcy
proceedings of Lessee and its Affiliates (Case No. 97-174 (PJW)), other than a
claim for breach of this Lease, shall be satisfied in full by assumption by the
Lessee (or a successor to Lessee) of this Lease under and as of the effective
date of any plan of reorganization for Lessee (or a successor to Lessee).
(b) Should Lessor permit a continuing default by Lessee under this
Lease, the obligations of Lessee hereunder shall continue, and such permissive
default shall not be construed as a renewal of the term hereof nor as a waiver
of any of the rights of Lessor or obligations of Lessee hereunder.
(c) This Lease may be executed in counterparts, and any number of
counterparts signed in the aggregate by the parties will constitute a single,
original instrument.
(d) This Lease, including the Schedules and other documents referred
to herein contain the entire understanding of the parties with respect to its
subject matter. There are no restrictions, agreements, promises, warranties,
covenants, or understandings other than expressly set forth herein or therein.
This Lease supersedes all prior agreements and understandings between the
parties with respect to its subject matter. No modification of this Lease shall
be effective unless contained in a writing signed, dated and fully witnessed by
the authorized representative of both parties.
32
(e) All notices, requests, claims, demands, and other communications
hereunder ("Notices") shall be in writing and shall be deemed to have been duly
given if delivered by personal delivery, by telecopy (other than Notices with
respect to Sections 13, 15, 16 or 18 which shall be delivered by another
permitted means under this Section 21(e)), by overnight courier or mailed
(certified mail, postage prepaid, return receipt requested): (i) to Lessor, at
the address and telecopy number shown above or to such other address and
telecopy number as Lessor may have furnished to Lessee in writing in accordance
with this Section 21(e); and (ii) to Lessee, at the address and telecopy number
shown above, except that Notices to Lessee with respect to Sections 13, 15, 16
or 18 above shall (instead) be delivered to MobileMedia Communications, Inc.,
Fort Xxx Executive Park, Xxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxx, XX 00000,
attention General Counsel, or to such other address as Lessee may have furnished
to Lessor in writing in accordance with this Section 21(e).
(f) This Lease shall be governed by, construed and enforced in
accordance with the internal laws of the State of New York.
(g) Reference to Sections, Schedules and Paragraphs refer to Sections,
Schedules and Paragraphs of this Lease, except as otherwise indicated herein.
(h) Reference to the singular includes the plural and reference to the
plural includes the singular, according to the context.
33
IN WITNESS WHEREOF, this Lease has been duly executed and
delivered by Lessor and Lessee as of the day and year first above written.
LESSOR: PINNACLE TOWERS INC.,
a Delaware corporation
BY:___________________________
Name: Xxxxxx Xxx
Title: Vice President
LESSEE: MOBILEMEDIA COMMUNICATIONS,
INC., a Delaware corporation,
as debtor and debtor-in-possession
BY:____________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman-Restructuring
