Annex B
EXHIBIT 10.1
MASTER ANTENNA SITE LEASE
BY AND BETWEEN
PINNACLE TOWERS INC.
AND
ARCH WIRELESS HOLDINGS, INC.
MAY 24, 2002
PORTIONS OF THIS EXHIBIT MARKED BY AN *** HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
MASTER ANTENNA SITE LEASE
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LESSOR: Pinnacle Towers Inc., LESSEE: Arch Wireless Holdings, Inc.,
a Delaware corporation, a Delaware corporation,
and its affiliates identified on the and its affiliates identified on the
attached Rider A attached Rider B
000 X. Xxxxxxxxx Xx., Xxxxx 000 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
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Lessor operates the antenna sites (the "Site(s)") described in the Antenna Site
Lease Schedules executed and delivered by Lessor and Lessee pursuant to this
lease (the "Lease") from time to time (each in substantially the form of the
attached Exhibit C, and a "Site Schedule" and, collectively, the "Site
Schedules", each of which, when and as executed, are and shall be incorporated
herein by this reference. Lessor desires to lease to Lessee and Lessee desires
to lease from Lessor certain space at the Sites for installation and operation
of Lessee's equipment on the terms set forth in the Site Schedules and herein.
If the terms of a Site Schedule conflict with this Lease, the terms of the Site
Schedule shall control, but only with respect to the Site(s) that are the
subject of such Site Schedule and the Site Information (defined below). Now,
therefore, the parties agree as follows:
1. LEASED PREMISES:
(a) Lessor leases to Lessee and Lessee leases from Lessor certain
space at the Sites as specified and described in the Site
Schedules (individually and collectively the "Leased Premises").
Lessee agrees to take the Leased Premises in strictly "AS IS"
condition, and acknowledges that Lessor shall have no
responsibility for the condition of the Leased Premises or any
damage suffered by Lessee or any other person due to such
condition. If a Site Schedule provides that Lessee's equipment
will be connected to a Lessor-provided antenna system, Lessee
shall be responsible for all costs of accessing Lessor's antenna
system including but not limited to the costs of combiner modules
and other equipment required for the connection.
(b) Lessee shall pay Rent (defined below) as specified in Section 3
and shall endeavor to use the following aggregate minimum number
of Sites during each month of each year of the term hereof as
indicated (the "Site Commitment"): (i) *** Sites during each
month of the first year of the term hereof; (ii) *** Sites during
each month of the second year of the term hereof; and (iii) ***
Sites during each month of the third year of the term hereof. For
purposes of calculating the total number of Sites leased by
Lessee and for determining whether Lessee has met the Site
Commitment, one (1) One-Way Site (defined below) shall equal one
(1) Site, and one (1) Two-Way Site (defined below) shall equal
two (2) Sites, which yearly amounts shall be reduced by the
aggregate number of Sites that become "Removed Sites" (defined in
Section 24) following the Effective Date. Lessee shall have no
requirement to maintain any minimum number of One-Way Sites or
Two-Way Sites. The Rent specified in Section 3 hereof as adjusted
for Removed Sites shall be due and payable by Lessee to Lessor
regardless of whether Lessee meets the applicable Site
Commitment. The failure of Lessee to meet the Site Commitment
shall not result in a breach by Lessee of this Lease or affect
Lessee's obligation to pay the Base Rent, the Monthly Reservation
Fee or any Acquired Site Rent (defined below).
(c) Lessee will have the right, at its sole cost, to relocate its
equipment from one Site under this Lease to another site in
Lessor's network not already subject to this Lease, subject to
Availability (defined below) (a "Relocated Site"). Lessee shall
provide Lessor at least five (5) business days prior written
notice of Lessee's intent to relocate its equipment, or such
notice period as is required under all affected Prime Agreements
(defined below)
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plus three (3) business days (provided that Lessor has provided
Lessee with the relevant provisions of the underlying Prime
Agreements). Lessor shall notify Lessee within ten (10) days
after Lessor acknowledges receipt of Lessee's notice of proposed
relocation as to whether the proposed Relocated Site is
Available; failure of Lessor to respond within such ten (10) day
period shall be deemed to be a determination that the proposed
Relocated Site is not Available, and in such case the proposed
site shall not be a Relocated Site. For the purpose of
determining whether Lessee has met the Site Commitment, the Site
from which Lessee relocated will not constitute a Site hereunder,
and the Relocated Site to which Lessee relocated will constitute
a Site hereunder but in any event no Acquired Site (defined
below) will constitute a Site hereunder. Upon the effective date
of any relocation under this Section 1(c), the parties shall
terminate the then existing Site Schedule for the terminated
Site, and enter into a new Site Schedule for the Relocated Site,
which new Site Schedule shall be incorporated into this Lease.
(d) Lessor shall be entitled to remove any Site from its network for
any reason in its sole discretion. In such event, then Lessee
shall have the right to relocate to a Replacement Site, subject
to Availability. Each Replacement Site shall be subject to a new
Site Schedule, and each such Site Schedule shall be incorporated
into this Lease. Lessor shall notify Lessee of Lessor's proposed
removal of a Site under the first sentence of this Section 1(d),
and of any Lessor sites which Lessor believes would be acceptable
to Lessee as a Replacement Site hereunder, at least sixty (60)
days prior to removal, unless a shorter period of time is
required by the applicable Prime Agreement or other reasonable
circumstance, in which event Lessor shall notify Lessee of the
proposed removal, and of proposed Replacement Sites, promptly
after learning of the facts which necessitate the removal. If
Lessee accepts a proposed Replacement Site, such Replacement Site
shall constitute a Site hereunder for all purposes, including for
determining whether Lessee has met the Site Commitment and paid
the amount of Rent owed hereunder. If no Replacement Site is
accepted by Lessee within fifteen (15) days (as may be extended
by mutual agreement of the parties) after removal of a Site by
Lessor under this Section 1(d), such Site shall be deemed a
"Removed Site".
(e) Lessee will have the right to add Sites ("Additional Sites") to
which Lessor has title or other right to possession, subject to
Availability. Lessee shall provide Lessor at least five (5)
business days prior written notice of Lessee's intent to add a
Site, or such notice as is required by Lessor's underlying Prime
Agreement plus three (3) business days (provided that Lessor has
provided Lessee the relevant provisions of the underlying Prime
Agreement.) Each such Additional Site shall be subject to a new
Site Schedule, and each such Site Schedule shall be incorporated
into this Lease. Any such Additional Site shall constitute a Site
for the purpose of determining whether Lessee has met the Site
Commitment, and if as a result of such calculation Lessee exceeds
its Site Commitment, then the Rent for each such Additional Sites
shall for each month during which the Site Commitment is
exceeded, be at the Arch Rate set forth in Section 3(b), in
addition to the other Rent. Notwithstanding the foregoing, no
Acquired Site may be added as, or otherwise constitute an
Additional Site hereunder.
(f) In connection with Lessee's permitted relocation from a
non-Lessor site to a Lessor Site under this Lease, Lessor will
provide to Lessee a relocation allowance (the "Relocation
Allowance") for the subject new Site equal to the sum of (i) ***
of Lessee's cost incurred and paid to third parties to relocate
its equipment to such new Site from a non-Lessor site (not to
exceed, as to Lessor's portion, *** per Site), and (ii) ***
month's rent attributable to such new Site at a rate equal to the
Arch Rate (to be paid only after Lessee has paid all rent
attributable to such new Site for the following two (2) months);
provided, however: (A) in no event shall the Relocation Allowance
for a Site exceed the expenses actually incurred and paid to
third parties and reasonably documented by Lessee in connection
with such relocation; (B) Lessor's maximum aggregate Relocation
Allowance obligation throughout the entire term of this Lease
shall not exceed ***; and (C) Lessor's maximum
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aggregate Relocation Allowance obligation during the third year
of the term of this Lease shall not exceed ***, even if the
aggregate Relocation Allowance amounts previously paid by Lessor
during the term of this Lease are less than ***. Any Relocation
Allowance owed hereunder will be paid by Lessor to Lessee, and
may not be offset by Lessee against any of its obligations under
this Lease. All Lessee Relocation Allowance claims hereunder,
together with reasonable documentation evidencing that Lessee has
incurred and paid the applicable relocation costs, shall be
provided by Lessee to Lessor no later than one hundred twenty
(120) days from the date such costs are incurred by Lessee, and
shall be reimbursed by Lessor to Lessee in accordance with the
terms hereof within thirty (30) days after Lessee's provision to
Lessor of such claims and supporting documentation as Lessor may
reasonably request.
(g) A Site Schedule will be prepared for every Site that is subject
to this Lease. No later than the Effective Date (unless extended
by mutual agreement of the parties), Site Schedules for all
Existing Sites will be prepared, executed and delivered, and made
a part of this Lease. Thereafter, a Site Schedule will be
prepared, executed and delivered for each Site that for any
reason becomes subject to this Lease. Each Site Schedule will be
in substantially the form of the attached Exhibit C and will, as
modified from time to time, also indicate (i) the description of
Lessee's base station, Permitted Equipment and antenna systems,
and the location thereof on a Site, (u) any special circumstances
relating to a Site, (iii) the Site number assigned to the Site
based on the chronological order in which such Site became
subject to this Lease, (iv) Rent applicable to the Site from time
to time (whether covered by the Base Rent, Acquired Site Rent,
Excess Site Rent, Discovered Site Rent or otherwise as amended
from time to time), (v) the Permitted Frequency (defined below)
used by Lessee at the Site, (vi) whether the Site is a One-Way
Site or a Two-Way Site, (vii) whether the Site includes a Link
Transmitter Unit, a Hot Standby Unit, or an Excess Watt Unit
and/or an Existing Microwave Unit (all as defined below), and
(viii) the names and signatures of Lessor and Lessee (or their
respective affiliates that constitute the applicable Site Lessor
and Lessee) (collectively, as modified from time to time, the
"Site Information"). The terms of the Site Schedules, as modified
from time to time, will specifically identify such terms (but
only such terms) as governed by the Site Schedules, but this
Lease, as incorporated by reference into each Site Schedule, will
otherwise govern.
(h) No later than the Effective Date and continuing through the term
of this Lease, each of Lessor and Lessee shall appoint an
Administrative Manager (defined below) to, on a monthly basis
before the end of each month, reconcile and determine (i) the
total number of Sites actually occupied by Lessee; (ii) the
amount of Relocation Allowance then due and owing; (iii) any
adjustments to Rent due to Removed Sites; (iv) the number of
One-Way Sites, Two-Way Sites, Link Transmitter Units, Hot Standby
Units, Net Excess Watt Units and/or Existing Microwave Units; and
(v) such other matters as the parties may mutually agree. If the
Administrative Managers are unable to reach agreement regarding
any matter specified herein, such disagreement will be resolved
as set forth in Section 23.
(i) Once each calendar quarter during the term of this Lease, Lessor
will provide a quarterly review of all sites owned or operated by
Lessor in its network, and all sites identified by Lessee that it
uses in its business, with suggestions for potential Lessor sites
to which Lessee may seek to relocate from non-Lessor sites. Each
party will designate a qualified RF engineer or other technical
support person to facilitate the foregoing.
(j) The parties agree that this Lease and the Site Schedules convey a
leasehold interest in real estate and establish a landlord tenant
relationship between the parties. Lessee reserves all of its
rights as a tenant under 11 U.S.C. ss. 101, et seq. (the "Code"),
including without limitation Section 365 of the Code.
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(k) Lessee may, from time to time on at least five (5) days written
notice to Lessor, during the term of this Lease, eliminate one or
more Sites and terminate the corresponding Site Schedule,
provided, however, in the event that Lessee reduces the number of
Sites below the Site Commitment in any applicable monthly period,
Lessee shall, nonetheless, pay Lessor the Base Rent, Monthly
Reservation Fee, Acquired Site Rent, and all other applicable
Rent (as adjusted) for such period in accordance with the terms
of this Lease. Notwithstanding the foregoing; the exercise by
Lessee of its rights under this Section 1(k) will (i) if at such
time Lessee has not met the Site Commitment, not result in any
Rent reduction; (ii) if at such time Lessee has met the Site
Commitment, result in an Excess Site Rent reduction, but in such
case only as set forth in the following sentence. If Lessee seeks
to eliminate a Site that at the time was counted toward the Site
Commitment and for which the Rent obligation was covered by the
Base Rent and Monthly Reservation Fee, then if the eliminated
Site is (A) a One-Way Site, of the One-Way Sites leased under
this Lease in excess of the Site Commitment and being paid for by
Excess Site Rent, the One-Way Site having the earliest Site
Schedule date will then be counted toward the Site Commitment and
covered by the Base Rent and Monthly Reservation Fee, or (B) a
Two-Way Site, of the Two-Way Sites leased under this Lease in
excess of the Site Commitment and being paid for by Excess Site
Rent, the Two-Way Site having the earliest Site Schedule date
will then be counted toward the Site Commitment and covered by
the Base Rent and Monthly Reservation Fee.
2. TERM:
(a) The initial term of this Lease shall be three (3) years from the
Effective Date of this Lease. Upon expiration of the initial
term, this Lease may be renewed on such terms and conditions as
the parties mutually agree, in their respective sole discretion.
(b) If Lessee holds over with respect to any Site(s) after expiration
of the Lease term, the Lease term with respect to such Site(s)
shall revert to a month-to-month term, and rent shall be 125% of
the Rent applicable to such Site(s) during the last month of the
preceding term (if there is no specific rental rate applicable to
the particular Site, the holdover rent shall be 125% of the Arch
Rate). Lessor and Lessee shall each have the right during such
month-to-month term to terminate the Lease term with respect to
such hold over Site(s) without cause upon thirty (30) days notice
to the other party, unless a shorter period is required by an
applicable Prime Agreement.
3. RENT:
(a) Lessee shall pay rent during the term of this Lease comprising a
monthly reservation fee (the "Monthly Reservation Fee"), plus a
base rent amount ("Base Rent"), as follows:
(i) the Monthly Reservation Fee shall be (A) *** per month
during the first year of the term hereof; and (B) *** per
month during the second and third years of the term hereof;
and
(ii) the Base Rent shall be (A) *** per month during the first
year of the term hereof; (B) *** per month during the second
year of the term hereof; and (C) *** per month during the
third year of the term hereof.
The Base Rent, the Monthly Reservation Fee, the Acquired Site
Rent, the Excess Site Rent (defined below), and the Discovered
Site Rent (defined below), are collectively referred to as "Rent"
as adjusted. Rent shall be paid in advance on a monthly basis,
commencing on the first full day of the full calendar month first
occurring after the Effective Date and continuing on the first
day of each month thereafter during the term hereof.
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The Base Rent, Monthly Reservation Fee and Acquired Site Rent
shall be owed by Lessee to Lessor without regard to whether the
actual number of Sites leased or occupied by Lessee, or whether
Lessee has met the Site Commitment, and without offset or
reduction in any manner, except as expressly provided herein
regarding undisputed Removed Sites and regarding undisputed
Relocation Allowance amounts. The Monthly Reservation Fee shall
be paid by Lessee to Lessor for Lessor's agreement to allow
Lessee to add Additional Sites, in accordance with the terms
described elsewhere herein. All of the fees and costs associated
therewith shall be deemed included in the Monthly Reservation
Fee.
(b) If Lessee occupies a number of Sites in excess of the applicable
Site Commitment, Lessee will be obligated to pay Lessor rent for
all such excess Sites (the "Excess Site Rent") on the same date
as all other Rent is paid and in addition thereto, an amount
equal to the following rate per excess Site (the "Arch Rate").
(A) For each One-Way Site: *** per month (provided the *** per
month rate shall be increased to *** effective July 1, 2003 and
to *** effective July 1, 2004), except if a Net Excess Watt Unit
is used at a One-Way Site the rate shall be *** per month for
Site (provided the *** per month rate shall be increased to ***
effective July 1, 2003 and to *** effective July 1, 2004).
(B) For each Two-Way Site: *** per month (provided the *** per
month rate shall be increased to *** effective July 1, 2003 and
to *** effective July 1, 2004).
(c) If a Site becomes a Removed Site and the Removed Site Conditions
are satisfied regarding such Removed Site, then subject to and in
accordance with the terms of this Section 3(c), the applicable
portion of the Rent otherwise owed for such Site shall not be
owed, commencing effective on the date on which such Site became
a Removed Site hereunder. If a Site becomes a Removed Site as
provided herein under the circumstances described in: (i) Section
1(d), then the applicable portion of the Rent for such Removed
Site shall be reduced in an amount equal to the greater of the
Arch Rate, or if as a result of such removal and lack of a
Replacement Site Lessee relocates to a Functionally Equivalent
non-Lessor site, the average of the Arch Rate and the rate paid
by Lessee for such non-Lessor site; (ii) in Sections 5(d)(ii),
10(a) and 10(b), 11 or 21(a), if the Site Commitment is (A) met
at the time, the Excess Site Rent for such Removed Site shall not
be owed, or (B) not met at the time, the applicable portion of
the Rent for such Removed Site shall be reduced by the Pro Rata
Amount (defined in Section 24).
(d) From and after the date that is three (3) months after the
Effective Date, if either party learns of or discovers that
Lessee has equipment at a space on a Site hereunder or on a site
elsewhere in Lessor's network, and such space or site is not then
described in and subject to a Site Schedule as a Site under this
Lease but was occupied by Lessee before the Effective Date (a
"Discovered Site"), Lessor or Lessee, as the case may be, will
provide prompt notice in writing to the other party of such
Discovered Site, together with a description of the equipment
thereon. If at such time Lessee has met the minimum Site
Commitment, Lessee shall be required to pay rent for such
Discovered Site to Lessor ("Discovered Site Rent") for the period
beginning retroactively to the Effective Date until Lessee
removes its equipment from the Discovered Site, at a monthly rate
equal to (1) 75% of the Arch Rate if Lessee first notifies Lessor
of the Discovered Site, or (2) 125% of the Arch Rate if Lessor
first notifies Lessee of the Discovered Site. Within thirty (30)
days following the date a party provides written notice hereunder
of a Discovered Site, Lessee, at its option, must either remove
the subject equipment and restore such Discovered Site to its
original condition, normal wear, tear and Casualty excepted, or
enter into a Site Schedule for such Discovered Site. If a Site
Schedule is entered into for a Discovered Site, such site shall
constitute a Site hereunder and shall be included in the
calculation of the applicable Site Commitment.
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(e) Lessee shall pay all amounts that are due and owing to Lessor
hereunder by wire transfer or ACH credit to Lessor's account as
identified by Lessor, or at Lessee's option, by Lessor ACH debit
of Lessee's account as identified by Lessee, no later than the
first business day of each calendar month with respect to which
it is payable. If payment (including any applicable late fee) is
not received when due, Lessor has the option to charge a late fee
equal to 5/6% per month of the amount due, but no such late fee
will apply to reasonably disputed charges.
(f) Lessee shall pay all sales or use taxes, fees, and assessments
applicable to Rent or as a direct result of Lessee's equipment
being located on or Lessee's use of the Leased Premises, but in
no event shall Lessee be responsible for any local, state or
federal capital levy, franchise tax, or revenue tax on profits of
Lessor.
(g) As part of the consideration hereunder, throughout the term of
this Lease, Lessee shall provide at no charge to Lessor, ten (10)
two-way paging devices and related paging services in the 50,000
character/month per device (with $.0006 character/month charge
for excess usage). The use of such devices will be subject to
Lessee's standard terms and conditions.
4. INSTALLATION:
(a) Lessee shall install only the Permitted Equipment identified in
the Site Schedules, and the cost of Lessee's installation,
including the cost of any permits or licenses required for such
operation, shall be borne solely by Lessee. Lessee shall comply
with all Site rules and standards contained in Exhibit A to this
Lease, each of which are incorporated herein by this reference.
(b) During installation, Lessee shall not cause interference of any
kind to the activities of Lessor or other Lessees on the Site. If
such interference is caused by Lessee and cannot, within ten (10)
days after written notice from Lessor to Lessee, be reduced to
levels reasonably acceptable to Lessor, then Lessee shall
immediately halt all installation work, and Lessor may elect to
terminate the applicable Site Schedule by giving Lessee ten (10)
days written notice, but in such event, such Site will not be
deemed a Functionally Equivalent Site or Replacement Site.
(c) The placement of any slab and/or building for Lessee's use at a
Site must be pre-approved by Lessor, in Lessor's sole discretion,
prior to installation. All pre-installation thereof shall be
coordinated through the Lessor's appointed representative for
said Site. No changes to the placement will be allowed without
the prior written approval of Lessor, in Lessor's sole
discretion. Lessee shall be solely liable for all expenses,
permits and licenses related to installation thereof as well as
the cost to enclose Lessee's equipment.
(d) Lessor reserves the right to require Lessee to relocate any or
all of Lessee's equipment within a Site, and Lessee agrees to
relocate said equipment, provided that (i) Lessor shall pay the
reasonable cost of such relocations, and (ii) said relocation
does not render the operations on the Site functionally
non-equivalent to Lessee's prior operations thereon. If the
parties dispute whether any such relocation renders the Site
functionally non-equivalent to Lessee's prior operations thereon,
and Lessor does not provide a Replacement Site accepted by
Lessee, then such dispute shall be resolved in the manner set
forth in Section 23.
(e) Prior to entering into a Site Schedule for a Site, upon providing
Lessor at least two (2) business days prior notice, Lessee shall
have the right to conduct reasonable tests, studies and analyses
of the prospective Site in order to determine the suitability of
such Site for Lessee's intended use. All such investigations
shall be performed at Lessee's expense, Lessee shall restore the
Site to its original condition (reasonable wear, tear and
Casualty
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excepted), and Lessee shall be liable for, and shall indemnify
Lessor against, any damages resulting from the investigations. No
such investigation shall be permitted to disturb existing tenants
at the Site, and any investigations Lessor and Lessee shall abide
by the entry and testing terms set forth on the attached Exhibit
D and the requirements of Section 5(c). Before any such
investigations, Lessee and its vendors must provide Lessor
evidence reasonably satisfactory to Lessor of insurance as
required pursuant to the attached Exhibit B.
5. USES OF LEASED PREMISES:
(a) Lessee shall use the Leased Premises and conduct its
communications operations in compliance with the terms of its FCC
license, and all applicable laws, orders, ordinances, and
regulations pertaining to the Leased Premises or Lessee's
business. Lessee shall, if requested, provide Lessor with copies
of all permits and FCC licenses required in connection with
Lessee's operations on the Leased Premises.
(b) Lessee shall have a non-exclusive right to access the Leased
Premises twenty-four (24) hours a day, 365 days a year for its
employees, agents, or representatives as designated, subject to
reasonable security restrictions and subject to the terms of
applicable Prime Agreements of which Lessor has provided Lessee
notice (including any payments to lessors under Prime Agreements
of which Lessor has provided Lessee notice required as a result
of Lessee's access, which Lessee shall bear). In accordance with
procedures in Exhibit A, Lessee will be issued a key, key card,
and/ or access code to unlock the gate and transmitter room for
maintenance purposes. This key may not be duplicated, loaned, or
transferred to any other entity. If this key or keycard is lost
or the integrity of security is breached by Lessee, Lessee will
bear the expense for and cost actually incurred and paid to third
parties by Lessor to re-tool the locks, reprogram the security
system, and provide new keys and/or keycards for all authorized
persons. Lessee shall provide Lessor the name of Lessee's
custodian of the key or keycard; should the custodian change,
Lessee shall notify Lessor, in writing, of the new custodian's
identity within three (3) business days.
(c) Before performing any installation or maintenance work at a Site,
Lessee shall notify Lessor and (i) if such work involves activity
on or directly about a tower on the Site, Lessee shall be
required to obtain Lessor's consent to the work and the persons
to perform the work before commencing any such work, which
consent Lessor may withhold in Lessor's commercially reasonable
discretion; (ii) if such work does not involve activity on or
directly about a tower on the Site, Lessee shall be required to
obtain Lessor's consent to the work and the persons to perform
the work before commencing such work, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, if such
work (1) does not involve activity directly on or about a tower
on the Site and constitutes only minor routine maintenance,
installation, removal, modification or other permitted changes of
Permitted Equipment, or Permitted Frequency changes that in any
event do not involve activity on or directly about a tower on the
Site, then Lessee may perform such work without Lessor's prior
consent so long as Lessee provides Lessor prior notice thereof;
or (2) is required as a result of an emergency and does not
involve activity directly on or about a tower on the Site, Lessee
shall only be required to use commercially reasonable efforts to
provide Lessor prior notice of such work. Subject to the
foregoing, all contractors and subcontractors of Lessee who
perform any services on the Leased Premises must (i) be approved
by Lessor in advance, (ii) hold all licenses necessary for the
work being performed, (iii) provide evidence reasonably
satisfactory to Lessor of insurance required pursuant to the
attached Exhibit B, and (iv) provide in form acceptable to Lessor
either lien waivers or releases of Lessor. All installation and
maintenance work must comply with the requirements of the
attached Exhibits A and B. Notwithstanding the foregoing, without
Lessor's prior consent, which consent Lessor may withhold in
Lessor's sole discretion, neither Lessee nor any of its
representatives may
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perform any maintenance, repairs or other work with respect to
any tower itself, or other Lessor property on any Site.
(d) (i) Lessee shall not cause interference of any kind to the
operations of the Lessor (if Lessor is then using equipment on
the applicable Site(s)) or other Lessees that are then-current
tenants at the applicable Site(s) in excess of levels permitted
by the FCC, as well as interference to consumer electronic
devices and blanketing interference as defined by section 73.318
of the FCC rules. Subject to this Section 5(d), Lessee's
equipment (including any subsequent modification or alteration
thereto) shall be conducted in a manner that does not interfere
electrically, or in any other manner whatsoever known at the time
by Lessee with any then pre-existing use of by Lessor or other
users of the on a Site that pre-exists the installation of
Lessee's equipment at such location ("Pre-Existing Use"). In the
event that any Pre-Existing Use experiences interference caused
by Lessee's equipment (including any subsequent modification or
alteration thereto), Lessee shall be notified in writing of such
interference and Lessee shall power-down its equipment and/or
cease operations in order to correct and eliminate such
interference within seventy-two (72) hours after Lessee's receipt
of such notice. If Lessee does not cease all interfering
operation within such seventy-two (72) hour period, Lessee shall
power-down the offending equipment at the applicable Site. Lessee
shall have the right to test its equipment from time to time or
at any time to attempt to correct the problem. If Lessee is
unable to eliminate the interference, or reduce it to a level
acceptable to the affected user of the Pre-Existing Use, within a
period of thirty (30) days following such initial notice
(provided that during such thirty (30) day period, Lessee may
operate its equipment intermittently for testing purposes only),
then Lessor may terminate the applicable Site Schedule. In the
event that Lessee is notified of any interference experienced by
a Pre-Existing Use on the applicable Site alleged to be caused by
Lessee's equipment thereon, Lessee shall make commercially
reasonable efforts, at Lessee's sole cost and expense, to
eliminate such interference and shall not be released from its
obligation to continue to pay its applicable rents during any
testing period that Lessee cannot operate from such Site, unless
and until the Site Schedule is terminated by either the Lessor or
the Lessee. If Lessee is required to discontinue its operation
under this Subsection 5(d)(i) due to interference with a
Pre-Existing Use for a period of sixty (60) days, then Lessor
shall have the right to terminate this Lease only as to the
subject Site Schedule, but such termination shall not result in
the Site being deemed a "Removed Site"
(ii) Lessor agrees that Lessor and Lessor's customers' use of the
applicable Site with respect to equipment that is installed or
modified subsequent to Lessee's then-current operation of
Lessee's equipment thereon ("Subsequent Use") will not interfere
with Lessee's then-current operations. In the event that Lessee
experiences interference caused by any Subsequent Use, Lessee
shall notify Lessor in writing or telecopy of such interference
and Lessor shall, or shall cause the operator of the interfering
Subsequent Use to, power-down its equipment and/or cease
operations in order to correct and eliminate such interference
within seventy-two (72) hours after such Subsequent Use's receipt
of such notice. If such Subsequent Use results in Lessee being
unable to operate without causing such interference, or if such
interference is not reduced to a level reasonably acceptable to
Lessee, within a period of thirty (30) days (provided that during
such thirty (30) day period the Subsequent Use may be operated
intermittently for testing purposes only), then Lessee may
terminate the applicable Site Schedule. If Lessee is required to
discontinue its operation under this Section 5(d)(ii) due to
interference with a Subsequent Use for a period of thirty (30)
days, and no Replacement Site for the affected Site has by then
been accepted by Lessee, then Lessee shall have the right to
terminate this Lease only as to the subject Site Schedule, and
such termination shall result in the Site being deemed a "Removed
Site" provided the Removed Site Conditions are satisfied. Lessor
will use commercially reasonable efforts to cause any such
interfering Subsequent Use to cease any interfering operations in
accordance with this Section 5.
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(iii) If harmful interference is caused in whole or in part by
Lessee to the equipment of others not specifically designed to
transmit, receive and/or use radio frequency energy, Lessee shall
be obligated to reduce or eliminate such harmful interference as
provided by FCC Rules Parts 22, 24, 90, and 15.
(e) Lessee shall cooperate with Lessor in its reasonable rescheduling
of transmitting activities, reducing power, or interrupting its
activities for limited periods of time in order to permit the
safe installation of new equipment or new facilities at the Sites
or to permit repairs to facilities of any user of the Sites or to
the Sites or related facilities.
(f) Lessor makes no guaranty or warranty, including any implied
warranty of merchantability or fitness for a particular use.
(g) Lessee may only operate Permitted Frequencies (defined below) at
Sites under this Lease. Upon prior written notice received by
Lessor not less than the greater of five (5) business days or the
advance notice contained in Lessor's underlying Prime Agreement
plus three (3) business days (provided that Lessor has provided
Lessee with the relevant provisions of the underlying Prime
Agreement), subject to the other terms and conditions of this
Lease and the terms of applicable Prime Agreements, so long as
the Site Frequency Change Conditions (defined below) are
satisfied, Lessee shall be permitted to add and operate
additional frequencies, and/or change the frequencies, operating
on its telecommunications equipment located on a Site. Lessee
shall be permitted to do the foregoing for no additional Rent for
so long as the Site Frequency Change Conditions are satisfied. If
the Site Frequency Change Conditions are not satisfied, then
Lessee must obtain Lessor's prior written consent to consummate
such change, which consent may be withheld in Lessor's sole
discretion. If Lessor approves any such change, the applicable
Site Schedules (including the appropriate Rent for such Site)
shall be amended a appropriate. Whether or not operating on FCC
authorized paging channels as defined in the "Permitted
Equipment" definition herein, Lessee agrees that its operations
on all such frequencies will have the characteristics of the
defined "One-Way Site" and/or "Two-Way Site" hereunder.
(h) If after the Effective Date Lessee proposes that a New Link
Transmitter Unit (defined below) be included on a Site , Lessee
shall pay to Lessor for each such New Link Transmitter Unit an
amount equal to *** per month. Such amount shall not be owed with
respect to Existing Link Transmitter Units (defined below). Such
amount shall be the only rent payable for a Site that consists
exclusively of a New Link Transmitter Unit. For Sites that
consist of a New Link Transmitter Unit together with a One-Way
Site or a Two-Way Site, such amount shall be payable in addition
to the rent otherwise payable for such One-Way Site or Two-Way
Site. For the purpose of determining whether the Site Commitment
is met, an Existing Link Transmitter Unit shall constitute a
'Site' under this Lease, but a New Link Transmitter Unit shall
not constitute a "Site" under this Lease. Therefore, if an
Existing Link Transmitter Unit is used by Lessee (i) independent
of a One-Way Site or a Two-Way Site, it will be deemed one (1)
Site, (ii) in connection with a One-Way Site, the Link
Transmitter Unit and the One-Way Site together will be deemed two
(2) Sites, or (iii) in connection with a Two-Way Site, the Link
Transmitter Unit and the Two-Way Site together will be deemed
three (3) Sites.
(i) Lessee shall pay Lessor an additional *** per month for the
aggregate amount of Net Excess Watt Units (defined below) that
exist during each month, in addition to all Rent obligations.
Lessee shall provide Lessor prior written notice of Lessee's use
of an Excess Watt Unit at any Site, except in the case of Excess
Watt Units located as of the Effective Date on Existing Sites.
(j) Lessee shall not install, use or operate any Site under this
Lease except as a One-Way Site or a Two-Way Site.
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(k) Except for Permitted Equipment, Lessee may not load equipment at
a Site without Lessor's express prior written consent, which
consent may be withheld in Lessor's sole discretion. If Lessee
loads any equipment without a required consent from Lessor,
Lessee shall be in breach with respect to such Site.
Notwithstanding the restriction in the "Two-Way Site" definition
to a single transmitter, Lessee shall be permitted to have, on up
to 185 Existing Sites as of the Effective Date, up to two (2)
transmitters thereon, provided such transmitters are located
within existing cabinets on such Sites as of the Effective Date
and provided Lessee pays Lessor in addition to all other amounts
owed for such Sites an amount equal to *** per month for each
such additional transmitter on such Existing Sites.
Notwithstanding the foregoing, Lessee shall not be permitted to
have more than two (2) transmitters on a Site.
6. UTILITIES: Lessee shall pay all installation costs for electrical
power feeds and phone lines to its equipment. Lessee shall pay for all
Lessee's electrical power usage at Existing Sites for which Lessor is
not already responsible for the payment of under a Prior Lease
(defined below), either directly to the utility company or as a
reimbursement to Lessor. Lessor shall pay for the actual costs of
Lessee's electrical power usage at all other Sites. In no event will
Lessor pay for any telephone or other utility charges or costs of
Lessee or related to Lessee's operation at Sites hereunder.
7. INSURANCE:
(a) Insurance requirements for Lessee and Lessee's contractors are
contained in Exhibit B attached hereto and incorporated herein by
this reference.
(b) Lessor and Lessee release each other, and their respective
principals, employees, representatives and agents, from any
claims for damage to any person or to the Leased Premises, the
Sites and any improvements thereon, that are caused by, or result
from, risks insured against under any insurance policies carried
by the parties and in force at the time of any such damage and
any risks which would be covered by the insurance which such
party is required to carry hereunder. Each party will cause each
insurance policy obtained by it to provide that the insurance
company waives all right of recovery by way of subrogation
against the other party in connection with any damage covered by
any policy.
8. MAINTENANCE OF SITE:
(a) Lessor shall maintain the Sites in good repair, ordinary wear,
tear and Casualty excepted, and, to the extent applicable as
determined by Lessor, in compliance with applicable sections of
FAA regulations, and Part 17 of FCC regulations pertaining to
lighting, marking, inspection, and maintenance. In cases where
such FCC regulations require the painting of Lessee's feedlines,
Lessee hereby consents to such painting.
(b) Lessee shall maintain its equipment in accordance with standards
of good engineering practice to assure that it conforms with the
site standards identified in Exhibit A which standards are
attached hereto and incorporated herein by this reference, and
shall surrender possession of the Leased Premises to Lessor in
the same condition they were at the commencement of this Lease,
ordinary wear, tear and Casualty excepted. Lessee shall place at
the Leased Premises such signs as may be required by applicable
federal, state, or local law with respect to Lessee's equipment.
(c) All radio frequency emission ("RFE") analyses whether conducted
by Lessor or Lessee will comply with guidelines and procedures
for evaluating environmental effects of RF emissions on or from
the applicable Site, in strict compliance with FCC OET Bulletin
65, entitled Evaluating Compliance with FCC Guidelines for Human
Exposure to Radio frequency Electromagnetic Fields, Edition
97-01, released August 1997 ("OET Bulletin
11
65"), and all existing and future laws, rules, and regulations
related thereto (collectively, "EMF Rules"). Lessor agrees to
make available to Lessee such information, reports and data if
and to the extent prepared by Lessor in connection with radio
frequency emission analyses (RFE Analyses) related to Sites. Such
information, if any, may include, without limitation, RFE
software simulation analyses, reports of on site FIFE measurement
survey results, and the Health and Safety plan for the Site,
including identification of access limitations and signage
required to control access to areas where Maximum Permissible
Exposures (MPE) are exceeded for the relevant standards, whether
such RFE Analyses were performed by Lessor or by a reliable third
party. If Lessor is unable to, or otherwise does not, provide RFE
Analyses for a Site, Lessee may prepare an analysis at its sole
expense. In such cases, Lessor agrees to provide, to the extent
available, any relevant information it may have relating to the
preparation of the analysis, and will cooperate with regard to
scheduling and third-party site user notification(s).
Notwithstanding the foregoing, Lessor and Lessee agree that
Lessee installations meeting the following minimum criteria shall
not require RFE analysis unless otherwise mandated by a
governmental authority having jurisdiction:
(i) One-Way or Two-Way Site having all antenna(s) mounted at
least 100 feet above any area subject to public or transitory
use; or
(ii) Radio frequency energy attributed to Lessee's
installation(s) on the Site can be calculated to be within FCC
specified safe limits (using the procedures outlined in FCC
Bulletin OET-65, as revised);
(iii) Installations that are categorically excluded from the
requirement to meet RFE requirements per the governmental agency
having jurisdiction.
9. ALTERATION BY LESSEE:
(a) Lessee may not make improvements or alterations to any Site,
tower, building, or any other portion of the Leased Premises
without the express written permission of Lessor, in Lessor's
sole discretion. Any such improvements that are approved by
Lessor and thereafter made by Lessee shall at Lessor's option
become the property of Lessor upon termination or expiration of
this Lease, but the foregoing will not limit Lessor's right to
require removal of such equipment upon termination or expiration.
(b) Subject to the installation, use and other restrictions set forth
in this Lease or any Prime Agreement, upon providing Lessor ten
(10) days prior written notice (but such prior notice shall not
be required for changes and alterations consisting of Permitted
Equipment), Lessee may make changes and alterations in its
equipment provided that (i) such changes or alterations conform
with standards of good engineering practice and the provisions of
Section 5, (ii) plans and specifications are first submitted to
and approved in writing by Lessor, which approval shall not be
unreasonably withheld, and (iii) any proposed changes or
alterations do not increase the "wind loading" (per EIA Standard
RS-22F or as revised) or stress of the applicable tower or
require Lessee's use or occupancy of any additional space at the
subject Site. At Lessor's request, Lessee will provide an
independent professional analysis of "wind loading" and stress to
determine any changes that equipment replacements or alterations
would cause.
10. SITE DAMAGE; DAMAGE TO LESSEE'S EQUIPMENT:
(a) If a Site is fully or partially destroyed or damaged, Lessor, at
its option, may elect to terminate the Lease with respect to such
Site, or Lessor may relocate Lessee to another site in Lessor's
network, upon ten (10) days written notice to the Lessee.
However, if as a
12
result of such damage or destruction Lessee is unable to conduct
its operations on such Site in a manner that is functionally
equivalent to Lessee's operations before such event, and the
Removed Site Conditions have been satisfied and the damage or
destruction occurred through no fault of Lessee, then such Site
will be deemed a "Removed Site."
(b) Lessor, at its option, may elect to repair or rebuild the Site,
in which case, this Lease including the applicable Site Schedule
shall remain in force with respect to such Site. If
reconstruction or repair cannot reasonably be undertaken without
dismantling Lessee's antenna, then Lessor may remove Lessee's
antenna and interrupt Lessee's operations, thereafter replacing
the antenna as soon as reasonably possible, but in no event later
than ten (10) days after such dismantling, following which if
such Site is not fully operational to Lessee's reasonable
satisfaction in a manner that is functionally equivalent to
Lessee's operations before such event, Lessor shall use
reasonable efforts to identify a suitable Replacement Site for
the affected Site, and if no Replacement Site has been accepted
by Lessee within fifteen (15) days (which period may be extended
by mutual agreement of the parties) after expiration of such ten
(10) day period, and the Removed Site Conditions have been
satisfied, then Lessee may designate such site as a "Removed
Site."
(c) Under no circumstances whatsoever shall Lessor be responsible for
damage to or loss of Lessee's equipment, or for financial loss
due to business interruption.
(d) Lessor shall incur no liability to Lessee for failure to furnish
space and/or electrical power if prevented by war, fires,
accidents, labor strikes, acts of God, or other causes beyond its
reasonable control.
11. EMINENT DOMAIN: If the land or Leased Premises upon which a tower,
foundation, or building is located are acquired or condemned under the
power of eminent domain, whether by public authority, public utility,
or otherwise, and as a result thereof Lessee is unable to conduct its
operations on such Site in a manner that is functionally equivalent to
Lessee's operations before such event, Lessee shall notify Lessor
thereof. Lessor shall use reasonable efforts to identify a suitable
Replacement Site for the affected Site, and if no Replacement Site has
been accepted by Lessee within fifteen (15) days (which period may be
extended by mutual agreement of the parties) after receipt of notice
from Lessee, and at the time of such event the Removed Site Conditions
have been satisfied, then the Site shall be deemed a "Removed Site".
12. INDEMNIFICATIONS:
(a) Lessee shall indemnify, hold harmless, and defend Lessor for 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 from injury to or death of any person or any damage to
property, or loss of revenues due to any breach of this Lease or
any Site Schedule by Lessee, or any negligent act or omission, or
willful misconduct of Lessee or its contractors, subcontractors,
agents, or representatives occurring in or around the Leased
Premises, except to the extent such liabilities are directly
caused by the willful misconduct or gross negligence of Lessor.
(b) Lessor shall indemnify, hold harmless, and defend Lessee for 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 from injury to or death of any person or any damage to
property, or loss of revenues due to any breach of this Lease or
any Site Schedule by Lessor, or any negligent act or omission, or
willful misconduct, of Lessor or its contractors, subcontractors,
agents, or representatives occurring in or around the Leased
Premises, except to the extent such liabilities are directly
caused by the willful misconduct or gross negligence of Lessee.
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(c) NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION OF THIS
LEASE OR ANY SITE SCHEDULE TO THE CONTRARY IN NO EVENT SHALL
EITHER PARTY BE RESPONSIBLE FOR, OR LIABLE FOR ANY LOSS, COST,
DAMAGE, EXPENSE, INJURY OR OTHER LIABILITY WHICH IS IN THE NATURE
OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH
ARE SUFFERED OR INCURRED AS THE RESULT OF, ARISE OUT OF, OR ARE
IN ANY WAY CONNECTED TO THE PERFORMANCE OF OBLIGATIONS HEREUNDER.
13. SUBLETTING; ASSIGNMENT; SUCCESSION:
(a) Lessee shall not assign this Lease or any Site Schedule in whole
or in part, or sublet or permit the Leased Premises or any part
thereof to be used by others without the express written approval
of Lessor in its sole discretion; and Lessee shall not mortgage
or encumber this Lease without the express written approval of
Lessor, which consent shall not be unreasonably withheld or
delayed. No assignment, sublease or authorized use by others
shall relieve Lessee of its obligations under this Lease. Lessor
may assign, mortgage, or encumber its rights under this Lease at
any time. Notwithstanding the foregoing, (i) Lessee may assign
this Lease and all Site Schedules to any person or entity that
Lessor in its sole discretion deems to be financially acceptable,
and (ii) Lessee shall have the right, without Lessor's prior
consent, whether written or oral, to assign its rights and
obligations under (A) this Lease and all Site Schedules to any
affiliate or successor in interest (by whatever means) to
substantially all of the assets of Lessee, and (B) individual
Site Schedules to any affiliate of Lessee, so long as in either
case the assignee assumes all liabilities and obligations under
this Lease and the Site Schedules. In no such event shall Lessee
be relieved of any liability or obligations under this Lease or
any Site Schedules.
(b) If Lessee becomes a successor in interest to occupancy rights in
sites owned or operated by Lessor ("Lessee Acquisition"), or if
Lessor becomes successor in interest to any sites upon which
Lessee is then-currently leasing ("Lessor Acquisition"), pursuant
to a lease between Lessee or Lessor, as applicable, and the
respective tenant or landlord, as applicable (an "Acquired
Lease") then all of the Sites subject to such Acquired Lease
("Acquired Sites") shall be come "Sites" subject to and leased
under this Lease. However, notwithstanding anything to the
contrary set forth in this Lease, in no such event shall Acquired
Sites be included in the calculation of or otherwise counted
toward the Site Commitment, and in no event shall the rental
obligation for Acquired Sites be covered by the Base Rent or
Monthly Reservation Fee. In connection with any Lessee
Acquisition or Lessor Acquisition:
(i) To the extent any Acquired Site does not on the date of such
acquisition comply materially with the non-monetary provisions of
this Lease, Lessee shall bring such Acquired Site into material
compliance with this Lease, and any failure of Lessee to do so
will constitute a breach of this Lease as to the applicable
Acquired Site only;
(ii) the Acquired Lease shall be incorporated into and made
subject to this Lease; and
(iii) the rent for Acquired Sites shall be the Acquired Site
Rent, which shall be owed, in addition to the Base Rent and
Monthly Reservation Fee. The Acquired Site Rent shall be
increased by three percent (3%) per annum for each Acquired Site
as of each anniversary date of the acquisition of such Acquired
Site.
Such Acquired Site Rent shall be owed by Lessee for the Acquired
Sites in addition to the Base Rent and Monthly Reservation Fee,
regardless of whether or not Lessee has met the Site Commitment.
In any such event, a new Site Schedule will be executed and
incorporated into this Lease for each Acquired Site. Neither
Lessor nor Lessee will
14
unreasonably withhold or delay its consent, if such consent is
required, to any such acquisition or other transaction in which
Lessor or Lessee succeeds to interest(s) in Acquired Leases and
Acquired Sites.
(c) Notwithstanding the provisions of Section 13(b)(iii) and
13(b)(iv) above, if there exists a reasonable dispute regarding
any Acquired Site Rent or Base Acquired Site Rent, such dispute
shall be resolved as set forth in Section 23, and during the
pendency of any such dispute, Lessee shall only be obligated to
pay 85% of the Arch Rate for such Acquired Site. Upon resolution
of such dispute, if the rent actually owed (i) exceeds the amount
paid pursuant to this Subsection 13(c), Lessee shall pay to
Lessor the balance owed within 30 days of such resolution; or
(ii) is less than the amount paid pursuant to this Subsection
13(c), Lessor shall refund to Lessee the overpayment, within 30
days of such resolution.
14. DEFAULT:
(a) Monetary Default: A party shall be in default hereunder if it
fails to make any payment within ten (10) days of date due and
does not cure such non-payment within five (5) days after a
non-defaulting party provides the defaulting party written notice
thereof.
(b) Non-Monetary Default: A party shall be in default hereunder if it
fails to comply with any other term of this Lease or any Site
Schedule and does not cure such other failure within thirty (30)
days after a non-defaulting party provides the defaulting party
with written notice thereof; provided however, that if any such
non-monetary default is not capable of being cured within the
requisite period of time, then so long as the party charged with
the default has diligently pursued such cure of the default
within the prescribed period, such party shall be given the
necessary time to cure the default, such time not to exceed
ninety (90) days, unless a shorter period is expressly required
under the terms of this Lease.
(c) Certain Lessor Remedies: If subsequent to the foregoing requisite
periods of time as applicable, there continues to be an event of
default, Lessor may exercise any or all of the following
remedies, in addition to all other remedies available to Lessor
under this Lease or otherwise provided at law or in equity:
(i) terminate this Lease and all Site Schedules and declare the
entire balance of all forms of Rent (other than any reasonably
disputed Excess Site Rent) due under this Lease for the remainder
of the term to be immediately due and payable, in which event
Lessee shall promptly surrender possession of the Leased
Premises, and Lessee shall be liable for all past due amounts
under this Lease, plus the amount of the Rent and other benefits
that Lessor would have received for the remainder of the current
term of the Lease; however, if at such time Lessee has met the
Site Commitment and paid all Rent other than the reasonably
disputed Excess Site Rent then due, then Lessor may terminate,
accelerate and/or seek damages only with respect to (1) those
Site Schedules for which there is any default, whether for
failure to pay Excess Site Rent or otherwise, and (2) a number of
additional Site Schedules, chosen by Lessor in its sole
discretion (including without limitation Sites included in the
Site Commitment that are paid for by the Base Rent and Monthly
Reservation Fee and are not excess Sites), in an amount equal to
the number of Sites for which there is any default, whether for
failure to pay Excess Site Rent or otherwise;
(ii) advance or otherwise pay any cost or expense to remedy a
Lessee breach, in which event Lessee shall repay such amount to
Lessor within ten (10) days after notice from Lessor (provided
that Lessor shall first be required to provide in addition to the
notices provided for in Section 14(a) and 14(b), five (5)
business days notice to Lessee of Lessor's intent to undertake to
remedy Lessee's breach), and/or
15
(iii) re-let the Leased Premises on such terms as Lessor
reasonably deems appropriate, and in such event Lessee will
remain liable for all Rent hereunder, less the net proceeds, if
any, of any reletting by Lessor, after deducting all Lessor's
expenses in connection with such reletting.
(d) Mutual Remedies. The defaulting party shall be liable for all
expenses, including reasonable attorneys' fees and costs,
incurred by a non-defaulting party in connection with any action
to enforce the terms of this Lease, or in connection with any
action for the recovery of the Leased Premises itself. If
subsequent to the time period specified in Section 14(a) or 14(b)
as applicable there continues to be an event of default, subject
to the terms of Section 23, any suit or suits for the recovery of
the amounts and damages owed hereunder may be brought by a
non-defaulting party, from time to time, at such party's
election, and nothing in this Lease will be deemed to require
such party to await the date upon which this Lease or the term
would have expired had there occurred no event of default.
(e) Additional Remedies. Upon the occurrence of any Lessee default
that is not cured Lessor may, subject to the terms of Sections
14(a) and (b) and Section 23: (i) enter upon the affected Site(s)
without being liable for prosecution or any claims of damages of
such entry, and do whatever Lessee is obligated to do under the
terms of this Lease or any individual Site Schedule to correct
the default, (ii) remove any or all of Lessee's equipment
therefrom at the expense of Lessee, or (iii) disconnect Lessee's
equipment. Notwithstanding the foregoing, if Lessor in its sole
discretion determines there exists an emergency with respect to
any Site, Lessor may enter upon the affected Site without being
required to first provide Lessee any notice thereof or
opportunity to cure. In such event, Lessor will provide Lessee
notice thereof as soon as is reasonably practical under the
circumstances. All costs in exercising such remedies (including
the costs of any repairs required due to such removal) pursuant
to this Section shall be at the expense of Lessee, which costs
shall be reimbursed to Lessor upon receipt of an invoice(s).
Lessee agrees to reimburse Lessor on demand for any expenses that
Lessor may incur in effecting compliance with Lessee's
obligations hereunder or any Site Schedule in this manner, and
Lessee further agrees that Lessor shall not be liable for any
damages resulting from such action (other than with respect to
Lessor's gross negligence or willful misconduct). No action by
Lessor pursuant to this Section shall be construed as an election
on Lessor's part to terminate any individual Site Schedule,
unless a written notice of such intention is given to Lessee, and
Lessee's obligation to pay any sums payable hereunder shall not
be terminated or suspended.
(f) Relocation Allowance and Reconciliation Offset. If Lessor fails
to pay any undisputed part of the Relocation Allowance within the
thirty (30) day period specified in Section 1(f), or any amount
owed by Lessor pursuant to Section 13(c)(ii), and fails again to
pay such amount within thirty (30) days after notice from Lessee
indicating Lessee's intent to exercise its offset right
hereunder, then Lessee may offset against the Rent otherwise
payable hereunder the owed but unpaid undisputed portion of the
Relocation Allowance or Section 13(c)(ii) reconciliation amount,
as applicable.
15. CERTAIN REMEDIES: 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. Should a non-defaulting party permit a continuing default by a
defaulting party under this Lease or any Site Schedule, the
obligations of the defaulting party 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 the non-defaulting
party or obligations of the defaulting party hereunder. In addition to
the other remedies in this Lease, and anything contained herein to the
contrary notwithstanding, the non-defaulting party shall be entitled
to specific performance or injunctive relief of any violation or
attempted or threatened violation of this Lease by the defaulting
party without the necessity to post a bond.
16
16. REMOVAL OF LESSEE'S EQUIPMENT: After termination or expiration of this
Lease, Lessee shall have thirty (30) days to remove its equipment, at
Lessee's expense, and so long as Lessee's equipment remains on the
applicable Site, Lessee shall pay Lessor a hold-over fee as specified
in Section 2(b); provided, however, that if the month-to-month tenancy
described in Section 2(b) is in effect after expiration, the thirty
(30) day period for Lessee's removal of equipment shall not begin to
run until the termination of such month-to-month tenancy. After the
thirty (30) day period, Lessor shall have the right (but not the
obligation) to disconnect and remove Lessee's equipment from said
Site, and in such event Lessee shall pay Lessor upon demand 125% of
the disconnection, removal and storage expenses incurred by or on
behalf of Lessor.
17. SUBORDINATION: This Lease is and shall be subject and subordinate to
all mortgages that may now or hereafter affect the Leased Premises and
to all renewals, modifications, consolidations, replacements, and
extensions thereof; provided, however, that so long as Lessee is not
in default of any of its material obligations under this Lease,
Lessee's quiet enjoyment thereunder shall not be disturbed by any
purchaser of the applicable Leased Premises at foreclosure. This
subordination shall be self-operative and no further instrument of
subordination shall be required from Lessee. However, upon written
request from Lessor, Lessee shall execute a certificate confirming
such subordination.
18. LIENS: Lessee shall not suffer or permit any liens to stand against
the Leased 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
through or under Lessee ("Mechanics' Liens"). If any Mechanics' Lien
shall at any time be filed against the Leased Premises or any Site,
Lessee shall cause it to be discharged of record within thirty (30)
days after the date Lessee receives notice from any party that the
lien has been filed, by either payment, deposit, or bond. If Lessee
fails to discharge any such 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 Mechanics'
Lien by either payment of the amount claimed, or deposit or bond. All
amounts incurred by Lessor, including reasonable attorneys' fees, in
procuring the discharge of such Mechanics' Lien, together with
interest thereon at 10% per annum from the date of incurrence, shall
become due and payable immediately by Lessee to Lessor.
19. ESTOPPEL CERTIFICATES: At any time, but not with less than fifteen
(15) days prior notice, Lessee shall execute, acknowledge, and deliver
to Lessor a 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), the dates to which Rent and other
charges, if any, have been paid in advance, and such other information
as may be reasonably requested.
20. COMPLIANCE: Lessee agrees that Lessee will at all times comply with
all applicable statutes, laws, ordinances, rules and judicial and
administrative orders, whether now or hereafter existing, of all
federal, state and local governmental authorities including without
limitation those applicable to Lessee's equipment and the
electromagnetic energy emitted from such equipment and including
without limitation, regulations of the Federal Communications
Commission, the Environmental Protection Agency, and the Occupational
Safety and Health Administration. Lessor will not enforce against
Lessee any governmental or legal compliance requirement with respect
to a Site if Lessor does not uniformly enforce such requirement
against all of the lessees at the subject location to the extent
applicable to such lessees.
21. PRIME AGREEMENTS:
(a) Lessee acknowledges that Lessor's interest in and to any Site,
and the access to such Site, may be subject to, or otherwise
governed by, the terms and conditions of a third party lease,
license, management or other similar agreement between a third
party and Lessor (the "Prime Agreement"). Upon request by Lessee,
Lessor will, to the extent not
17
restricted by an applicable confidentiality obligation, provide
Lessee with copies of relevant portions of the subject Prime
Agreements. Lessee hereby acknowledges that the terms,
conditions, provisions, and obligations of this Lease and any
Site Schedule, as they pertain to any Site affected by a Prime
Agreement, shall be subject and subordinate to such Prime
Agreement, and in the event of any conflict between the terms of
such Prime Agreement and this Lease or any applicable Site
Schedule, the terms of the Prime Agreement shall control. In the
event of the termination of such Prime Agreement for any reason,
the Site Schedules, pertaining to such Site(s) affected by the
Prime Agreement shall automatically terminate, and Lessor shall
use reasonable efforts to identify a suitable Replacement Site
for the affected Site, and if no Replacement Site has been
accepted by Lessee within fifteen (15) days after termination of
the affected Site, and if the Removed Site Conditions are
satisfied, then such affected Site(s) shall be deemed Removed
Site(s).
(b) Lessee shall not knowingly do, attempt, permit or suffer anything
to be done on a Site which results in a breach of a Prime
Agreement, and at the written request of Lessee, Lessor will
furnish Lessee with a summary of any restrictions (which summary
may consist of redacted portions of the Prime Agreement)
contained in said Prime Agreement ("Information") upon request,
provided that (i) such Information is not confidential; and (ii)
Lessee agrees that such Information shall be used for the sole
purpose of enabling Lessee to perform its obligations regarding
the Site. In performing its obligations under this Lease and each
Site Schedule, Lessee will (A) limit dissemination of, and access
to, the Information to Lessee's employees, agents or
professionals who need to use the Information for the purpose of
determining whether the Site is suitable for Lessee's purposes,
(B) not disclose the Information to any third party, (C) not use
the Information for any purpose other than the purposes allowed
by this Section 21(b), and (D) take appropriate action, by
instruction, agreement, or otherwise with any employees or agents
of Lessee, such that Lessee fully performs its duties and
obligations under this Section 21(b). In the event Lessor
discloses Information to Lessee with respect to a Site for which
Lessor paid Lessee a portion of the Relocation Allowance during
the third year of the term hereof, Lessee covenants and warrants
that for a period of one (1) year after expiration of the
applicable Site Schedule, it will not enter into a lease,
license, agreement or contract with such landlord/owner for
purposes similar to those set forth herein for as long as Lessor
has a Prime Agreement with such landlord/owner, unless Lessee
refunds to Lessor the portion of the Relocation Allowance paid to
Lessee with respect to such Site.
22. ENVIRONMENTAL:
(a) Lessee represents, warrants, and covenants to Lessor that Lessee
at no time during the term of this Lease shall use or permit the
use, generation, storage, treatment, or disposal of any hazardous
substance, material, chemical, or waste on the Sites in violation
of any Environmental Regulations (as such term is defined in
Section 22(c) below). Lessee and Lessor also agree that Lessee's
use of the Leased Premises will not involve the subsurface,
except for those Sites where the placement of a foundation is
required for Lessee's equipment and/or facilities.
(b) Lessee shall indemnify, hold harmless and defend Lessor from any
against any and all liability, loss, damage or expense (including
reasonable attorney's fees, court costs and cleanup costs, if
any) incurred by Lessor in connection with any claim, demand or
suit for damages, injunction or other relief to the extent caused
by, arising out of or resulting from (i) any breach of Lessee's
representations and warranties contained in this Section 22, (ii)
the generation, storage, use, handling, discharge, release or
disposal of hazardous substances, chemicals, materials or waste,
as those terms are defend under applicable Environmental
Regulations, at the Leased Premises, caused solely by the acts or
omissions of Lessee, or its agents, representatives, or
contractors, or (ii) Lessee's failure
18
to provide all required information, make all required
submissions and take all actions required by Environmental
Regulations.
(c) For the purposes of this clause, the term "Environmental
Regulations" shall mean any law, statute, regulation, order or
rule now or hereafter promulgated by any Governmental Authority,
whether local, state or federal, relating to air pollution, water
pollution, noise control and/or transporting, storing, handling,
discharge, disposal or recovery of on-site or off-site hazardous
substances or materials, as same may be amended form time to
time, including without limitation the following: (i) the Clean
Air Act (42 U.S.C. ss. 7401 et seq.); (ii) Marine Protection,
Research and Sanctuaries Act (33 U.S.C. ss. 14011445); (iii) the
Clean Water Act (33 U.S.C. ss. 1251 et seq.); (iv) Resource
Conservation and Recovery Act, as amended by the Hazardous Waste
and Solid Waste Amendments of 1984 (42 U.S.C. ss. 6901 et seq.);
(iv) Comprehensive Environmental Response Compensation and
Liability Act, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. ss. 6901 et seq.); (v)
Comprehensive Environmental Response Compensation and Liability
Act, as amended by the Superfund Amendments and Reauthorization
Act of 1986 (42 U.S.C. ss. 9601 et seq.); (vi) Toxic Substances
Control Act (15 U.S.C. ss. 2601 et seq.); (vii) the Federal
Insecticide, Fungicide and Rodenticide Act as amended (7 U.S.C.
ss. 135 et seq.); (viii) the Safe Drinking Water Act (42 U.S.C.
ss. 300 (f) et seq.); (ix) Occupational Health and Safety Act (29
U.S.C. ss. 651 et seq.); (x) the Hazardous Liquid Pipeline Safety
Act (49 U.S.C. ss. 2001 et seq.); (xi) the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.); (xii) the Noise
Control Act of 1972 (42 U.S.C. ss. 4901 et seq.); (xiii)
Emergency Planning and Community Right to Know Act (42 U.S.C. ss.
ss. 11001-11050); and (xiv) the National Environmental Policy Act
(42 U.S.C. ss. 4321-4347).
(d) The terms of this Section 22 shall survive the expiration or
sooner termination of this Lease and the termination of any
applicable Site Schedule, until expiration of the applicable
statutes of limitation.
23. MEDIATION: Lessor and Lessee shall attempt to settle any claim or
controversy arising out of this Lease or any Site Schedule through
consultation and negotiation in the spirit of mutual friendship and
cooperation. If such attempts fail, then the dispute shall first be
submitted to a mutually-acceptable neutral mediator for mediation, for
a period of at least thirty (30) days. If the parties cannot agree
upon a mediator within five (5) days of best efforts, the parties will
ask J.A.M.S./Endispute to appoint a mediator. Lessee shall remain
obligated to pay all Rent during the pendency of any mediation
hereunder, except if any dispute subject to mediation hereunder
relates to the amount of Rent owed as a result of Removed Sites or
Acquired Sites, then Lessee shall only be obligated to pay the Base
Rent, the Monthly Reservation Fee, and Acquired Site Rent due under
Section 13(c), plus if the Site Commitment is then met, the amount of
Excess Site Rent determined by the Administrative Managers as of the
date most recently preceding the date that written notice of a dispute
and request for mediation is provided hereunder. Lessor will not
interrupt or terminate service to any Site so long as, and to the
extent that, all undisputed Rent as provided for in this Section 23 is
timely paid to Lessor. If such amount is not timely paid, Lessor will
have the right to terminate this Lease and exercise all other rights
and remedies available to it hereunder or otherwise available in law
or equity. The cost of mediation or any other alternate dispute
resolution agreed upon by both parties shall be shared equally by
Lessor and Lessee. Any dispute which cannot be so resolved between the
parties within thirty (30) days of the date of the initial demand by
either party for such mediation may, unless mutually agreed otherwise
by the parties, be determined by a court of competent jurisdiction.
The use of such a procedures shall not be construed to affect
adversely the rights of either party under the doctrines of laches,
waiver or estoppel. Nothing in this Section 23 shall prevent either
party from resorting to judicial proceedings or to seek other remedies
in a court of equity if (a) good faith efforts to resolve a dispute
under these procedures have been unsuccessful, or (b) interim resort
to a court is necessary to prevent serious and irreparable injury to a
party or to others.
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24. DEFINITIONS: Certain terms used in this Lease have the following
meanings:
"Acquired Site Rent" means, with respect to an Acquired Site, the
following: (i) for so long as Lessee has not terminated such Acquired
Site pursuant to Section 1(k) hereof, an amount equal to the Base
Acquired Site Rent, and (ii) if Lessee has terminated such Acquired
Site pursuant to Section 1(k) hereof, (A) 80% of the Base Acquired
Site Rent throughout the first year following the date of such
termination, (B) 50% of the Base Acquired Site Rent throughout the
second year following the date of such termination, and (C) 40% of the
Base Acquired Site Rent throughout the third year following the date
of such termination.
Notwithstanding the foregoing, no discount provided for in Subsection
(ii)(A), (B), or (C) above shall commence until Lessee has removed its
equipment from the subject Acquired Site.
"Administrative Manager(s)" means the administrative managers
appointed from time to time by Lessor and Lessee pursuant to Section
1(h). Lessor's initial Administrative Manager shall be Pinnacle Towers
Inc. and Lessee's initial Administrative Manager shall be Arch
Wireless Holdings, Inc.
"Available" or "Availability" means that in Lessor's reasonable
determination a site is available for lease to Lessee hereunder, and
that such site is suitable for the equipment Lessee intends to install
and operate thereon. It shall be deemed to be a reasonable
determination that a Site is not available if Lessor is actively
negotiating with another prospective Lessee for the subject Site;
provided however, that if Lessor does not, within fourteen (14) days
after such site is first identified by Lessee to Lessor as a potential
Replacement Site hereunder, enter into a lease of such Site with such
other prospective lessee, then so long as the other elements of this
definition are satisfied, such Site shall thereafter be deemed to be
"Available".
"Base Acquired Site Rent" means, with respect to an Acquired Site, the
lesser of (a) 85% of the rent payable by Lessee or its predecessor in
interest under the Acquired Lease before the applicable Lessor
Acquisition or Lessee Acquisition, and (b) the Arch Rate as set forth
in Section 3(b).
"Casualty" means any casualty not directly caused by or attributable
to Lessee, its agents or representatives.
"Court" means the United States Bankruptcy Court, District of
Massachusetts (Western Division).
"Effective Date" means the later of the date of (a) the date the Court
approves this Lease and grants Lessee authority to enter into this
Lease pursuant to an order that is final and non-appealable, (b)
execution and delivery of this Lease by all parties; and (c) Lessee
has paid Lessor the amount of *********** (i) for the month in which
the conditions specified in Subsections (a) and (b) above are
satisfied (which payment shall satisfy all Rent obligations under this
Lease for the month in which the Effective Date occurs), and (ii) if
such conditions are not satisfied by May 31, 2002, for each month
thereafter until such conditions are satisfied, but in any event if
such conditions are not satisfied on or before August 31, 2002, this
Lease shall not become effective.
"Excess Watt Unit" means a One-Way Site having equipment that is
capable of operating in excess of the 0-250 watt range.
"Existing Link Transmitter Unit" means a Link Transmitter Unit located
on an Existing Site as of the Effective Date.
20
"Existing Microwave Unit" means the following kind of microwave unit
located on the Existing Sites as of the Effective Date: a small
diameter terrestrial microwave dish fed with an appropriately sized
coaxial or waveguide transmission cable for the operating frequency of
the microwave transceiver.
"Existing Site" means any Site in Lessor's portfolio as of Effective
Date that Lessee leased from Lessor at such time under a Prior Lease,
is occupied by Lessee and described on a Site Schedule hereto, but
shall not include any Discovered Site
"Functionally Equivalent" means a Site that is reasonably deemed by
Lessee to be the functional equivalent of a Site to be removed under
any of Sections 1(d), 5(d)(ii), 10(a), 10(b), 11 or 21(a).
"Hot Standby Unit" means a second transmitter within a Link
Transmitter Unit cabinet resulting in a redundant and failsafe Link
Transmitter Unit capability. Such additional transmitter is permitted
its own antenna connections as set forth in the definition of "Link
Transmitter Unit." A Hot Standby Unit cannot exist independently of a
Link Transmitter Unit.
"Link Transmitter Unit" means the following equipment for paging
communications purposes:
(1) a single transmitter and optional Hot Standby transmitter,
authorized to operate on any one or more FCC allocated paging link
frequencies provided such authorization is specifically granted to
Lessee through a valid FCC Station Authorization, Special Temporary
Authority or similar instrument issued to Lessee and installed in one
or fewer cabinets having dimensions not exceeding 80"H x 24" W x 24"D
and having a combined total weight of not more than 250 pounds,
(2) a single transmit antenna and an optional receive antenna each
having an equivalent windload specification per EIA Standard RS-222-F
not exceeding 6.0 sq. feet of flat plate equivalence as defined
therein and each fed with a single continuous length of coaxial
transmission line not exceeding 1-1/4 inches overall trade size
outside diameter and sufficient to connect the transmitter to the
antenna and installed in accordance with manufacturer mounting and
installation specifications, (in lieu of the optional receive antenna
described in the preceding sentence, a Link Transmitter Unit is
permitted to have a small diameter terrestrial microwave dish not
exceeding 6 (six) feet in any one dimension and fed with an
appropriately sized coaxial or waveguide transmission cable for the
operating frequency of the microwave transceiver); and/or
(3) any combination of the following equipment: (a) a bandpass or
notch filter, (b) ferrite circulator(s) or isolator(s), (c) a
multicoupler or multiplexer (or similar devices), (d) telephone and
data connection equipment, (e) an uninterruptible power supply
("UPS"), and (g) all associated cable and electricity therefor. A Link
Transmitter Unit can exist without a Hot Standby Unit.
"Material Breach" means (a) non-payment of Base Rent, Monthly
Reservation Fee, Acquired Site Rent required to be paid under Section
13(c) or to the extent not reasonably disputed, Rent otherwise
provided for in this Lease, or (b) any other material breach by Lessee
hereunder.
"Net Excess Watt Units" means, at any relevant time of determination,
the total number of Excess Watt Units added to Sites after the
Effective Date, less the total number of Excess Watt Units removed
from Sites after the Effective Date.
"New Link Transmitter Unit" means a Link Transmitter Unit added to or
included in any Site after the Effective Date.
21
"One-Way Site" means the following equipment for paging communications
purposes:
(1) a single transmitter authorized to operate on any one or more
channels within or bounded by the spectrum of 929.0125 MHz to 929.9875
or 931.0125 to 931.9875 MHz (or as otherwise provided in FCC Rule
Parts 22, 24 or 90 relating to paging operations in the VHF and UHF
Bands below 512 MHz, provided such authorization is specifically
granted to Lessee through a valid FCC Station Authorization, Special
Temporary Authority or similar instrument issued to Lessee and
installed in one or fewer cabinets having dimensions not exceeding
80"H x 24"W x 24"D and having a combined total weight of not more than
400 pounds;
(2) a single transmit antenna having an equivalent windload
specification per EIA Standard RS-222-F not exceeding 4.0 sq. feet of
flat plate equivalence as defined therein and fed with a single
continuous length of coaxial transmission line not exceeding 2.25"
overall trade size outside dimension and sufficient to connect the
transmitter to the antenna and installed in accordance with
manufacturer mounting and installation specifications; and/or
(3) any combination of the following equipment: (a) one receive-only
satellite earth station parabolic dish antenna having dimensions not
exceeding 2.1 meters in any one direction or a receive-only
terrestrial link antenna of any type design (log-periodic, Yagi-Uda,
dipole, or stacked collinear array) intended for the exclusive
reception of radiotelephone paging network traffic via any
FCC-Authorized paging link frequency either installed with a suitable
transmission line not to exceed 0.5" in overall trade size outside
diameter and installed at a tower height identified in the applicable
Site Schedule for adequate radio reception in accordance with
manufacturer specifications, (b) one global positioning system (GPS)
antenna with suitable transmission line or control cable not to exceed
a combined overall trade size outside diameter of one inch, (c)
bandpass or notch filters, (d) ferrite circulator(s) or
isolator(s),(e) a multicoupler or multiplexer or similar devices; (f)
telephone and data connection equipment; and (g) all associated
electrical interconnect cable.
"Permitted Equipment" means, with respect to a Site (a) equipment that
(i) if this Site is an Existing Site as of the Effective Date, was
located on such Sites as of the Effective Date and is described in the
applicable Site Schedule (to the extent such Site Schedule has been
prepared), or (ii) is described in an applicable Site Schedule; (b) is
included in the definition of "One-Way Site", "Two-Way Site", "Link
Transmitter Unit" or "Hot Standby Unit"; (c) does not cause any
interference prohibited by Section 5(d); (d) does not occupy any
additional space at the Site; and (e) is not otherwise prohibited by
this Agreement.
"Permitted Frequencies" means the frequencies identified in the
definitions of "One-Way Site", "Two-Way Site", and "Link Transmitter
Unit," and such other paging frequencies that enable Lessee to provide
the same paging services that are enabled by the paging frequencies
described in such definitions.
"Pro Rata Amount" means the sum of the then applicable Monthly
Reservation Fee plus the applicable Base Rent, which sum is divided by
the then applicable Site Commitment.
"Prior Leases" means all leases, licenses and other agreements and
occupancy arrangements among the parties and any of their affiliates
with respect to the lease of any communications tower space and/or
radio communications from Lessor or its affiliates before the
Effective Date, including without limitation those agreements listed
on the attached Rider C.
"Removed Site" means any Site that constitutes a "Removed Site"
pursuant to any of the following Sections of this Agreement, upon
satisfaction of all requirements therefor as set forth in such
Section: Section 1(d), Section 5(d)(ii); Section 10(a), Section 10(b),
Section 11, or Section 21(a).
22
"Replacement Site" means a Functionally Equivalent Lessor site that
replaces a Site.
"Removed Site Conditions" means with regard to a Site hereunder that
(a) Lessee is not then in Material Breach with respect to the Site,
(b) no Replacement Site is mutually agreed to by the parties, and (c)
all other conditions specified for a Site to be a Removed Site in the
relevant section of this Lease are satisfied.
"Site Frequency Change Conditions" means that the Permitted Frequency
sought by Lessee for a Site: (a) was licensed or otherwise granted
directly in the name of Lessee at such Site; (b) does not result in
Lessee's use of any additional space at the Site or equipment other
than Permitted Equipment; (c) does not cause any interference with
operations of Lessor or other lessees at the Site in violation of
Section 5(d); and (d) is identified in the applicable Site Schedule.
"Two-Way Site" means the following equipment for paging communications
purposes:
(1) a single transmitter (except as set forth in Section 5(k) hereof)
and receiver combination, or a receiver-only combination, authorized
to operate on any one or more of the channels described below provided
such authorization is specifically granted to Lessee through a valid
FCC Station Authorization, Special Temporary Authority or similar
instrument issued to Lessee and installed in one or fewer cabinets
having dimensions not exceeding 80"H x 24"W x 24"D and having a
combined total weight of not more than 400 pounds.
(2) a single transmit antenna and one or two receive antennas, each
having an equivalent windload specification per EIA Standard RS-222-F
not exceeding 4.0 sq. feet of flat plate equivalence as defined
therein and each fed with a one or fewer continuous length of coaxial
transmission line having an overall trade size outside diameter not
exceeding 2.25 inches sufficient to connect the transmitter and
receiver combination, or receiver only combination, to the antenna(s)
and installed in accordance with manufacturer mounting and
installation specifications; and/or
(3) any combination of the following equipment: (a) one receive and
transmit capable satellite earth station parabolic dish antenna ("VSAT
Dish") having dimensions not exceeding 2.4 meters in any one direction
intended for the exclusive transmission and reception of
radiotelephone paging network traffic via geo-stationary earth
orbiting satellite and installed with not more than two suitable
transmission or control lines not to exceed 0.5" each in overall trade
size outside diameter and installed in accordance with manufacturer
specifications, (b) one global positioning system (GPS) antenna with
suitable transmission line or control cable, (c) filters, (d)
isolators, (e) a multicoupler or multiplexer or similar devices; (f)
telephone and data connection equipment; and (g) all associated
electrical interconnect cable.
The following are the Two-Way Site frequencies available pursuant to
FCC Rule 47 CFR 24.129:
(a) Eleven frequencies available for assignment nationwide as follows:
(1) Five 50 kHz channels paired with 50 kHz channels:
Channel 1: 940.00 940.05 and 901.00 901.05 MHz;
Channel 2: 940.05 940.10 and 901.05 901.10 MHz;
Channel 3: 940.10 940.15 and 901.10 901.15 MHz;
Channel 4: 940.15 940.20 and 901.15 90120 MHz; and,
Channel 5: 940.20 940.25 and 901.20 901.25 MHz:
23
(2) Three 50 kHz channels paired with 12.5 kHz channels:
Channel 6: 930.40 930.45 and 901.7500 901.7625 MHz;
Channel 7: 930.45 930.50 and 901.7625 901.7750 MHz; and,
Channel 8: 930.50 930.55 and 901.7750 901.7875 MHz;
(3) Three 50 kHz unpaired channels:
Channel 9: 940.75 940.80 MHz;
Channel 10: 940.80 940.85 MHz; and,
Channel 11: 940.85 940.90 MHz.
(b) Six frequencies available for assignment regionally as follows:
(1) Two 50 kHz channels paired with 50 kHz channels:
Channel 12: 940.25 940.30 and 901.25 901.30 MHz; and,
Channel 13: 940.30 940.35 and 901.30 901.35 MHz.
(2) Four 50 kHz channels paired with 12.5 kHz channels:
Channel 14: 930.55 930.60 and 901.7875 901.8000 MHz;
Channel 15: 930.60 930.65 and 901.8000 901.8125 MHz;
Channel 16: 930.65 930.70 and 901.8125 901.8250 MHz; and,
Channel 17: 930.70 930.75 and 901.8250 901.8375 MHz.
(c) Seven frequencies available for assignment on an MTA basis as
follows:
(1) Two 50 kHz channels paired with 50 kHz channels:
Channel 18: 940.35 940.40 and 901.35 901.40 MHz; and,
Channel 19: 940.40 940.45 and 901.40 901.45 MHz.
(2) Three 50 kHz channels paired with 12.5 kHz channels:
Channel 20: 930.75 930.80 and 901.8375 901.8500 MHz;
Channel 21: 930.80 930.85 and 901.8500 901.8625 MHz; and,
Channel 22: 930.85 930.90 and 901.8625 901.8750 MHz.
(3) Two 50 kHz unpaired channels:
Channel 23: 940.90 940.95 MHz; and,
Channel 24: 940.95 941.00 MHz.
(d) Two 50 kHz channels paired with 12.5 kHz channels available for
assignment on a BTA basis:
Channel 25: 930.90 930.95 and 901.8750 901.8875 MHz; and,
Channel 26: 930.95 931.00 and 901.8875 901.9000 MHz.
25. EFFECTIVENESS:
(a) Upon the Effective Date:
(i) Lessee will assume the Prior Leases pursuant to 11 U.S.C.
ss. 365(a), as such Prior Leases are modified, amended and
restated by this Lease and the Site Schedules.
(ii) Lessee will pay to Lessor ************** Dollars
(**************) as "cure" pursuant to 11 U.S.C.
ss. 365(b)(1)(A) to assume the Prior Leases, as
modified, amended and restated by this Lease and the Site
Schedules, as settlement of any pre petition claims by
Lessor against Lessee arising from the Prior Leases.
24
(b) Upon the Effective Date, Lessor and Lessee shall release the
other from any and all claims of whatever nature that one may
have against the other, or any other action either may be
entitled to bring against the other in connection with any and
all of the Prior Leases that existed prior to the Effective Date.
(c) Upon the Effective Date, this Lease shall constitute the sole
agreement among the parties, and shall amend and restate the
Prior Leases in their entirety.
26. CONFIDENTIALITY: In connection with this Lease, each of the parties
may, at its option, make available certain of its confidential
information to the other party. The parties agree to keep such
information confidential on the same basis as they treat their own
confidential information. The existence of this Lease, and the terms
hereof shall not be considered confidential information.
27. MISCELLANEOUS:
(a) 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.
(b) This Lease, including the exhibits, schedules, lists 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 including
without limitation all Prior Leases, which are expressly amended
and restated in this Agreement and the Site Schedules attached
hereto. No modification of this Lease shall be effective unless
contained in a writing signed by the authorized representative of
each party.
(c) All notices, requests, claims, demands, and other communications
hereunder shall be in writing and shall be delivered to the
respective parties as follows (or to such other address as any
party may have furnished to the other in writing):
If to Lessee: Arch Wireless Holdings, Inc., 0000 Xxxx Xxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, XX 00000, Attention: Vice President, Site
Leasing, with a copy to the same address, Attention: Legal
Department.
If to Lessor: Pinnacle Towers Inc., 000 X. Xxxxxxxxx Xx., Xxxxx
000, Xxxxxxxx, XX 00000 Attention: Xxxxxx Xxxx, Vice
President-Lease Administration, with a copy to the same address,
Attention: Xxxx Xxxxxx, Esq., General Counsel.
Any such notice may be hand delivered (provided the deliverer
provides proof of delivery) or sent by nationally-established
overnight courier that provides proof of delivery, or certified
or registered mail (postage prepaid, return receipt requested).
Notice shall be deemed received on the date of delivery as
demonstrated by the receipt of delivery.
(d) This Lease and any Site Schedule shall be governed by, construed
and enforced in accordance with the laws of the State of New
York. Any action brought relating to this Lease or any Site
Schedules shall be brought in any district court of the United
States of America located in any of the States of Delaware,
Florida, or Massachusetts, without regard to conflict of laws
rules.
(e) Each of Lessor and Lessee represent and warrant to the other that
no broker was involved for such representing person in connection
with this transaction and each of Lessor and Lessee agrees to
indemnify and hold the other harmless from and against the claims
of any broker acting on behalf of the indemnifying party in
connection with this transaction.
25
(f) Any reference herein to a Section shall be deemed to refer to the
applicable Section of this Lease unless otherwise expressly
stated herein. Any reference to a Rider, Exhibit, Schedule or
Appendix (collectively, "Attachments") shall be deemed to refer
to the applicable Attachment attached hereto, all such
Attachments being incorporated herein and made a part hereof by
this reference. Any Site Schedule signed by Lessor and Lessee,
when so signed, shall be incorporated herein and made a part
hereof by this reference.
(g) Except as otherwise provided in the applicable Site Schedule,
this Lease is solely for the benefit of the parties hereto, their
successors and assigns permitted under this Lease and the
indemnified parties hereunder and no provisions hereof shall be
deemed to confer upon any other person any remedy, claim,
liability, reimbursement, cause of action or other right.
(h) Nothing contained herein shall be deemed or construed by the
parties hereto or by any third person to create the relationship
of principal and agent, partnership, joint venture or any
association between Lessor and Lessee other than contracting
parties.
(i) If the approval or consent of any party is required under this
Lease, such approval or consent may only be given in writing.
(j) Each of Lessee and Lessor and their respective affiliates that
are parties hereto are jointly and severally liable and obligated
under the terms of this Lease. If at anytime a party to a Site
Schedule has not executed a counterpart of this Lease, such party
will execute and deliver to the other parties a counterpart of
this Lease, to evidence and confirm that it has joined into and
become a party to this Lease, but no failure of any such Site
Schedule party to do so will relieve any such party of its
obligation hereunder by virtue of its entering into the subject
Site Schedule.
(k) Lessor covenants and agrees that, upon Lessee's paying all
required Rent and observing and performing all of the terms,
covenants and conditions on Lessee's part to be observed and
performed under this Lease (within applicable notice and grace
periods), Lessee shall peacefully and quietly enjoy the Sites
covered by each Site Schedule during the term hereof.
(l) At Lessee's request, Lessor agrees to execute a memorandum of
agreement for a particular Site Schedule in a form mutually
acceptable to the parties, so long as such recordation is not
otherwise restricted or prohibited by the applicable Prime
Agreement or other covenants affecting Lessor. Lessee agrees to
provide Lessor with a copy of any such memorandum within five (5)
business days following any recordation of such memorandum.
26
IN WITNESS THEREOF, this Lease has been duly executed and delivered by Lessor
and Lessee on the date indicated below.
LESSOR:
PINNACLE TOWERS INC.,
AIRCOMM OF AVON, LLC
BROADCAST TOWERS, INC.
COASTAL ANTENNAS, INC.
COVERAGE PLUS ANTENNA SITES INC.
HIGH POINT MANAGEMENT CO., INC.
ICB TOWERS, LLC
INTERSTATE TOWER COMMUNICATIONS, INC.
INTRACOASTAL CITY TOWERS, INC.
PINNACLE HOLDINGS INC.
PINNACLE SAN ANTONIO LLC
PINNACLE ST. LOUIS LLC
PINNACLE TOWERS CANADA INC.
PINNACLE TOWERS LTD.
PINNACLE TOWERS III INC.
PINNACLE TOWERS IV INC.
PINNACLE TOWERS V INC.
QTI, INC.
RADIO STATION WGLD, INC.
XXXXXXX & ASSOCIATES, INC.
SIERRA TOWERS, INC.
TOWER SYSTEMS, INC.
TOWER TECHNOLOGY CORP. OF
JACKSONVILLE
WITNESS: /s/ Xxxxx Xxxxx By: /s/ Xxx Xxxxxxx
--------------------------- -----------------------------------
Printed Name: Xxxxx Xxxxx Name: /s/ Xxx Xxxxxxx
---------------------- ----------------------------------
Title: President
---------------------------------
WITNESS: /s/ Xxxxxx X. Hair Date: 24 May, 2002
--------------------------- ----------------------------------
Printed Name: Xxxxxx X. Hair
----------------------
27
LESSEE:
ARCH WIRELESS HOLDINGS, INC.,
ARCH CONNECTICUT VALLEY, INC.
ARCH COMMUNICATIONS ENTERPRISES LLC
PAGING NETWORK, INC.
ARCHTEL, INC.
XXXXXX INVESTMENTS, INC.
MOBILEMEDIA COMMUNICATIONS, INC.
MOBILE COMMUNICATIONS CORPORATION
OF AMERICA
MOBILEMEDIA LICENSE CO., L.L.C.
PAGENET, INC.
PAGING NETWORK OF AMERICA, INC.
PAGING NETWORK OF COLORADO, INC.
PAGING NETWORK OF MICHIGAN, INC.
PAGING NETWORK OF NORTHERN
CALIFORNIA, INC.
PAGING NETWORK OF SAN FRANCISCO, INC.
PAGING NETWORK FINANCE CORP.
PAGING NETWORK INTERNATIONAL, INC.
WITNESS: /s/ Xxxxx X. Xxxxxx By: /s/ J. Xxx Xxxxxx
--------------------------- -----------------------------------
Printed Name: Xxxxx X. Xxxxxx Name: J. Xxx Xxxxxx
---------------------- ---------------------------------
Title: Executive Vice President and
Chief Financial Officer of
each of the above entities
-------------------------------
WITNESS: /s/ Xxxxxx X. Manorty Date: May 24, 2002
--------------------------- ---------------------------------
Printed Name: Xxxxxx X. Manorty
----------------------
28
RIDER A
LESSOR AFFILIATES
PINNACLE TOWERS INC.
AIRCOMM OF AVON, LLC
BROADCAST TOWERS, INC.
COASTAL ANTENNAS, INC.
COVERAGE PLUS ANTENNA SITES INC.
HIGH POINT MANAGEMENT CO., INC.
ICB TOWERS, LLC
INTERSTATE TOWER COMMUNICATIONS, INC.
INTRACOASTAL CITY TOWERS, INC.
PINNACLE HOLDINGS INC.
PINNACLE SAN ANTONIO LLC
PINNACLE ST. LOUIS LLC
PINNACLE TOWERS CANADA INC.
PINNACLE TOWERS III INC.
PINNACLE TOWERS IV INC.
PINNACLE TOWERS LTD.
PINNACLE TOWERS V INC.
QTI, INC.
RADIO STATION WGLD, INC.
XXXXXXX & ASSOCIATES, INC.
SIERRA TOWERS, INC.
TOWER SYSTEMS, INC.
TOWER TECHNOLOGY CORP. OF JACKSONVILLE
RIDER B
LESSEE AFFILIATES
ARCH CONNECTICUT VALLEY, INC.
ARCH COMMUNICATIONS ENTERPRISES LLC
PAGING NETWORK, INC.
ARCHTEL, INC.
XXXXXX INVESTMENTS, INC.
MOBILEMEDIA COMMUNICATIONS, INC.
MOBILE COMMUNICATIONS CORPORATION OF AMERICA
MOBILEMEDIA LICENSE CO., L.L.C.
PAGENET, INC.
PAGING NETWORK OF AMERICA, INC.
PAGING NETWORK OF COLORADO, INC.
PAGING NETWORK OF MICHIGAN, INC.
PAGING NETWORK OF NORTHERN CALIFORNIA, INC.
PAGING NETWORK OF SAN FRANCISCO, INC.
PAGING NETWORK FINANCE CORP.
PAGING NETWORK INTERNATIONAL, INC
