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EXHIBIT 2.3
MASTER ANTENNA SITE LEASE
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LESSOR: PINNACLE TOWERS INC. LESSEE: MICROCELL MANAGEMENT, INC.
a Delaware corporation a Delaware corporation
0000 XXXXXXXX XXXXXXXXX 0000 XXXXX XXXXXX XXXXX
XXXXX XXXXX XxXXXX, XXXXXXXX 00000
XXXXXXXX, XXXXXXX 00000
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THIS MASTER ANTENNA SITE LEASE ("Agreement") is made this
24th day of February, 2000 by and between PINNACLE TOWERS INC., a Delaware
corporation ("Lessor"), and MICROCELL MANAGEMENT, INC., a Delaware corporation
having a Federal Tax ID Number of 00-0000000 ("Lessee").
WHEREAS, Lessee and Lessor have entered into that certain
Asset Purchase Agreement dated of even date herewith (the "APA") pursuant to
which Lessee is selling to Lessor, and Lessor is purchasing from Lessee, the
telecommunication towers listed on Schedule A attached hereto and Lessee's
interest in the ground leases, tower leases and other improvements related
thereto (each, upon Lessor's purchase thereof under the APA and for so long as
this Agreement has not been terminated with respect to such tower site, a
"Tower" and, together with the land ("Land") ground leased by Lessor related
thereto, a "Site"; and collectively, the "Towers" and the "Sites").
WHEREAS, Lessee wishes to lease from Lessor, space at all of
the Sites and Lessor wishes to lease such space pursuant to the terms and
conditions set forth below;
WHEREAS, Lessor and Lessee hereby enter into this Agreement
in order to establish the terms and conditions pursuant to which Lessee shall
have the right to lease space at such Sites.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Lessor and Lessee covenant
and agree as follows:
1. Term. The term of this Agreement (the "Term") shall commence
on the date (the "Commencement Date") that is the Initial Closing Date (as
defined in the APA), and shall continue until December 31, 2002 (provided,
that, for the sole purpose of determining and discharging the Annual Rent for
calendar year 2002, this Agreement shall continue through February 28, 2003).
Lessee shall execute a
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written confirmation of the Commencement Date. Notwithstanding anything to the
contrary contained herein, in the event the APA is terminated prior to the
occurrence of the Initial Closing Date thereunder, this Agreement shall never
become effective and shall terminate immediately upon such termination of the
APA.
2. Leased Premises.
From and after the Commencement Date, Lessor leases to Lessee
and Lessee leases from Lessor the space located at the Sites (the "Leased
Space") and as described in Schedule B attached hereto and incorporated herein.
The parties acknowledge and agree that the Leased Space shall not include any
space being leased on any Tower as of the Commencement Date under one or more
of the existing tower leases set forth on Schedule C attached hereto (such
tower space subject to an existing lease, the "Reserved Space" and the tower
space remaining on such Tower and leased by Lessee hereunder, the "Tower Space"
for the sole purpose of locating Lessee's antennas ("Antenna Array"),
supporting equipment necessary for the operation of Lessee's Antenna Array (the
"Supporting Equipment"), to run utility lines from Lessee's utility hook-ups to
Lessee's Supporting Equipment located on the Land and to run cables from
Lessee's Supporting Equipment to the Tower Space to serve and operate Lessee's
Antenna Array for telecommunications use.
3. Annual Rent. (a) For each of calendar year 2000, 2001 and
2002, Lessee covenants to pay to Lessor the sum of the annual rental amounts
for such calendar year listed on Schedule A for the Towers ("Annual Rent").
Annual Rent shall be due and payable in arrears, without set-off, defense or
counterclaim of any kind, by Lessee to Lessor, beginning on February 10, 2001
for calendar year 2000 and thereafter on February 10 of each of the two
succeeding calendar years.
(b) Lessee shall pay Annual Rent by electronic transfer
according to wire instructions delivered by Lessor or direct to Lessor's
lockbox account at Pinnacle Towers Inc., X.X. Xxx 000000, Xxxxx, Xxxxxxx
00000-0000.
(c) Notwithstanding anything to the contrary set forth
herein, in the event and at such time as additional towers become subject to
this Agreement or towers never become, or cease to be, subject to this
Agreement as set forth in Section 26 hereof, the Annual Rent shall be adjusted
as provided herein.
4. Laws, Permits and Approvals. Lessee shall operate Lessee's
Equipment and shall use the Leased Space and the Site in strict compliance with
all applicable federal (including, without limitation, the Federal
Communications
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Commission), state and local laws, regulations, and ordinances, and with all
site and/or installation standards and/or procedures. Lessee shall obtain and
maintain at Lessee's expense all private and governmental licenses, permits,
approvals, authorizations and consents required or necessary for such purposes
and shall provide Lessor with copies of the same no less than ten (10) days
prior to commencement of any construction, improvements or installation.
5. Lessee's Property. All of Lessee's Equipment shall be and
remain Lessee's personal property even though some or all of such equipment may
be physically attached to the Land or the Tower. Lessee shall be entitled to
take and remove any or all of Lessee's Equipment from the Site at any time
during normal business hours, provided that the removal of such Lessee's
Equipment shall be performed in compliance with the provisions of this
Agreement and further provided that any such removal shall not relieve Lessee
of any obligations under this Agreement.
6. Installation and Maintenance. (a) Lessee agrees that Lessee
shall provide Lessor at least forty-eight (48) hours prior notice of any
construction, installation (including any modification), maintenance, or
removal (collectively, "Site Work") to be performed by Lessee on Lessee's Space
and/or the Site; provided, however, in the event of an emergency outage,
reasonable maintenance may be performed after verbal notice to Lessor.
Additionally, prior to commencing any Site Work, Lessee shall obtain Lessor's
approval of detailed plans and specifications for such Site Work, which
approval shall not be unreasonably withheld or delayed. Lessee agrees that any
Site Work shall be performed by qualified technicians, shall comply with the
approved plans and specifications and shall also comply with all site and/or
installation standards and/or procedures (including, without limitation,
security procedures) which Lessor may from time to time establish regarding use
of the Site. Lessor shall have the right to inspect the Lessee's Space at any
time, including, without limitation, during and/or upon completion of any
installation and/or removal. If Lessee installs and/or removes any of Lessee's
Equipment in violation of the requirements of this Paragraph, Lessee shall be
liable for any damages that may occur as a result, and Lessor shall have the
right to immediately terminate this Agreement.
(b) Lessee shall at all times maintain the Leased Space and
Lessee's Equipment in a neat, clean and safe condition, in good repair, and in
a manner so as not to conflict with or create a nuisance to Lessor, other
Lessees of Lessor and/or other users of the Site, if any.
(c) During the Term, Lessor shall reasonably maintain the
Sites and shall inform Lessee not less than twenty-four (24) hours in advance,
of normal, non-emergency work on a Site or the Leased Space which may be
performed by Lessor if such work is likely to unreasonably interfere with the
use or operation of
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Lessee's Equipment or with Lessee's use of the Leased Space. Lessee
acknowledges that in order for Lessor to maintain and repair the Sites and/or
to allow other lessees to install, remove, maintain and repair their equipment,
it may be necessary from time to time for Lessor to turn off electrical power
and/or make other adjustments to the Sites and/or any equipment related
thereto; Lessor agrees to use commercially reasonable efforts to coordinate
such work with Lessee and to schedule such work so as to cause minimal
disruption to Lessee's Equipment and use of the Lessee's Space as contemplated
herein. Lessor shall not be liable to Lessee for interruption of or
interference with Lessee's operations or with Lessee's use of the Lessee's
Space as contemplated herein, unless due to the negligence or willful
misconduct of Lessor. In the event that maintenance and/or repairs to a Site
are required as a result of the installation or operations of the Lessee's
Equipment and/or Site Work, the same shall be performed by a qualified
contractor selected by Lessor and the expense charged to the Lessee, who shall
pay such expense within fifteen (15) days thereof.
7. Insurance. (a) Lessee will require contractors performing
work at any Site in any capacity which requires climbing any Tower to carry
umbrella/excess liability insurance in excess of the business automobile,
commercial general liability and worker's compensation of a minimum of each
occurrence limit of Five Million Dollars ($5,000,000) and general aggregate of
Five Million Dollars ($5,000,000).
(b) Lessee shall keep in full force and effect with a company
licensed to do business in each state where a Site is located and which has a
rating of A- or better from the current edition of Best's Insurance Reports, at
Lessee's expense at all times during the Term and during any other times as
Lessee studies, inspects, or uses the Site or any part thereof: (i) commercial
general liability insurance written on an occurrence basis with respect to the
Site and Tower and Lessee's use and occupancy thereof and the business operated
by Lessee with limits of at least Two Million Dollars ($2,000,000) per
occurrence and Five Million Dollars ($5,000,000) in the aggregate, which
liability insurance shall, in addition, extend, through contractual liability
insurance, to any liability of Lessee arising out of the indemnities provided
in this Agreement, (ii) worker's compensation and employer's liability
insurance affording applicable statutory coverage and containing applicable
statutory limits; (iii) automobile liability insurance with limits of at least
One Million Dollars ($1,000,000) per occurrence and Three Million Dollars
($3,000,000) in the aggregate, and (iv) fire insurance with standard broad form
extended coverage and full replacement cost endorsements covering all of
Lessee's property at the Site. All of such policies shall provide that Lessee
shall be responsible for all deductibles, exclusions, and co-insurance under
such coverages, shall name Lessor, its agents, employees, officers, directors
and affiliates as an additional insured or loss payees, shall provide that the
insurance provided by such policies is primary coverage, and shall provide
thirty (30) days prior written notice to Lessor of any cancellation,
expiration, or non-renewal of such policy. Lessor (and Lessor's agents,
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employees, officers, directors and affiliates) shall not be liable to Lessee
for the safety or security of each Site, Lessee's Equipment thereon or other
property.
(c) Lessor, at Lessor's sole cost and expense, shall procure
and maintain on each Site, commercial general liability insurance with a
combined single limit of Two Million Dollars ($2,000,000) in the aggregate.
Such insurance shall insure, on an occurrence basis, against liability of
Lessor, its employees and agents arising out of or in connection with Lessor's
use, occupancy and maintenance of the Site. Lessee shall be named as an
additional insured on Lessor's policy.
(d) Lessor and Lessee release each other and their respective
principals, officers, directors, employees, representatives and agents, from
any claims for damage to any person or to the Site or to the Lessee's Equipment
or operations thereon caused by, or that result from, risks insured against
under any insurance policies carried by the parties and in force at the time of
any such damage. Each party shall provide to the other either an insurance
certificate or binder evidencing the coverage required by this paragraph within
thirty (30) days of the Commencement Date.
8. Intentionally Omitted.
9. Events of Default. The following shall constitute an event of
default of this Agreement ("Event of Default"): (i) any failure to comply with
any covenant, condition or agreement of this Agreement not otherwise addressed
in this Paragraph 9; provided, however, neither party shall be deemed to be in
default under this subsection (i) until the non-breaching party has given the
breaching party thirty (30) days (or ten (10) days in the event of a monetary
breach) written notice of and opportunity to cure any breach (except where a
different timeframe is expressly provided in this Agreement,) and the breaching
party has failed to cure the same, provided, however, Lessor shall have the
right at any time to cure an ongoing breach in the event of an emergency, as
shall be interpreted in Lessor's reasonable discretion; or (ii) if Lessee shall
(a) apply for or consent to the appointment of a receiver, trustee or
liquidator of itself or any of its property, (b) be adjudicated bankrupt or
insolvent, (c) file a voluntary petition or have an involuntary petition filed
against Lessee which is not discharged within 60 days in bankruptcy; or (d)
consent to, approve of or acquiesce in any such proceeding or the appointment
of any receiver of or trustee for any of its property, or proceeding to
continue undischarged for a period of sixty (60) days.
10. Remedies. Upon the occurrence of an Event of Default at or
relating to a Site by Lessee or other termination hereunder due to an act or
omission of Lessee,
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and in addition to such other rights and remedies as may be available under
this Agreement, at law or in equity, Lessor shall be entitled to all costs and
expenses (including attorneys' fees) incurred by Lessor as a result of such
default and shall have the following rights and remedies: (i) dispossess Lessee
and remove all of Lessee's property from such Site, (ii) terminate this
Agreement as to such Site, (iii) store Lessee's Equipment and Lessee's other
property located at such Site in a public warehouse or elsewhere at the cost,
risk and expense of Lessee, without Lessor being deemed a trespasser or
becoming liable for any loss or damage that may occur to Lessee's Equipment
and/or property, and/or (v) enter into one or more agreements with third
parties for the use of some or all or the Tower Space at such Site for all or
any part of the Term remaining. Any and all remedies available to Lessor under
this Agreement are cumulative and not exclusive. Notwithstanding anything
contained herein to the contrary, Lessor waives any lien rights it may have
concerning Lessee's Equipment at any Site which are deemed Lessee's personal
property and not fixtures, and Lessee has the right to remove the same at any
time without Lessor's consent. Notwithstanding anything herein to the contrary,
in no event shall Lessor have as a remedy under this Agreement, or in law or
equity, the right to accelerate the payment of Annual Rent.
11. Utilities. Lessee shall meter separately at Lessee's expense
and pay directly to the utility or service company provider promptly when due
the cost of all electric power, telephone or other utilities consumed by Lessee
or Lessee's Equipment.
12. Impositions. Lessor shall pay all impositions applicable to
the Site other than for personal property taxes assessed on Lessee's Equipment.
Lessee shall pay all sales or use taxes applicable to payments made under this
Agreement or as a direct result of Lessee's equipment being located on the
Premises.
13. Environmental Provisions. (a) Lessee agrees that it will not
use, generate, store or dispose of any Hazardous Material on, under, about or
within any Site in violation of any law or regulation.
(b) Lessor represents, warrants and agrees (i) that, to
Lessor's knowledge neither Lessor nor any third party has used, generated,
stored or disposed of, or permitted the use, generation, storage or disposal
of, any Hazardous Material on, under, about or within any Site in violation of
any law or regulation, and (ii) that Lessor will not, and will not knowingly
permit any third party to use, generate, store or dispose of any Hazardous
Material on, under, about or within any Site in violation of any law or
regulation.
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(c) Each party agrees to defend, indemnify and hold harmless
the other and the other's partners, affiliates, agents and employees against
any and all losses, liabilities, claims and/or costs (including reasonable
attorneys' fees and costs) arising from any breach of any representation,
warranty or agreement contained in this Paragraph 13. As used in this Paragraph
13, "Hazardous Materials" means any toxic substance as defined in 15 U.S.C.
Sections 2601 et seq. on the date hereof, including materials designated on the
date hereof as hazardous substances under 42 U.S.C. Sections 9601 et seq. or
other applicable laws, and toxic, radioactive, caustic, or otherwise hazardous
substances, including petroleum and its derivatives, asbestos, PCBs,
formaldehyde, chlordane and heptachlor. This paragraph shall survive the
termination of this Agreement.
14. Non-interference. (a) Lessee's installation, maintenance and
operation of Lessee's Equipment (if any) at a Site shall not interfere with
operations or use of, or cause signal interference at such Site to Lessor or to
any Lessees or other users having rights to such Site (whether or not such
Lessees or other users have installed and including, without limitation,
persons in negotiations with Lessor for use of such Site) on or before the full
execution of this Agreement. In the event that Lessee's operations cause such
interference, Lessee agrees to cure the interference or cease using the
equipment which is causing the interference (except for brief tests necessary
for the elimination of the interference) within forty-eight (48) hours after
notice thereof, and Lessee further agrees to thereafter eliminate any such
interference caused by Lessee's Equipment in a prompt or timely manner, not to
exceed fifteen (15) days after the initial notice thereof. Lessor reserves the
right to disconnect Lessee's Equipment at such Site if, following the
above-referenced notice by Lessor, Lessee fails to either cure the interference
or cease using the equipment within the forty-eight (48) hours set forth above.
(b) Lessee shall continue to be obligated to pay rent, and
Lessor shall not be held liable for any damages or loss of revenues. Provided
Lessee's equipment is operating properly, if the operations of any equipment
installed after Lessee's equipment cause objectionable interference to Lessee's
operation, then Lessor shall require the interfering lessee to remedy the
interference and bear the costs thereof.
(c) Lessee shall also have a non-exclusive seven (7) day per
week, twenty-four (24) hour per day right of access over right of ways
designated by Lessor (which may be changed by Lessor, in its sole discretion)
to the Tower Space at each Site during the Term hereof, provided that such
access shall be subject to such reasonable site rules and regulations as Lessor
may prescribe from time to time and further provided that such access shall be
solely for the purpose of
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installing, maintaining, repairing, and removing Lessee's Equipment). Lessee's
right to use the Tower Space and any Site shall be subject to the rights of
others to pass by and through the Tower Space to service such Site and any
other equipment on such Site. Lessee's Equipment shall be configured on and
attached to each Site in a manner that shall permit such reasonable passage by
and through the Leased Premises at all times.
15. Binding Obligations. Lessor represents and warrants to Lessee
that this Agreement has been duly and validly executed and delivered by Lessor
and constitutes Lessor's legal, valid and binding obligation, enforceable
against Lessor in accordance with its terms. Lessee represents and warrants to
Lessor that this Agreement has been duly and validly executed and delivered by
Lessee and constitutes Lessee's legal, valid and binding obligation,
enforceable against Lessee in accordance with its terms. This Agreement shall
be binding on and inure to the benefit of the successors and assignees of the
respective parties permitted hereunder.
16. Indemnification. (a) Lessee shall indemnify, defend and save
harmless Lessor and its officers, directors, employees, affiliates and agents
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses, including, without limitation, attorneys'
fees and expenses, imposed upon or incurred by or asserted against Lessor by
reason of any (i) occurrence, injury to or death of persons (including workmen)
or loss of or damage to property at a Site resulting from Lessee's Equipment or
arising from any conduct of Lessee or Lessee's officers, employees, agents,
contractors, and subcontractors, or employees of any thereof; (ii) use, non-use
or condition of Lessee's Equipment, (iii) failure on the part of Lessee to
perform or comply with any of the terms hereof, or applicable law, (iv)
performance of any maintenance, repair, removal, or replacement regarding
Lessee's Equipment, or (v) damage or destruction to, or interference with the
use or operation of, any property of any other person on a Site attributable to
Lessee's Equipment, or the operation thereof or arising from any conduct of
Lessee, or Lessee's officers, employees, agents, contractors, and
subcontractors, or employees of any thereof; provided, however, that Lessee
shall not indemnify, defend or save harmless Lessor for matters caused by the
gross negligence or willful misconduct of Lessor or its agents or employees.
(b) Lessor shall exonerate, hold harmless, indemnify, and
defend Lessee from and against any and all liabilities, damages, costs and
expenses arising out of or resulting from the acts or omissions of Lessor, its
agents, representatives or subcontractors at a Site; provided, however, that
Lessor shall not indemnify, defend or save harmless Lessee for matters caused
by the gross negligence or willful misconduct of Lessee or its agents or
employees.
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17. Estoppel Certificate; Other Statements. From time to time,
within fifteen (15) days after request by Lessor or Lessee, the other party
shall execute, acknowledge and deliver to the requesting party or its current
or prospective lenders, purchasers, successors, affiliates and/or permitted
assigns, a statement in writing ("Estoppel Certificate") concerning this
Agreement and the applicable Site set forth in said notice and certifying the
Commencement Date, the expiration date of this Agreement, that the requesting
party is not in default under this Agreement except as specified in such
statement, that this Agreement is unmodified and in full force and effect (or,
if modified, describing such modification(s)), the dates to which the Annual
Rent has been paid, and setting forth such other statements relating to the
delivery of the Lessee's Space at such Site as such lenders, purchasers,
successors or permitted assigns may reasonably require. In addition to the
foregoing, Lessee shall from time to time, promptly upon Lessor's request,
furnish to Lessor or its current or prospective lenders, purchasers,
successors, affiliates and/or assigns, financial statements (including an
income statement, balance sheet, and statement of cash flow, prepared in
accordance with generally accepted accounting principles applied on a
consistent basis) and such other information as Lessor may reasonably request
regarding Lessee's financial condition. The Estoppel Certificate and other
statements required in this Paragraph 17 shall each be accurate and binding on
the party executing and/or delivering the same and may be relied upon by any
such person herein described at whose insistence the same was prepared and/or
delivered.
18. Waivers of Claims, Limitation of Liability. (a) Lessor and
Lessee hereby waive to the fullest extent permitted by law all claims to
special, incidental, consequential and punitive damages (including, without
limitation, lost profits) in any lawsuit or other legal action brought by any
of them against any other of them in respect of any claim among or between any
of them arising under this Agreement, or any other agreement or agreements
between them at any time, including any such agreements, whether written or
oral, made or alleged to have been made at any time prior to the date hereof,
and all agreements made hereafter or otherwise, and any and all claims arising
under common law or under any statute of any state or the United States of
America, whether any such claims be now existing or hereafter arising, now
known or unknown. In making this waiver, each of Lessor and Lessee acknowledge
and agree that there shall be no claims for special, incidental, consequential
or punitive damages made by them against the other. Lessor and Lessee
acknowledge and agree that this waiver of claims for special, incidental,
consequential damages and punitive damages is a material element of the
consideration for this Agreement.
(b) Notwithstanding any provision to the contrary contained
in this Agreement, (including, without limitation, in Section 13(c) and 16(a)),
and except as to Lessee's officers, employees, agents, contractors, and
subcontractors, in no event
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shall Lessee have any liability to Lessor under this Agreement or otherwise
arising in connection with any act or omission of any third party (including,
without limitation, any subtenant).
19. Mechanics Liens. Lessee shall keep each Site and Lessee's
Space thereon free from any mechanic's, materialmen's or similar liens in
connection with any Lessee work on or respecting the Lessee's Space and/or Site
and shall indemnify and hold Lessor harmless from and against any claims,
liabilities, judgments, or costs (including attorneys' fees) arising out of the
same or in connection therewith. Lessee will remove any such lien within ten
(10) days after written notice by Lessor or, in the event of a dispute, notify
Lessor of the nature of the dispute and post a bond and if Lessee fails to do
so, Lessor may pay the amount necessary to remove such lien or encumbrance,
without being responsible for investigating the validity thereof, and the
amount so paid will be deemed an additional charge to be paid by Lessee
hereunder upon demand.
20. Mortgages. This Agreement is subject and subordinate to all
Mortgages (as defined below) now or hereafter placed upon a Site by Lessor, and
to the provisions of any easement, operating agreement, declaration,
restrictive covenant, and all other encumbrances and matters of public record
applicable to the land related thereto. Any Holder (as defined below) may elect
to make this Agreement prior to the lien of its Mortgage, by written notice to
Lessee and Lessee shall execute such documentation as Lessor or any Holder may
reasonably request from time to time, in order to confirm the matters set forth
in this Paragraph. If any foreclosure proceedings regarding a Site are
initiated by any Holder or if any mortgage or deed in lieu is granted or any
ground lease is terminated, Lessee agrees, upon written notification of any
such Holder, mortgagee or purchaser at foreclosure sale, to attorn to such
party and to execute and deliver any instruments necessary or appropriate to
evidence or effectuate such attornment (and such Holder, mortgagee or purchaser
shall agree to accept this Agreement and not disturb Lessee's occupancy, so
long as Lessee does not default under this Agreement). In the event of
attornment, provided that Lessee has received prior notice of the identity and
address of the Holder, no Holder shall be: (i) liable for any act or omission
of Lessor, or subject to any offset or defense which Lessee might have against
Lessor of which Holder has not been given notice by Lessee (prior to such
Holder becoming lessor), or (ii) bound by any future modification of this
Agreement unless consented to by such Holder. "Mortgage" means all mortgages,
deeds of trust, ground leases and other such encumbrances now or hereafter
placed upon a Site or any part thereof, and all renewals, modifications,
consolidations, replacement or extensions thereof, and all indebtedness now or
hereafter secured thereby and all interest therein. "Holder" means the holder
of any Mortgage at the time in question, and where such Mortgage is a ground
lease, such term shall refer to the ground lease.
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21. Attorneys' Fees. If any action at law or in equity is
necessary to enforce the terms of this Agreement, the prevailing party will be
entitled to reasonable attorneys' fees, in addition to any other relief to
which such prevailing party may be entitled.
22. Entire Agreement. Lessor and Lessee represent to each other
that this Agreement is the complete and exclusive expression of their
agreements regarding the matters contemplated herein, and all prior agreements,
statements, and representations, whether written or oral, which relate in any
way to the matters contemplated herein are hereby superseded and shall be given
no force and effect, and that no promise, inducement, or representation has
been made to either of them which relates in any way to this Agreement, other
than what is expressly stated in this Agreement. This Agreement may not be
changed, modified or amended except by written instrument signed by both
parties hereto.
23. Waiver of Jury Trial. Each party to this Agreement hereby
waives to the fullest extent permitted by law, all right to trial by jury of
any and all claims arising under or relating to this Agreement or the Site.
Each party acknowledges that this is a waiver of a legal right and that this
waiver of jury trial is made by such party knowingly and voluntarily after
consultation with (or after the full opportunity to consult with) counsel of
such party's choice.
24. Notices. Any notice, consent, demand, request, approval, or
other communication to be given under this Agreement by any party to any other
party shall be in writing and shall be either (a) personally delivered, (b)
mailed by registered or certified mail, postage prepaid with return receipt
requested, (c) delivered by overnight express delivery service or same-day
local courier service, or (d) delivered by telex or facsimile transmission, to
the address set forth below, or to such other address as may be designated by
the parties from time to time in accordance with this Section 24.
If to Lessee: Microcell Management, Inc.
c/o LCC International, Inc.
0000 Xxxxx Xxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Fax No. (000) 000-0000
If to Lessor: Pinnacle Towers Inc.
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax No. (000) 000-0000
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Notices delivered personally, by overnight express delivery service or
by local courier service shall be deemed given as of actual receipt. Mailed
notices shall be deemed given three business days after mailing. Notices
delivered by telex or facsimile transmission shall be deemed given upon receipt
by the sender of the answerback (in the case of a telex) or transmission
confirmation (in the case of a facsimile transmission).
25. Assignment/Sublease. Neither this Agreement nor any right
created hereby shall be assignable by either party hereto, except by Lessor to
a direct or indirect wholly owned subsidiary of Lessor, which assignment shall
not relieve Lessor of any liability under this Agreement; provided that (i)
Lessee may assign all or any portion of its right hereunder to LCC
International, Inc., a Delaware corporation and Lessee's parent ("LCC") or any
Affiliate thereof (which in turn may assign all or any portion of its
respective rights hereunder to any other Affiliate of LCC) and (ii) Lessee
(and, following an assignment of its rights hereunder to LCC, LCC) may assign
all or any portion of its respective rights hereunder in connection with a
merger, consolidation or sale of substantially all its assets or to any lender
as security for a loan; provided that no such assignment by Lessee shall
release Lessee from its obligation to pay to Lessor the Annual Rent, for which
Lessee shall remain liable, jointly and severally, with its assignee. Lessee
shall not sublease all or any portion of the Leased Premises without Lessor's
prior written consent which consent shall not be unreasonably withheld,
conditioned or delayed. Lessor shall not withhold, condition or delay its
consent provided that the following conditions are satisfied:
(i) Lessee shall notify Lessor, in writing, of
any proposed sublease, at least thirty (30) days prior to the effective date of
such proposed sublease. The proposed subtenant shall have a creditworthiness
which is reasonably acceptable to Lessor.
(ii) The sublease shall be for a term of no less
than the remainder of the Term and shall be for a fair market value rental.
(iii) The sublease shall be on substantially the
same terms as Lessor's standard Lease form (or such other terms as are
reasonably acceptable to Lessor).
(iv) The subtenant is not (and will not be)
terminating a lease on another tower owned by Lessor located within a 40 mile
radius of the Tower to which such proposed sublease relates in order to enter
into such sublease.
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(v) The subtenant agrees to be bound by
Lessee's obligations hereunder as to the space being leased under such sublease
(except payment of rent to Lessor) as if a direct lease were made between
Lessor and Subtenant.
26. Inclusion and Exclusion of Sites: (a) If, as of the
Commencement Date, Lessor has not acquired from Lessee under the APA a tower
site listed on Schedule A, such tower site shall not be a "Tower" or "Site"
subject to this Agreement and shall not become a "Tower" or "Site" subject to
this Agreement unless and until Lessor so acquires such tower site.
(b) If, following the Commencement Date, Lessor acquires from
Lessee under the APA an additional tower site listed on Schedule A, then, from
and after the closing date for such acquisition, such tower site shall become
and be a "Tower" and a "Site" subject to this Agreement for all purposes
hereunder,
(c) If, following the Commencement Date, Lessor transfers,
assigns or otherwise is divested of title to a Tower, whether voluntarily or
involuntarily, then, from and after the effective date of such divestiture of
title, such Tower shall cease to be a "Tower" or a "Site" subject to the terms
of this Agreement.
(d) Notwithstanding anything to the contrary herein, Lessor
and Lessee acknowledge and agree that the Annual Rent due hereunder for each of
calendar year 2000, 2001 or 2002 shall be adjusted, if and as required, so that
such amount is the sum of the annual rent amounts set forth on Schedule A for
each and every, but only, those Towers subject to this Agreement in accordance
with this Section 26 as of December 31 of such calendar year.
27. Counterparts. This Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
28. Governing Law. This Agreement shall be governed by the law of
the State of Florida.
29. Miscellaneous. Captions are for convenience of reference only
and shall not be used for interpreting the provisions of this Agreement. If any
provision hereof is invalid or unenforceable with respect to any party, the
remainder hereof or the application of such provision to persons other than
those as to whom it is held invalid or unenforceable shall not be affected, and
each provision hereof shall be valid and enforceable to the fullest extent
permitted by law. The indemnity provisions in this Agreement shall survive the
termination of this Agreement. There shall be no third party beneficiaries of
this Agreement. Time is of the essence of
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this Agreement; provided however, neither party shall be liable for any delay
in performance of any obligations hereunder (excluding obligations for the
payment of money) due to fire, flood, earthquake, tornado, windstorm or other
act of God.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned parties execute this Agreement under seal the day and year first
above written.
LESSOR:
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PINNACLE TOWERS INC.,
a Delaware corporation
By:
------------------------------
Name:
----------------------------
Title:
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LESSEE
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MICROCELL MANAGEMENT, INC.,
a Delaware corporation
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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