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EXHIBIT 10.2
LEASE AND
SUBLEASE
by and among
SBC TOWER HOLDINGS LLC, a Delaware limited liability company, for
itself and as Agent for the SBC GROUP,
and
SBC WIRELESS, LLC, a Delaware limited liability company,
as Guarantor,
and
SOUTHERN TOWERS, INC.,
and
SPECTRASITE HOLDINGS, INC.,
as Guarantor
Dated December 14, 2000
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TABLE OF CONTENTS
Page
SECTION 1. Definitions............................................................................................1
SECTION 2. Sublease Documents....................................................................................13
SECTION 3. Subleased Property....................................................................................14
SECTION 4. Existing Subleases and Colocation Agreements..........................................................19
SECTION 5. Reserved Space........................................................................................20
SECTION 6. Permitted Use.........................................................................................22
SECTION 7. Access................................................................................................22
SECTION 8. Term. 23
SECTION 9. Withdrawal............................................................................................23
SECTION 10. Rent and SBC Leaseback Charge........................................................................24
SECTION 11. Condition of the Sites and Obligations of TowerCo....................................................25
SECTION 12. Requirements for Alterations; Title to Alterations; Addition of Equipment; Work
on the Site..........................................................................................28
SECTION 13. Damage to the Site, Tower or the Improvements........................................................30
SECTION 14. Space Subtenants; Interference.......................................................................32
SECTION 15. Taxes and Assessments................................................................................33
SECTION 16. Utilities............................................................................................35
SECTION 17. Governmental Permits.................................................................................35
SECTION 18. No Liens.............................................................................................36
SECTION 19. Condemnation.........................................................................................38
SECTION 20. Waiver of Subrogation; Indemnity.....................................................................39
SECTION 21. Subordination and Attornment.........................................................................40
SECTION 22. Environmental Covenants..............................................................................41
SECTION 23. Insurance............................................................................................44
SECTION 24. Right of Substitution; Right of First Refusal........................................................46
SECTION 25. Assignment and Subletting............................................................................49
SECTION 26. Estoppel Certificate.................................................................................51
SECTION 27. Holding Over.........................................................................................51
SECTION 28. Rights of Entry and Inspection.......................................................................52
SECTION 29. A Party's Right to Act for the Other Party; SBC Set-Off Right........................................52
SECTION 30. Defaults and Remedies................................................................................53
SECTION 31. Quiet Enjoyment......................................................................................58
SECTION 32. No Merger............................................................................................58
SECTION 33. Broker and Commission................................................................................58
SECTION 34. Recording of Memorandum of Ground Lease..............................................................59
SECTION 35. Purchase Options.....................................................................................59
SECTION 36. Net Lease............................................................................................62
SECTION 37. Compliance with Specific FCC Regulations.............................................................62
SECTION 38. Guaranty.............................................................................................63
SECTION 39. Tax Indemnities......................................................................................66
SECTION 40. General Provisions...................................................................................74
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LEASE AND SUBLEASE
THIS LEASE AND SUBLEASE is made and entered into this 14th day of
December, 2000 (this "Sublease"), by and among SBC WIRELESS, LLC, a Delaware
limited liability company ("Wireless Guarantor"), SBC TOWER HOLDINGS LLC, a
Delaware limited liability company (for itself and as Agent for the SBC Group
Members whose names are set forth on Exhibit D hereof or which become parties to
this Sublease after the date hereof, "SBC"), SPECTRASITE HOLDINGS, INC., a
Delaware corporation ("TowerCo Parent"), and SOUTHERN TOWERS, INC., an indirect
wholly-owned subsidiary of TowerCo Parent and a Delaware corporation (doing
business in Oklahoma as Southern Towers of Delaware, Inc.) ("TowerCo").
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties to this Sublease agree as follows:
SECTION 1. Definitions.
For purposes of this Sublease, the following capitalized terms have the
following respective meanings:
"Additional Rent" has the meaning set forth in Section 3(i)
hereof.
"Affiliate" of a Person means any Person which, whether
directly or indirectly, Controls, is Controlled by, or is under common
Control with the subject Party.
"After-Tax Basis" has the meaning set forth in Section
39(a)(3)(i) hereof.
"Agreement to Sublease" means the Agreement to Lease and
Sublease, by and among TowerCo Parent, TowerCo, and the SBC Group, as
amended.
"Alterations" means the construction or installation of
Improvements on any Site or any part thereof after the Site
Commencement Date for such Site, or the alteration, replacement,
modification or addition to all or any component of a Site after the
Site Commencement Date for such Site, whether Severable or
Non-Severable.
"Assumed Rate" has the meaning set forth in Section
39(a)(1)(v) hereof.
"Available Space" means, as to any Site, a Tower location, a
portion of the Land, a portion of the Improvements or any other
portion, space or area of such Site that is available for sublease by
TowerCo to any Space Subtenant (including SBC and SBC Affiliates, in
such capacity) and all rights appurtenant to such portion, space or
area.
"Award" means any amounts paid, recovered or recoverable as
damages, compensation or proceeds by reason of any taking on account of
a Taking, including all amounts paid pursuant to any agreement with
such entity which has been made in settlement or under threat of any
such action or proceeding, less the reasonable costs and expenses
incurred in collecting such amounts.
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"Build to Suit Agreement" means the Agreement to Build to Suit
dated as of the date hereof by and among SBC Wireless, LLC, SpectraSite
Communications, Inc. and SpectraSite Holdings, Inc.
"Capital Stock" means: (i) in the case of a corporation,
corporate stock; (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case
of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and (iv) any other
interest or participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Cash Flow" means, as to any Person, the earnings before
interest expense, depreciation, amortization and taxes of such Person
and its Subsidiaries on a consolidated basis, determined in accordance
with GAAP.
"Claims" means any claims, demands, actions, suits,
proceedings, disbursements, judgments, damages, penalties, fines,
losses, liabilities, costs and expenses, including reasonable
attorneys' fees and amounts paid in settlements.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Colocation Agreements" means any existing agreements pursuant
to which any SBC Affiliate shares as of the applicable Site
Commencement Date any Site with other providers of wireless
telecommunications services, local public safety organizations,
governmental entities such as post offices and law enforcement
organizations, and operators of remote monitoring systems for
commercial purposes, and to which such SBC Affiliate is a party.
Colocation Agreements with other providers of wireless
telecommunications services have been (in the case of the Initial
Sites) or will be prior to the applicable Site Commencement Date (in
the case of other Sites), disclosed to TowerCo in the disclosure
schedules delivered pursuant to the Agreement to Sublease.
"Commonly Assessed Taxes" has the meaning set forth in Section
15(c).
"Communications Equipment" means, as to any Site, transmitting
and/or receiving equipment and other equipment installed at the
Reserved Space (as to SBC or any SBC Affiliate) or any Available Space
(as to a Space Subtenant), which is or will be necessary in providing
current and future wireless communication services, including without
limitation, switches, antennas, microwave dishes, panels, conduits,
flexible transmission lines, cables, radio, amplifiers, filters and
other transmission or communications equipment (including interconnect
transmission equipment, transmitter(s), receiver(s) and accessories)
and such other equipment and associated software as may be necessary in
order to provide such wireless communication services, including
without limitation, voice or data. Communications Equipment shall
include any existing, replaced and upgraded Communications Equipment.
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"Communications Facility" means, as to any Site, the Reserved
Space (as to SBC or an SBC Affiliate) or any Available Space (as to a
Space Subtenant), together with the applicable SBC Affiliate's or such
Space Subtenant's Improvements.
"Control" means the ownership, directly or indirectly, of
sufficient voting shares of an entity, or otherwise the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.
"CPI" means the Consumer Price Index for all Consumers, U.S.,
City Average (1982-84 = 100) All Items Index, published by the Bureau
of Labor Statistics, United States Department of Labor. If the CPI
shall cease to be compiled and published at any time during the term of
this Sublease, but a comparable successor index is compiled and
published by the Bureau of Labor Statistics, United States Department
of Labor, the adjustments to the SBC Leaseback Charge provided for in
Section 10, if any, and any other adjustments provided for in this
Sublease which are based on the CPI Change shall be computed according
to such successor index, with appropriate adjustments in the index to
reflect any differences in the method of computation from the CPI. If,
at any time during the term of this Sublease, neither the CPI nor a
comparable successor index is compiled and published by the Bureau of
Labor Statistics, the index for "all items" compiled and published by
any other branch or department of the federal government shall be used
as a basis for calculation of the CPI-related adjustments to the SBC
Leaseback Charge provided for in this Sublease, and if no such index is
compiled and published by any branch or department of the federal
government, the statistics reflecting cost of living increases or
decreases, as applicable, as compiled by any institution or
organization or individual generally recognized as an authority by
financial and insurance institutions shall be used.
"CPI Change" means an increase or decrease, if any, (expressed
as a positive or negative percentage) in the most recently published
CPI as of January 1 immediately preceding the commencement of the
applicable Site Term Year (the "Index Date"), from the CPI published as
of January 1 immediately preceding the Index Date.
"Date of Taking" means the earlier of the date upon which
title to applicable Site, or any portion thereof, subject to a Taking
is vested in the condemning authority, or the date upon which
possession of such Site or portion thereof is taken by the condemning
authority.
"Default Notice" has the meaning given to such term in Section
3(h) hereof.
"Effective Date" means the date of this Sublease, as set forth
in the caption of the Sublease.
"Emergency" has the meaning given to such term in Section
29(b) hereof.
"Estimated Cost" has the meaning given to such term in Section
17(f) hereof.
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"Existing Sublease" means, with respect to any Site, any
sublease, license, lease or other agreement for use of a Tower location
and other space on such Site between a SBC Affiliate and any other
Person that is in effect as of the applicable Site Commencement Date
excluding that certain Master Site Agreement dated September 30, 2000
between SBC and the "User(s)", which shall be considered to be a
sublease of the Reserved Space by the applicable Sublessor to the
"User(s)" and shall be subject to the restrictions contained in Section
25 of this Sublease.
"Fair Market Value" as to any Site, means the fair market
sales value of such Site that would be obtained in an arm's-length
transaction between an informed and willing buyer and an informed and
willing seller, under no compulsion, respectively, to buy or sell the
Site in question.
"FAA" means the United States Federal Aviation Administration.
"FCC" means the United States Federal Communications
Commission.
"Federal Depreciation Deductions" has the meaning set forth in
Section 39(a)(1)(ii) hereof.
"Federal Income Tax Benefits" means the Federal Depreciation
Deductions and the federal income tax deductions described in Section
39(a)(1)(iii) hereof.
"Ground Lease" means, as to a Leased Site, the ground lease,
easement, license or other agreement, pursuant to which a Sublessor
holds a leasehold interest, leasehold estate, easement, license or
other real property interest.
"Ground Lessor" means, as to a Leased Site, the "lessor",
"landlord", "licensor", or similar Person under the related Ground
Lease.
"Ground Rents" means, as to any Site, all rents, fees and
other charges payable by a Sublessor to the Ground Lessor under the
Ground Lease for such Site.
"Improvements" means, as to each Site, (i) one or more
concrete equipment pads or raised platforms capable of accommodating
exterior cabinets, electrical service and access for the placement and
servicing of SBC's or a SBC Affiliate's and, if applicable, each Space
Subtenant's Improvements; (ii) buildings, huts, shelters or exterior
cabinets; (iii) generators and associated fuel tanks; (iv) grounding
rings (other than those for SBC's or a SBC Affiliate's equipment
shelters); (v) fencing; (vi) signage; (vii) connections for utility
service up to the meter; (viii) hardware constituting a tower platform
to hold SBC's or a SBC Affiliate's and, if applicable, each Space
Subtenant's Communications Equipment; (ix) access road improvements;
(x) common shelters, if any; (xi) all lighting systems and light
monitoring devices; and (xii) such other equipment, alterations,
replacements, modifications, additions, and improvements as may be
installed on or made to all or any component of a Site (including the
Land and the Tower). Improvements do not include Communications
Equipment.
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"Inclusion" means the inclusion in the income of any SBC Group
Member of any amount realized in connection with the transactions
effected by this Sublease or related documents other than the amounts
described in Section 39(a)(1)(iv) hereof.
"Initial Site" has the meaning set forth in the definition of
"Site."
"Investment Grade" means outstanding senior unsecured debt
securities rated BBB or higher by Standard & Poor's or Baa or higher by
Moody's.
"Land" means, as to each Site, the land constituting a portion
of such Site, together with all easements and other rights appurtenant
thereto.
"Laws" means all federal, state, county, municipal and other
governmental constitutions, statutes, ordinances, codes, regulations,
resolutions, rules, requirements and directives and all decisions,
judgments, writs, injunctions, orders, decrees or demands of courts,
administrative bodies and other authorities (including, without
limitation, the FAA and FCC) construing any of the foregoing.
"Leased Site" means a Site as to which a Sublessor holds a
leasehold interest, leasehold estate, easement, license or other
possessory interest in the Land which is part of such Site pursuant to
a Ground Lease.
"Liens" means, as to each Site, an interest or a claim by a
Person other than SBC or any of its Affiliates, whether such interest
or claim is based on the common law, statute or contract, including,
without limitations, liens, charges, Claims, leases, licenses,
Mortgages, conditional agreements, title retention agreements,
preference, priority or other security agreements or preferential
arrangements of any kind, reservations, exceptions, encroachments,
covenants, conditions, restrictions and other title exceptions and
encumbrances affecting all or any part of the Land, the Tower or
Improvements thereof.
"Market Capitalization" means, as to any Person, as of any
date of determination, either (i) the number of issued and outstanding
shares of such Person's Capital Stock (as set forth in such Person's
most recent filings with the U.S. Securities and Exchange Commission)
multiplied by the closing price of the Capital Stock of such Person on
any exchange on which such stock is listed or (ii) in the case of any
Person as to which the information specified in clause (i) is not
available, the total market value of the equity of such Person,
determined by a commercially reasonable appraisal process.
"Mortgage" means, as to any Site, any mortgage, deed to secure
debt, deed of trust, trust deed or other conveyance of, or encumbrance
against, the Land or Improvements on such Site as security for any
debt, whether now existing or hereafter arising or created.
"Mortgagee" means, as to any Site, the holder of any Mortgage,
together with the heirs, legal representatives, successors, transferees
and assigns of the holder.
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"NDA" means a non-disturbance, subordination and attornment
agreement executed between a Mortgagee and TowerCo.
"Net Worth" means, with respect to a Person, the total assets
minus the total liabilities of such Person and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Non-Conforming Alterations" has the meaning given to such
term in Section 3(i) hereof.
"Nonseverable" shall mean, with respect to any Alteration, any
Alteration that is not a Severable Alteration.
"Non-TowerCo Taxes" has the meaning set forth in Section
15(c).
"Option Purchase Price Amount" means, with respect to each
Site, the fixed purchase price for such Site in the event TowerCo
exercises its purchase option with respect thereto under Section 35
hereof as specified in Exhibit A.
"Option Trigger Window" has the meaning set forth in Section
35(a).
"Owned Site" means a Site with respect to which a Sublessor
owns fee simple title in the Land which is part of the Site.
"Party" means each of the SBC Group Members, Wireless
Guarantor, TowerCo and TowerCo Parent, as appropriate. "Parties" means
the SBC Group Members, Wireless Guarantor, TowerCo and TowerCo Parent
together.
"Permitted Liens" has the meaning given to such term in
Section 18(a).
"Permitted Subleasehold Mortgage" means a mortgage, deed of
trust, trust deed, deed to secure debt or other like security
instrument for the benefit of a Permitted Subleasehold Collateral
Assignee.
"Permitted Subleasehold Pledge" means a pledge or collateral
assignment as security for any indebtedness for the benefit of a
Permitted Subleasehold Collateral Assignee.
"Permitted Subleasehold Collateral Assignee" means a holder of
(i) a collateral assignment of this Sublease, the Agreement to Sublease
or the Build to Suit Agreement, and/or (ii) a mortgage, deed of trust,
trust deed, deed to secure debt or other like security instrument with
respect to TowerCo's leasehold and subleasehold interests in all or any
portion of the Sites, pursuant to that certain Credit Agreement, dated
as of April 20, 1999, as amended, among SpectraSite Communications,
Inc., as borrower, SpectraSite Holdings, Inc., as guarantor, CIBC
Oppenheimer Corp., Credit Suisse First Boston and the other parties
thereto, as the same may be amended, supplemented, extended, restated,
refinanced or refunded (collectively, the "Credit Agreement"), or that
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will be a recipient or beneficiary of a pledge or collateral assignment
by TowerCo of TowerCo's interests hereunder or the holder of a
mortgage, deed of trust, trust deed, deed to secure debt or other like
security instrument with respect to TowerCo's leasehold and
subleasehold interests in all or any portion of the Sites that has
assets at the time of the execution of the Permitted Subleasehold
Pledge or Permitted Subleasehold Mortgage, as applicable, of not less
than $2 billion, and is: (i) a national bank; (ii) a commercial,
national or state savings bank or trust company; (iii) an investment or
merchant bank; (iv) a foreign bank authorized to make loans in the
United States; (v) a charitable foundation; (vi) a real estate
investment fund; (vii) an insurance company; (viii) a credit company;
(ix) a pension or retirement fund or a fund which, in turn, is funded
substantially by a pension or retirement fund; (x) a real estate
investment trust; (xi) a venture capital firm; (xii) a mortgage banking
house; (xiii) an international bank or investment company; or (xiv) any
other institutional lender performing lending functions similar to any
of the foregoing. Notwithstanding the foregoing, in no event shall a
Permitted Subleasehold Collateral Assignee be a SBC Competitor.
"Permitted Transferee" means: (i) a Person who has outstanding
debt that is Investment Grade; (ii) with respect to a transaction
involving twenty percent (20%) or more of all Sites now or hereafter
subject to this Sublease and less than forty percent (40%) of all Sites
now or hereafter subject to this Sublease, a Person reasonably believed
by SBC to have a current Net Worth or Market Capitalization of at least
$50 million or Cash Flow for the last full fiscal year of such Person
of at least $10 million; (iii) with respect to a transaction involving
forty percent (40%) or more of all Sites now or hereafter subject to
this Sublease and less than eighty percent (80%) or more of all Sites
now or hereafter subject to this Sublease, a Person reasonably believed
by SBC to have a current Net Worth or Market Capitalization of at least
$250 million or Cash Flow for the last full fiscal year of such Person
of at least $50 million; or (iv) with respect to a transaction
involving eighty percent (80%) or more of all Sites now or hereafter
subject to this Sublease, a Person reasonably believed by SBC to have a
current Net Worth or Market Capitalization of at least $500 million or
Cash Flow for the last full fiscal year of such Person of at least $100
million.
"Permitted TowerCo Transferee" means: (i) a Person who has
outstanding debt that is Investment Grade; (ii) with respect to a
Transfer of the Subleased Property involving more than twenty percent
(20%) but less than forty percent (40%) of all Sites now or hereafter
subject to this Sublease, a Person reasonably believed by TowerCo to
have a current Net Worth or Market Capitalization of at least $100
million or Cash Flow for the last full fiscal year of such Person of at
least $5 million; (iii) with respect to a Transfer of the Subleased
Property involving forty percent (40%) or more of all Sites now or
hereafter subject to this Sublease and less than eighty percent (80%)
or more of all Sites now or hereafter subject to this Sublease, a
Person reasonably believed by TowerCo to have a current Net Worth or
Market Capitalization of at least $250 million or Cash Flow for the
last full fiscal year of such Person of at least $50 million; or (iv)
with respect to a Transfer of the Subleased Property or any other
transaction of the types referred to in Section 25(a), involving eighty
percent (80%) or more of all Sites now or hereafter subject to this
Sublease, a Person reasonably believed by TowerCo to have a current Net
Worth or Market Capitalization of at least $500 million or Cash Flow
for the last full fiscal year of such Person of at least $100 million.
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"Permitted Use" means use of the Subleased Property of each
Site for the purposes of: (i) constructing, installing, operating,
managing, maintaining and marketing the Tower and Improvements thereof
and making further Improvements to such Site as permitted hereunder,
and (ii) for further use of such Subleased Property by Space Subtenants
(including SBC and SBC Affiliates with respect to any Available Space
or Reserved Space), and the right to use by Space Subtenants (including
SBC and SBC Affiliates with respect to any Available Space or Reserved
Space) of any portions of the Land, Tower and Improvements of each Site
as are reasonably necessary for operation of the Communications
Facilities of such Space Subtenants.
"Person" means an individual, partnership, joint venture,
limited liability company, association, corporation, trust or any other
legal entity.
"Proceeds" means all insurance moneys recovered or recoverable
by TowerCo or any Sublessor as compensation for casualty damage to any
Site (including the Tower and Improvements thereof).
"Reimbursable Cost" has the meaning given such term in Section
17(f) hereof.
"Rent" has the meaning set forth in Section 10(b).
"Reserved Space" means, as to each Site: (i) the portion of
the Land and Improvements of such Site used by SBC or an SBC Affiliate
as of the date of the applicable Site Commencement Date, or as may be
used by SBC or a SBC Affiliate as "Reserved Space" pursuant to this
Sublease, as reserved for the exclusive use and occupancy by SBC or any
SBC Affiliate, including without limitation, MTSOs and other switches
and SBC's Improvements located on the Land, but not including parking
spaces and associated loading docks (which facilities shall be shared
by SBC, SBC Affiliates, TowerCo and Space Subtenants on an equitable
basis); (ii) the portion of the Tower of such Site used by SBC or an
SBC Affiliate for Communications Equipment as of the applicable Site
Commencement Date, or as may be used by SBC or an SBC Affiliate as
"Reserved Space" pursuant to this Sublease, as reserved for the
exclusive use and occupancy by SBC or any SBC Affiliates, including
without limitation, any antennas, transmission lines, amplifiers and
filters located on the Tower; and (iii) any and all rights pursuant to
Section 5(b) and 24 and all appurtenant rights reasonably inferable to
permit SBC's and the SBC Affiliates' full use and enjoyment of the
Reserved Space, including without limitation, the appurtenances
specifically described in Section 5, all in accordance with Section 5.
"Restoration" means, as to a Site that has suffered casualty
damage, such restoration, repairs, replacements, rebuilding, changes
and alterations, including the cost of temporary repairs for the
protection of such Site, or any portion thereof, pending completion
thereof, required to restore the applicable Site (including the Tower
and Improvements thereon) to a condition which is at least as good as
the condition which existed immediately prior to such damage, and such
other changes or alterations as may be reasonably acceptable to SBC or
the applicable Sublessor and TowerCo or required by Law.
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"Right of First Refusal" means the right of SBC, exercisable
in its sole discretion, to sublease for its own use or the use of any
SBC Affiliate any Available Space from TowerCo pursuant to Section 24.
"Right of Substitution" means the right of SBC, exercisable in
its sole discretion, to substitute for its own use or the use of any
SBC Affiliate the Reserved Space of any Site for an Available Space on
such Site by relocation of its Communications Facility on such Site to
such Available Space, all pursuant to Section 24.
"SBC" has the meaning given to such term in the preamble.
"SBC Affiliates" means, collectively, any Sublessor,
Affiliates of Wireless Guarantor, the SBC Group Members, and any Person
in which Wireless Guarantor owns, directly or indirectly, at least
fifty percent (50%) of the Voting Stock of such Person or which
Wireless Guarantor otherwise Controls.
"SBC Alteration" has the meaning set forth in Section 24(a).
"SBC Competitor" means any Person whose revenues, together
with any of its Affiliate's revenues, generated from providing wireline
local exchange carrier or wireless telephone provider
telecommunications services, constitute at least twenty percent (20%)
of the total consolidated revenues of such Person and its Affiliates.
"SBC Group" means collectively, SBC, Wireless Guarantor and
the SBC Affiliates whose names are set forth in the signature pages
hereof and any SBC Affiliate which at any time becomes a "Sublessor"
hereunder in accordance with the provisions hereof. Each member of the
SBC Group is herein a "SBC Group Member". Solely for purposes of
Section 39, the term "SBC Group" shall include each SBC Group Member,
the affiliated group of corporations and each member thereof within the
meaning of Code section 1504 of which any SBC Group Member is or shall
become a member if such group shall have filed a consolidated return;
if applicable, each member in any entity classified as a partnership
for federal income tax purposes and such entity itself if and to the
extent such entity is treated as the tax owner of any of the Sites or
portions thereof or such entity is a direct or indirect partner in
another entity classified as a partnership which is so treated (in
either case, an "SBC Partnership"); and, if applicable, any entity
owned by a SBC Group Member or an SBC Partnership that for federal
income tax purposes is disregarded as an entity separate from its
owner.
"SBC's Improvements" means each of the following, in each case
located on the Land portion of the Reserved Space, installed by or for
the benefit of SBC or any SBC Affiliate and used by SBC or any SBC
Affiliate: (i) such Person's Communications Equipment; and (ii) (v)
equipment shelters, equipment buildings, and other constructions, (w)
generators and associated fuel tanks, (x) grounding rings for such
Person's equipment shelters, (y) connections for utilities service from
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the meter to such Communications Equipment, and (z) one or more
foundations, concrete equipment pads or raised platforms for such
Communications Equipment, equipment shelters, buildings and
constructions.
"SBC Indemnitee" means SBC, SBC Affiliates, and the respective
directors, officers, employees, and agents of SBC or SBC Affiliates
(except TowerCo and any agents of TowerCo).
"SBC Leaseback Charge" has the meaning given to such term in
Section 10(b).
"SBC Partnership" has the meaning set forth in the definition
of "SBC Group".
"Severable" shall mean, with respect to any Alteration, any
Alteration that can be readily removed from a Site or portion thereof
without damaging it in any material respect or without diminishing or
impairing the value, utility, useful life or condition that the Site or
portion thereof would have had if such Alteration had not been made
(assuming the Site or portion thereof would have been in compliance
with this Sublease without such Alteration), and without causing the
Site or portion thereof to become "limited use property" within the
meaning of Rev. Proc. 76-30, 1976-2 C.B. 647. Notwithstanding the
foregoing, an Alteration shall not be considered Severable if such
Alteration is necessary to render the Site or portion thereof complete
for its intended use by TowerCo (other than Alterations consisting of
ancillary items of equipment of a kind customarily furnished by lessees
of property comparable to the Site or portion thereof).
"Site" means any site now or hereafter subject to this
Sublease, including without limitation: (i) any initial Site which is
subject to this Sublease as of the date hereof as described in Exhibit
A (the "Initial Sites"); and (ii) any Site added to this Sublease
pursuant to a Site Designation Supplement with respect thereto.
Reference to a Site shall include the Land, the Tower, the Improvements
(excluding Severable Alterations) and Non-Severable Alterations, but
shall not include Communications Equipment thereon.
"Site Commencement Date" means the date on which the Term of
this Sublease commences as to such Site, which shall be the date of
this Sublease with respect to the Initial Sites and the date as set
forth in the applicable Site Designation Supplement with respect to all
other Sites.
"Site Designation Supplement" means, as to any Site, a
supplement to this Sublease, in substantially the form of Exhibit B
attached hereto, pursuant to which such Site is made subject to this
Sublease, and the subleased portions thereof added to the Subleased
Property. All representations and warranties made by SBC with respect
to a Site shall be deemed made as of the date such Site is made subject
to this Sublease.
"Site Expiration Date" means, (i) as to any Owned Site, the
Site Expiration Outside Date and (ii) as to any Leased Site, the sooner
to occur of one day prior to the expiration of the relevant Ground
Lease (as the same may be extended or renewed pursuant to the terms
hereof, including Section 3(f) hereof), and the Site Expiration Outside
Date.
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"Site Expiration Outside Date" means, as to any Site, the date
certain set forth in Exhibit A or the Site Designation Supplement as
the "Site Expiration Outside Date".
"Site Term Year" means, as to each Site, the one (1) year
period commencing on the Site Commencement Date, and ending on the day
immediately preceding the first anniversary of the Site Commencement
Date, and each succeeding one (1) year period during the term of this
Sublease.
"Space Subtenant" means, as to any Site, any Person (including
SBC and any SBC Affiliate in respect of any Available Space), which:
(i) is a "sublessee" under an Existing Sublease affecting such Site; or
(ii) subleases, licenses or otherwise acquires from TowerCo the right
to use Available Space on such Site.
"Space Subtenant's Improvements" means, as to any Space
Subtenant at any Site, such Space Subtenant's Communications Equipment,
together with equipment buildings, equipment shelters and other
constructions located on the Land of the Available Space of such Site
and owned by such Space Subtenant.
"Sublease" means this Lease and Sublease, together with any
and all Exhibits, Schedules and attachments hereto, as the same may
hereafter be modified and amended, including, without limitation,
pursuant to Site Designation Supplements. References to this Sublease
in respect of a particular Site shall include the Site Designation
Supplement therefor; and references to this Sublease in general and as
applied to all Sites shall include all Site Designation Supplements.
"Sublease Year" means each succeeding one year period
commencing on the date hereof.
"Subleased Property" means each Site that is now or hereafter
subject to this Sublease, including the Land, Tower and Improvements
thereof, less and except in each instance, Space Subtenant's
Improvements, and SBC's Improvements on such Site. The Parties agree
that the Subleased Property includes the Reserved Space which is being
leased back to SBC (for itself and for the benefit of the SBC
Affiliates) as hereinafter provided.
"Subleasehold Estate" means: (i) the rights, title, interest,
powers, privileges, benefits and options of TowerCo under this Sublease
(whether as lessee of an Owned Site or as sublessee of a Leased Site);
and (ii) all of the right, title and interest of TowerCo in and to the
Sites under this Sublease (whether as lessee of an Owned Site or as
sublessee of a Leased Site).
"Sublessor" means, as to each Site, the SBC Affiliate that
either: (i) owns fee simple title thereto; or (ii) holds a leasehold
interest, leasehold estate, easement, license or other possessory
interest therein pursuant to a Ground Lease.
"Sublessor Alteration" has the meaning set forth in Section
24(a) hereof.
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"Subsidiary" means, with respect to any Person, any
corporation, partnership, joint venture or other entity in which such
Person owns, either directly or indirectly, more than fifty percent
(50%) of the outstanding Capital Stock or other ownership or equity
interests therein, as the case may be, or has the power to direct or
cause the direction of the management and policies thereof.
"Substantial Portion of Site" means, as to a Site, so much of
such Site (including the Land, Tower and Improvements thereof, or any
portion thereof) as, when subject to a Taking or damage as a result of
a casualty, leaves the untaken portion unsuitable for the continued
feasible and economic operation of such Site for the Permitted Use.
"Substitution" means the relocation by SBC or an SBC Affiliate
on a Site, pursuant to its Right of Substitution.
"Taking" means, as to any Site, any condemnation or exercise
of the power of eminent domain by any public authority vested with such
power, or any taking in any other manner for public use, including a
private purchase, in lieu of condemnation, by a public authority vested
with the power of eminent domain.
"Tax Assumptions" has the meaning set forth in Section
39(a)(1) hereof.
"Tax Claim" has the meaning set forth in Section 39(d) hereof.
"Tax Indemnitee" has the meaning set forth in Section
39(a)(3)(i) hereof.
"Tax Indemnity Notice" has the meaning set forth in Section
39(a)(3)(i) hereof.
"Tax Loss" has the meaning set forth in Section 39(a)(3)(i)
hereof.
"Tax" and "Taxes" has the meaning set forth in Section
39(b)(1) hereof.
"Taxes and Assessments" means, as to each Site, any and all of
the following levied, assessed or imposed upon, against or with respect
to the Site (including the Reserved Space), any part of the Site
(including the Reserved Space), or the use and occupancy of the Site
(including the Reserved Space) at any time during the Term as to such
Site: (i) real property and personal property ad valorem taxes and
assessments, except as relates specifically to SBC's or any SBC
Affiliate's Communications Equipment or SBC's Improvements; (ii)
charges made by any public or quasi-public authority for improvements
or betterments related to the Site (other than SBC's Improvements);
(iii) sanitary taxes or charges, sewer or water taxes or charges; (iv)
any tax levied, assessed or imposed upon or against the Rent reserved
hereunder or upon SBC's or an SBC Affiliates' interest in the Site or
this Sublease (other than income or franchise taxes or any future tax
which is established in lieu of income or franchise taxes); and (v) any
other Governmental or quasigovernmental impositions, charges,
encumbrances, levies, assessments, fees or taxes of any nature
whatsoever related to the Site, whether general or special, whether
ordinary or extraordinary, whether foreseen or unforeseen and whether
payable in installments or not, except as it relates specifically to
Communications Equipment owned by SBC or any SBC Affiliate or the SBC's
Improvements.
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"Term" means: (i) as to this Sublease, the term set forth in
Section 8(a) hereof; and (ii) as to each Site, the term during which
this Sublease is applicable to such Site.
"Total Sites" means the aggregate number of Sites now or
hereafter subject to this Sublease.
"Tower" means a wireless transmissions tower structure or
structures on a Site.
"TowerCo" has the meaning set forth in the Preamble.
"TowerCo Indemnitee" means TowerCo, its Affiliates, and the
respective directors, officers, employees, and agents of TowerCo or its
respective Affiliates.
"TowerCo Parent" has the meaning set forth in the Preamble.
"TowerCo Work" has the meaning set forth in Section 12(b)
hereof.
"Valuation Process" has the meaning set forth in Section 3(i)
hereof.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
"Wireless Guarantor" has the meaning set forth in the
Preamble.
"Withdrawal Date" means the effective date of SBC's or an SBC
Affiliate's election to terminate its leaseback of the Reserved Space
pursuant to a Withdrawal Notice.
"Withdrawal Notice" means a notice given by SBC or an SBC
Affiliate pursuant to Section 9 exercising the Withdrawal Right.
"Withdrawal Right" means the right of SBC or an SBC Affiliate
to elect to terminate its leaseback of the Reserved Space with respect
to a Site as described in Section 9 hereof.
Any other capitalized terms used in this Sublease shall have the
respective meanings given to them elsewhere in this Sublease.
SECTION 2. Sublease Documents.
(a) This Sublease shall consist of the following documents, as amended from
time to time as provided herein:
(i) this Lease and Sublease;
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(ii) the following Exhibits, which are incorporated herein by this
reference:
Exhibit A List of Sites Subject to Sublease
Exhibit B Form of Site Designation Supplement
Exhibit C Site Maintenance Obligations with respect to
Subtenants' Communications Equipment
Exhibit D SBC Group Members Bound by the Sublease
Exhibit E Procedures For SBC to Process Tower Requests
From TowerCo
(iii)Schedules to the Exhibits, which are incorporated herein by
reference; and
(iv) such additional documents as are incorporated by reference.
(b) If any of the foregoing are inconsistent, this Sublease shall prevail over
the Exhibits, the Schedules and additional incorporated documents.
SECTION 3. Subleased Property.
(a) Subject to the terms and conditions of this Sublease, each Sublessor hereby
lets, leases and demises unto TowerCo, and except as otherwise provided in
Sections 3(h) and 22(b), TowerCo hereby leases, takes and accepts from Sublessor
the Subleased Property of all of the Sites owned or leased by such Sublessor, in
its "AS IS" condition, without any representation, warranty or covenant of or
from SBC or any SBC Affiliate whatsoever as to the condition thereof or the
suitability thereof for any particular use, except as may be expressly set forth
herein or in the Agreement to Sublease. To SBC's knowledge, the Towers are
satisfactory in all material respects for SBC's and its Affiliates' continuing
use consistent with its Permitted Use of such Towers. Except as set forth
herein, TowerCo hereby acknowledges that neither SBC nor any Affiliate or agent
of SBC has made any representation or warranty, express or implied, with respect
to any of the Subleased Property, or any portion thereof, or the suitability or
fitness for the conduct of TowerCo's business or for any other purpose,
including the Permitted Use, and TowerCo further acknowledges that it has had or
by its execution and delivery of a Site Designation Supplement, will have had
sufficient opportunity to inspect and approve the condition of the Subleased
Property of the Sites.
(b) Each Site in addition to the Initial Sites shall be made subject to this
Sublease by the execution and delivery of a Site Designation Supplement with
respect thereto between Sublessor and TowerCo. SBC and TowerCo acknowledge and
agree that this Sublease is intended to constitute a single sublease covering
the Subleased Property of all of the Sites and a single agreement covering all
the Sites, and not a separate sublease and agreement covering individual Sites.
(c) This Sublease is a grant of a leasehold interest in each Owned Site subject
to all matters affecting Sublessor's right, title and interest in and to each
Owned Site (including without limitation, Existing Subleases and the interests
of third parties as to any Owned Sites that are subject to any Colocation
Agreements); and, as to Leased Sites, this Sublease is a grant of a subleasehold
interest in each Leased Site subject to all matters affecting title to
Sublessor's leasehold interest, leasehold estate or other possessory interest
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therein (including without limitation, Existing Subleases and the interests of
third parties as to any Leased Sites that are subject to Colocation Agreements).
(d) TowerCo hereby acknowledges that, as to the Subleased Property of each
Leased Site, this Sublease is a sublease by Sublessor under the provisions of,
and is subject and subordinate to all of the terms and conditions of, the
applicable Ground Lease of such Leased Site. As to any Leased Site, Sublessor
shall not be deemed, except as otherwise hereinafter expressly provided in this
clause (d), to have assumed any duty or obligation of the Ground Lessor under
the applicable Ground Lease and shall not be liable or responsible in any manner
whatsoever for any failure of such Ground Lessor to perform any such duty or
obligation. TowerCo agrees that it will promptly pay or cause to be paid the
Ground Rent under each of the Ground Leases of the Leased Sites during the Term
of this Sublease when such payments become due and payable and, in the event
TowerCo fails to pay Ground Rent under any Ground Lease on a timely basis,
TowerCo shall be responsible for any late charges, fees or interest payable to
the Ground Lessor as a result thereof. Except as provided in Section 3(f) or
3(h), TowerCo shall (and with respect to its activities on the Reserved Space,
each Sublessor shall) abide by, comply in all respects with, and fully and
completely perform all other terms, covenants, conditions, and provisions of
each Ground Lease (including, without limitation, terms, covenants, conditions,
and provisions relating to maintenance, insurance and alterations) as if TowerCo
were the "ground lessee" thereunder and, to the extent evidence of such
performance must be provided to the Ground Lessor of the applicable Ground
Lease, TowerCo shall provide such evidence to Sublessor; provided, however,
that, except as otherwise hereinafter provided in Section 3(f), TowerCo shall
have no obligation, and SBC shall retain the obligation, to provide or cause to
be provided any telephone or other telecommunications services required to be
provided under the Ground Leases as in effect on the applicable Site
Commencement Date or as otherwise expressly agreed to by SBC. TowerCo shall not
engage in or permit any conduct that would: (i) constitute a breach of or
default under any Ground Lease; or (ii) result in the Ground Lessor being
entitled to terminate the applicable Ground Lease or to terminate Sublessor's
right as ground lessee under such Ground Lease, or to exercise any other rights
or remedies to which the Ground Lessor may be entitled for a default or breach
under the applicable Ground Lease. During the Term of this Sublease, and subject
to Section 3(f) below, Sublessor agrees to exercise prior to the expiration
thereof and in accordance with the provisions of the applicable Ground Lease,
any and all renewal options existing as of the applicable Site Commencement Date
and as may be further extended or renewed by Sublessor pursuant to the terms of
this Sublease, for any Leased Site under the Ground Leases of such Leased Sites;
provided, however, that Sublessor shall not be obligated to renew or otherwise
extend the term of any applicable Ground Lease in the event such renewal or
extension would extend the term of the Ground Lease beyond the Site Expiration
Outside Date for such Leased Site unless TowerCo requests otherwise and
Sublessor consents to such request (which consent shall not be unreasonably
withheld). The applicable Sublessor shall (i) forward to the applicable Ground
Lessor all requests for consents and other notices relating to the Permitted Use
which TowerCo reasonably wishes to deliver to such Ground Lessor and (ii)
deliver to TowerCo all material notices and communications received from the
applicable Ground Lessor.
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(e) TowerCo shall not be entitled to act as agent for, or otherwise on behalf
of, SBC or any SBC Affiliate or to bind SBC or any SBC Affiliate in any way
whatsoever in connection with any Ground Lease or otherwise except as otherwise
provided in this Section 3.
(f) With respect to any negotiations with a Ground Lessor for the extension or
terms of renewal of a Ground Lease (other than a renewal or extension pursuant
to an option contained in such Ground Lease which Sublessor is obligated to
exercise pursuant to Section 3(d)), TowerCo shall, in cooperation with
Sublessor, at TowerCo's sole cost and expense, be responsible for and use
commercially reasonable efforts to negotiate and obtain an extension or renewal
of the Ground Leases of the Leased Sites on behalf of and for the benefit of
Sublessor, and Sublessor shall make commercially reasonable efforts to assist
TowerCo in obtaining such extension or renewal, provided that such extension or
renewal does not impose any liability on Sublessor for which TowerCo is not
responsible (or subsequently agrees to be responsible) under the terms of this
Sublease during the Term as to each Site and that neither SBC nor any Sublessor
shall have any obligation to provide or cause to be provided telephone or
telecommunications services pursuant to Section 3(d) of this Sublease during
such extension or renewal. With respect to any amendment, renewal, extension or
other change to the Ground Lease desired by TowerCo during the term pursuant to
this Section 3, (i) Sublessor shall be entitled to consent to any such change
(such consent not to be unreasonably withheld) and (ii) subject to the
foregoing, Sublessor shall execute any such amendment, renewal, extension or
change within ten (10) days of its receipt thereof from TowerCo without
condition and shall bear any and all costs associated with its review. In the
event TowerCo determines that it is unable or deems it undesirable to negotiate
the terms of renewal or extension of the Ground Lease directly with the Ground
Lessor, Sublessor may attempt to negotiate such renewal or extension and TowerCo
shall reimburse Sublessor for its reasonable out-of-pocket expenses relating to
such negotiation unless TowerCo exercises its termination right provided in the
following sentence within the applicable time period. If Sublessor completes the
foregoing negotiations for such extension or renewal, the Site Expiration Date
shall be extended to the Site Expiration Outside Date set forth in the Site
Designation Supplement provided, however, that if in connection with such
renewal or extension Sublessor, without the approval of TowerCo, agrees to any
increase in Ground Rent over the then-current Ground Rent or agrees to any
revenue sharing in excess of existing revenue sharing arrangements, TowerCo
shall have the option, exercisable within thirty (30) days of receipt of notice
of the extension or renewal, of terminating its subleasehold interests in such
Site as of the date the Ground Lease would have expired had Sublessor not
extended or renewed such Ground Lease. If Sublessor or TowerCo is not able,
after using commercially reasonable efforts, to extend or renew any Ground Lease
in accordance with this Section 3(f), then the Parties shall permit such Ground
Lease to expire on the applicable expiration date and this Sublease shall have
no further force and effect as to the Subleased Property of the Leased Site to
which such Ground Lease applies. Each of TowerCo and TowerCo Parent agrees that
neither it, nor any of its Affiliates, may seek to obtain or hold, any interest
in any Ground Lease or its underlying fee interest that is superior or prior to
Sublessor's interests in such Ground Lease. SBC or an SBC Affiliate shall have
the right to acquire the fee simple interest in the Site from the Ground Lessor
whereupon such Site shall be deemed an Owned Site, in which event TowerCo shall
have a leasehold interest in such Owned Site. Except as provided in this Section
3(f), or as TowerCo may otherwise agree or direct, during the Term Sublessor
shall not take any action to amend or supplement any Ground Lease, other than to
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exercise renewals as expressly provided herein which each Sublessor covenants to
do as provided above. In addition to the foregoing, Sublessor agrees that it
shall use its good faith efforts to cooperate with TowerCo's exercise of (or
right to exercise any of) its rights under this Sublease with respect to the
Ground Lease and the Ground Lessor, including, without limitation, pursuant to
this Section 3.
(g) Subject to Section 18 and Section 25, Sublessor's right to sell, convey,
transfer, assign or otherwise dispose of Sublessor's interest in and to any Site
(including Sublessor's interest in and to the Subleased Property of such Site)
shall be unrestricted.
(h) Notwithstanding anything to the contrary contained herein, SBC represents to
TowerCo that, as of the applicable Site Commencement Date, each Ground Lease for
a Leased Site is or will be in full force and effect and Sublessor is not or
will not be in default under any such Ground Lease in any material respect as a
result of Sublessor's (or any present or former SBC Affiliate's) acts or
omissions. Each Sublessor shall perform any obligations under and comply with
the terms of each of the Ground Leases, but only if such obligations are
expressly reserved to Sublessor for its performance under the terms of this
Sublease. Upon receipt by Sublessor of any notice of default or notice of an act
or omission which could with the passing of time and/or the giving of notice
constitute an event of default under a Ground Lease or non-compliance with a
term of a Ground Lease (the "Default Notice"), SBC shall, within five (5)
business days after receipt of the Default Notice or such shorter time as is
reasonably necessary to avoid a termination of such Ground Lease, provide
TowerCo with a copy of the Default Notice. If such default or non-compliance
with a term of a Ground Lease is caused by TowerCo or any Space Subtenant,
TowerCo shall, and shall cause the applicable Space Subtenant to, cure or
otherwise remedy such default or noncompliance. Notwithstanding anything in this
Sublease to the contrary, unless an obligation under a Ground Lease is expressly
reserved under this Sublease for performance by a Sublessor, any default
referred to in the Default Notice shall constitute a default by TowerCo under
this Sublease.
(i) Unless an event of default by TowerCo shall have occurred and be continuing,
TowerCo, at its own cost and expense, may from time to time make, subject to the
requirements of Section 12, such Alterations that are not required pursuant to
Section 11(a) as TowerCo may deem desirable in the proper conduct of its
business, so long as (i) such Alteration shall not disrupt or otherwise
adversely affect SBC's or any SBC Affiliate's Permitted Use of the Site or
portion thereof and is made in accordance with the requirements set forth in
Section 12 hereof, (ii) such Alteration shall not result in any material respect
in (y) the value of the Site or portion thereof being less than the value
thereof immediately prior to such Alteration, or (z) the economic life of the
Site or portion thereof being less than the economic life of the Site or portion
thereof immediately prior to such Alteration, (iii) such Alteration shall not
cause the Site or portion thereof to constitute "limited use property" within
the meaning of Rev. Proc. 76-30, 1976-2 C.B. 647, and (iv) no Alterations, taken
together or separately, shall fail to comply with the provisions of Rev. Proc.
75-21, 1975-1 C.B. 715 or 79-48, 1979-1 C.B. 529.
Notwithstanding anything to the contrary contained in this Section
3(i), TowerCo, at its own cost and expense, may from time to time make
Alterations (including, without limitation, Nonseverable Improvements that may
be required by Law), which do not comply with subclause (iv) of the immediately
preceding sentence ("Non-Conforming Alterations") provided that (i) the
Non-Conforming Alterations otherwise satisfy the terms and provisions of this
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Section 3(i), and (ii) the applicable Sublessor does not make TowerCo's proposed
Non-Conforming Alterations in accordance with the remainder of this Section
3(i). In the event that TowerCo desires to make Non-Conforming Alterations,
TowerCo shall submit written notice to the applicable Sublessor describing such
proposed Non-Conforming Alterations in reasonable detail. Such Sublessor shall
elect whether to make or cause to be made, at such Sublessor's cost and expense,
the Non-Conforming Alterations by written notice provided to TowerCo within ten
(10) days after receipt of TowerCo's proposal regarding the Non-Conforming
Alterations. Such Sublessor's failure to respond to TowerCo within such ten (10)
day period shall be deemed to be such Sublessor's election not to make such
Non-Conforming Alterations. In the event such Sublessor elects to make the
Non-Conforming Alterations and such Sublessor and TowerCo agree on terms and
conditions, including, but not limited to, the amount and timing of rent with
respect to such Non-Conforming Alterations ("Additional Rent"), then such
Sublessor shall make the Non-Conforming Alterations in accordance with plans and
specifications, and according to a time schedule, provided by TowerCo and
reasonably acceptable to such Sublessor. In the event that such Sublessor
elects, or is deemed to have elected, not to make the Non-Conforming Alterations
or such Sublessor and TowerCo shall not have agreed on terms and conditions,
TowerCo may make such Non-Conforming Alterations and, notwithstanding anything
to the contrary contained in this Sublease (other than the other conditions
contained in this Section 3(i)), title to the Non-Conforming Alterations shall
without further act or instrument act or instrument vest in TowerCo. Upon the
expiration or earlier termination of this Sublease as to a Site at which
Non-Conforming Alterations have been made, the following provisions shall apply:
(i) if TowerCo has not exercised its option to purchase such Site and TowerCo
has made any Non-Conforming Alterations, the applicable Sublessor may purchase
such Non-Conforming Alterations from TowerCo at a price equal to the then fair
market value of such Non-Conforming Alterations, (ii) if TowerCo has exercised
its option to purchase such Site, TowerCo shall purchase such Site at a purchase
price equal to the Option Purchase Price Amount, plus the then fair market value
of the Non-Conforming Alterations and/or Sublessor Alterations, if any, made to
such Site, and (iii) if TowerCo has not exercised its option to purchase such
Site, TowerCo has made Non-Conforming Alterations, and the applicable Sublessor
does not purchase such Non-Conforming Alterations from TowerCo, TowerCo shall
continue to hold such Non-Conforming Alterations, and all rent and any sales
proceeds attributed to such Site thereafter shall be allocated between the
applicable Sublessor and TowerCo in accordance with their relative interests in
such Site (as determined below). In each of subclauses (i) and (ii) of the
immediately preceding sentence, the applicable party shall pay the purchase
price in cash or immediately available funds. In each of the subclauses (i) and
(ii), the then fair market value of the Non-Conforming Alterations and/or
Sublessor Alterations shall equal the excess of the then fair market value of
such Site including such Non-Conforming Alterations and/or Sublessor Alterations
over the estimated then fair market value of such Site without such
Non-Conforming Alterations and/or Sublessor Alterations. The applicable
Sublessor and TowerCo shall attempt, in good faith, to agree on the then fair
market value of the Non-Conforming Alterations and/or Sublessor Alterations (or
the relative interests of the applicable Sublessor and TowerCo, if applicable)
or, alternatively, shall attempt, in good faith, to agree on an independent
qualified appraiser to determine such fair market value and the fair market
values of the Non-Conforming Alterations and/or the Sublessor Alterations (or
the relative interests of the applicable Sublessor and TowerCo, if applicable).
Absent agreement on value or on an appraiser within thirty (30) days, each of
such Sublessor and TowerCo shall identify an independent qualified appraiser
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within ten (10) days thereafter. If either party fails to appoint an appraiser
within such ten (10) day period, the appraiser appointed by the other party
shall alone determine such fair market value (or relative interests). If two
appraisers are appointed and such appraisers cannot agree on the then fair
market value (or the relative interests of the applicable Sublessor and TowerCo,
if applicable), such appraisers shall identify a third independent qualified
appraiser who shall determine the then fair market value of the Non-Conforming
Alterations and/or Sublessor Alterations and the relative fair market values of
the Non-Conforming Alterations and/or the Sublessor Alterations (or the relative
interests of Sublessor and TowerCo, if applicable) (collectively, the "Valuation
Process"); provided that if such two appraisers cannot agree on the identity of
such third appraiser within ten (10) days after the appointment of the second
appraiser, either party may apply to the American Arbitration Association for
the appointment of such appraiser. If TowerCo exercises its option to purchase
the Site, the fair market value of the Non-Conforming Alterations and/or the
fair market value of the Sublessor Alterations shall be paid to the party which
made such Alterations.
SECTION 4. Existing Subleases and Colocation Agreements.
(a) Without limiting the generality of Section 3, TowerCo expressly acknowledges
that, as to each Site, this Sublease is subject to all Existing Subleases
affecting such Site, including, without limitation, Existing Subleases executed
prior to the applicable Site Commencement Date pursuant to any Colocation
Agreement. In respect of each Site, by execution of this Sublease or a Site
Designation Supplement the applicable Sublessor does transfer, assign and convey
over unto TowerCo, for the Term of this Sublease in respect of such Site, all of
its rights, title and interest as "sublandlord" or "sublessor" in, to or under
any Existing Subleases affecting such Sites and does hereby delegate all of
Lessor's duties, obligations and responsibilities under the Existing Subleases
to TowerCo for periods occurring from and after the applicable Site Commencement
Date. TowerCo does hereby assume and agree to pay and perform all of the duties,
obligations, liabilities and responsibilities of Sublessor as "sublandlord" or
"sublessor" under the Existing Subleases affecting each Site arising from and
after the date of the Site Designation Supplement for such Site and commencing
on the Site Commencement Date for such affected Site, TowerCo shall receive all
rents payable thereunder for periods occurring from and after the Site
Commencement Date.
(b) From time to time, SBC shall give TowerCo written notice of the intent of
third parties to Colocation Agreements to occupy any Available Space, and
promptly following receipt of such notice, TowerCo shall cooperate with SBC and
the applicable third party so as to facilitate such third party's occupancy of
such Available Space on commercially reasonable terms.
(c) TowerCo shall, and does hereby agree to, indemnify, defend and hold the SBC
Indemnitees harmless from, against and in respect of any and all Claims, paid,
suffered, incurred or sustained by any SBC Indemnitee and in any manner arising
out of, by reason of, or in connection with any failure of the duties,
obligations, liabilities and responsibilities of a Sublessor as "sublandlord" or
"sublessor" under any of the Existing Subleases affecting each Site and arising
from and after the Site Commencement Date for such Site, to be fully and
completely performed pursuant to the Existing Subleases, except to the extent
caused by an SBC Indemnitee.
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(d) Unless TowerCo exercises the purchase option with respect to a Site under
Section 35 hereof, the assignment by each Sublessor to TowerCo of the Existing
Subleases in respect of each Site shall automatically terminate and expire, such
Existing Subleases (together with any Space Subtenant sublease which has a term
extending beyond the expiration of the Term as permitted under Section 24(c)
hereof or, in the case of a termination due to an event of default by TowerCo,
as to which a non-disturbance agreement has been entered into pursuant to
Section 21(c)) shall automatically be (or be deemed) reassigned or assigned, as
the case may be, to each Sublessor or its designee, and each Sublessor or its
designee shall accept such reassignment or assignment, as the case may be, upon
the expiration of the Term of, or earlier termination of, this Sublease in
respect of such Site.
SECTION 5. Reserved Space.
(a) TowerCo and each Sublessor expressly acknowledges that, the Reserved Space
of each Site shall, at all times during the Term of this Sublease, be deemed to
be leased or subleased to TowerCo pursuant hereto and leased back to the
applicable Sublessor pursuant hereto for the exclusive possession and use by
such Sublessor (or the SBC Affiliate which conducts its wireless activities at
the Reserved Space) whether or not such Reserved Space is now or hereafter
occupied. As an appurtenance to, and a part of, the Reserved Space of each Site,
each Sublessor (for the benefit of SBC or any SBC Affiliate) also reserves: (i)
the right of ingress to and egress from the entire Site, and access to the
entire Tower and all Improvements to such Site and Tower (including any and all
easements), at such times (on a 24-hour, seven (7) day per week basis unless
otherwise limited by the Ground Lease or other restrictions of record that have
priority over the Sublease), to such extent, and in such means and manners (on
foot or by motor vehicle, including trucks and other heavy equipment), as SBC
deems necessary or desirable in connection with its or an SBC Affiliate's full
use and enjoyment of the Reserved Space, including, without limitation, the
construction, installation, use, operation, maintenance, repair and replacement
of its Communications Facility thereon; and (ii) the right to use any portion of
the Subleased Property of a Site, including the Land and Improvements thereof,
for purposes of temporary location and storage of any equipment (including
Communications Equipment) and any part thereof in connection with performing any
repairs or replacements of such Person's Improvements; provided, however, that
such storage shall not have a material adverse effect on Space Subtenants'
Permitted Use.
(b) Subject to the availability of Available Space on the applicable Tower at
the time of the proposed expansion, SBC may at any time expand the Reserved
Space on up to three hundred (300) Towers by the addition or replacement of
Communications Equipment on such Tower up to an additional fifteen percent (15%)
of the total tower loading on such Tower; provided that as a result of the
exercise of such expansion right SBC or the SBC Affiliate which occupies the
Reserved Space shall not be entitled to occupy more than two (2) platforms on
any Tower. (For the avoidance of doubt, if SBC or the SBC Affiliate which
occupies the Reserved Space occupies one (1) platform at the time of expansion,
SBC or the SBC Affiliate which occupies the Reserved Space may expand to occupy
only one additional platform, and if SBC or the SBC Affiliate which occupies the
Reserved Space occupies two (2) platforms at the time of such expansion, SBC or
the SBC Affiliate which occupies the Reserved Space may expand on one or both of
the platforms it then occupies but may not expand to occupy an additional, third
platform.) SBC may exercise the foregoing expansion right for itself or for the
use and benefit of any SBC Affiliate.
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(c) Without limiting SBC's (and the SBC Affiliates') rights under Section 24(a)
hereof and subject to the availability of Available Space on the applicable
Tower at the time of the proposed expansion, SBC shall have the further right to
expand the amount of equipment on the Towers beyond the first three hundred
(300) Towers, provided that SBC shall pay TowerCo as additional Leaseback Charge
$100 per month per panel/antenna or space equivalent of one panel/antenna, but
in no event in an amount to exceed $1600 per platform, or if SBC locates any
such expanded equipment on a platform which is not already occupied by SBC's
Communication Equipment, not to be less than $1200 per any such additional
platform (except with respect to microwave dishes and related equipment), such
amount to be in addition to the SBC Leaseback Charge due and payable to TowerCo
pursuant to Section 10. Such amounts shall increase each year after the date
hereof five percent (5%) per year, until the tenth anniversary of the applicable
Site Commencement Date and thereafter pursuant to Section 10(f). SBC may
exercise the foregoing expansion right for itself or for the use and benefit of
any SBC Affiliate.
(d) Notwithstanding anything to the contrary contained herein, the Parties
acknowledge and agree that the Reserved Space of each Site will include, without
limitation, all portions of such Site utilized or occupied by SBC or an SBC
Affiliate as of the applicable Site Commencement Date for such Site for the use,
enjoyment, operation or maintenance of Communications Facility on such Site for
the Permitted Use. If at any time between the date hereof and the applicable
Site Commencement Date, SBC or an SBC Affiliate elects to increase the amount of
equipment on a Tower on a Site, then SBC shall have an option, exercisable at
its sole discretion upon written notice to TowerCo prior to the applicable Site
Commencement Date, to (i) count such Tower toward three hundred (300) Towers in
accordance with Section 5(b) and pay the amount of SBC Leaseback Charge
determined in accordance with Section 10(b) with respect to such Site, or (ii)
pay TowerCo, the amount of SBC Leaseback Charge determined in accordance with
Section 5(c).
(e) The parties acknowledge and agree that antenna mounting hardware constitutes
a portion of the Improvements and does not constitute part of the Reserved
Space. If, as to any Sites, SBC or any SBC Affiliate desires to exercise its
Right of Substitution pursuant to Section 24(b), to move any of its
Communications Equipment on such Tower to any Available Space, and such exercise
would require relocation of the existing antenna mounting hardware to
accommodate such move, TowerCo shall move such antenna mounting hardware as
requested by SBC or such SBC Affiliate, unless (i) other Space Subtenants are
sharing the same antenna mounting hardware, (ii) such relocation would adversely
affect the rights of other Space Subtenants or (iii) TowerCo otherwise
determines that such relocation is not feasible or beneficial. If TowerCo does
relocate SBC or such SBC Affiliate's antenna mounting hardware in response to
the exercise of the Right of Substitution, SBC or such SBC Affiliate shall
reimburse TowerCo for the reasonable costs directly attributable to such
relocation. If as contemplated by the foregoing, TowerCo does not or cannot
relocate the existing antenna mounting hardware, TowerCo shall, at its sole cost
and expense, install suitable mounting hardware at the location on the Tower
designated by SBC or the applicable SBC Affiliate, so as to accommodate the
requested relocation; provided that SBC or such SBC Affiliate shall remain
responsible for the payment of all costs and expenses associated with moving its
antennas to the antenna mounting hardware supplied by TowerCo.
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(f) If SBC or any SBC Affiliate desires to add or relocate any antennas to the
Tower location of any Site, the provisions of Sections 24(a)(i) and (a)(ii)
shall apply. Upon the request of either Party, the Parties shall promptly
execute such instruments as may be reasonably required to further evidence such
addition or relocation, including without limitation an amendment to the
applicable Site Designation Supplement, and shall cause such amendment to be
recorded at SBC's or such SBC Affiliate's cost and expense, unless the Parties
otherwise agree.
SECTION 6. Permitted Use.
(a) TowerCo shall use, and shall permit the use of, the Subleased Property
of each Site only for the Permitted Use.
(b) TowerCo shall not use, or permit to be used, the Subleased Property of any
Site, or any portion thereof, by TowerCo, any Person (other than SBC or the SBC
Affiliates) or the public in such manner as might reasonably tend to impair
Sublessor's title to or interest in such Site, or any portion thereof, or in
such manner as might reasonably make possible a Claim or Claims of adverse usage
or adverse possession by the public, as such, or any Person (other than SBC or
an SBC Affiliate), or of implied dedication of such Subleased Property, or any
portion thereof. Nothing contained in this Sublease and no action or inaction by
SBC or an SBC Affiliate shall be deemed or construed to mean that Sublessor has
granted to TowerCo any right, power or permission to do any act or make any
agreement that may create, or give rise to or be the foundation for any such
right, title, interest, lien, charge or other encumbrance upon the estate of
Sublessor in any Site.
(c) SBC shall not use, or permit to be used, the Reserved Space of any Site, or
any portion thereof, by SBC, any SBC Affiliate, any other Person (other than
TowerCo and Space Subtenants) or the public in such manner as might reasonably
tend to impair TowerCo's right as a sublessor with respect to such Site, or any
portion thereof, or in such manner as might reasonably make possible a Claim or
Claims of adverse usage or adverse possession by the public, as such, or any
Person (other than TowerCo and Space Subtenants), or of implied dedication of
such Reserved Space, or any portion thereof. Nothing contained in this Sublease
and no action or inaction by TowerCo shall be deemed or construed to mean that
TowerCo has granted to SBC or any SBC Affiliate thereof any right, power or
permission to do any act or make any agreement that may create, or give rise to
or be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the leasehold estate of TowerCo in any Site.
SECTION 7. Access.
The Subleased Property of a Site includes, as an appurtenance thereto,
a non-exclusive right for access to the Subleased Property of each Site on a
24-hour, seven (7) day per week basis, on foot or motor vehicle, including
trucks and other heavy equipment, for the installation and maintenance of the
Tower and Improvements thereof and the Communications Facilities of Space
Subtenants. The Parties acknowledge and agree that the right to access the
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Subleased Property of each Site, or any portion thereof, granted pursuant to
this Section 7 shall be granted to TowerCo and its authorized contractors,
subcontractors, engineers, agents, advisors, consultants, representatives, or
other persons authorized by TowerCo and, under TowerCo's direct supervision, and
to Space Subtenants, subject to any restrictions contained in the applicable
Ground Lease.
SECTION 8. Term.
(a) The term of this Sublease, as to each Site, shall commence on the Site
Commencement Date set forth in the Site Designation Supplement with respect
thereto and shall expire on the Site Expiration Date therefor.
(b) No surrender by TowerCo to the Sublessor of the Subleased Property of any
Site or any portion thereof, prior to the expiration of the Term as to such Site
shall be valid or effective unless agreed to and accepted in writing by such
Sublessor, and no act by such Sublessor, other than such a written acceptance,
shall constitute an acceptance of any such surrender.
(c) As to any Site, upon expiration or earlier termination of this Sublease,
TowerCo shall, at its cost and expense and upon instructions from SBC, (i)
within a reasonable period of time, but in no event less than thirty (30) days,
stop and cease, and cause the Space Subtenants on such Site (other than any
Space Subtenants under an Existing Lease or under a sublease entered into
pursuant to Section 24(c) hereof which has a term that extends beyond the
termination or expiration of this Sublease or as to which a non-disturbance
agreement has been entered into pursuant to Section 21(c)) to stop and cease,
the operation of its Communications Facilities on such Site and shall remove all
of TowerCo's Severable Alterations from such Site and restore each Site
substantially to the condition it was in on the applicable Site Commencement
Date, subject to the addition of any permitted Non-Severable Alterations. Any
Severable Alterations not removed by TowerCo within said 15-day period shall be
deemed abandoned by TowerCo and title thereto shall automatically, without
further action, vest in the Sublessor of such Site.
SECTION 9. Withdrawal.
(a) Notwithstanding anything to the contrary contained herein, SBC will have the
Withdrawal Right for the benefit of itself or any SBC Affiliate, exercisable in
respect of any Site on the tenth anniversary of the applicable Site Commencement
Date and on each five-year anniversary of such date thereafter. To exercise any
such Withdrawal Right, SBC shall give TowerCo written notice of such exercise
not less than ninety (90) days, in the case of the exercise of a Withdrawal
Right in respect of less than twenty percent (20%) of all Sites now or hereafter
under this Sublease and one hundred eighty (180) days, in the case of the
exercise of a Withdrawal Right in respect of twenty percent (20%) or more of all
Sites now or hereafter under this Sublease, prior to any such anniversary (the
"Withdrawal Notice"). If SBC exercises the Withdrawal Right as to any Site, SBC
shall not be required to pay the SBC Leaseback Charge with respect to such Site
for the period occurring after the Withdrawal Date and the Withdrawal Date as to
such Site shall be the date specified in the applicable Withdrawal Notice. Not
later than the Withdrawal Date of any Site, SBC or the applicable SBC Affiliate
shall vacate the Reserved Space of such Site if such Reserved Space is occupied
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whereupon SBC's or the applicable SBC Affiliate's sublease of such Reserved
Space pursuant hereto and SBC's or the applicable SBC Affiliate's right to
occupy and use the Reserved Space of such Site as a sublessee hereunder shall be
terminated. At the request of either SBC or TowerCo, the appropriate parties
shall enter into documentation, in form and substance reasonably satisfactory to
such parties, evidencing any withdrawal effected hereunder.
(b) In addition to and not in limitation of any right of SBC under Section 9(a),
SBC will have the right, exercisable at any time during the Term of this
Sublease, to cease occupying the Reserved Space of any Site, and retain its
right to such Reserved Space and may permit a SBC Affiliate to occupy such Site,
so long as SBC continues to pay the SBC Leaseback Charge in respect of such
Site.
SECTION 10. Rent and SBC Leaseback Charge.
(a) TowerCo shall prepay Rent (other than Additional Rent) in respect of the
Subleased Property of each Site, for the entire Term on the Site Commencement
Date for each Site. Such Rent shall be specifically allocated to rental periods
as set forth on the applicable Site Designation Supplement (including Exhibits
thereto). TowerCo shall pay Additional Rent in such time, manner and amounts as
determined pursuant to Section 3(i) hereof. Each month during the Term as to
each Site, SBC shall pay, or cause an SBC Affiliate to pay, the SBC Leaseback
Charge in respect of the Reserved Space for such Site which is subject to this
Sublease, in advance on or prior to the tenth (10) day of such calendar month,
beginning on the Site Commencement Date for such Site.
(b) The following terms shall have the following definitions:
"Rent" means, as to any Site the rental amount prepaid by
TowerCo for the leasing of the Sites pursuant to this Sublease and as
specified in Exhibit A and any Additional Rent with respect to such
Site.
"SBC Leaseback Charge" means, as to any Reserved Space, the
monthly rental amount payable to TowerCo for the leaseback of the
Reserved Space on such Site to SBC pursuant to this Sublease equal as
to any Site in any Site Term Year, an amount equal to $1,400 per month
subject to an increase of the lesser of (x) the applicable CPI Change
plus four percent (4%) or (y) five percent (5%) per year (but never
less than zero percent (0%)) on each anniversary of the Effective Date.
(c) TowerCo shall pay upon demand a late charge of five percent (5%) of any
amount payable by TowerCo under the provisions of this Sublease which is not
paid within ten (10) days after the date the same is due; provided, however,
that the late charge shall not be assessed in respect of the first late payment
occurring in any Site Term Year.
(d) If the Site Commencement Date for any Site is a day other than the first day
of a calendar month, the applicable SBC Leaseback Charge for the period from
such Site Commencement Date through the end of the calendar month during which
such Site Commencement Date occurs shall be prorated on a daily basis, and shall
be included in the calculation of the SBC Leaseback Charge for the first full
calendar month of the Term, on the first day of the first calendar month
following such Site Commencement Date.
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(e) SBC shall pay upon demand a late charge of five percent (5%) of any SBC
Leaseback Charge payable by SBC under the provisions of this Sublease which is
not within ten (10) days after the date the same is due; provided, however, that
the late charge shall not be assessed in respect of the first late payment
occurring in any Site Term Year. Notwithstanding the foregoing, if SBC fails to
pay (or fails to cause to be paid) any portion of a SBC Leaseback Charge because
SBC, acting in good faith, reduced the amount of SBC Leaseback Charge payable to
TowerCo due to a mistaken belief that it was entitled to Reimbursable
Maintenance Expenses under Section 29(a), no late charge shall be payable in
respect thereof.
(f) Notwithstanding anything to the contrary contained herein, if after the
tenth (10th) anniversary of the applicable Site Commencement Date, the then
current SBC Leaseback Charge payable to TowerCo with respect to any Site is
below the market rate agreed upon by the Parties at the time of determination,
then such SBC Leaseback Charge shall automatically be increased on such
anniversary and on each anniversary thereafter, based on the CPI Change
effective as of date of such anniversary. If, however, the then SBC Leaseback
Charge payable to TowerCo with respect to such Site is above the market rate,
then such SBC Leaseback Charge shall be automatically reset at ninety percent
(90%) of such agreed upon market rate effective as of such tenth (10th)
anniversary of the applicable Site Commencement Date and shall increase on each
following anniversary at the then current annual market rate of increase for
comparable properties. Notwithstanding anything to the contrary contained
herein, the Parties shall agree as to the market rate not later than sixty (60)
days prior to such tenth anniversary of the applicable Site Commencement Date.
If the Parties are unable to agree upon the market rate, then SBC shall have an
option, exercisable by written notice to TowerCo, to exercise its Withdrawal
Right in accordance with Section 9(a).
SECTION 11. Condition of the Sites and Obligations of TowerCo.
(a) TowerCo acknowledges that, as between TowerCo and SBC, in respect of each
Site, TowerCo has the obligation, right and responsibility to repair and
maintain such Site except as otherwise provided herein, including without
limitation, an obligation to monitor each Tower to maintain the structural
integrity of the Tower and the ability of the Tower to hold and support all
Communications Equipment then mounted on the Tower, in accordance with all
applicable Laws and standard industry practices. Subject to the other provisions
contained in this Sublease, TowerCo, at its sole cost and expense, except if
such cost or expense arises out of a negligent or wrongful act or omission of
SBC or any SBC Affiliates, shall monitor, maintain and repair each Site such
that SBC and the SBC Affiliate and Space Subtenants may utilize such Site to the
extent permitted herein, including, without limitation, the markings on each
Tower and the structural integrity of each Tower. Installation, maintenance and
repair of each Site must comply with all Laws applied in a manner consistent
with standard industry practices. TowerCo assumes all responsibilities, as to
each Site, for any fines, levies, and/or other penalties imposed as a result of
non-compliance with said requirements of said authorities unless such
non-compliance occurs on or prior to the Site Commencement Date for any such
Site (in which event SBC or the applicable SBC Affiliate shall be responsible
for such fines, levies and/or other penalties). TowerCo shall cause Space
Subtenants to maintain and repair all Communications Equipment on each Site, in
accordance with the requirements of this Sublease including without limitation
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as set forth in Exhibit C; provided, however, that nothing in this Sublease
shall require TowerCo to maintain SBC's or any SBC Affiliate's Communications
Equipment. Without limiting the foregoing, TowerCo at its own cost and expense,
shall make (or cause to be made) all Alterations to the Sites as may be required
from time to time to meet in all respects the requirements of applicable Laws
(regardless of the Person upon whom such requirements, by their terms, are
nominally imposed) except for the maintenance and repair work to be performed by
SBC in accordance with clause (c) of this Section 11.
(b) For each Site, TowerCo, at its sole cost and expense, shall provide SBC all
necessary and appropriate information requested by SBC for SBC to obtain (and
SBC will obtain within a reasonable amount of time) all of the certificates,
permits, and other approvals which may be required in connection with FCC or FAA
regulations. TowerCo shall also provide SBC all appropriate information
requested by SBC pertaining to any easements or consents which are required from
any third parties with respect to the operation of such Site, including the
lighting system serving such Site, SBC shall cooperate with TowerCo in
connection therewith, as contemplated by Section 17. Nothing in this Sublease
shall require TowerCo to provide any information necessary for SBC to obtain any
certificate, permit or other approval relating specifically and only to SBC's
Communications Equipment. If, as to any Site, or any portion thereof, any
certificate, permit, license, easement, or approval relating to the operation of
such Site is canceled, expires, lapses, or is otherwise withdrawn or terminated
or, if TowerCo has breached its obligation under this Section 11(b), then SBC
shall have the right, in addition to its other remedies pursuant to this
Sublease, at law, or in equity, to take appropriate action to remedy any such
noncompliance and demand reimbursement for any expenses incurred in connection
therewith from TowerCo, and/or to terminate this Sublease as to such Site
subject to Sections 29 and 30.
(c) The following provisions shall apply with respect to the lighting
systems serving the Sites:
(i) SBC agrees to monitor the lighting system serving such Site and will
notify (a) the appropriate FAA service office of any lighting failure
within thirty (30) minutes of discovering such failure, and (b)
TowerCo within sixty (60) minutes of discovering such failure. In the
event of any such failure, SBC agrees, as soon as practicable, to
begin a diligent effort to repair the failed lighting on an Emergency
basis, and to notify TowerCo and the appropriate FAA service office
upon successful completion of the repair. In addition, SBC shall
maintain and repair (within any applicable time periods under
applicable Laws) all lighting systems and light monitoring devices at
each Tower (excluding any additional devices installed by TowerCo
pursuant to this clause (c)) notwithstanding that such systems and
devices are being leased or subleased to TowerCo with each Tower. SBC
shall be reimbursed for actual reasonable, out-of-pocket costs and
expenses incurred in connection with the maintenance and repair of the
lighting systems and monitoring devices at each Tower. SBC shall
periodically provide TowerCo with an invoice for such costs (which
shall include a copy of an itemized invoice from any third party
providing services or materials in connection with the work in
question), which amount shall be paid by TowerCo within thirty (30)
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days of TowerCo's receipt of such invoice. TowerCo shall have the
right, at its own expense, to perform an audit of such actual costs by
requesting reasonable evidence of actual costs and expenses incurred.
Notwithstanding the foregoing, TowerCo's obligation to reimburse SBC
shall not exceed the estimated amount which TowerCo would have
incurred in maintaining and repairing the lighting system serving such
Site in accordance with TowerCo's customary procedures with respect to
such repair and maintenance, such estimates to be supported by
invoices or other information reasonably satisfactory to SBC. SBC
agrees to indemnify, defend and hold TowerCo harmless from and against
any Claims arising out of or by reason of its failure to comply with
the monitoring, notice and repair requirements contained in this
Section 11(c) unless such Claims arise out of or by reason of
TowerCo's gross negligence or willful misconduct. At SBC's election
and upon reasonable notice to TowerCo, SBC may require TowerCo to
assume the monitoring, maintenance and repair obligations with respect
to the Tower lighting systems and the light monitoring devices on all
or a portion of the Sites subject to this Sublease at TowerCo's
expense, and TowerCo shall perform such obligations in accordance with
the standards hereinabove applicable to SBC's performance of such
services. If SBC makes such election, TowerCo agrees to indemnify,
defend and hold SBC harmless from and against any Claims arising out
of or by reason of its failure to comply with the monitoring, notice
and repair requirements contained in this Section 11(c) unless such
Claims arise out of or by reason of SBC's gross negligence or willful
misconduct. Without in any way affecting SBC's obligations relating to
lighting during the entire Term, TowerCo and/or the Space Subtenants
shall have the right, at its expense, to install and maintain
equipment for the purpose of monitoring (x) the lighting system
serving the Tower or the Improvements of each Site, and/or (y) any
device of SBC's used to monitor the lighting system serving each
Tower. At TowerCo's election, SBC shall (i) provide TowerCo a data
feed at cost and on other terms to be agreed upon (x) from SBC's alarm
points for the lighting control device(s) serving the Tower (it being
understood that these devices will be leased or subleased to TowerCo
with each Tower, but that SBC will be responsible for the repair and
maintenance of the devices and their wiring) and (y) from any
additional devices which TowerCo wishes to install, at TowerCo's sole
cost and expense; (ii) permit TowerCo access to the contact point box
at each Tower where TowerCo may install, at TowerCo's sole cost and
expense, its own direct links to such devices; or (iii) permit
TowerCo, where available, access to the contact point for each Tower
through SBC's regional switching (it being understood that TowerCo
shall be responsible for providing its own dedicated telephone lines
to the Site and that these monitoring devices will generally be
subleased to TowerCo with each Tower, provided that SBC will be
responsible for the repair and maintenance of the devices and their
wiring up to the point of hand-off to TowerCo's dedicated lines). In
addition, at TowerCo's reasonable request SBC shall replace or permit
TowerCo to replace any tower lighting system and tower lighting
monitoring system that experiences recurring maintenance or repair
problems at TowerCo's cost and expense in accordance with a budget
reasonably approved by SBC and TowerCo. In addition to and not in
limitation of Section 30(b), if SBC defaults under this Section 11(c),
TowerCo, in addition to its other remedies pursuant to this Sublease
(at law or in equity), may elect to take appropriate action to notify
the appropriate FAA service office of any lighting failure which SBC
fails to report, or to repair or replace any lights or monitoring
equipment which SBC fails to repair or replace within the time period
required under applicable Laws and invoice SBC for its actual
reasonable, out-of-pocket costs and expenses.
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(c) Without limiting TowerCo's obligations under this Section 11 and the other
provisions of this Sublease, the Parties acknowledge that SBC and the SBC
Affiliates are licensed by the FCC to provide telecommunications services and
that the Sites are used to provide those services. Nothing in this Sublease
shall be construed to transfer control of any FCC authorization held by SBC or
the SBC Affiliates to TowerCo or to limit the right of SBC and the SBC
Affiliates to take all necessary actions to comply with their obligations as an
FCC licensee or with any other legal obligations to which they are or may become
subject.
SECTION 12. Requirements for Alterations; Title to Alterations; Addition of
Equipment; Work on the Site.
(a) All Alterations that are made to a Site (whether required or optional) shall
comply with the requirements of clauses (i), (ii), (iii) and (iv) of Section
3(i) hereof. Subject to Section 3(i), title to each Alteration shall without
further act or instrument vest in the Sublessor of such Site and be deemed to
constitute a part of the Site and be subject to this Sublease provided that any
such Alteration is required pursuant to Section 11 (a) or is a Nonseverable
Alteration. Title to all other Alterations shall vest in TowerCo. Any such
Alteration may be removed by TowerCo, at its own cost and expense, at any time
prior to the end of the Term for the applicable Site if such removal will not
cause the Site to be in violation of any applicable Law. Any such Alteration may
also be removed at the expiration of the Term so long as the Site restored
substantially to its condition (normal wear and tear excepted) prior to the
making of such Alteration; provided, however, that any Severable Alterations
that are not removed from a Site within 15-days after at the time of its
surrender by TowerCo shall become the property of the Sublessor of the Site as
provided in Section 8(c) hereof.
(b) Whenever TowerCo is permitted or required to make Alterations to any Site;
construct, replace, maintain or repair the Tower and Improvements of any Site;
maintain or repair, or cause Space Subtenants to maintain or repair, any
Communications Equipment, or reconstruct or restore, Subleased Property
(hereinafter called the "TowerCo Work"), the following provisions shall apply:
(i) No TowerCo Work shall be commenced until all certificates, licenses,
permits, authorizations, consents and approvals necessary for the
TowerCo Work, from all governmental authorities having jurisdiction
with respect to any Site or the TowerCo Work as set out in Section
12(c) hereof have been obtained. SBC shall obtain, and TowerCo shall
reimburse SBC in accordance with Section 17(f) for the cost of
obtaining, any FCC or FAA permits or approvals relating to TowerCo
Work and all other such certificates, licenses, permits,
authorizations, consents and approvals shall be obtained by TowerCo at
TowerCo's cost and expense.
(ii) TowerCo shall commence and perform the TowerCo Work in accordance with
standard operating procedures to be agreed upon by the parties
("Standard Procedures").
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(iii)TowerCo shall cause the TowerCo Work to be done and completed with
industry standard materials and in a good, substantial and workmanlike
manner, free from faults and defects, and in compliance with all Laws,
and shall utilize only industry standard materials and supplies.
TowerCo shall be solely responsible for construction means, methods,
techniques, sequences and procedures, and for coordinating all
activities related to the TowerCo Work, and SBC shall have no duty or
obligation to inspect the TowerCo Work, but shall have the right to do
so, at reasonable times, upon reasonable prior notice and in a
reasonable manner.
(iv) TowerCo shall promptly commence the TowerCo Work and, once commenced,
diligently and continually pursue the TowerCo Work and complete the
TowerCo Work within a reasonable time. TowerCo shall supervise and
direct the TowerCo Work utilizing commercially reasonable efforts and
reasonable care, and shall assign such qualified personnel to the
TowerCo Work as may be necessary to cause the TowerCo Work to be
completed in an expeditious fashion.
(v) All TowerCo Work shall be performed at TowerCo's sole cost and
expense. TowerCo shall provide and pay for all labor, materials,
goods, supplies, equipment, appliances, tools, construction equipment
and machinery and other facilities and services necessary for the
proper execution and completion of the TowerCo Work. TowerCo shall
promptly pay when due all costs and expenses incurred in connection
with the TowerCo Work. TowerCo shall pay, or cause to be paid, all
fees and taxes required by law in connection with the TowerCo Work.
(vi) TowerCo shall be responsible for the acts and omissions of all of its
employees, contractors, subcontractors, engineers, agents,
representatives, advisors and all other persons performing any of the
TowerCo Work. TowerCo shall be responsible for initiating, maintaining
and supervising all necessary safety precautions and programs in
connection with the TowerCo Work, and shall take all reasonable
protection to prevent damage, injury or loss to, the TowerCo Work, all
persons performing TowerCo Work on the Site, all other persons who may
be involved in or affected by the TowerCo Work, all materials and
equipment to be incorporated in the TowerCo Work, Tower and
Improvements of such Site.
(vii)Unless otherwise permitted to self-insure in accordance with this
Sublease, TowerCo shall procure and maintain in full force and effect,
and shall cause its contractors and subcontractors to procure and
maintain in full force and effect, with respect to the TowerCo Work:
(x) in the case of TowerCo only but subject to Section 23, full
replacement cost "all-risk", "builder's risk" insurance, insuring the
TowerCo Work; and (y) the other types of insurance required to be
maintained pursuant to Section 23 of this Sublease. Such additional
insurance policies shall meet the requirements set forth elsewhere in
this Sublease with respect to the insurance policies otherwise
required to be obtained and maintained by TowerCo under this Sublease.
(c) Before any TowerCo Work is performed or any antennas or other equipment are
added to a Tower by TowerCo or a Space Subtenant other than SBC and the SBC
Affiliates, TowerCo shall provide SBC with the information described in Exhibit
E ("Procedures For SBC to Process Tower Requests From TowerCo") attached hereto
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containing the following information with respect to any antennas or other
equipment to be added and the following information, to the extent relevant with
respect to any TowerCo Work to be performed, together with any additional
information required by Law in order for SBC to make any necessary or
appropriate FAA or FCC regulatory filings with respect thereto: Proposed
temporary construction height (including any temporary equipment), Effective
Radiated Power ("ERP") or Equivalent Isotropically Radiated Power ("EIRP") (if
microwave); analysis of Radio Frequency ("RF") Emissions pursuant to FCC Rule
1.1307(b); statement of construction method to be used (crane, gin poke, other);
description of devices installed (microwave, cellular, other (e.g. Part 15
device); specification of whether antenna is side mounted or top mounted, and if
top mounted, certification that the antenna tip or other equipment is not taller
than the top of the existing structure). With respect to any TowerCo Work to be
performed, TowerCo also shall provide in such Notice all relevant information
regarding the nature of such TowerCo Work. SBC shall promptly make all FAA and
FCC regulatory filings as it deems necessary or appropriate in connection with
such addition of equipment or TowerCo Work. SBC shall notify TowerCo promptly
after the filing of any and all such FAA and FCC regulatory filings and the
passage of any additional time required by any governmental entity prior to
authorization to add such equipment. After receipt of such notice from SBC,
TowerCo or the Space Subtenant, as the case may be, may add such equipment to
the Tower or perform such TowerCo Work, provided such addition or TowerCo Work
is consistent with the information set forth in the Notice of TowerCo Work or
Additional Equipment.
(d) During the Term for each Site, TowerCo shall have access to the air rights
over SBC's or the applicable SBC Affiliate's equipment shelters at such Site to
install or construct a stacked equipment shelter or similar structure; provided
that such stacked shelter or similar structure shall not have an adverse effect
on, or interfere with, SBC's or the applicable SBC Affiliate's use of or access
to the Site (including the Reserved Space and SBC's Improvements at such Site).
TowerCo may submit plans and specifications for stacked equipment shelters or
similar structures designed for use with respect to specific types of SBC or SBC
Affiliate equipment shelters. Provided SBC shall have approved a particular
design and the related plans and specifications, TowerCo shall have the right to
install such structure(s) at appropriate Sites to which such design applies.
TowerCo shall give SBC no less than (3) three business days prior written notice
of the commencement of any such installation.
SECTION 13. Damage to the Site, Tower or the Improvements.
(a) If there occurs a casualty which damages or destroys of all or a Substantial
Portion of any Site, then either Party shall have the right to terminate this
Sublease as to such Site by written notice to the other Party within thirty (30)
days of the occurrence of such casualty whereupon the Term shall automatically
expire as to such Site, on the date of such casualty, as if such date were the
Site Expiration Date as to such Site.
(b) If less than a Substantial Portion of any Site (including the Tower and
Improvements thereon) is damaged or destroyed by casualty, TowerCo, at its sole
cost and expense, shall promptly and diligently proceed with the adjustment of
TowerCo's insurance Claims in respect thereof within a period of two (2) months
after the date of the damage and, thereafter, if and to the extent required by
this Section 13, promptly commence, and diligently prosecute to completion, the
Restoration, repair, replacement and rebuilding of the same. The Restoration
shall be carried on and completed in accordance with the provisions and
conditions of this Section 13.
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(c) All Proceeds of TowerCo's insurance shall be held by TowerCo for the mutual
benefit of TowerCo and Sublessor on account of such damage, shall be applied to
the payment of the costs of the Restoration and shall be paid out from time to
time as the Restoration progresses. Any portion of the Proceeds of TowerCo's
insurance applicable to a particular Site remaining after final payment has been
made for work performed on such Site shall be retained by and be the property of
Sublessor. If the cost of Restoration exceeds the Proceeds of TowerCo's
insurance, TowerCo shall pay the excess cost.
(d) Without limiting TowerCo's obligations hereunder in respect of a Site
subject to a casualty, in the event TowerCo is required to cause the Restoration
of a Site that has suffered a casualty, TowerCo shall make available to SBC (or
its Affiliate occupying space on such Site) a portion of the Subleased Property
of such Site for the purpose of such Person locating a temporary communications
facility, such as a "cell on wheels", and shall give such Person priority over
Space Subtenants at such Site as to the use of such portion; provided, however,
that: (i) the placement of such temporary communications facility does not
interfere in any material respect with TowerCo's Restoration and repair of such
Improvements or the operations of any Space Subtenant; (ii) such Person obtains
any permits and approvals, at such Person's cost, required for the location of
such temporary communications facility on such Site; and (iii) there is
available space on the Site for placing such temporary communications facility.
(e) The foregoing provisions of this Section 13 apply only to damage of each
Site by fire, casualty or other cause occurring after the applicable Site
Commencement Date.
(f) If SBC or its Affiliate damages any Site as a result of SBC's or such
Affiliate's negligent or wrongful act or omission, or failure to perform its
obligations under this Sublease, SBC or its Affiliate will, at its sole expense,
promptly repair and restore the Subleased Property of such Site to its
respective condition prior to such damage.
(g) If TowerCo fails to complete the Restoration of the Subleased Property, of
any Site required under this Sublease within two (2) months after the date of
the damage, SBC may terminate this Sublease as to the applicable Site upon
giving TowerCo written notice of its election to terminate within fifteen (15)
days following the expiration of such time period, provided, however, that if
TowerCo's failure to complete such Restoration within such two (2)-month period
is caused by: (i) failure to obtain a new permit, or (ii) TowerCo's inability to
have access to the affected Site, such 2-month period shall be extended
accordingly in order to allow TowerCo to complete the Restoration.
(h) This Section 13(h) shall be deemed an express agreement governing any damage
or destruction of any Site by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York providing for such a contingency in
the absence of an express agreement and any other law of like import now or
hereafter in force, shall have no application.
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SECTION 14. Space Subtenants; Interference.
(a) TowerCo acknowledges and agrees that TowerCo will not permit the addition of
any Space Subtenants (other than SBC or the SBC Affiliates in respect of any
Available Space) at the Subleased Property of any Site to adversely affect SBC's
Reserved Space and its operation, use or enjoyment of any Reserved Space on such
Site, taking into account customary and commercially reasonable practices for
multi-tenant wireless communication sites and towers thereon.
(b) TowerCo shall not and shall not permit any Space Subtenants (other than SBC
or the SBC Affiliates in respect of any Available Space or Reserved Space) on
the Subleased Property of any Site to (i) install or change, alter or improve
the frequency, power, or type of the Communications Equipment that interferes
with the operation of the Reserved Space of such Site or is not authorized by,
or violates, any applicable Laws or is not made or installed in accordance with
good engineering practices (and TowerCo shall require any Space Subtenant who
subleases or licenses Available Space on any Tower to covenant to comply with
the foregoing); or (ii) implement a configuration which interferes with the
operation of SBC's or the SBC Affiliate's Communications Equipment on such Site
or the Reserved Space thereof.
(c) In the event any Space Subtenant installs or operates any Communications
Equipment which is not authorized by, or in violation of, any Laws, TowerCo
shall cause such Space Subtenant to remove such Communications Equipment
promptly, failing which TowerCo shall remove such Communications Equipment.
(d) In the event of any interference occurring as a result of actions of TowerCo
or Space Subtenants described in Sections 14(b) above as to the Subleased
Property of any Site, TowerCo shall be responsible for coordinating and
resolving any such interference problems caused by TowerCo or Space Subtenants
(other than SBC or any SBC Affiliate in respect of any Available Space),
including, without limitation, using its best efforts to correct and eliminate
the interference within forty-eight (48) hours of receipt of notification from
SBC and perform an interference study in accordance with industry-standard
procedures. If the interference cannot be corrected or eliminated within such
48-hour period, TowerCo shall cause, at TowerCo's option, any of TowerCo's or
Space Subtenants' (other than SBC or any SBC Affiliate in respect of any
Available Space) Communications Equipment or Communications Facility that
interferes with the operation of SBC's or any SBC Affiliate's Communications
Facility's authorized frequency spectrum or signal strength, to be immediately
powered down or turned off, with the right to turn such interfering equipment or
facility back up or on only during off-peak hours specified by SBC in order to
determine whether such interference continues or has been eliminated; provided,
however, that if any interference continues at the time the power output of the
interfering equipment is powered down, the Communications Equipment that
interferes with the operation of SBC's or any SBC Affiliate's Communication
Facility or Reserved Space shall be turned off. If TowerCo or any Space
Subtenant (other than SBC or its Affiliates in respect of any Available Space)
cannot correct or eliminate, to the satisfaction of SBC, such interference
within twenty (20) days of receipt of written notice from SBC, TowerCo shall or
shall cause such Space Subtenant (other than SBC or any SBC Affiliate in respect
of the Available Space) to cease the operations of the objectionable
Communications Equipment and to stop providing services from the applicable
Communication Facility or the Subleased Property of the applicable Site in its
entirety until the interference problems are resolved.
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(e) SBC and the SBC Affiliates shall not: (1) install or change, alter or
improve the frequency, power, or type of the Communications Equipment in a
manner that interferes with the operation of TowerCo's or any Space Subtenant's
Communications Equipment on a Site or is not authorized by Law or is not made or
installed in accordance with good engineering practices; or (ii) implement a
configuration which interferes with the operation of TowerCo's or any Space
Subtenant's Communications Equipment on such Site.
(f) In the event of any interference occurring as a result of actions of SBC or
an SBC Affiliate described in Section 14(e) above as to any Site, SBC shall be
responsible for coordinating and resolving any such interference problems caused
by SBC or an SBC Affiliate, including, without limitation, using its best
efforts to correct and eliminate the interference within forty-eight (48) hours
of receipt of notification from TowerCo. If the interference cannot be corrected
or eliminated within such 48-hour period, SBC shall cause any of SBC's or the
SBC Affiliate's Communications Equipment or Communications Facility that
interferes with the operation of TowerCo's or any Space Subtenant's
Communications Facility's authorized frequency spectrum or signal strength, to
be immediately powered down or turned off, with the right to turn such
interfering equipment or facility back up or on only during off-peak hours
specified by TowerCo or the affected Space Subtenant in order to determine
whether such interference continues or has been eliminated; provided, that if
any interference continues at the time the power output of the interfering
equipment is powered down, the Communications Equipment that interferes with the
operation of TowerCo or any Space Subtenant Communication Facility shall be
turned off. If SBC or the SBC Affiliate cannot correct or eliminate, to the
satisfaction of TowerCo or the affected Space Subtenant, such interference
within twenty (20) days of receipt of written notice from TowerCo, SBC or the
SBC Affiliate shall cease the operations of the objectionable Communications
Equipment and stop providing services from the applicable Communications
Facility or the Subleased Property of the applicable Site in its entirety
(including the Tower and Improvements) until the interference problems are
resolved.
(g) Notwithstanding anything in this Section 14 to the contrary, in the event
any interference occurs in respect of a Site and the source of such interference
is not readily determinable, it shall be assumed that TowerCo or a Space
Subtenant and not SBC or the SBC Affiliate is the cause of such interference,
TowerCo shall be responsible for the performance of its obligations under
Section 14(c) in respect of such interference, and SBC shall be relieved of any
obligations under Section 14(e) in respect of such interference, unless and
until it is determined that SBC or the SBC Affiliate is the cause of such
interference.
SECTION 15. Taxes and Assessments.
(a) TowerCo shall pay all Taxes and Assessments with respect to each Site
applicable to all periods occurring after the Site Commencement Date for such
Site on or prior to the date on which such Taxes and Assessments are due;
provided that TowerCo shall have the right to contest, by proper legal actions
or proceedings in good faith any Taxes and Assessments for which TowerCo is
responsible hereunder and, if permitted under applicable law, to defer payment
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of such Taxes and Assessments pending the outcome of such contest, provided that
at the time of the commencement of any such action or proceeding, and during the
pendency thereof, (i) no event of default by TowerCo shall have occurred and be
continuing, (ii) such contest operates to suspend collection of the contested
Taxes and Assessments or claims and is maintained and prosecuted continuously
with diligence, (iii) the Site would not be subject to forfeiture or loss by
reason of the institution or prosecution of such contest, (iv) TowerCo, shall
promptly pay or discharge such Taxes and Assessments and all additional charges,
interest, penalties and expenses if such contest is terminated or discontinued
adversely to TowerCo, and (v) TowerCo shall keep Sublessor reasonably informed
of any such contest. Each Sublessor shall promptly forward to TowerCo upon
receipt copies of all bills, invoices, statements, assessments and similar
notices regarding Taxes and Assessments. TowerCo shall receive any refunds for
Taxes and Assessments paid by TowerCo pursuant to this Sublease. Notwithstanding
the foregoing, TowerCo shall not be required to pay any Taxes and Assessments
payable with respect to a Leased Site if the applicable Ground Lease provides
that the Ground Lessor is responsible therefor without pass-through to the
ground lessee and the Ground Lessor actually pays any such Taxes and
Assessments. If the Ground Lessor does not pay any such Taxes and Assessments
and either Party becomes aware of it, the Parties will, at TowerCo's expense,
cooperate and use commercially reasonable efforts to cause the Ground Lessor to
pay such Taxes and Assessments.
(b) In the years that include the Site Commencement Date or the Site Expiration
Date of this Sublease as to any Site, any Taxes and Assessments (determined
without regard to the Term) for which TowerCo is responsible to any SBC
Affiliate under this section of this Sublease and that are calculated or
assessed on the basis of a time period (e.g., property Taxes assessed annually)
shall be prorated proportionately by the number of days in each such period
during the time period of assessment that includes the Site Commencement Date or
Site Expiration Date, as the case may be. TowerCo's obligations under this
Section 15 to SBC Affiliates shall be limited to that proportionate amount of
such Taxes and Assessments attributable to the period during which this Sublease
is in effect with respect to such Site.
(c) The Parties acknowledge that Taxes and Assessments required to be paid by
TowerCo hereunder ("TowerCo Taxes") and Taxes and Assessments ("Non-TowerCo
Taxes") which are not TowerCo's responsibility hereunder (such as personal
property taxes with respect to SBC's or any SBC Affiliates' Communications
Equipment or personal property taxes with respect to properties not included in
the Subleased Property) may not be assessed separately (any TowerCo Taxes and
Non-TowerCo Taxes which are not separately assessed, "Commonly-Assessed Taxes").
The parties agree as follows with respect to Commonly-Assessed Taxes: (i) SBC
shall prepare all returns with respect to Commonly-Assessed Taxes in the
ordinary course and with the same degree of diligence that it exercises with
respect to similar tax compliance matters; (ii) upon the preparation of such
returns, SBC shall submit each such return (together with all relevant work
papers) to TowerCo for its approval (which approval shall not be unreasonably
withheld and shall be limited to matters which bear on the TowerCo Taxes); (iii)
TowerCo shall respond to SBC's submission not later than fifteen (15) days
following the date on which SBC submits each such return for TowerCo's approval
(with failure to respond being deemed approval of such return); (iv) in the
event that any adjustment of a return is necessary, SBC shall take reasonable
steps to make such adjustment(s) (which shall be subject to the same approval
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process provided in clauses (ii) and (iii) above) including, if necessary, by
filing an amended return; and (v) TowerCo's share of such Commonly-Assessed
Taxes shall be determined based on the underlying facts and circumstances,
taking into account the basis for accessing such Commonly-Assessed Taxes in the
relevant jurisdiction at the time, subject to the agreement of SBC and TowerCo
each of which shall seek such agreement in good faith. TowerCo shall reimburse
SBC or the applicable Sublessor for TowerCo's share of Commonly-Assessed Taxes
within 30 days after request, which request shall be accompanied by the relevant
portions of the applicable tax return and all relevant work papers. If the
Parties cannot agree on the allocation of any Commonly-Assessed Taxes or on the
manner of paying or reporting the same, the Parties shall submit the dispute to
an independent accounting firm acceptable to the Parties, and the resolution of
such firm (which resolution shall be consistent with the foregoing provisions of
this Section 15(c)) shall be binding on the Parties. TowerCo and SBC shall each
bear 50% of the cost of such determination. TowerCo and SBC shall cooperate with
each other, and make available to each other such information as shall
reasonably be necessary, in connection with the preparation of tax returns for
Commonly-Assessed Taxes and any audit or judicial or administrative proceeding
relating to the same. The Parties shall retain information relating to
Commonly-Assessed Taxes for a period of four years following the close of the
taxable year to which information relates, provided that in the case of an audit
or proceeding relating to Commonly-Assessed Taxes the relevant information shall
be retained until there is a final adjudication of the same.
SECTION 16. Utilities.
TowerCo shall make all arrangements for, and thereafter shall pay, or
cause to be paid, when due all charges for connection of all utilities and
services to such Site for the use of Space Subtenants, including, but not
limited to, electricity, telephone, power, and other utility used or consumed by
Space Subtenants of such Site. As among SBC (together with the SBC Affiliates)
and all new Space Subtenants, TowerCo shall cause utility charges to be
separately metered, and SBC or the SBC Affiliate (as the case may be) shall be
separately responsible for its own utility charges.
SECTION 17. Governmental Permits.
(a) In addition to and not in limitation of the provisions of Section 11(a) of
this Sublease, TowerCo shall, at its own cost and expense, provide SBC all
necessary and appropriate information requested by SBC for SBC to obtain and
maintain in effect all certificates, permits, licenses and other approvals
relating to FAA or FCC regulations and TowerCo shall, at its own cost and
expense, obtain and maintain in effect all certificates, permits, licenses and
other approvals (other than those relating to FCC and FAA regulations) and
comply with all Laws, required or imposed by governmental authorities (other
than those relating to FCC or FAA regulations), in connection with the operation
and maintenance of the Subleased Property of each Site (including Tower and
Improvements thereon). As part of TowerCo's obligation to provide information,
TowerCo shall provide SBC access to data, including resistance changes,
necessary to monitor the lighting systems at each Site to the extent in
TowerCo's possession.
(b) TowerCo shall cooperate with SBC in SBC's efforts to obtain and maintain in
effect any certificates, permits, licenses and other approvals and to comply
with any Laws required or imposed on SBC or the SBC Affiliates by governmental
authorities, applicable to the Reserved Space of each Site.
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(c) SBC shall, at its own cost and expense, obtain and maintain in effect all
certificates, permits, licenses and other approvals and comply with all Laws,
required or imposed by governmental authorities, in connection with operation
and maintenance of the Reserved Space of each Site, including, without
limitation, FCC regulations. With the cooperation of TowerCo set out in Section
17(a) hereof, SBC, at TowerCo's cost and expense, also shall obtain and maintain
in effect all certificates, permits, licenses, and other approvals required or
imposed by governmental authorities in connection with FAA or FCC regulations
relating to the operation and maintenance of the Subleased Property of each Site
(including the Towers and Improvements thereon). The cost of obtaining and
maintaining such FCC or FAA permits or approvals shall be reimbursed to SBC in
accordance with Section 17(f).
(d) SBC shall cooperate with TowerCo in TowerCo's efforts to provide required
information and to comply with all Laws required or imposed by governmental
authorities, applicable to each Site.
(e) SBC shall be afforded access to all of TowerCo's records, books,
correspondence, instructions, blueprints, permit files, memorandum and similar
data relating to the compliance of the Towers with all applicable Laws or if SBC
otherwise provides reasonable justification therefore, except privileged
documents or where disclosure is prohibited by law. TowerCo shall also provide
SBC with an electronic interface or other real time access to TowerCo's Tower
administration database which shall enable access to detailed information
concerning collocations. Such information shall be open for inspection and
copying upon reasonable notice by SBC, at its cost, and its authorized
representatives at reasonable hours at TowerCo's principal office and shall be
retained by TowerCo for period of three (3) years after the expiration of this
Sublease.
(f) The cost of SBC's obtaining and maintaining all FCC and FAA permits and
approvals relating to the operation and maintenance of the Subleased Space
(excluding the Reserved Space) and TowerCo Work shall be borne by TowerCo in
accordance with Sections 12(b)(i) and 17(c) (the "Reimbursable Costs"). SBC and
TowerCo have agreed on the Reimbursable Costs pursuant to a separate agreement.
SBC shall provide TowerCo with an invoice for Reimbursable Costs on a monthly
basis, which amount shall be paid by TowerCo to SBC within ten (10) business
days of TowerCo's receipt of such invoice. If the organizational structure of
SBC's FCC and FAA compliance department materially changes or the cost of
obtaining and maintaining FCC and FAA permits materially changes, the parties
agree to use good faith efforts to negotiate modifications to the Reimbursable
Costs agreement described above and the respective responsibilities of the
parties with respect to FAA and FCC compliance work.
SECTION 18. No Liens.
(a) TowerCo shall not create or permit any Lien (other than Permitted Liens)
against any Site, or any part thereof. If any Lien (other than Permitted Liens)
is filed against all or any part of any Site, TowerCo shall cause the same to be
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discharged by payment, satisfaction or posting of bond within thirty (30) days
after TowerCo has obtained knowledge of such Lien. If TowerCo fails to cause any
Lien (other than Permitted Liens) to be discharged within the permitted time,
SBC may cause it to be discharged and may pay the amount of such Lien in order
to do so. If SBC makes any such payment, all amounts paid by SBC shall be
payable by TowerCo to SBC upon demand. "Permitted Liens" means, as to each Site:
(i) Permitted Subleasehold Mortgages of TowerCo's subleasehold interest in such
Site and Permitted Subleasehold Pledges; (ii) Space Subtenants' sublease
interests in the Subleased Space of such Site; (iii) Liens existing on the Site
Commencement Date for such Site; (iv) Liens arising by, through or under SBC,
its Affiliates or any other occupant of the Reserved Space; (v) Liens for taxes
not yet due and payable or which are being contested in good faith in accordance
with the provisions of Section 15; (vi) Liens created by the underlying fee
owners of the Leased Sites; (vii) easements, rights of way and similar
encumbrances provided that such encumbrances do not have a material adverse
effect on the use or enjoyment of such Site or the Reserved Space and are
approved by SBC, such approval not to be unreasonably withheld or delayed; and
(viii) mechanics' liens for amounts which are not more than thirty (30) days
overdue.
(b) TowerCo may, at TowerCo's sole cost and expense, in its own name and on its
own behalf or in the name of and on behalf of the Sublessor, in good faith,
contest any claim of Lien and, in the event of any such contest, may permit such
claim of Lien so contested to remain unpaid, unsatisfied and undischarged during
the period of such contest and any appeal therefrom; provided, however, that, if
any Site, the Subleased Property of any Site or any part thereof are subject to
imminent danger of loss or forfeiture by virtue of or by reason of such claim of
Lien, such claim of Lien shall be complied with forthwith or TowerCo shall
deposit with the Sublessor a sum of money reasonably required by the Sublessor
as security to protect the Subleased Property of such Site from any such loss or
forfeiture. The Sublessor, at the sole cost and expense of TowerCo, shall
cooperate fully with TowerCo in any such contest.
(c) Any Permitted Subleasehold Mortgage or Permitted Subleasehold Pledge shall
be subject to each and every term, covenant, condition, agreement, requirement,
restriction and provision set forth in this Sublease and subject to all rights,
title and interest of SBC and each SBC Affiliate.
(d) Within ten (10) days after the granting of any Permitted Subleasehold
Mortgage or Permitted Subleasehold Pledge, TowerCo shall deliver to SBC a true,
correct and fully executed copy of all documents pertaining thereto and the
indebtedness secured thereby. Promptly upon TowerCo's receipt of copies of
recorded documents evidencing the recordation thereof and bearing the recording
information therefor, TowerCo shall deliver to SBC a copy of such recorded
documents.
(e) The Sublessor shall execute any necessary easement or right of way for
utilities for any Site promptly following any request by TowerCo, provided such
easement or right of way does not have an adverse effect on SBC's or its
Affiliate's use or enjoyment of the Reserved Space of such Site or on the
ownership by the Sublessor of the Tower on such Site, including without
limitation the operation of SBC's Communications Equipment thereon.
(f) Other than as provided in Section 21, SBC shall not create or permit any
Lien against the Subleased Property of any Site, or any part thereof. If any
Lien is filed against all or any part of the Subleased Property of any Site, SBC
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shall cause the same to be discharged by payment, satisfaction or posting of
bond within thirty (30) days after demand therefor by TowerCo. If SBC fails to
cause any Lien to be discharged within the permitted time, TowerCo may cause it
to be discharged and may pay the amount of such Lien in order to do so. If
TowerCo makes any such payment, all amounts paid by TowerCo shall be payable by
SBC to TowerCo upon demand. Nothing in this Sublease shall prohibit SBC or an
SBC Affiliate from permitting a Lien against its interest under the Ground Lease
or Reserved Space of any Site subject to (i) the restrictions on Transfer set
forth in Section 25 and (ii) SBC's and the Sublessor's obligations pursuant to
Section 35(e) hereof in the event TowerCo exercises its right to acquire all or
portion of the Sites. Notwithstanding the foregoing, any Lien against SBC's
interest under the Ground Lease shall only be permitted if such Lien is either
subject to and subordinate to this Sublease and the purchase option contained
herein or such lienholder executes an NDA substantially similar to the NDA
provided for in Section 21.
(g) SBC may, at SBC's sole cost and expense, in its own name and on its own
behalf or in the name of and on behalf of TowerCo, in good faith, contest any
claim of Lien and, in the event of any such contest, may permit such claim of
Lien so contested to remain unpaid, unsatisfied and undischarged during the
period of such contest and any appeal therefrom; provided, however, that, if the
Subleased Property of any Site or any part thereof are subject to imminent
danger of loss or forfeiture by virtue of or by reason of such claim of Lien,
such claim of Lien shall be complied with forthwith or SBC shall deposit with
TowerCo a sum of money reasonably required by TowerCo as security to protect
TowerCo's interest in the Subleased Property of such Site from any such loss or
forfeiture. TowerCo, at the sole cost and expense of SBC, shall cooperate fully
with SBC in any such contest.
(h) SBC hereby waives any lien rights it may have concerning each Space
Subtenant's Improvements and Communications Equipment.
SECTION 19. Condemnation.
(a) If there occurs a Taking of all or a Substantial Portion of any Site, other
than a Taking for temporary use, then either Party shall have the right to
terminate this Sublease as to such Site by written notice to the other Party
within thirty (30) days of the occurrence of such Taking whereupon the Term
shall automatically expire as to such Site, on the Date of Taking, as if such
date were the Site Expiration Date as to such Site.
(b) If there occurs a Taking of less than a Substantial Portion of any Site,
then this Sublease and all duties and obligations of TowerCo under this Sublease
in respect of such Site shall remain unmodified, unaffected and in full force
and effect. TowerCo shall promptly proceed to reconstruct, restore and repair
the remaining portion of the Subleased Property of such Site (to the extent
feasible) to a condition substantially equivalent to the condition thereof prior
to the Taking. TowerCo shall be entitled to apply the Award received by TowerCo
to the reconstruction, Restoration and repair of any Subleased Property of any
Site from time to time as such work progresses. If the cost of the repair work
exceeds the Award recovered by TowerCo, TowerCo shall pay the excess cost. If
the Award exceeds the cost of the repair work, the excess shall be paid to the
Sublessor.
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(c) If there occurs a Taking of any Subleased Property of any Site or any
portion thereof, for temporary use, then this Sublease shall remain in full
force and effect as to such Site for the remainder of the then current term;
provided, however, that during such time as TowerCo shall be out of possession
of such Subleased Property by reason of such Taking, the failure to keep,
observe, perform, satisfy and comply with those terms and conditions of this
Sublease compliance with which are effectively impractical or impossible as a
result of TowerCo's being out of possession of such Subleased Property shall not
be an event of default hereunder. The Award for any such temporary Taking
payable for any period prior to the Site Expiration Date shall be paid to
TowerCo and, for any period thereafter, to the Sublessor.
SECTION 20. Waiver of Subrogation; Indemnity.
(a) Except as provided in this Sublease, to the extent permitted by applicable
Laws, TowerCo and SBC hereby waive any and all rights of recovery, claim, action
or cause of action against each other, their respective agents, officers and
employees, for any loss or damage that may occur to the Subleased Property of
each Site, by reason of fire, the elements, or any other cause insured against,
or required to be insured against, under the terms of policies of insurance
maintained, or required to be maintained, for the Subleased Property of such
Site, by TowerCo or SBC (as the case may be) under the terms of this Sublease,
regardless of cause or origin.
(b) Subject to the provisions of Section 20(a) above, TowerCo agrees to
indemnify and to hold each SBC Indemnitee harmless from any and all Claims, with
respect to bodily injury, personal injury or property damage suffered or
incurred by such SBC Indemnitee by reason of, or arising out of TowerCo's
sublease or lease, as the case may be, operation and maintenance of each Site
(including the Tower and Improvements thereon), including, without limitation:
(i) any default, breach, performance or nonperformance by TowerCo of its
respective obligations and covenants under this Sublease, including, without
limitation, Sections 12, 14 and 17, hereof; (ii) any Claims against any SBC
Indemnitee arising out of or resulting from (x) TowerCo's use, operation,
maintenance or occupancy of any part of the Site or resulting from the condition
of the Site or (y) any Space Subtenant's use, operation, maintenance or
occupancy of its Communications Facility; (iii) any failure of TowerCo to comply
with any applicable Laws or with the directives of FCC and FAA that TowerCo is
required to comply with pursuant to this Sublease or under applicable Laws; (iv)
any Claims arising out of or resulting from TowerCo's or any Space Subtenant's
acts or omissions or the negligence or intentional acts or omissions of any of
their respective agents, employees, engineers, contractors, subcontractors,
licensees, or invitees in or about the Subleased Property of each Site, and (v)
any other provision of this Sublease which provides that TowerCo shall indemnify
and hold harmless any SBC Indemnitee in respect of the matters contained in such
provision. If any action or proceeding is brought against any SBC Indemnitee by
reason of any such Claim, TowerCo upon notice from such SBC Indemnitee covenants
and agrees to defend such action or proceeding at its expense.
(c) Subject to the provisions of Section 20(a) above, SBC agrees to indemnify
and to hold each TowerCo Indemnitee harmless from any and all Claims with
respect to bodily injury, personal injury or property damage suffered or
incurred by TowerCo by reason of, or arising out of (i) any default, breach,
performance or nonperformance of SBC's obligations and covenants under this
Sublease (including, without limitation, SBC's covenants under Section 17(c)
hereof); (ii) any Claims against TowerCo arising out of or resulting from SBC's
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use, operation, maintenance or occupancy of SBC's Communications Equipment or
the Reserved Space, to the extent TowerCo is not responsible therefor under the
terms of this Sublease, (iii) SBC's failure to comply with any applicable Laws
or with the directives of FCC and FAA as to SBC's Communications Equipment; (iv)
any Claims against TowerCo arising out of or resulting from any acts or
omissions or the negligence or intentional actions or omissions of any of SBC's
agents, employees, engineers, contractors, subcontractors, licensees or
invitees; and (v) any other provision of this Sublease which provides that SBC
shall indemnify and hold harmless TowerCo or any Affiliate thereof in respect of
the matters contained in such provision. If any action or proceeding is brought
against TowerCo by reason of any such Claim, SBC upon notice from TowerCo
covenants and agrees to defend such action or proceeding at its expense.
SECTION 21. Subordination and Attornment.
(a) This Sublease and all rights of TowerCo therein, and all interest or estate
of TowerCo in the Subleased Property of each Site, or any portion thereof, shall
be subordinate to any and all Mortgages, which at any time during the Term, may
be placed upon the Subleased Property, or any portion thereof, by SBC or any SBC
Affiliate, and to any replacements, renewals, amendments, modifications,
extensions or refinancing thereof, and to each and every advance made under any
Mortgage; provided, however, that the subordination and attornment contained
herein shall not be effective unless the existing or any future Mortgagee
thereunder shall execute and deliver an NDA in favor of TowerCo, in form
reasonable satisfactory to TowerCo and its lenders providing that: (i) such
Mortgagee will at all times fully recognize TowerCo's rights under this
Sublease, including the purchase option contained herein, and in the event of a
foreclosure under any such Mortgage shall not disturb TowerCo's possession of
the Subleased Property and will recognize such purchase option, so long as no
event of default shall have occurred and be subsisting hereunder, and so long as
TowerCo shall attorn to the purchaser upon such foreclosure; and (ii) that upon
Mortgagee acquiring title to the Subleased Property, TowerCo shall attorn
directly to such Mortgagee. TowerCo shall agree to such other terms and
conditions in the NDA as may be reasonably required by such Mortgagee, provided
that such terms and conditions do not affect TowerCo's rights, nor increase or
alter any of TowerCo's obligations, under this Sublease.
(b) Subject to the provision of Section 21(a), TowerCo shall execute in a timely
manner instruments that may be required to evidence this subordination clause,
in respect of the Subleased Property of each Site.
(c) The applicable Sublessor shall enter into a subordination, non-disturbance
and attornment agreement with any Space Subtenants at such Space Subtenant's
request. Such agreement shall be in form reasonably satisfactory to the
applicable Sublessor and the applicable Space Subtenant and shall provide, among
other things, that Sublessor shall not terminate such Space Subtenant's
subleasehold interest in the applicable Site by reason of TowerCo's default
hereunder or the early termination of this Sublease due to a default by TowerCo
or otherwise, so long as the Space Subtenant is not in default in the
performance of the terms, provisions and conditions contained in the applicable
sublease beyond notice and grace.
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SECTION 22. Environmental Covenants.
(a) For purposes of this Sublease, the following terms shall have the following
meanings: (i) "Hazardous Material" or "Hazardous Materials" means and includes
petroleum products, flammable explosives, radioactive materials, asbestos or any
material containing asbestos, polychlorinated biphenyls, or any hazardous, toxic
or dangerous waste, substance or material defined as such or defined as a
hazardous substance or any similar term, by, in or for the purposes of the
Environmental Laws, including, without limitation Section 101(14) of CERCLA
(hereinafter defined); provided that the term "Hazardous Materials" shall
exclude quantities of materials or substances maintained by SBC, its Affiliates,
TowerCo and Space Subtenants on or about any Site (including Tower and
Improvements thereon) in the ordinary course of business, so long as such
materials are maintained in accordance with the applicable Environmental Laws:
(ii) "Release" shall have the meaning given such term, or any similar term, in
the Environmental Laws, including, without limitation Section 101(22) of CERCLA;
and (iii) "Environmental Law" or "Environmental Laws" shall mean any "Super
Fund" or "Super Lien" law, or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree, regulating, relating to or
imposing liability or standards of conduct concerning any Hazardous Materials as
may now or at any time hereafter be in effect, including, without limitation,
the following, as same may be amended or replaced from time to time, and all
regulations promulgated thereunder or in connection therewith: the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"); The Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"); The
Clean Air Act ("CAA"); the Clean Water Act ("CWA"); The Toxic Substances Control
Act ("TSCA"); The Solid Waste Disposal Act ("SWDA"), as amended by the Resource
Conversation and Recovery Act ("RCRA"); the Hazardous Materials Transportation
Act: and the Occupational Safety and Health Act of 1970 ("OSHA").
(b) As to each Site, SBC represents and warrants to TowerCo that, as of the Site
Commencement Date for such Site, (i) to the best of SBC's knowledge, no portion
of the Land of such Site is used for the storage, processing, treatment or
disposal of Hazardous Materials, except as set forth in any environmental report
heretofore delivered to TowerCo; (ii) to the best of SBC's knowledge except for
such deminimus quantities that would not trigger a reporting or remediation
obligation under any applicable Environmental Law, no Hazardous Materials have
been released, introduced, spilled, discharged or disposed of, nor has there
been a threat of release, introduction, spill, discharge or disposal of a
Hazardous Materials, on, in, or under the Land of such Site, except as set forth
in any environmental report heretofore delivered to TowerCo; (iii) to the best
of SBC's knowledge, there are no pending Claims, administrative proceedings,
judgments, declarations, or orders, whether actual or threatened, relating to
the presence of Hazardous Materials on, in or under the Land of such Site; (iv)
to the best of SBC's knowledge, the Land of such Site is in compliance with all
applicable Environmental Laws; and (v) to the best of SBC's knowledge, there are
no pending or threatened or contemplated condemnation actions involving all or
any portion of the Land of such Site. For purposes of this Section, "to the best
knowledge of," or words of similar import with reference to SBC means actual
knowledge of the management of SBC and such actual knowledge will be imputed to
the management of SBC if the Hazardous Materials were brought to the Site by a
SBC Group Member.
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(c) Except for any matters for which SBC assumes responsibility pursuant to this
Sublease, TowerCo covenants and agrees that: (i) TowerCo shall not conduct or
allow to be conducted upon any Site any business operations or activities, or
employ or use a Site, to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce, or process Hazardous Materials; provided
that TowerCo shall have the right to bring, use and keep and allow any Space
Subtenant to bring and keep on the Subleased Property of each Site in compliance
with all applicable Laws, batteries, generators and associated fuel tanks and
other substances commonly used in the industry necessary for the operation and
maintenance of each Site; (ii) TowerCo shall carry on its business and
operations at each Site in compliance in all respects with, and will remain in
compliance with, all applicable Environmental Laws and shall require all Space
Subtenants to do the same: (iii) TowerCo shall not create or permit to be
created any Lien against any Site for the costs of any response, removal or
remedial action or clean-up of Hazardous Materials; (iv) TowerCo shall promptly
conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal, and other actions necessary to clean up and remove all
Hazardous Materials on, from or affecting each Site in accordance with all
applicable Environmental Laws; (v) TowerCo shall promptly notify SBC in writing
if TowerCo receives any notice, letter, citation, order, warning, complaint,
claim or demand that: (w) TowerCo or any Space Subtenant has violated, or is
about to violate, any Environmental Law, (x) there has been a Release or there
is a threat of Release, of Hazardous Materials at or from the applicable Site,
(y) TowerCo or any Space Subtenant may be or is liable, in whole or in part, for
the costs of cleaning up, remediating, removing or responding to a Release of
Hazardous Materials, or (z) a Site are subject to a Lien favor of any
governmental entity for any liability, cost or damages under any Environmental
Law.
(d) SBC covenants and agrees that as to each Site: (i) SBC shall not conduct or
allow to be conducted upon any Reserved Space of any Site any business
operations or activities, or employ or use a Reserved Space of any Site, to
generate, manufacture, refine, transport, treat, store, handle, dispose of,
transfer, produce, or process Hazardous Materials; provided that SBC shall have
the right to bring, use and keep on the Reserved Space of any Site in compliance
with all applicable Laws, batteries, generators and associated fuel tanks and
other substances commonly used in the industry necessary for the operation and
maintenance of each Reserved Space of any Site; (ii) SBC shall carry on its
business and operations on the Reserved Space of any Site in compliance in all
respects with, and will remain in compliance with, all applicable Environmental
Laws; (iii) SBC shall not create or permit to be created any Lien against any
Reserved Space of any Site for the costs of any response, removal or remedial
action or clean-up of Hazardous Materials; (iv) SBC shall promptly conduct and
complete all investigations, studies, sampling and testing, and all remedial,
removal, and other actions necessary to clean up and remove all Hazardous
Materials on, from or affecting the Reserved Space of each Site in accordance
with all applicable Environmental Laws; (v) SBC shall promptly notify TowerCo in
writing if SBC receives any notice, letter, citation, order, warning, complaint,
claim or demand that: (w) SBC has violated, or is about to violate, any
Environmental Law, (x) there has been a Release or there is a threat of Release,
of Hazardous Materials at or from the Reserved Space of any Site, (y) SBC may be
or is liable, in whole or in part, for the costs of cleaning up, remediating,
removing or responding to a Release of Hazardous Materials, or (z) the Reserved
Space of any Site is subject to a Lien in favor of any governmental entity for
any liability, cost or damages under any Environmental Law. SBC further
covenants and agrees that the covenants contained in this Section 22(d) and the
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indemnifications provided for in Section 22(f) shall also apply with respect to
(i) any operations or activities of SBC conducted upon space at a Site other
than the Reserved Space, and (ii) any operations of any SBC Affiliate upon any
Reserved Space or any space at a Site other than the Reserved Space.
(e) Unless resulting or arising solely from the negligent or willful acts or
omissions of SBC or SBC's Affiliates, employees, agents, engineers, contractors,
subcontractors, licensees or invitees, or from any other acts or omissions of
such parties in violation of this Sublease, TowerCo agrees to indemnify and hold
SBC and SBC Indemnitees harmless from and against any and all Claims, including
Claims of any and every kind whatsoever paid, incurred, suffered by, or asserted
against SBC or SBC Affiliates or the Site for, with respect to, or as a result
of the following: (i) the presence in, on, over or under, or the escape,
seepage, leakage, spillage, discharge, emission or Release on or from the Site
of any Hazardous Materials prior to the applicable Site Expiration Date or
earlier date of termination of this Sublease; (ii) the violation of any
Environmental Laws relating to or affecting the Site prior to the applicable
Site Expiration Date or earlier date of termination of this Sublease; (iii) a
Release of any Hazardous Materials or the violation of any of the Environmental
Laws prior to the applicable Site Expiration Date or earlier date of termination
of this Sublease in connection with any other property owned, operated or used
by or on behalf of TowerCo, which violation or Release gives or may give rise to
any rights whatsoever in any Party with respect to the Site by virtue of any of
the Environmental Laws; (iv) any warranty or representation made by TowerCo in
this Section 22 is or becomes false or untrue in any material respect; or (v)
the violation or breach of, or the failure of TowerCo to fully and completely
keep, observe, satisfy, perform and comply with, any agreement, term, covenant,
condition, requirement, provision or restriction of this Section 22.
(f) Unless resulting or arising from the negligent or willful acts or omissions
of TowerCo or TowerCo's employees, agents, engineers, contractors,
subcontractors, licensees or invitees, or from any other acts or omissions of
such parties in violation of this Sublease, SBC agrees to indemnify and hold
TowerCo and TowerCo Indemnitees harmless from and against any and all Claims,
including Claims of any and every kind whatsoever paid, incurred, suffered by,
or asserted against TowerCo or the Reserved Space of any Site for, with respect
to, or as a result of the following: (i) the presence in, on, over or under, or
the escape, seepage, leakage, spillage, discharge, emission or Release on or
from the Reserved Space of any Site of any Hazardous Materials prior to the
applicable Site Expiration Date or earlier date of termination of this Sublease;
(ii) the violation of any Environmental Laws relating to or affecting the
Reserved Space of any Site prior to the applicable Site Expiration Date or
earlier date of termination of this Sublease; (iii) a Release of any Hazardous
Materials or the violation of any of the Environmental Laws prior to the
applicable Site Expiration Date or earlier date of termination of this Sublease
in connection with any other property owned, operated or used by or on behalf of
SBC, which violation or Release gives or may give rise to any rights whatsoever
in any Party with respect to the Reserved Space of any Site by virtue of any of
the Environmental Laws; (iv) any warranty or representation made by SBC in this
Section 22 is or becomes false or untrue in any material respect; or (v) the
violation or breach of, or the failure of SBC or any SBC Affiliate to fully and
completely keep, observe, satisfy, perform and comply with, any agreement, term,
covenant, condition, requirement, provision or restriction of this Section 22.
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(g) Notwithstanding anything to the contrary in this Sublease, in the event any
Claim of a type giving rise to indemnification obligations under Section 22 is
asserted against a TowerCo Indemnitee and it cannot be readily determined that
it was the act or omission of SBC or its Affiliate that gave rise to such Claim,
it shall be assumed for all purposes hereof that it was TowerCo's or a Space
Subtenant's act or omission, TowerCo shall indemnify SBC Indemnitees in respect
of such Claim pursuant to Section 22(e), and SBC shall have no obligation or
liability to any TowerCo Indemnitee in respect of such Claim unless and until it
is finally determined that SBC's or its Affiliate's act or omission gave rise to
such Claim. The provisions of this Section 22 shall survive the applicable Site
Expiration Date or earlier termination of this Sublease. The foregoing
provisions of this Section 22 are not intended to limit the generality of any of
the other provisions of this Sublease.
SECTION 23. Insurance.
(a) SBC shall procure, and shall maintain in full force and effect at all times
during the Term as to the Sites, the following types of insurance with respect
to the Reserved Space of the Sites, and, if applicable, any of the Available
Space subleased to SBC or its Affiliates pursuant to Section 24(d), paying as
the same become due all premiums therefor:
(i) commercial general public liability insurance insuring against all
liability of SBC, its Affiliates and their respective officers,
employees, agents, licensees and invitees arising out of, by reason of
or in connection with the use or occupancy of the Reserved Space of the
Sites and, if applicable, any of the Available Space subleased to SBC
or its Affiliates pursuant to Section 24(d), if any, in an amount of
not less than $1,000,000 for bodily injury or property damage as a
result of one occurrence, and not less than $2,000,000 for bodily
injury or property damage in the aggregate;
(ii) umbrella or excess liability insurance with limits not less than
$5,000,000 per occurrence and in the aggregate: and
(iii) workers' compensation insurance covering all employees of SBC or its
Affiliates to the extent required by any Laws.
(b) SBC shall pay all premiums for the insurance coverage which SBC is required
to procure and maintain under this Sublease. Each insurance policy: (i) shall
name TowerCo as an additional insured; provided that such requirement shall only
apply to liability policy and shall have no application to workers' compensation
policies; and (ii) shall provide that the policy cannot be canceled as to
TowerCo except after the insurer endeavors to give TowerCo thirty (30) days'
written notice of cancellation. TowerCo agrees that SBC may, at SBC's option and
election, participate in the self-insurance program of SBC Communications Inc.
or otherwise self-insure to the extent reasonable in light of the financial
condition of SBC from time to time with respect to all or a portion of the risks
required to be insured against by SBC under this Section 23. If SBC elects to be
covered by and participate in its self insurance and risk management programs,
SBC shall notify TowerCo of such election. From time to time, upon reasonable
request by TowerCo, SBC shall furnish to TowerCo the information concerning its
risk management and self insurance policies and programs in effect at the time
of such request.
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(c) For each Site, TowerCo shall procure, and shall maintain in full force and
effect at all times during the Term as to the applicable Site, the following
types of insurance with respect to each Site, including the Tower and
Improvements thereon, paying as the same become due all premiums therefor:
(i) commercial general public liability insurance insuring against all
liability of TowerCo and TowerCo's officers, employees, agents,
licensees and invitees arising out of, by reason of or in connection
with the use, occupancy or maintenance of each Subleased Property
(including Tower and the Improvements), in an amount of not less than
$1,000,000 for bodily injury or property damage or as a result of one
occurrence, and not less than $2,000,000 for bodily injury or property
damage in the aggregate.
(ii) umbrella or excess liability insurance with limits not less than
$5,000,000 per occurrence and in the aggregate; and
(iii) Insurance in an amount not less than full replacement cost of the Tower
and Improvements of each Site, against direct and indirect loss or
damage by fire and all other casualties and risks covered under "All
Risk" insurance; and
(iv) workers' compensation insurance covering all employees of TowerCo or
its Affiliates to the extent required by any Laws.
(d) TowerCo shall pay all premiums for the insurance coverage which TowerCo is
required to procure and maintain under this Sublease. Each insurance policy (i)
shall name SBC and the applicable Sublessor as additional insureds; provided
that such requirement shall only apply to liability policy and shall have no
application to workers' compensation policies; and (ii) shall provide that the
policy cannot be canceled as to SBC and the applicable Sublessor except after
the insurer gives SBC ten (10) days' written notice of cancellation. If TowerCo
elects to be covered by and participate in its self insurance and risk
management programs or those of SpectraSite Communications Inc. or TowerCo
Parent as permitted in Section 23(f), TowerCo shall notify SBC of such election.
From time to time, upon reasonable request by SBC, TowerCo shall furnish to SBC
the information concerning its risk management and self insurance policies and
programs in effect at the time of such request.
(e) All policy amounts set forth in this Section 23 shall be reset every five
(5) years during the Term to increase by an amount not less than the CPI Change
over the five (5) year period, except to the extent the Parties otherwise agree.
(f) TowerCo and SBC shall not, on their own initiative or pursuant to request or
requirement of any Space Subtenants or other Person, take out separate insurance
concurrent in form or contributing in the event of loss with that required in
Section 23(c), unless the other Party thereto is named therein as an additional
insured. The Parties agree that, all policies of insurance required by this
Section 23 may contain such loss retention provisions or deductibles as is
reasonable in light of financial conditions of the Parties from time to time. In
addition and notwithstanding anything to the contrary contained in this Section
23(c), TowerCo shall be permitted to satisfy its obligations under Section
(c)(iii) hereof by participating in its self- insurance program or that of
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SpectraSite Communications Inc. or TowerCo Parent for such risk coverage to the
extent reasonable in light of the financial condition of TowerCo, SpectraSite
Communications Inc. or TowerCo Parent, as applicable, from time to time. TowerCo
and SBC shall immediately notify the other Party hereto whenever any such
separate insurance is taken out and shall deliver to SBC original certificates
evidencing the same.
(g) As to the Subleased Property and Reserved Space of each Site, all policies
of insurance shall be written on companies rated A:VII by AM Best or a
comparable rating and licensed in the State where such Site is located.
Certificates evidencing insurance shall be in a form reasonably acceptable to
the recipient Party, shall be delivered to such Party upon commencement of the
Term and prior to expiration of such policy, new certificates evidencing such
insurance, shall be delivered to such Party not less than twenty (20) days prior
to the expiration of the then current policy term. The Parties agree that all
policies of insurance required by this Section 23 may contain such loss
retention provisions or deductibles as is reasonable in light of financial
conditions of the Parties.
(h) Nothing in this Section 23 shall prevent SBC or TowerCo from obtaining
insurance of the kind and in the amount provided for under this Section 23 under
a blanket insurance policy or policies (evidence thereof reasonably satisfactory
to the other Party shall be delivered to the other Party by the insuring Party)
which may cover other properties owned or operated by the insuring Party as well
as the Subleased Property, the Reserved Space or the Available Space; provided,
however, that any such policy of blanket insurance shall: (i) specify the
amounts thereof to the extent such amounts are used to meet the initial limits
required pursuant to this Section 23; and (ii) provide that such policies of
blanket insurance shall, as respects the Subleased Property or Reserved Space of
each Site, contain the various provisions required of such an insurance policy
by the foregoing provisions of this Section 23.
SECTION 24. Right of Substitution; Right of First Refusal.
(a) Notwithstanding anything to the contrary contained herein, SBC shall have
the right (for the benefit of itself or any SBC Affiliate) to modify and/or
replace, at SBC's expense, SBC's or any SBC Affiliates' Communications Equipment
at any Site provided said replacement Communications Equipment does not increase
the weight or sail area of SBC's or such SBC Affiliate's Communications
Equipment (excluding the microwave dishes) on the Tower as of the date hereof by
more than ten percent (10%) and otherwise does not cause overall Tower capacity
to be exceeded. SBC also shall have the right to make any Alterations to the
Site that it reasonably deems necessary to increase the capacity of or otherwise
augment, strengthen or enhance a Tower (a "Sublessor Alteration"). Except with
respect to replacement or substitution of identical or substantially identical
equipment in the identical space, the following provisions shall apply with
respect to any modification, expansion, replacement, addition or relocation of
Communications Equipment by SBC or any SBC Affiliate (in each case, an "SBC
Alteration") and any Sublessor Alteration under this Sublease.
(i) Prior to commencing any such SBC Alteration or Sublessor Alteration,
SBC shall obtain TowerCo's written approval (which approval shall not
be unreasonably withheld, conditioned or delayed, so long as such
modifications or replacements do not violate the applicable provisions
of this Sublease) of detailed plans and specifications accurately
describing the proposed SBC Alteration or Sublessor Alteration.
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TowerCo shall either approve or disapprove such plans and
specifications in writing within ten (10) business days of TowerCo's
receipt of such plans and specifications failing which TowerCo shall
be deemed to have approved SBC's' proposed plans and specifications.
(ii) SBC agrees to comply with the reasonable directions and requirements
which TowerCo, in its good faith discretion, may from time to time
establish in connection with such modifications, expansions,
replacements, additions and relocations or Sublessor Alterations, as
the case may be, provided that such directions and requirements do not
(i) unreasonably interfere with SBC's or the applicable SBC
Affiliate's ordinary course of business or operations, or (ii)
derogate or diminish any rights of SBC or any SBC Affiliate under this
Sublease. Such requirements may include, at TowerCo's request, the
preparation, at SBC's cost and by a professional engineer licensed in
the state in which the Site is located and reasonably satisfactory to
TowerCo, of a structural analysis which details the effect of the SBC
Alteration or the Sublessor Alteration, as the case may be, on the
Tower and TowerCo's operations.
(b) Notwithstanding anything to the contrary contained herein, if during the
Term, there is any Available Space in respect of the Subleased Property of any
Site, then SBC shall have the Right of Substitution (for the benefit of itself
or any SBC Affiliate) as to such Available Space. The Right of Substitution
pursuant to this Section 24(b) may be exercised by SBC at any time, and from
time to time, without limit, upon written notice to TowerCo, provided that no
such relocation shall impair the structural integrity of the Tower. If SBC
elects to exercise its Right of Substitution, then, upon completion of the
relocation of the Communications Equipment of SBC or its Affiliate on the Tower
and Improvements thereon, the previously existing Reserved Space of the
applicable Site shall automatically be released by SBC or its Affiliate and
concurrently therewith, the Available Space on such Site to which the
Communications Equipment of SBC or its Affiliate has been relocated shall
automatically become and constitute the Reserved Space of such Site subject to
Section 5. The terms of this Section 24(b) shall be self-operative, and no
further instrument shall be required to evidence any Substitution; provided,
however, that upon the request of either SBC or TowerCo, the Parties shall
promptly execute such instruments as may be reasonably required to further
evidence such Substitution, including without limitation an amendment to Exhibit
A or the applicable Site Designation Supplement. SBC or its Affiliate shall, at
such Person's cost and expense, complete the relocation of its Communications
Equipment and return the previously existing Reserved Space to its original
condition, ordinary wear and tear excepted.
(c) Notwithstanding anything to the contrary contained herein, if during the
Term, TowerCo intends to sublease any Available Space of the Subleased Property
of any Site to a potential Space Subtenant, TowerCo shall notify SBC and
Sublessor by sending a copy of any letter-offer, letter of intent, or other
correspondence with the potential Space Subtenant together with a summary of the
economic terms of the proposed sublease as contained in such documents, which
economic terms shall include at least the number and location of all Sites
subject to the proposed lease or sublease, the number, type, and location of
each antenna or other equipment on each Tower, the rent payable for such antenna
or other equipment on the Tower (including any escalation provisions), and the
term of each Space Subtenant sublease and any renewals thereof, which term in no
event shall bind Sublessor to a term (including renewals) which extends beyond
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the Site Expiration Outside Date of the Site in question unless Sublessor shall
have consented to such extended term in writing, such consent not to be
unreasonably withheld or delayed (the "Economic Offer"). SBC may, in its sole
discretion, by providing written notice thereof to TowerCo within ten (10) days
after receipt of the Economic Offer from TowerCo (x) exercise its Right of
Substitution pursuant to Section 24(b) in respect of such Available Space, or
(y) exercise the Right of First Refusal in respect of such Available Space
pursuant to Sections 24(e) and (f), or (z) exercise both, if with respect to
multiple Sites. If TowerCo intends to sublease Available Space at multiple
Sites, SBC shall not be entitled to exercise either its Right of Substitution
and/or its Right of First Refusal as to any Available Space unless SBC exercises
such Right in respect of a minimum of the greater of (i) five percent (5%) or
(ii) two (2) of the total number of Sites that TowerCo intends to sublease.
(d) If SBC exercises the Right of Substitution as to any Available Space, then
such Available Space shall become "Reserved Space" for all purposes of this
Sublease and be subject to the provisions of Section 5. If SBC exercises the
Right of First Refusal as to such Available Space, then TowerCo shall sublease
the Available Space to SBC (or the designated SBC Affiliate) for the sublease
term set forth in the applicable Economic Offer. For the first three hundred
(300) times that SBC exercises its Right of First Refusal pursuant to this
Section 24, the rent for such space shall be equal to the lesser of (i) the rent
provided for in the Economic Offer or (ii) an amount of rent that bears the same
proportion to the SBC Leaseback Charge charged with respect to the Site(s) at
which such Available Space is located as the Available Space with respect to
which SBC exercises the Right of First Refusal bears to the Reserved Space of
such Site(s). With respect to any exercise by SBC of its Right of First Refusal
after the first three hundred (300) times, the rent for any additional space
leased pursuant to such exercise of the Right of First Refusal shall be the
amount specified in the Economic Offer. SBC (or the designated SBC Affiliate)
and TowerCo shall execute a sublease agreement in the form substantially similar
to the BTS Sublease (as defined in the Build-to-Suit Agreement), as modified to
reflect the rental rate as herein above provided for and the sublease term in
the applicable Economic Offer, or in any other form acceptable to TowerCo and
SBC and, SBC shall, for all purposes of this Sublease, become a Space Subtenant
of such Available Space at the rate prescribed above.
(e) If SBC fails to notify TowerCo as to its election to exercise its Right of
Substitution or its Right of First Refusal within the aforesaid 10-day period
under Section 24(c), then SBC's options referred to in Section 24(c) with
respect to such Available Space shall expire and TowerCo shall be entitled to
sublease such Available Space to the potential Space Subtenant within 90 days
after SBC's receipt of the Economic Offer (which ninety (90) day period shall be
extended so long as TowerCo is diligently endeavoring to conclude such sublease)
upon, in all material respects, the terms and conditions contained in the
applicable Economic Offer.
(f) If TowerCo subleases any Available Space of any Site to the potential Space
Subtenant as provided above, TowerCo shall promptly provide SBC a copy of the
final definitive sublease with the Space Subtenant (the "Final Agreement"). If
the economic terms of the Final Agreement are not the same or better for
TowerCo, in all material respects, than those of the Economic Offer, then, in
addition to any other remedies SBC may have, SBC may require that the SBC
Leaseback Charge for the Site in question and all other economic terms be
reduced to and conformed with those of the Final Agreement.
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(g) If such Available Space has not been so subleased to such Space Subtenant
within 90 days after SBC's receipt of the applicable Economic Offer (which
ninety (90) day period shall be extended so long as TowerCo is diligently
endeavoring to conclude such sublease), then the restrictions provided in this
Section 24 shall again apply with respect to such Available Space, and TowerCo
shall have no right to sublease any such Available Space without again offering
such Available Space to SBC in accordance with the provisions of this Section
24.
SECTION 25. Assignment and Subletting.
(a) Without the prior written consent of SBC, TowerCo may not assign, sublease,
mortgage or otherwise transfer this Sublease or any of TowerCo's rights
hereunder in whole or in part except that (A) TowerCo may assign all of its
rights under this Sublease, without SBC's consent, to any parent, subsidiary or
Affiliate of TowerCo; (B) TowerCo may sublease Available Space provided that it
complies with the applicable provisions of Section 24(c) hereof; and (C) TowerCo
may, with SBC's consent not to be unreasonably withheld (provided that such
consent will not be required in the case of a transaction described in Clause
(A)), assign this Sublease in its entirety to a successor corporation or entity
to TowerCo by way of merger, consolidation or other reorganization or to any
Person acquiring all or substantially all of TowerCo's assets; provided that in
the case of an assignment under Subsection (A) such assignee (i) is not a SBC
Competitor and (ii) assumes all of TowerCo's obligations hereunder, which
assumption need apply only with respect to obligations arising from and after
the date of such transfer; and in the case of an assignment under Subsection (C)
such assignee (i) is a Permitted TowerCo Transferee, (ii) is not a SBC
Competitor and (iii) assumes all of TowerCo's obligations hereunder, which
assumption need apply only with respect to obligations arising from and after
the date of such transfer; provided further that TowerCo may make a partial
assignment of this Sublease upon the prior written consent of SBC to be provided
in its sole and absolute discretion. Upon any permitted assignment under (A) or
(C), TowerCo shall be released from its obligations under this Sublease from and
after the date of such assignment but shall not be released from any liabilities
arising prior to the date of such transfer. Upon any permitted assignment under
Subsection (C) above (other than to any parent, subsidiary or Affiliate of
TowerCo), TowerCo Parent shall, with SBC's written consent not to be
unreasonably withheld, be released from its obligations under this Sublease from
and after the date of such assignment but shall not be released from any
liabilities arising prior to the date of such transfer. Notwithstanding the
foregoing, TowerCo may enter into Permitted Subleasehold Pledges and Permitted
Subleasehold Mortgages, in which case the Permitted Subleasehold Collateral
Assignee with respect thereto shall have the right to exercise remedies under
any such mortgage, pledge, hypothecation or other collateral transfer in a
manner consistent with the provisions of this and every other agreement between
TowerCo and SBC made in connection with this transaction. TowerCo acknowledges
that it shall not be permitted to enter into a Permitted Subleasehold Mortgage
with respect to all or any portion of a Site prior to the Closing of such Site
in accordance with Section 4.1 of the Agreement to Sublease.
(b) SBC and each Sublessor shall have the unrestricted right during the Term,
subject to any required consent of any Ground Lessor, to sell, convey, transfer,
assign or otherwise dispose (but not to sublease other than a sublease of the
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Reserved Space to a SBC Affiliate which conducts its wireless activities at the
Reserved Space, which Sublease shall be permitted without TowerCo's consent) of
SBC's or such Sublessor's interest in and to any Site (including SBC's or a SBC
Affiliate's interest in and to the Subleased Property of such Site), in whole or
in part (a "Transfer") to: (i) a SBC Affiliate; (ii) a Permitted Transferee; or
(iii) any other Person (a "Non-Qualifying Transferee"); provided, however, that
with respect to subsections (ii) and (iii) above, neither SBC nor such Sublessor
may assign its interest in the Reserved Space except in conjunction with the
sale or other transfer of all or a portion of an SBC Affiliate's wireless
business on a Site by Site basis, and provided further that SBC may not assign
its interest in the Reserved Space without transferring the corresponding Ground
Lease, and vice versa. Upon any permitted Transfer of this Sublease in its
entirety by SBC or any Sublessor, the assignee shall assume all of SBC's or any
Sublessor's obligations hereunder arising from and after the date of such
Transfer. In the event of any Transfer by SBC or a SBC Affiliate to a
Non-Qualifying Transferee or to a SBC Affiliate which is not a Permitted
Transferee, SBC shall not be relieved of its obligations hereunder. In the event
of any other Transfer by SBC or a SBC Affiliate, all obligations under this
Sublease of the Person effecting such Transfer shall cease and terminate with
respect to the Site or Sites in question, excluding any liabilities arising
prior to the date of such Transfer, and TowerCo shall look only and solely to
the Person to whom SBC's or such SBC Affiliate's interest in and to such Site
(including SBC's or such SBC Affiliate's interest in and to the Subleased
Property thereof or any portion thereof) is Transferred for performance of all
of SBC's or such SBC Affiliate's duties and obligations under this Sublease with
respect to such Site arising after the date of such Transfer (provided that the
transferee assumes all of SBC's or such SBC Affiliate's obligations hereunder,
which assumption need only apply with respect to obligations arising from and
after the date of such Transfer or, in the case of a partial assignment, enters
into the "New Sublease Documents," as defined below). Upon any permitted
Transfer of this Lease in whole or in part under clause 25(b)(ii) (other than an
assignment to any parent, subsidiary or Affiliate of Wireless Guarantor),
Wireless Guarantor shall be released from its obligations under this Sublease
from and after the date of such Transfer with respect to the Site(s) which are
the subject of such Transfer but shall not be released from any liabilities
arising prior to the date of such Transfer. For purposes of the provisions of
this Section 25(b) relating to the release of a Sublessor, SBC, an SBC Affiliate
or Wireless Guarantor from their respective obligations under the Sublease
following a "Transfer", the term "Transfer" shall not include a mortgage,
pledge, lien or other similar collateral assignment for security purposes or a
sublease.
Notwithstanding the foregoing, in the event of a Transfer by SBC or a
SBC Affiliate to a Non-Qualifying Transferee, if either (x) such Non-Qualifying
Transferee ultimately becomes a Permitted Transferee or (y) subject to the
consent of TowerCo, which consent may not be unreasonably withheld, no unwaived
event of default on the part of such Non-Qualifying Transferee occurs in respect
of such Sites for three (3) years after the date of such Transfer to such
transferee, SBC or such SBC Affiliate, as applicable, and Wireless Guarantor
shall be released (effective as of the date on which either of the conditions
set forth in (x) or (y) is satisfied) from any and all obligations under this
Sublease as to such Sites for obligations arising after the effective date of
such release, and upon SBC's request TowerCo shall confirm such release in
writing.
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Except as expressly provided in Section 25(b), wherever under or in
connection with this Sublease SBC or any SBC Affiliate Transfers its right,
title or interest, in whole or in part, in or to this Sublease or any Site, SBC
or such SBC Affiliate shall be released from performing any and all obligations
under this Sublease arising after the date of such Transfer in respect of the
right, title or interest so Transferred and under the applicable Ground Lease,
and TowerCo hereby acknowledges such release. At or prior to any partial
assignment of this Sublease, TowerCo and such assignee shall have entered into
one or more agreements, including without limitation, a sublease and site
designation supplements (collectively, the "New Sublease Documents"), that
afford TowerCo and such assignee relative rights, vis-a-vis TowerCo's or such
assignee's rights and obligations under the New Sublease Documents no less
favorable to TowerCo and such assignee than those afforded by the Sublease and
the Site Designation Supplements with respect to the rights and obligations of
SBC and TowerCo, and are otherwise in form and substance reasonably satisfactory
to TowerCo and such assignee.
(c) Without limiting the generality of the other provisions of this Sublease,
any assignment of interest pursuant to this Sublease and any sublease permitted
under ss. 25(a) shall be effectuated by ten (10) days' written notice of such
assignment or sublease, which notice shall include the name, address, and
telephone number of the assignee. Each Party hereby agrees that any attempt of
such Party to assign or otherwise Transfer its interest in this Sublease or any
of its rights hereunder, in whole or in part, in violation of Section 25 shall
constitute a default under this Sublease and shall be null and void ab initio
(d) In the event that a Ground Lease restricts TowerCo's ability to sublease
space on the Leased Property, the applicable Sublessor agrees that it shall use
commercially reasonable efforts to assist and cooperate with TowerCo in
obtaining any such necessary consents, at TowerCo's sole cost and expense, from
the Ground Lessor.
SECTION 26. Estoppel Certificate.
Either Party, from time to time upon ten (10) days' prior request by
the other Party, shall execute, acknowledge and deliver to the requesting Party,
or to a person designated by such requesting Party, a certificate stating that
this Sublease is unmodified and in full effect (or, if there have been
modifications, that this Sublease is in full effect as modified, and setting
forth such modifications) and the dates to which Rent and other sums payable
under this Sublease have been paid, and either stating that to the knowledge of
the signer of such certificate no default exists hereunder or specifying each
such default of which the signer has knowledge. The requesting Party, at such
Party's cost and expense, shall cause such certificate to be prepared for
execution by the requested Party. Any such certificate may be relied upon by any
prospective Permitted Collateral Assignee, Mortgagee or purchaser of the
Subleased Property of each Site.
SECTION 27. Holding Over.
If TowerCo remains in possession of the Subleased Property of any Site
after expiration or termination of the then current Term as to such Site without
any express written agreement by SBC, then TowerCo shall be and become a tenant
at sufferance, and there shall be no renewal or extension of this Sublease by
operation of law. This section shall be deemed to be an "agreement expressly
providing otherwise" within the meaning of Section 232-c of the Real Property
law of the State of New York.
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SECTION 28. Rights of Entry and Inspection.
(a) TowerCo shall permit SBC and SBC's representatives, agents and employees to
enter the Subleased Property of any Site at all reasonable times for the
purposes of inspecting such Subleased Property, showing the Site to prospective
purchasers and Mortgagees, making any repairs or replacements or performing any
maintenance, and performing any work on the Site that SBC may consider necessary
to prevent or cure deterioration, waste or unsafe conditions. Nothing in this
Section 28 shall imply or impose any duty or obligation upon SBC to enter upon
any Site at any time for any purpose, or to inspect the Subleased Property at
any time, or to perform, or pay the cost of, any work which TowerCo is required
to perform under any provision of this Sublease, and SBC has no such duty or
obligation.
(b) SBC shall permit TowerCo and TowerCo's representatives to inspect SBC's and
the SBC Affiliates' Communications Equipment for the purpose, in the event of an
Emergency only, for making repairs or replacements to address such Emergency.
The foregoing shall not limit TowerCo's rights pursuant to Section 7 hereof.
SECTION 29. A Party's Right to Act for the Other Party; SBC Set-Off Right.
(a) In addition to and not in limitation of any other remedy SBC may have under
this Sublease, if TowerCo fails to make any payment or to take any other action
(or to cause any Space Subtenant to take any action) when and as required under
this Sublease, including without limitation Sections 11(a) and 17 and Exhibit C,
SBC may, without demand upon TowerCo and without waiving or releasing TowerCo
from any duty, obligation or liability under this Sublease, make any such
payment or take any such other action required of TowerCo. Unless TowerCo's
failure results in or relates to an Emergency, SBC shall give TowerCo at least
ten (10) days prior written notice of SBC's intended action and TowerCo shall
have the right to cure such failure within such 10-day period. No such notice
shall be required in the event of an Emergency. The actions which SBC may take
shall include, but are not limited to, the performance of maintenance or repairs
and the making of replacements to the Towers and Improvements on each Site (and
SBC shall have full access to the Sites for such purpose), the payment of
insurance premiums which TowerCo is required to pay under this Sublease, the
payment of Ground Rents which TowerCo is required to pay under the Ground Leases
and the payment of Taxes and Assessments which TowerCo is required to pay under
this Sublease. SBC may pay all incidental costs and expenses incurred in
exercising its rights hereunder, including, without limitation, reasonable
attorneys' fees and expenses, penalties, re-instatement fees, late charges, and
interest. An amount equal to one hundred twenty percent (120%) of the total
amount of the costs and expenses (including salaries and benefits of employees)
incurred by SBC or SBC Affiliates in accordance with this Section 29, is
referred to as the "Reimbursable Maintenance Expenses" of SBC, shall be due and
payable by TowerCo upon demand and bear interest at the rate of eighteen percent
(18%) per annum from the date of demand until paid by TowerCo. SBC shall have
the right to set off against any SBC Leaseback Charges due under Section 10
hereof the amount of any Reimbursable Maintenance Expenses and any other amounts
due and owing by TowerCo or TowerCo Parent to SBC or any SBC Affiliates
hereunder.
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(b) For purposes of this Section, the term "Emergency" means any event that
causes, has caused or is likely to cause, (i) any bodily injury, personal injury
or property damage; (ii) the suspension, revocation, termination or any other
adverse material effect as to any licenses and/or permits; (iii) any adverse
effect on the ability of SBC or its Affiliates or any Space Subtenants to
operate Communications Equipment; or (iv) any failure of any Site to comply in
any material respect with applicable Laws.
SECTION 30. Defaults and Remedies.
(a) The following events shall constitute events of default by SBC:
(i) If SBC or a SBC Affiliate fails to perform any material obligations
pursuant to the applicable Ground Lease for a Site that SBC or a SBC
Affiliate is expressly required to perform pursuant to the terms of
this Sublease and shall not cure such failure by the later of (x) the
expiration of any applicable cure period, or (y) thirty (30) days
after TowerCo gives SBC written notice thereof; or
(ii) if SBC, or with respect to any covenant required to be complied with
by any SBC Affiliate, such SBC Affiliate, shall materially violate or
breach, or shall materially fail to fully and completely observe,
keep, satisfy, perform and comply with, any agreement, term, covenant,
condition, requirement, restriction or provision of this Sublease in
respect of any Site (which violations, breaches or failures may be
different for each Site), and shall not cure such violation, breach or
failure within thirty (30) days after TowerCo gives SBC written notice
thereof, or, if such failure shall be incapable of cure within thirty
(30) days, if SBC shall not commence to cure such failure within such
thirty (30) day period and continuously prosecute the performance of
the same to completion with due diligence; or
(iii)Subject to Section 30(i), SBC breached any material representation or
warranty in this Sublease as to any Site as of the date when made.
(iv) if SBC becomes insolvent as defined in the Uniform Commercial Code
under the Laws applicable to this Sublease or makes an assignment for
the benefit of creditors; or if any action is brought by SBC seeking
its dissolution or liquidation of its assets or seeking the
appointment of a trustee, interim trustee, receiver or other custodian
for any of its property; or if SBC commences a voluntary proceeding
under the Federal Bankruptcy Code; or if any reorganization or
arrangement proceeding is instituted by SBC for the settlement,
readjustment, composition or extension of any of its debts upon any
terms; or if any action or petition is otherwise brought by SBC
seeking similar relief or alleging that it is insolvent or unable to
pay its debts as they mature; or if any action is brought against SBC
seeking its dissolution or liquidation of any of its assets, or
seeking the appointment of a trustee, interim trustee, receiver or
other custodian for any of its property, and any such action is
consented to or acquiesced in by SBC or is not dismissed within ninety
(90) days after the date upon which it was instituted; or if any
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proceeding under the Federal Bankruptcy Code is instituted against SBC
and (1) an order for relief is entered in such proceeding, or (2) such
proceeding is consented to or acquiesced in by SBC or is not dismissed
within ninety (90) days after the date upon which it was instituted;
or if any reorganization or arrangement proceeding is instituted
against SBC for the settlement, readjustment, composition or extension
of any of its debts upon any terms, and such proceeding is consented
to or acquiesced in by SBC or is not dismissed within ninety (90) days
after the date upon which it was instituted; or if any action or
petition is otherwise brought against SBC seeking similar relief or
alleging that it is insolvent, unable to pay its debts as they mature
or generally not paying its debts as they become due, and such action
or petition is consented to or acquiesced in by SBC or is not
dismissed within thirty (30) days after the date upon which it was
brought.
(v) if any Sublessor becomes insolvent as defined in the Uniform
Commercial Code under the Laws applicable to this Sublease or makes an
assignment for the benefit of creditors; or if any action is brought
by a Sublessor seeking its dissolution or liquidation of its assets or
seeking the appointment of a trustee, interim trustee, receiver or
other custodian for any of its property; or if a Sublessor commences a
voluntary proceeding under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is instituted by a Sublessor
for the settlement, readjustment, composition or extension of any of
its debts upon any terms; or if any action or petition is otherwise
brought by a Sublessor seeking similar relief or alleging that it is
insolvent or unable to pay its debts as they mature; or if any action
is brought against a Sublessor seeking its dissolution or liquidation
of any of its assets, or seeking the appointment of a trustee, interim
trustee, receiver or other custodian for any of its property, and any
such action is consented to or acquiesced in by such Sublessor or is
not dismissed within ninety (90) days after the date upon which it was
instituted; or if any proceeding under the Federal Bankruptcy Code is
instituted against a Sublessor and (1) an order for relief is entered
in such proceeding, or (2) such proceeding is consented to or
acquiesced in by such Sublessor or is not dismissed within ninety (90)
days after the date upon which it was instituted; or if any
reorganization or arrangement proceeding is instituted against a
Sublessor for the settlement, readjustment, composition or extension
of any of its debts upon any terms, and such proceeding is consented
to or acquiesced in by such Sublessor or is not dismissed within
ninety (90) days after the date upon which it was instituted; or if
any action or petition is otherwise brought against a Sublessor
seeking similar relief or alleging that it is insolvent, unable to pay
its debts as they mature or generally not paying its debts as they
become due, and such action or petition is consented to or acquiesced
in by such Sublessor or is not dismissed within thirty (30) days after
the date upon which it was brought.
(b) Upon the occurrence of any event of default by SBC under Section 30(a)(iv),
TowerCo may terminate this Sublease by giving SBC written notice of termination,
and this Sublease shall be terminated at the time designated by TowerCo in its
notice of termination to SBC whereupon SBC shall be obligated to refund to
TowerCo all Rent for the rental periods occurring after the effective date of
such termination. Upon the occurrence of any event of default by SBC under
Sections 30(a)(i)-(a)(iii) as to the Reserved Space of a Site or with respect to
a Sublessor under Section 30(a)(v), TowerCo may terminate this Sublease as to
the applicable Site by giving SBC written notice of termination, and this
Sublease shall be terminated as to the applicable Site at the time designated by
TowerCo in its notice of termination to SBC whereupon SBC shall be obligated to
refund to TowerCo the Rent allocable to such Site for the rental periods
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occurring after the effective date of such termination. Notwithstanding the
foregoing, if SBC fails to pay any portion of a SBC Leaseback Charge because SBC
or a SBC Affiliate, acting in good faith, reduced the amount of SBC Leaseback
Charges paid to TowerCo in giving effect to a mistaken belief that it made
Reimbursable Maintenance Expenses under Section 29(a) that SBC or a SBC
Affiliate was not permitted to make, such failure shall not constitute an event
of default hereunder. Upon TowerCo's demand after any resolution of any dispute
as to the amount of such Reimbursable Maintenance Expenses, SBC shall pay such
amount to TowerCo, with interest thereon at the rate of eighteen percent (18%)
per annum, from the date such amount was due until the date paid.
(c) TowerCo's remedy stated in Section 30(b) above shall not preclude pursuit of
any other remedy or remedies provided in this Sublease or any other remedy or
remedies provided for or allowed by law or in equity, separately or concurrently
or in any combination.
(d) The following events shall constitute events of default by TowerCo:
(i) If TowerCo fails to timely pay Ground Rent as provided in Section 3(d)
or otherwise fails to make payment of any amount due hereunder and
such failure continues for ten (10) days after the date such payment
was due and payable or, with respect to the payment of Ground Rent,
for such longer grace period as may be provided for in the applicable
Ground Lease, or
(ii) (x) TowerCo shall materially violate or breach, or shall materially
fail to fully and completely observe, keep, satisfy, perform and
comply with, any term, covenant, condition, requirement, restriction
or provision of this Sublease with respect to any Site (which
violations, breaches or failures may be different for each Site), and
shall not cure such violation, breach or failure within thirty (30)
days after SBC gives TowerCo written notice thereof, or, if such
failure can be cured, but not within thirty (30) days, if TowerCo
shall not commence to cure such failure within such thirty (30) day
period and continuously prosecute the performance of the same to
completion with due diligence or (y) the aggregate amount of
Reimbursable Maintenance Expenses in respect of any Site pursuant to
Section 29(a) exceeds $4,000 on at least two occurrences within the
same Sublease Year, whether or not reimbursed by TowerCo; or
(iii)Subject to Section 30(i), any representation or warranty made by
TowerCo in this Sublease shall be false or misleading in any material
respect on the date as of which made (or deemed made); or
(iv) TowerCo or TowerCo Parent shall materially violate or breach, or shall
materially fail to fully and completely observe, keep, satisfy or
perform any obligation for money borrowed involving not less than
$5,000,000 in principal amount in connection with this Sublease,
including, without limitation, Mortgages, or any obligation under
notes payable or drafts accepted, or any obligation of any other
agreement, term or condition contained in any indenture or agreement
under which any such obligation is created, guaranteed or secured if
the effect of such default is to cause such obligation to become due
prior to its stated maturity;
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(v) If TowerCo becomes insolvent as defined in the Uniform Commercial Code
under the Laws applicable to this Sublease or any Site or makes an
assignment for the benefit of creditors; or if any action is brought
by TowerCo seeking its dissolution or liquidation of its assets or
seeking the appointment of a trustee, interim trustee, receiver or
other custodian for any of its property; or if TowerCo commences a
voluntary proceeding under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is instituted by TowerCo for
the settlement, readjustment, composition or extension of any of its
debts upon any terms; or if any action or petition is otherwise
brought by TowerCo seeking similar relief or alleging that it is
insolvent or unable to pay its debts as they mature; or if any action
is brought against TowerCo seeking its dissolution or liquidation of
any of its assets, or seeking the appointment of a trustee, interim
trustee, receiver or other custodian for any of its property, and any
such action is consented to or acquiesced in by TowerCo or is not
dismissed within ninety (90) days after the date upon which it was
instituted; or if any proceeding under the Federal Bankruptcy Code is
instituted against TowerCo and (1) an order for relief is entered in
such proceeding, or (2) such proceeding is consented to or acquiesced
in by TowerCo or is not dismissed within ninety (90) days after the
date upon which it was instituted; or if any reorganization or
arrangement proceeding is instituted against TowerCo for the
settlement, readjustment, composition or extension of any of its debts
upon any terms, and such proceeding is consented to or acquiesced in
by TowerCo or is not dismissed within ninety (90) days after the date
upon which it was instituted; or if any action or petition is
otherwise brought against TowerCo seeking similar relief or alleging
that it is insolvent, unable to pay its debts as they mature or
generally not paying its debts as they become due, and such action or
petition is consented to or acquiesced in by TowerCo or is not
dismissed within thirty (30) days after the date upon which it was
brought; or
(vi) If the leaseback to SBC of the Reserved Space at any Site is rejected
by TowerCo under Section 365 of the Federal Bankruptcy Code.
(e) Upon the occurrence of any event of default by TowerCo under Section 30(d),
Section 14(c) or Section 14(d) in respect of any Site, SBC may terminate this
Sublease as to the applicable Site by giving TowerCo written notice of
termination, and this Sublease shall be terminated as to such Site, at the time
designated by SBC in its notice of termination to TowerCo, unless otherwise
provided herein. Upon the occurrence of events of default (whether of the same
or different types) by TowerCo under Section 30(d) in respect of more than fifty
(50) Sites during any consecutive five (5) year period or portion thereof, SBC
may terminate this Sublease as to all Sites by giving TowerCo written notice of
termination, and this Sublease shall be terminated as to all Sites at the time
designated by SBC in its notice of termination to TowerCo.
(f) SBC and each Sublessor may pursue any remedy or remedies provided in this
Sublease, including without limitation Section 30(e), or any remedy or remedies
provided for or allowed by law or in equity, separately or concurrently or in
any combination, including, without limitation, (i) specific performance or
other equitable remedies; (ii) money damages arising out of such default; (iii)
SBC or the applicable SBC Affiliate may exercise the Withdrawal Right as to any
Site immediately and without further act, pursuant to Section 9; or (iv) SBC or
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the applicable Sublessor may perform, on behalf of TowerCo, TowerCo's
obligations under the terms of this Sublease pursuant to Section 29, in which
event SBC shall have the right to set off all Reimbursable Maintenance Expenses
against the SBC Leaseback Charges SBC is required to pay. If the amount of
Reimbursable Maintenance Expenses exceeds the SBC Leaseback Charges payable by
SBC hereunder and TowerCo does not reimburse SBC or each Sublessor the full
amount of such excess within ten (10) days following SBC's written demand
therefor, SBC and the Sublessors may terminate this Sublease in respect of all
or any of the Sites pursuant to Section 30(e) and shall be reimbursed thereof.
(g) A Party's pursuit of any one or more of the remedies provided in this
Sublease shall not constitute an election of remedies excluding the election of
another remedy or other remedies, or a forfeiture or waiver of any amounts
payable under this Sublease as to the applicable Site by such Party or waiver of
any relief or damages or other sums accruing to such Party by reason of the
other Party's failure to fully and completely keep, observe, perform, satisfy
and comply with all of the agreements, terms, covenants, conditions,
requirements, provisions and restrictions of this Sublease. Notwithstanding
anything to the contrary contained herein, neither Party shall be liable to the
other parties for indirect, incidental, special or consequential damages,
including but not limited to lost profits, however arising, even if a Party has
been advised of the possibility of such damages.
(h) Either Party's forbearance in pursuing or exercising one or more of its
remedies shall not be deemed or construed to constitute a waiver of any event of
default or of any remedy. No waiver by either Party of any right or remedy on
one occasion shall be construed as a waiver of that right or remedy on any
subsequent occasion or as a waiver of any other right or remedy then or
thereafter existing. No failure of either Party to pursue or exercise any of its
powers, rights or remedies or to insist upon strict and exact compliance by the
other Party with any agreement, term, covenant, condition, requirement,
provision or restriction of this Sublease, and no custom or practice at variance
with the terms of this Sublease, shall constitute a waiver by either Party of
the right to demand strict and exact compliance with the terms and conditions of
this Sublease.
(i) Notwithstanding the foregoing, no event of default shall be deemed to have
occurred in respect of SBC under Section 30(a)(iii) or in respect of TowerCo
under Section 30(d)(iii), if the other Party gives notice after one (1) year
following:
(i) the applicable Site Commencement Date with respect to the Site in
question in the case of a representation or warranty made under this
Sublease or the applicable Site Designation Supplement, as to any
Site;
(ii) the date hereof, in the case of any other representation or warranty
made under this Sublease; or
(iii)in the case of representation or warranty made under the Agreement to
Sublease, as provided therein.
(j) Upon the occurrence of any event of default by TowerCo under this Section 30
in respect of any Site, the applicable Sublessor shall give every Permitted
Subleasehold Collateral Assignee of which Sublessor has written notice a written
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notice of, and an opportunity to cure within forty-five (45) days after receipt
of such Sublessor's written notice of default, all existing defaults hereunder.
In the event the Permitted Subleasehold Collateral Assignee fails to cure
defaults as to any Site within such forty-five (45) day period, such Sublessor
may terminate this Agreement as to such Site. The parties hereto agree that
prior to the date upon which such Sublessor has the right to terminate this
Agreement as to such Site, any Permitted Subleasehold Collateral Assignee may,
at its option, be substituted and replace TowerCo as Sublessee hereunder (and
TowerCo agrees to relinquish all rights hereunder) by assuming and agreeing to
be bound by each and every term, covenant, condition, agreement, requirement,
restriction and provision set forth in this Agreement, and subject to all
rights, title, and interest of the applicable Sublessor; provided that in the
event there have been more than fifty (50) events of default within any five (5)
year period and SBC gives notice under Section 30(d) hereof of its election to
terminate this Sublease, such Permitted Subleasehold Collateral Assignee may,
prior to termination of this Agreement by the applicable Sublessor, transfer its
interests under this Agreement in its entirety after providing evidence
satisfactory to SBC that the proposed assignee is not an SBC Competitor and has
appropriate industry experience, the capability and the financial ability to
perform the obligations of TowerCo hereunder and under any other agreements
relating to or concerning the transactions between SBC and TowerCo, in which
event this Sublease shall not terminate.
SECTION 31. Quiet Enjoyment.
TowerCo shall, subject to the terms and conditions of this Sublease,
peaceably and quietly hold and enjoy the Subleased Property of each Site during
the Term without hindrance or interruption from SBC or any Person claiming by,
through or under SBC, so long as no event of default has occurred and is
continuing hereunder.
SECTION 32. No Merger.
There shall be no merger of this Sublease or the subleasehold interest
or estate created by this Sublease in any Site with the superior estate held by
the Sublessor thereof, by reason of the fact that the same person or entity may
acquire, own or hold, directly or indirectly, both the subleasehold interest or
estate created by this Sublease in any Site and such superior estate; and this
Sublease shall not be terminated, in whole or as to any Site, except as
expressly provided herein.
SECTION 33. Broker and Commission.
(a) All negotiations in connection with this Sublease have been conducted by and
between TowerCo and SBC without the intervention of any person or other Party as
agent or broker other than Goldman, Sachs & Co. which is advising SBC's parent,
SBC Communications Inc., in connection with this Sublease and related
transactions.
(b) TowerCo and SBC warrant and represent to each other that there are no
broker's commissions or fees payable in connection with this Sublease by reason
of their respective dealings, negotiations or communications other than the
advisor's fee payable to Goldman, Sachs & Co. which shall be payable by SBC
Communications Inc. TowerCo and SBC shall, and do hereby indemnify, defend and
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hold harmless each other from and against the Claims of any and all brokers,
agents and other intermediaries alleging a commission, fee or other payment to
be owing by reason of their respective dealings, negotiations or communications
in connection with this Sublease.
SECTION 34. Recording of Memorandum of Ground Lease.
(a) Subject to the applicable provisions of the Agreement to Sublease, upon the
execution of this Sublease, TowerCo may, at its cost and expense (i) cause the
Ground Leases or memorandum of Ground Leases for the Sites to be filed in the
appropriate County property records, unless such Ground Leases expressly
prohibit such recording; and (ii) promptly following the execution of each Site
Designation Supplement, cause a memorandum of sublease with respect to the
applicable Site to be filed in the appropriate County property records unless
the Ground Lease for the applicable Site prohibits such recording.
(b) In addition to and not in limitation of any other provision of this
Sublease, the Parties shall have the right to review and make corrections, if
necessary, to any and all exhibits hereto or to the Site Designation Supplements
or to the memorandum of sublease after the date hereof. After making such
corrections, TowerCo shall re-record such memorandum of sublease to reflect such
corrections, if requested by either Party. The Parties shall cooperate with each
other to cause changes to be made in the documentation for any Site, and in the
Site Designation Supplement or to the memorandum of sublease for such Site, if
such changes are requested by either Party to evidence any permitted changes in
the description of the Reserved Space respecting such Site, including, without
limitation changes in SBC's or such SBC Affiliate's antennas or other parts of
its Communications Facility at such Site. In addition to and not in limitation
of the foregoing, either Party shall have the right, at its sole expense, to
cause any amendment to such memorandum of Sublease to be recorded, including
without limitation in connection with such changes.
SECTION 35. Purchase Options.
(a) Right to Purchase. If this Sublease shall not have been earlier terminated,
or an event of default by TowerCo shall not have occurred and be continuing at
the date of option exercise or the date fixed for purchase (as such date is
specified below), TowerCo shall have an option, exercisable no earlier than one
hundred eighty (180) days and no later than one hundred twenty (120) days prior
to each Site Expiration Outside Date (the "Option Trigger Window") to elect to
purchase all (but not less than all) of the Sites (excluding, in all cases,
SBC's Improvements and any Space Subtenant's Improvements on such Site(s)) then
subleased under this Sublease which have the same Site Expiration Outside Date,
at a purchase price equal to the aggregate of the Option Purchase Price Amounts
and any additional amounts determined pursuant to Section 3(i) hereof for the
applicable Sites and on the other terms and subject to the conditions herein
specified. TowerCo may exercise such purchase option by submitting to SBC in
writing an offer for all of such Sites within the Option Trigger Window. The
applicable Sublessors shall be obligated to sell, and TowerCo shall be obligated
to buy, all such Sites at a closing to be effective as of the relevant Site
Expiration Outside Date. SBC shall use commercially reasonable efforts to obtain
(i) all consents to TowerCo's purchase of Leased Sites pursuant to this Section
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35 that may be required by the Ground Leases encumbering such Sites and a waiver
of any right of first refusal or similar provision in any Ground Lease giving
the Ground Lessor the right to acquire the Site or Tower in question as a result
of the exercise of such right and (ii) all approvals, waivers or releases from
any contractual obligation under any colocation agreements, master agreements or
other contracts or agreements in existence on the date hereof which would be
violated by the transfer of any Site to TowerCo pursuant to this Section 35. In
the event that SBC cannot obtain such consents or waivers on or prior to the
closing date determined pursuant to Section 35(b), then SBC shall, at TowerCo's
option, enter into alternative arrangements mutually acceptable to SBC and
TowerCo which do not violate the terms of the applicable Ground Leases or other
agreements and which provide TowerCo with rights and benefits comparable to
those afforded by an assignment. Except as provided in this Section 35, TowerCo
shall have no right or option to purchase the Sites subject to this Sublease.
(b) Payment of the Purchase Price. TowerCo shall pay to SBC (as agent for the
applicable Sublessors) the Option Purchase Price Amounts and any additional
amounts determined pursuant to Section 3(i) hereof for the applicable Sites in
cash or immediately available funds on or prior to the closing of such sale. At
the closing of such sale, SBC shall transfer or cause to be transferred the
purchased Sites, at TowerCo's expense, to TowerCo and the Term as to such Sites
shall end. Risk of loss for the Sites purchased pursuant to Section 35 shall
pass from the applicable Sublessor(s) to TowerCo upon payment of the purchase
price therefor. This Sublease shall remain in full force and effect with respect
to Sites subject to TowerCo's binding election under Section 35(a) until the
applicable Site Expiration Outside Date.
(c) Transfer by SBC. Any transfer of Sites by SBC or any SBC Affiliate to
TowerCo pursuant to this Section 35 shall include:
(i) an assignment of Sublessor's interest in any Ground Lease for such
Site, a transfer of fee simple title to the Land for any Site which is
an Owned Site, a transfer of Sublessor's interest in the applicable
Tower and related assets (other than SBC Improvements, including SBC's
and all SBC Affiliates' current or future Communications Equipment)
and all appurtenances thereto; provided that for so long as the Ground
Lease, as amended, modified, or extended, is still in effect, SBC or
any SBC Affiliate shall be entitled to continue to lease the Reserved
Space on each such Site from TowerCo for successive 1 year terms at
rental rate equal to the lesser of the then current market rental
rates for comparable locations as mutually agreed to by SBC or such
SBC Affiliate and TowerCo on an annual basis prior to the commencement
of each lease year or the Leaseback Charge then being charged,
provided that the Leaseback Charge shall thereafter be subject to
increase on an annual basis at the beginning of each 1-year term in an
amount equal to the CPI Change; provided, further however, if TowerCo
and SBC or the applicable SBC Affiliate fail to agree on a rental rate
for one or more of the Sites, such rental rate shall be determined for
each applicable Site by Ernst & Young or another nationally recognized
independent accounting firm mutually acceptable to SBC or the
applicable SBC Affiliate and TowerCo. The cost of the determination of
the rental rate shall be shared equally by SBC and TowerCo. SBC or the
applicable SBC Affiliate shall have the right to elect to terminate
any such lease with respect to a Site as of the expiration of each
annual term by giving no less than sixty (60) days prior written
notice of such termination to TowerCo;
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(ii) to the extent legally transferable, all rights of SBC or any Sublessor
under or pursuant to warranties, representations and guarantees made by
suppliers or manufacturers in connection with such Site, but excluding
any rights to receive amounts under such warranties, representations
and guarantees representing reimbursements for items paid by SBC or a
Sublessor; and
(iii) to the extent legally transferable, all known and unknown rights,
claims, credits, causes of action, or rights to commence any causes of
action or rights of setoff of SBC or a Sublessor against third parties
relating to such Site arising on or after the date of transfer,
including unliquidated rights under manufacturers' and vendors'
warranties, but excluding all amounts representing reimbursements for
items paid by SBC or a Sublessor.
(d) Evidence of Transfer. The Sublessor and TowerCo shall enter into
assignments, deeds (with warranties of title as to Sublessor's actions only),
bills of sale and such other documents and instruments as the other may
reasonably request to evidence any transfer of such Sites.
(e) No Warranties. Any transfer of a Site by a Sublessor or TowerCo pursuant to
this Sublease shall be "AS IS" and without any warranty whatsoever by SBC or
TowerCo, except that in any transfer of a Site by a Sublessor to TowerCo
pursuant to this Sublease, Sublessor shall warrant that it has not previously
transferred title to such Site that is so transferred and that each such Site is
free of Liens created by or through SBC or any SBC Affiliate.
(f) Failure to Transfer by SBC. In the event SBC fails to transfer, in
accordance with the provision of this Section 35 or to make alternative
arrangements, in accordance with the provisions of Section 35(a), one or more of
the Sites for which TowerCo has properly exercised its option under this Section
35 by giving to SBC written notice of its election to purchase such Sites within
the Option Trigger Window and provided that TowerCo has complied with all of its
other obligations under this Section 35, this Sublease shall automatically be
extended (such extension to be at TowerCo's expense) (i) with respect to a
Leased Site, until the sooner to occur of (A) the date which is ninety-nine (99)
years from the relevant Site Expiration Outside Date(s) or (B) one day prior to
the expiration of the relevant Ground Lease (as the same may be renewed or
extended pursuant to Section 3 hereof), and (ii) with respect to an Owned Site,
for a period of ninety-nine (99) years from the Site Expiration Outside Date,
upon receipt by SBC of the applicable Option Purchase Price Amount(s); provided,
however, that such extension shall not preclude any other remedy or remedies
provided in this Sublease or provided for or allowed by law or in equity by
reason of such failure. In the event of such extension of the term of the
Sublease as provided herein, SBC shall have the right to lease the Reserved
Space at the applicable Sites pursuant to the terms of clause 35(c)(i) above.
Such extension shall be conditioned on TowerCo's acquisition of (and the payment
of the Option Purchase Price Amount(s) for) the balance of Sites which were the
subject of the option closing in question and the receipt of any consent, waiver
or release required under the applicable Ground Leases or other agreements or
contracts in existence on the date hereof (which consents, waivers or releases
the parties shall use commercially reasonable efforts to obtain).
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SECTION 36. Net Lease.
This Sublease (along with the corresponding Site Designation
Supplement) is a net lease and, except as otherwise expressly provided in
Sections 13, 19 and 30 hereof, shall not terminate, nor shall TowerCo be
entitled to any abatement, reduction, setoff, counterclaim, defense or deduction
with respect to any Rent or other sum payable hereunder. Except as otherwise
expressly provided in Sections 13, 19 and 30 hereof, the obligation of TowerCo
under this Sublease or any Site Designation Supplement shall not be affected by
reason of: (a) any damage to or destruction of any Site or any part thereof by
any cause whatsoever; (b) any condemnation of any of the Site; (c) any
prohibition, limitation, restriction or prevention of TowerCo's use or enjoyment
of a Site by any person; (d) any matter affecting title to any Site or any part
thereof; (e) any loss of possession by TowerCo of a Site or any portion, by
reason of title paramount or otherwise; (f) the invalidity or unenforceability
of any provision hereof or the impossibility or illegality of performance by SBC
or TowerCo or both; (g) any action of any federal, state, local or foreign
Governmental Authority; or (h) any other cause or occurrence whatsoever, whether
similar or dissimilar to the foregoing. The parties intend that the obligations
of TowerCo hereunder shall continue unaffected unless such obligations shall
have been modified or terminated pursuant to an express provision of this
Sublease.
SECTION 37. Compliance with Specific FCC Regulations.
(a) TowerCo understands and acknowledges that Space Subtenants are engaged in
the business of operating communications equipment, including, without
limitation, Communications Equipment at each Site. The Communications Equipment
is subject to the regulations of the FCC, including without limitation
regulations regarding exposure by workers and members of the public to the radio
frequency emissions generated by SBC's Communications Equipment. TowerCo
acknowledges that such regulations prescribe the permissible exposure levels to
emissions from the Communications Equipment which can generally be met by
maintaining safe distances from such Communications Equipment. In order to
comply with such regulations, TowerCo shall install, or cause the Space
Subtenants to install, at its or their expense, such marking, signage or
barriers to restrict access to any Subleased Property of each Site as TowerCo
deems necessary in order to comply with the applicable FCC regulations. TowerCo
further agrees to post, or to cause the Space Subtenants to post, prominent
signage at all points of entry to the Subleased Property of each Site containing
instructions as to any potential risk of exposure and methods for minimizing
such risk. TowerCo shall cooperate in good faith with SBC to minimize any
confusion or unnecessary duplication that could result in similar signage being
posted with respect to any of SBC's transmission equipment at or near any Site
in respect of any Reserved Space on such Site.
(b) TowerCo further agrees to alert all personnel working at or near each Site,
including TowerCo's maintenance and inspection personnel, to heed all of
TowerCo's or Space Subtenant's signage or restrictions with respect to the
Subleased Property of a Site, to maintain the prescribed distance from the
Communications Equipment, and to otherwise follow the posted instructions.
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TowerCo further agrees to alert each Space Subtenant in advance of any repair or
maintenance work to be performance on any Site which would require work in
closer proximity to the Subleased Property than prescribed by the signage or
restrictions.
(c) TowerCo agrees to cooperate with each Space Subtenant on a going-forward
basis with respect to each Site in order to insure that such Space Subtenant
complies with the applicable FCC regulations.
(d) SBC acknowledges and agrees that its (and any SBC Affiliates')
Communications Equipment at each Site is subject to the regulations of the FCC,
including without limitation regulations regarding exposure by workers and
members of the public to the radio frequency emissions generated by SBC's (and
any SBC Affiliates') Communications Equipment. SBC acknowledges that such
regulations prescribe the permissible exposure levels to emissions from its
Communications Equipment which can generally be met by maintaining safe
distances from such Communications Equipment. SBC shall cooperate in good faith
with TowerCo to minimize any confusion or unnecessary duplication that could
result in similar signage being posted with respect to any of SBC's (and its
Affiliates') transmission equipment at or near any Site in respect of any
Reserved Space on such Site.
(e) SBC further agrees to alert all personnel working at or near each Site,
including SBC's maintenance and inspection personnel, to maintain the prescribed
distance from the Communications Equipment, and to otherwise follow the posted
instructions of TowerCo.
SECTION 38. Guaranty.
(a) TowerCo Parent's Guaranty. TowerCo Parent unconditionally guarantees to SBC,
the Sublessors, the SBC Affiliates, and each SBC Indemnitee (collectively, the
"beneficiaries", individually a "beneficiary") the full and timely payment and
performance and observance of all of the terms, provisions, covenants and
obligations of TowerCo under this Sublease and each Site Designation Supplement
(the "TowerCo Obligations"). TowerCo Parent agrees that if TowerCo defaults at
any time during the Term of this Sublease or any Site Designation Supplement in
the performance of any of the TowerCo Obligations, TowerCo Parent shall
faithfully perform and fulfill all TowerCo Obligations and shall pay to the
applicable beneficiary all attorneys' fees, court costs, and other expenses,
costs and disbursements incurred by the applicable beneficiary on account of any
default by TowerCo and on account of the enforcement of this guaranty.
If TowerCo defaults under this Sublease or any Site Designation
Supplement, and the applicable beneficiary elects to enforce the provisions of
this Section 38, the applicable beneficiary shall promptly give TowerCo Parent
written notice thereof, which notice shall constitute an exercise of the
applicable beneficiary's rights against TowerCo Parent pursuant to this Section
38. Following the receipt of such notice by TowerCo Parent, TowerCo Parent shall
have the same period of time as is afforded to TowerCo under this Sublease or
the applicable Site Designation Supplement to cure such default, but no such
cure period shall diminish the obligations of TowerCo Parent under this Section
38.
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This guaranty obligation of TowerCo Parent shall be enforceable by the
applicable beneficiary in an action against TowerCo Parent without the necessity
of any suit, action, or proceedings by the applicable beneficiary of any kind or
nature whatsoever against TowerCo, without the necessity of any notice to
TowerCo Parent of TowerCo's default or breach under this Sublease or the
applicable Site Designation Supplement, and without the necessity of any other
notice or demand to TowerCo Parent to which TowerCo Parent might otherwise be
entitled, all of which notices TowerCo Parent hereby expressly waives. TowerCo
Parent hereby agrees that the validity of this guaranty and the obligations of
TowerCo Parent hereunder shall not be terminated, affected, diminished, or
impaired by reason of the assertion or the failure to assert by the applicable
beneficiary against TowerCo any of the rights or remedies reserved to the
applicable beneficiary pursuant to the provisions of this Sublease or the
applicable Site Designation Supplement or any other remedy or right which the
applicable beneficiary may have at law or in equity or otherwise.
TowerCo Parent covenants and agrees that this guaranty is an absolute,
unconditional, irrevocable and continuing guaranty. The liability of TowerCo
Parent hereunder shall not be affected, modified, or diminished by reason of any
assignment, renewal, modification or extension of this Sublease or any Site
Designation Supplement or any modification or waiver of or change in any of the
covenants and terms of this Sublease or any Site Designation Supplement by
agreement of a beneficiary and TowerCo, or by any unilateral action of either a
beneficiary or TowerCo, or by an extension of time that may be granted by a
beneficiary to TowerCo or any indulgence of any kind granted to TowerCo, or any
dealings or transactions occurring between a beneficiary and TowerCo, including,
without limitation, any adjustment, compromise, settlement, accord and
satisfaction, or release, or any bankruptcy, insolvency, reorganization,
arrangements, assignment for the benefit of creditors, receivership, or
trusteeship affecting TowerCo. TowerCo Parent does hereby expressly waive any
suretyship defense it may have by virtue of any statute, law, or ordinance of
any state or other governmental authority.
All of the beneficiaries' rights and remedies under this guaranty are
intended to be distinct, separate, and cumulative and no such right and remedy
herein is intended to be the exclusion of or a waiver of any other.
TowerCo Parent hereby waives presentment, demand for performance,
notice of nonperformance, protest, notice of protest, notice of dishonor, and
notice of acceptance. TowerCo Parent further waives any right to require that an
action be brought against TowerCo or any other person or to require that resort
be had by a beneficiary to any security held by such beneficiary.
(b) Wireless Guarantor's Guaranty. Wireless Guarantor unconditionally
guarantees to TowerCo and each TowerCo Indemnitee (collectively, the
"beneficiaries", individually a "beneficiary") the full and timely payment and
performance and observance of all of the terms, provisions, covenants and
obligations of SBC and each Sublessor under this Sublease and each Site
Designation Supplement (the "SBC Obligations"). Wireless Guarantor agrees that
if SBC or a Sublessor defaults at any time during the Term of this Sublease or
any Site Designation Supplement in the performance of any of the SBC
Obligations, Wireless Guarantor shall faithfully perform and fulfill all SBC
Obligations and shall pay to the applicable beneficiary all attorneys' fees,
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court costs, and other expenses, costs and disbursements incurred by the
applicable beneficiary on account of any default by SBC or a Sublessor and on
account of the enforcement of this guaranty.
If SBC or the applicable Sublessor defaults under this Sublease or any
Site Designation Supplement, and the applicable beneficiary elects to enforce
the provisions of this Section 38, the applicable beneficiary shall promptly
give Wireless Guarantor written notice thereof, which notice shall constitute an
exercise of the applicable beneficiary's rights against Wireless Guarantor
pursuant to this Section 38. Following the receipt of such notice by Wireless
Guarantor, Wireless Guarantor shall have the same period of time as is afforded
to SBC or the applicable Sublessor under this Sublease or the applicable Site
Designation Supplement to cure such default, but no such cure period shall
diminish the SBC Obligations of Wireless Guarantor under this Section 38.
This guaranty obligation of Wireless Guarantor shall be enforceable by
the applicable beneficiary in an action against Wireless Guarantor without the
necessity of any suit, action, or proceedings by the applicable beneficiary of
any kind or nature whatsoever against SBC or the applicable Sublessor, without
the necessity of any notice to Wireless Guarantor of such default or breach
under this Sublease or the applicable Site Designation Supplement, and without
the necessity of any other notice or demand to Wireless Guarantor to which
Wireless Guarantor might otherwise be entitled, all of which notices Wireless
Guarantor hereby expressly waives. Wireless Guarantor hereby agrees that the
validity of this guaranty and the obligations of Wireless Guarantor hereunder
shall not be terminated, affected, diminished, or impaired by reason of the
assertion or the failure to assert by the applicable beneficiary against SBC or
the applicable Sublessor any of the rights or remedies reserved to the
applicable beneficiary pursuant to the provisions of this Sublease or the
applicable Site Designation Supplement or any other remedy or right which the
applicable beneficiary may have at law or in equity or otherwise.
Wireless Guarantor covenants and agrees that this guaranty is an
absolute, unconditional, irrevocable and continuing guaranty. The liability of
Wireless Guarantor hereunder shall not be affected, modified, or diminished by
reason of any assignment, renewal, modification or extension of this Sublease or
any Site Designation Supplement or any modification or waiver of or change in
any of the covenants and terms of this Sublease or any Site Designation
Supplement by agreement of a beneficiary and SBC or any Sublessor, or by any
unilateral action of either a beneficiary or SBC or any Sublessor, or by an
extension of time that may be granted by a beneficiary to SBC or any Sublessor
or any indulgence of any kind granted to SBC or any Sublessor, or any dealings
or transactions occurring between a beneficiary and SBC or any Sublessor,
including, without limitation, any adjustment, compromise, settlement, accord
and satisfaction, or release, or any bankruptcy, insolvency, reorganization,
arrangements, assignment for the benefit of creditors, receivership, or
trusteeship affecting SBC or any Sublessor. Wireless Guarantor does hereby
expressly waive any suretyship defense it may have by virtue of any statute,
law, or ordinance of any state or other governmental authority.
All of the beneficiaries' rights and remedies under this guaranty are
intended to be distinct, separate, and cumulative and no such right and remedy
herein is intended to be the exclusion of or a waiver of any other.
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Wireless Guarantor hereby waives presentment, demand for performance,
notice of nonperformance, protest, notice of protest, notice of dishonor, and
notice of acceptance. Wireless Guarantor further waives any right to require
that an action be brought against SBC or any other person or to require that
resort be had by a beneficiary to any security held by such beneficiary.
SECTION 39. Tax Indemnities.
(a) Income Tax Indemnity.
(1) Tax Assumptions. In entering into this Sublease and related documents,
the SBC Group has made the following assumptions regarding the characterization
of the transactions contemplated hereunder for federal income tax purposes (the
"Tax Assumptions"):
(i) for federal income tax purposes, the Sublease will be treated as a
"true lease" with respect to all of the Subleased Property, the
members of the SBC Group will be treated, directly or indirectly
through one or more entities that are classified as partnerships or
disregarded entities for federal income tax purposes, as the owners
and Sublessors of the Subleased Property, and TowerCo will be treated
as the lessee of the Subleased Property;
(ii) following the execution of this Sublease, the SBC Group will be
entitled to deduct, pursuant to Section 168(b) of the Code,
depreciation deductions with respect to the adjusted tax basis in the
Subleased Property using the same depreciation method(s) as in effect
immediately before the execution of this Sublease ("Federal
Depreciation Deductions");
(iii)prepaid Rent will be characterized as a loan under section 467 of the
Code and Treasury Regulations issued thereunder and the SBC Group will
be entitled to deduct interest attributable thereto;
(iv) the only amounts that any SBC Group Member will be required to include
in gross income with respect to the transactions contemplated by this
Sublease and related documents will be (A) Rent as it accrues in
accordance with the terms of this Sublease and the application of
Section 467 of the Code and Treasury Regulations issued thereunder;
(B) any indemnity (including any gross up) pursuant to this Sublease;
(C) any amounts paid or otherwise recognized pursuant to a voluntary
sale or other disposition by any SBC Group Member (other than a sale
or disposition attributable to a default by TowerCo and/or the
exercise of remedies by SBC or any SBC Affiliate under this Sublease)
of any Subleased Property; and (D) proceeds upon TowerCo's exercise of
the purchase option pursuant to Section 35 of this Sublease; and
(v) the combined effective federal and net state income tax rate
applicable to each SBC Group Member will be 39 percent (the "Assumed
Rate"), comprised of 35 percent for the assumed federal rate and 4
percent (which is net of federal income tax benefits) for the assumed
state rate.
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(2) TowerCo's Representations and Covenants. TowerCo hereby represents
and covenants to each SBC Group Member as follows:
(i) TowerCo, any Affiliate of TowerCo, any assignee or sublessee of
TowerCo, and any user (other than SBC or its Affiliates) of any
portion of the Subleased Property will not claim depreciation
deductions as the owner of any of the Subleased Property for federal
income tax purposes during the Term (and thereafter unless TowerCo
purchases such property pursuant to Section 35 hereof), with respect
to such Subleased Property or portion thereof, except with respect to
Alterations financed by TowerCo or such assignee, sublessee, or other
user, nor will they take any other action in connection with filing a
Tax return or otherwise which would be inconsistent with the treatment
of the SBC Group Members as the direct or indirect owners and
Sublessors of the Subleased Property for federal income tax purposes;
(ii) none of the Subleased Property will constitute "tax-exempt use
property" as defined in Section 168(h) of the Code as a result of the
status of TowerCo or any assignee, sublessee, or user (other than SBC
or its Affiliates) of the Subleased Property;
(iii)to the best of TowerCo's knowledge, on the Site Commencement Date, no
Alterations to any of the Subleased Property will be required in order
to render any of the Subleased Property complete for its intended use
by TowerCo except for ancillary Severable Alterations that are
customarily selected and furnished by lessees of property similar in
nature to the Subleased Property;
(iv) Except to the extent that TowerCo may make Non-Conforming Alterations
pursuant to Section 3(i) hereof, TowerCo has no current plan or
intention of making any Alteration or repair with respect to any of
the Subleased Property that would not be treated as severable
improvements or permitted nonseverable improvements within the meaning
of Revenue Procedure 75-21, 1975-1 C.B. 715, or Revenue Procedure
79-48, 1979-2 C.B. 599; (v) TowerCo has no current plan or intention
of making any Alteration or repair with respect to any of the
Subleased Property the value of which as of the end of the Term with
respect to such Subleased Property would compel TowerCo to exercise
any of the purchase options under Section 35 of this Sublease;
(vi) TowerCo is not obligated to exercise any of the purchase options
provided in Section 35 of this Sublease, it has not decided whether it
will exercise any of the purchase options provided in Section 35 of
this Sublease, and it has no plans to enter into or incur such
obligation or to make such decision in the immediate future;
(vii)TowerCo has no reason to believe that the fair market value of any
Subleased Property, determined at the end of the applicable Term
(taking into account inflation or deflation), is equal to or greater
than the Option Purchase Price Amount of such Subleased Property; and
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(viii) TowerCo believes that the Rent with respect to any Subleased
Property is no greater than the fair rental value of such Subleased
Property throughout the Term.
(3) Indemnity for Tax Losses.
(ix) If, as a result of
(A) the inaccuracy of any representation of TowerCo, or the breach of any
covenant of TowerCo, set forth in Section 39(a)(2) hereof;
(B) any act of TowerCo, or any assignee or sublessee of TowerCo or any
user of the Subleased Property (other than SBC or its Affiliates)
during the Term, other than any act required under the Transaction
Documents;
(C) the failure by TowerCo to perform any act required of it under any of
the Transaction Documents;
(D) the failure by TowerCo to perform any act reasonably requested by any
SBC Group Member provided that (1) such act is not inconsistent with
the obligations of TowerCo and other requirements under the
Transaction Documents, (2) such act does not have any adverse effect
on TowerCo, and (3) such SBC Group Member or SBC agrees to reimburse
TowerCo for all reasonable costs incurred in connection with
performing such act;
(E) any disposition of Subleased Property attributable to a default by
TowerCo and/or the exercise of remedies under this Sublease; or
(F) the bankruptcy of TowerCo,
any SBC Group Member (each a "Tax Indemnitee") shall not claim on the relevant
income tax return (based upon a written opinion from independent tax counsel
that there is no reasonable basis that is consistent with the standards provided
for in ABA Formal Opinion 85-352 as in effect on the date hereof for claiming)
all or any portion of the Federal Income Tax Benefits, shall lose the right to
claim all or any portion of the Federal Income Tax Benefits, shall suffer a loss
of, disallowance of, or delay in obtaining all or any portion of the Federal
Income Tax Benefits, or shall be required to recapture all or any portion of the
Federal Income Tax Benefits, or any Tax Indemnitee shall suffer an Inclusion
(any such event being referred to as a "Tax Loss"), then, within thirty (30)
days after receipt of a written demand from or on behalf of the Tax Indemnitee
describing in reasonable detail the Tax Loss and the computation of the amount
payable (a "Tax Indemnity Notice"), TowerCo shall pay to such Tax Indemnitee as
an indemnity the amount specified in the Tax Indemnity Notice. Subject to other
adjustments required by this Section 39(a)(3)(i), such indemnity payment shall
be calculated in the Tax Indemnity Notice to equal, on an After-Tax Basis, the
sum of (y) the amounts of any additional federal and state income taxes payable
by such Tax Indemnitee for the taxable year calculated at the Assumed Rate as
the result of such Tax Loss and any interest thereon (calculated to the date
such payment is made using the actual interest rates for underpayments of tax
applicable to the relevant periods), plus (z) the amount of any penalties and
additions to tax actually payable as a result of such Tax Loss and attributable
thereto. At the option of such Tax Indemnitee, the indemnity payment shall be
determined on a periodic, or "pay as you go," basis, with each such payment
reduced for any reduction in Taxes also calculated at the Assumed Rate resulting
from any Tax benefits realized by such Tax Indemnitee as a result of the event
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giving rise to the indemnity payment. Alternatively, at the option of such Tax
Indemnitee, the indemnity payment shall be a net lump-sum amount, taking into
account all past and anticipated future Tax Losses and Tax savings at the
Assumed Rate, and using a discount rate equal to the Applicable Federal Rate (as
defined in Code section 1274(d)(1) then in effect) to present value future Tax
Losses and Tax savings. Any indemnity payment made pursuant to this Section
39(a)(3)(i) shall be made on an "After-Tax Basis" which means that any such
payment shall also include a "gross-up" for any federal or state income Taxes
(determined at the highest marginal applicable federal and state rates then in
effect) payable by such Tax Indemnitee with respect to the receipt or accrual of
such indemnity payment, including such gross-up. Notwithstanding any other
provision of this Section 39(a)(3)(i) to the contrary, TowerCo shall not be
required to make any payment under this Section 39(a)(3)(i) earlier than, (a) in
the case of a Tax Loss that is not being contested pursuant to Section 39(d)
hereof, the date such Tax Indemnitee (or the common parent of the consolidated
group in which it is a member, as the case may be) files the applicable federal
income Tax return, estimated or final as the case may be, which would first
properly reflect the additional federal income Tax that would be due as a result
of the Tax Loss and (b) in the case of a Tax Loss that is being contested
pursuant to Section 39(d) hereof, thirty (30) days after the date on which a
Final Determination is made (or as otherwise provided in Section 39(d)).
(ii) Verification of Calculations. TowerCo may timely request that any Tax
Indemnity Notice be verified by Ernst & Young or another nationally
recognized independent accounting firm selected by TowerCo and
reasonably acceptable to such Tax Indemnitee. Such verification shall
be at TowerCo's expense unless such accounting firm determines that
the amount payable by TowerCo is more than ten percent less than the
amount shown on the Tax Indemnity Notice, in which event the Tax
Indemnitee shall pay such costs. In order to enable such independent
accountants to verify such amounts, the Tax Indemnitee shall provide
to such independent accountants (for their confidential use and not to
be disclosed to TowerCo or any other person) all information
reasonably necessary for such verification.
(4) Exceptions. Notwithstanding any provision of this Section 39(a) to the
contrary, TowerCo shall not be required to make any payment to any Tax
Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss
occurs as a result of one or more of the following events:
(i) Except to the extent of any inaccuracy of a representation or breach
of covenant of TowerCo in Section 39(a)(2) hereof, any act of TowerCo
or any assignee or sublessee of TowerCo or any user of the Subleased
Property (other than SBC or its Affiliates) other than any act
required under any of the Transaction Documents, or any failure by
TowerCo to perform any act required of it under any of the Transaction
Documents or any act reasonably requested by any SBC Group Member with
respect to which the three conditions in Section 39(a)(3)(i)(D) have
been satisfied, a determination that the Sublease is not a "true
lease" for federal income tax purposes or such Tax Indemnitee is not
the owner or Sublessor of the applicable Subleased Property;
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(ii) Except to the extent caused by any inaccuracy of a representation or
breach of covenant of TowerCo in Section 39(a)(2) hereof, any act of
TowerCo or any assignee or sublessee of TowerCo or any user of the
Subleased Property (other than SBC or its Affiliates) other than any
act required under any of the Transaction Documents, or any failure by
TowerCo to perform any act required of it under any of the Transaction
Documents or any act reasonably requested by any SBC Group Member with
respect to which the three conditions in Section 39(a)(3)(i)(D) have
been satisfied, the voluntary sale, assignment, transfer, or other
disposition or the involuntary sale, assignment, transfer, or other
disposition attributable to the bankruptcy, insolvency or the breach
of any covenant or obligation of the Tax Indemnitee set forth in the
Transaction Documents of or by any such Tax Indemnitee, in either
case, of any of the Subleased Property or portion thereof by any such
Tax Indemnitee other than a sale, assignment, transfer, or disposition
(A) contemplated by the Transaction Documents or otherwise; (B)
otherwise resulting from the exercise by any SBC Group Member of its
rights or performance of its obligations under the Transaction
Documents; or (C) attributable to a default by TowerCo and/or exercise
of remedies under this Sublease;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon
issues unrelated to the transactions contemplated by the Sublease and
related documents;
(v) the inclusion in income by any SBC Group Member on its U.S. federal
income tax return of any amount attributable to an Inclusion unless
(x) such Inclusion is supported by a written opinion of independent
tax counsel that there is no reasonable possibility of success in
taking the position that the amount is not includable in income, or
(y) such Inclusion shall be due to the failure of TowerCo timely to
provide Tax Indemnitee with information reasonably available to
TowerCo that is timely requested in writing by the Tax Indemnitee and
necessary for the Tax Indemnitee to exclude such amounts from income;
and
(vi) any failure of the Tax Indemnitee to have taken all the actions, if
any, required of it by Section 39(d) hereof to contest the Loss and
such failure materially prejudices the ability to contest, and TowerCo
has a reasonable basis for such contest (other than a failure
attributable in whole or part to the failure of TowerCo to follow the
procedures set forth in Section 39(d) hereof).
(b) General Tax Indemnity.
(1) Except as provided in Section 39(b)(2), TowerCo agrees to pay and to
indemnify, protect, defend, save, and keep harmless each SBC Group Member on an
After-Tax Basis, from and against any and all taxes, impositions, fees, levies,
assessments, duties, withholdings, governmental claims, or other charges of any
nature whatsoever (together with any related interest, fines, penalties, or
additions to tax), including without limitation, rental, income, withholding,
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sales, use, transfer, leasing, personal or real property, excise, receipts,
franchise, value-added, stamp, filing, recording, documentation, or license
taxes, however imposed or asserted, by any United States state or local
government or taxing authority (all the foregoing being herein collectively
called "Taxes" or, separately a "Tax", upon or with respect to (A) any of the
Subleased Property, any portion thereof, or any interest therein (B) the
acquisition, purchase, sale, financing, leasing, subleasing, ownership,
maintenance, repair, redelivery, alteration, insuring, control, use, operation,
delivery, possession, repossession, location, storage, refinancing, refund,
transfer of title, registration, reregistration, transfer of registration,
return, or other disposition thereof of any of the Subleased Property or any
portion thereof, or interest therein, (C) the rental payments, receipts, or
earnings arising from the Subleased Property, any portion thereof, or any
interest therein, or payable pursuant to the Sublease, or any other payment or
right to receive payment pursuant to any related document, or (D) any
Alteration, removal, substitution, maintenance, or repair of any of the
Subleased Property.
(i) Exclusions from General Tax Indemnity. The provisions of Section
39(b)(1) shall not apply to, and TowerCo shall have no liability under
Section 39(b)(1) with respect to:
(ii) Taxes on any SBC Group Member (other than such Taxes that are sales,
use, rental, property, stamp, document filing, license, or ad valorem
Taxes, or value added Taxes that are in the nature of or in lieu of
such Taxes) imposed on any such member that are franchise Taxes,
privilege Taxes, doing business Taxes, or Taxes imposed on, based on
or measured by, gross or net income, receipts, capital, or net worth
of any such member which are imposed by any state, local, or other
taxing authority within the United States or by any foreign or
international taxing authority that would have been imposed without
regard to the execution of this Sublease and related documents and the
transactions contemplated thereunder;
(iii)Taxes on any SBC Group Member, including without limitation, sales and
transfer Taxes, that result from any transfer by any SBC Group Member
of any of the Subleased Property other than a sale, assignment,
transfer, or disposition (I) attributable to a default by TowerCo
and/or exercise of remedies under this Sublease or related documents;
(II) resulting from any maintenance, repair, Alteration, substitution,
relocation, or removal of or any addition to any of the Subleased
Property or portion thereof or interest therein, (III) resulting from
any loss, damage, destruction, theft, taking, casualty, condemnation,
confiscation, expropriation, or seizure of any Subleased Property or
portion thereof or interest therein; or (IV) resulting from any
subleasing, permitting use thereof, or relinquishing possession of any
Subleased Property or portion thereof or interest therein;
(iv) Taxes imposed by any jurisdiction on any SBC Group Member solely as a
result of its activities in such jurisdiction unrelated to the
transactions contemplated by the Sublease and related documents;
(v) Taxes on any SBC Group Member that result from the willful misconduct
or gross negligence of any such member or an Affiliate thereof or the
inaccuracy or breach of any representation, warranty, or covenant of
such Tax Indemnitee or an Affiliate thereof under the Transaction
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Documents (except to the extent such inaccuracy or breach is
attributed to an inaccuracy or breach of any representation, warranty
or covenant of TowerCo or an Affiliate under the Transaction
Documents);
(vi) Taxes which are attributable to any period or circumstance occurring
after the expiration or earlier termination of this Sublease, except
to the extent attributable to (I) a failure of TowerCo or any of its
transferees or sublessees or users of the Subleased Property (other
than SBC or its Affiliates) to fully discharge its obligations under
the Sublease and related documents, or (II) Taxes imposed on or with
respect to any payments that are due after the expiration or earlier
termination of the Sublease and which are attributable to a period or
circumstance occurring prior to or simultaneously with such expiration
or earlier termination;
(vii)any Tax that is being contested in accordance with the provisions of
Section 39(d) during the pendency of such contest, but only for so
long as such contest is continuing in accordance with Section 39(d)
and payment is not otherwise required pursuant to Section 39(d); or
(viii) Taxes imposed on any SBC Group Member that are United States federal
or state net income Taxes of any such member.
The provisions of this Section 39(b)(2) shall not apply to any Taxes imposed in
respect of the receipt or accrual of any payment made by TowerCo on an After-Tax
Basis.
(2) Reports. If any report, return, certification, or statement is required to
be filed with respect to any Tax that is subject to indemnification under this
Section 39(b), TowerCo shall timely prepare and file the same to the extent
permitted by law (except for (i) any report, return, or statement relating to
any net income Taxes or, (ii) any report, return, or statement relating to any
other Taxes described in Section 39(b)(2)(i) or any Taxes in lieu of or enacted
in substitution for any of the foregoing, except that, in such cases, TowerCo
shall timely provide information necessary to file such report, return, or
statement or (iii) any other report, return, certification, or statement which
any SBC Group Member has notified TowerCo that such member intends to prepare
and file); provided that any such member shall have furnished TowerCo, at
TowerCo's expense, with such information reasonably necessary to prepare and
file such returns as is within such member's control. TowerCo shall either file
such report, return, certification, or statement and send a copy of such report,
return, certification, or statement to the member, or, where not so permitted to
file, shall notify the member of such requirement within a reasonable period of
time prior to the due date for filing (without regard to any applicable
extensions) and prepare and deliver such report, return, certification, or
statement to the member. In addition, within a reasonable time prior to the time
such report, return, certification, or statement is to be filed, TowerCo shall,
to the extent permitted by law, cause all billings of such Taxes to be made to
each SBC Group Member in care of TowerCo, make payment thereof, and furnish
written evidence of such payment. TowerCo shall furnish promptly upon written
request such data, records and documents as any SBC Group Member may reasonably
require of TowerCo to enable such member to comply with requirements of any
taxing jurisdiction arising out of such member's participation in the
transactions contemplated by this Sublease and related documents.
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(3) Payments. Any Tax indemnified under this Section 39(b) shall be paid
directly when due to the applicable taxing authority if direct payment is
permitted, or shall be reimbursed to the appropriate SBC Group Member on demand
if paid by such member in accordance herewith. Except as otherwise provided in
this Section 39(b), all amounts payable to a SBC Group Member hereunder shall be
paid promptly in immediately available funds, but in no event later than the
later of (i) ten (10) Business Days after the date of such demand or (ii) two
(2) Business Days before the date the Tax to which such amount payable hereunder
relates is due or is to be paid and shall be accompanied by a written statement
describing in reasonable detail the Tax and the computation of the amount
payable. Such written statement shall, at TowerCo's request, as long as payment
is not delayed, be verified by Ernst & Young, or another nationally recognized
independent accounting firm selected by such member. Such verification shall be
at TowerCo's expense unless the accounting firm determines that the amount
payable by TowerCo is more than ten percent less than the amount shown on such
written statement, in which event, the applicable SBC Group Member shall pay
such costs. In the case of a Tax subject to indemnification under this Section
39(b) which is properly subject to a contest in accordance with Section 39(d),
TowerCo (i) shall be obligated to make any advances with respect to such Tax
whenever required under Section 39(d) and (ii) shall pay such Tax (in the amount
finally determined to be owing in such contest) on an After-Tax Basis prior to
the latest time permitted by the relevant taxing authority for timely payment
after a final determination.
(c) Tax Savings. If, by reason of any payment made to or for the account of any
Tax Indemnitee by TowerCo pursuant to Section 39(a) or 39(b), such Tax
Indemnitee at any time realizes a reduction in any Taxes or receives a refund
which was not taken into account previously in computing such payment by TowerCo
to or for the account of the Tax Indemnitee, then the Tax Indemnitee shall pay
to TowerCo an amount equal to such actual reduction in Taxes or such refund
(including interest received), plus the amount of any additional reduction in
Taxes of the Tax Indemnitee attributable to the payment made by the Tax
Indemnitee to TowerCo pursuant to this sentence; provided, however, that (A) the
Tax Indemnitee shall not be obligated to make such payment with respect to any
net Tax savings or refund to the extent that the amount of such payment would
exceed the excess of (x) all prior indemnity payments (excluding costs and
expenses incurred with respect to contests) made by TowerCo with respect to the
Tax being refunded or reduced pursuant to Section 39(a) or 39(b), as the case
may be, over (y) the amount of all prior payments by the Tax Indemnitee to
TowerCo hereunder with respect to such Tax provided that any such excess tax
savings realized (or deemed realized) by such Tax Indemnitee which are not paid
to TowerCo as a result of this subclause (A) shall be carried forward and reduce
TowerCo's obligations to make subsequent payments to such Tax Indemnitee
pursuant to Section 39 hereof; and (B) if any such Tax savings or refund
realized by such the Tax Indemnitee, or any tax savings taken into account for
purposes of determining "After-Tax Basis" shall be lost or otherwise determined
to be unavailable, such lost or otherwise unavailable Tax savings or refund
shall be treated as a Tax for which TowerCo must indemnify the Tax Indemnitee
pursuant to Section 39(a) or 39(b), as the case may be (without regard to the
exceptions in Section 39(a)(4) or 39(b) other than the Section 39(a)(4)(iii),
39(a)(4)(iv), or 39(b)(2)(iv)).
(d) Contest Rights. In the event that any Tax Indemnitee receives any written
notice of any potential claim or proposed adjustment against such Tax Indemnitee
that would result in a Tax Loss against which TowerCo may be required to
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indemnify pursuant to Section 39(a) or 39(b) (a "Tax Claim"), such Tax
Indemnitee shall promptly notify TowerCo thereof and provide TowerCo with
relevant information thereto; provided, however, that the failure by the Tax
Indemnitee to provide any such information shall not be treated as a failure to
comply with this Section 39(d) unless the failure materially prejudices the
conduct of the contest hereunder. TowerCo may require the Tax Indemnitee to
contest such Tax Claim at TowerCo's expense and, in that event, the Tax
Indemnitee shall consult with TowerCo in good faith, but the Tax Indemnitee
shall retain ultimate control over such contest. Notwithstanding the immediately
preceding sentence, the Tax Indemnitee shall not be obligated to contest such
Tax Claim unless (1) prior to taking the first such required action, TowerCo
shall have furnished to the Tax Indemnitee, in the case of a contest with
respect to federal income Taxes, with an opinion of a nationally recognized,
independent tax counsel chosen by TowerCo and reasonably acceptable to the Tax
Indemnitee, or, in the case of a contest with respect to other Taxes, with an
opinion of a qualified tax counsel chosen by TowerCo and reasonably acceptable
to the Tax Indemnitee, to the effect that there is a reasonable basis that is
consistent with the standards provided for in ABA Formal Opinion 85-352 as in
effect (on the date hereof) for the position to be asserted in contesting the
matter in question, (2) no event of default by TowerCo under this Sublease shall
have occurred and be continuing, (3) such contest does not involve a material
risk to the Tax Indemnitee of sale, forfeiture, or loss of, or the creation of
any lien on, any of the Subleased Property or the imposition of criminal
penalties, (4) TowerCo shall have acknowledged, in writing, that the contest is
with respect to a liability that is indemnifiable by TowerCo pursuant to the
terms of this Section 39(d), (5) if TowerCo reasonably requests, and the Tax
Indemnitee elects to pursue, a contest that requires payment of the Tax as a
condition to pursuing the contest, TowerCo shall loan, on an interest-free
basis, sufficient funds to the Tax Indemnitee to pay the Tax and any interest or
penalties due on the date of payment, and shall fully indemnify the Tax
Indemnitee for any adverse Tax consequences resulting from such advance. The Tax
Indemnitee shall not make, accept, or enter into a settlement or other
compromise with respect to any Taxes indemnified pursuant to Section 39(a) or
forego or terminate any such proceeding with respect to Taxes indemnified
pursuant to this Section 39(b), without the prior written consent of TowerCo,
which consent shall not be unreasonably withheld. If TowerCo requests in writing
that the Tax Indemnitee accept a settlement of a claim offered by the IRS (other
than an offer conditioned upon the Tax Indemnitee's agreement with respect to
any issue wholly or partly unrelated to the transactions contemplated by the
Transaction Documents), the Tax Indemnitee shall either accept such settlement
offer or agree with TowerCo that TowerCo's liability pursuant to Section 39
hereof shall be limited to an amount calculated on the basis of such settlement
offer. The Tax Indemnitee shall not be required to appeal any adverse decision
of the United States Tax Court, a Federal District Court, or any comparable
trial court.
SECTION 40. General Provisions.
(a) Notices. Whenever any notice, demand or request is required or permitted
under this Agreement, such notice, demand or request shall be in writing and
shall be delivered by hand, be sent by registered or certified mail, postage
prepaid, return receipt requested, or be sent by nationally recognized
commercial courier for next business day delivery, to the addresses set forth
below, or to such other addresses as are specified by written notice given in
accordance herewith, or shall be transmitted by facsimile (with a copy to be
sent by nationally recognized courier for next business day delivery) to the
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number for each Party set forth below their respective executions hereof, or to
such other numbers as are specified by written notice given in accordance
herewith. All notices, demands or requests delivered by hand shall be deemed
given upon the date so delivered; those given by mailing as hereinabove provided
shall be deemed given on the date of deposit in the United States Mail; those
given by commercial courier as hereinabove provided shall be deemed given on the
date of deposit with the commercial courier; and those given by facsimile shall
be deemed given on the date of facsimile transmittal. Nonetheless, the time
period, if any, in which a response, or action in response, to any notice,
demand or request must be given shall commence to run from the date of receipt
of the notice, demand or request by the addressee thereof. Any notice, demand or
request not received because of changed address or facsimile number of which no
notice was given as hereinabove provided or because of refusal to accept
delivery shall be deemed received by the Party to whom addressed on the date of
hand delivery, on the date of facsimile transmittal, on the first calendar day
after deposit with commercial courier, or on the third calendar day following
deposit in the United States Mail, as the case may be.
If to TowerCo:
Southern Towers, Inc.
c/o SpectraSite Communications, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: General Counsel
Telecopy: (919) 468-8522
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Mitchell L. Berg
Bruce A. Gutenplan
Telecopy: (212) 757-3990
If to SBC or any SBC Affiliate:
SBC Tower Holdings LLC
17330 Preston Road, Suite #100A
Dallas, TX 75252
Attention: General Counsel
Telecopy: 972-733-2021
with a copy to:
SBC Communications Inc.
175 E. Houston
4th Floor
San Antonio, TX 78205
Attention: Vice President and Assistant
General Counsel
Telecopy: (210) 351-3488
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If to TowerCo Parent:
SpectraSite Holdings, Inc.
c/o SpectraSite Communications, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: General Counsel
Telecopy: (919) 468-8522
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Mitchell L. Berg
Bruce A. Gutenplan
Telecopy: (212) 757-3990
If to Wireless Guarantor:
SBC Wireless, LLC
c/o SBC Wireless, Inc.
17330 Preston #100A
Dallas, TX 75252
Attention: General Counsel
Telecopy: (972) 773-2021
(b) Facsimile as Writing. The Parties expressly acknowledge and agree that,
notwithstanding any statutory or decisional law to the contrary, the printed
product of a facsimile transmittal shall be deemed to be "written" and a
"writing" for all purposes of this Sublease.
(c) Binding Effect. This Sublease shall be binding upon and enforceable against,
and shall inure to the benefit of, the Parties hereto and their respective
heirs, legal representatives, successors and permitted assigns.
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(d) Headings. The use of headings, captions and numbers in this Sublease is
solely for the convenience of identifying and indexing the various provisions in
this Sublease and shall in no event be considered otherwise in construing or
interpreting any provision in this Sublease.
(e) WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS SUBLEASE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR ANY EXERCISE
BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THIS SUBLEASE (INCLUDING, WITHOUT
LIMITATION, ANY ACTION TO TERMINATE THIS SUBLEASE, AND ANY CLAIM OR DEFENSE
ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO
THIS SUBLEASE.
(f) Exhibits. Each and every exhibit referred to or otherwise mentioned in this
Sublease is attached to this Sublease and is and shall be construed to be made a
part of this Sublease by such reference or other mention at each point at which
such reference or other mention occurs, in the same manner and with the same
effect as if each exhibit were set forth in full and at length every time it is
referred to or otherwise mentioned.
(g) Defined Terms. Capitalized terms used in this Sublease shall have the
meanings ascribed to them at the point where first defined, irrespective of
where their use occurs, with the same effect as if the definitions of such terms
were set forth in full and at length every time such terms are used.
(h) Pronouns. Wherever appropriate in this Sublease, personal pronouns shall be
deemed to include the other genders and the singular to include the plural.
(i) Severability. If any term, covenant, condition or provision of this
Sublease, or the application thereof to any person or circumstance, shall ever
be held to be invalid or unenforceable, then in each such event the remainder of
this Sublease or the application of such term, covenant, condition or provision
to any other person or any other circumstance (other than those as to which it
shall be invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
(j) Non-Waiver. Failure by any Party to complain of any action, non-action or
breach of any other Party shall not constitute a waiver of any aggrieved Party's
rights hereunder. Waiver by any Party of any right arising from any breach of
any other Party shall not constitute a waiver of any other right arising from a
subsequent breach of the same obligation or for any other default, past, present
or future.
(k) Rights Cumulative. All rights, remedies, powers and privileges
conferred under this Sublease on the Parties shall be cumulative of and in
addition to, but not restrictive of or in lieu of, those conferred by law.
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(l) Time of Essence. Time is of the essence of this Sublease. Anywhere a day
certain is stated for payment or for performance of any obligation, the day
certain so stated enters into and becomes a part of the consideration for this
Sublease. If any date set forth in this Sublease shall fall on, or any time
period set forth in this Sublease shall expire on, a day which is a Saturday,
Sunday or federal or state holiday, such date shall automatically be extended
to, and the expiration of such time period shall automatically to be extended
to, the next day which is not a Saturday, Sunday, federal or state holiday or
other non-business day. The final day of any time period under this Sublease or
any deadline under this Sublease shall be the specified day or date, and shall
include the period of time through and including such specified day or date.
(m) Applicable Law. This Sublease shall be governed by, construed under and
interpreted and enforced in accordance with the laws of the State of New York,
without regard to conflicts of law. Notwithstanding the foregoing, to the extent
the application of the law of the state in which the affected Site is located is
mandatory rather than permissive (such as, by way of example, with respect to
the taking of possession of leased premises by a lessor or procedural matters
relating to the exercise of remedies with respect to leased premises by a
lessor), the laws of such state shall govern.
(n) Entire Agreement. This Sublease, together with all other agreements executed
contemporaneously herewith, contains the entire agreement of the Parties with
respect to the subject matter hereof, and all representations, warranties,
inducements, promises or agreements, oral or otherwise, between the Parties not
embodied in this Sublease shall be of no force or effect.
(o) Modifications. This Sublease shall not be modified or amended in any respect
except by a written agreement executed by the Parties in the same manner as this
Sublease is executed.
(p) Counterparts. This Sublease may be executed in several counterparts, each of
which shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.
(q) Attorneys' Fees. In the event of any litigation arising under or in
connection with this Sublease, the prevailing Party shall be entitled to recover
from the other Party the expenses of litigation (including reasonable attorneys'
fees, expenses and disbursements) incurred by the prevailing Party.
(r) Authority. Each Party hereto warrants and represents that such Party has
full and complete authority to enter into this Sublease and that each individual
executing this Sublease on behalf of such Party has been fully authorized to
execute this Sublease on behalf of such Party and that such Party is bound by
the signature of such representative.
(s) Counsel. Each Party hereto warrants and represents that such Party has been
afforded the opportunity to be represented by counsel of its choice in
connection with the execution of this Sublease and has had ample opportunity to
read, review, and understand the provisions of this Sublease.
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(t) No Construction Against Preparer. No provision of this Sublease shall be
construed against or interpreted to the disadvantage of any Party by any court
or other governmental or judicial authority by reason of such Party's having or
being deemed to have prepared or imposed such provision.
(u) Power of Attorney by SBC Group; Authorization.
(i) The Sublessors and each of them, hereby irrevocably constitute and
appoint SBC (the "Agent") as their agent to enter into, modify, amend
or otherwise change this Sublease, any Site Designation Supplement or
any of their respective terms or provisions, to take all actions and
to execute all documents necessary or desirable to effect the terms of
this Sublease, and to take all actions and to execution all documents
which may be necessary or desirable in connection therewith, to give
and receive consents and all notices hereunder, to negotiate and
settle Claims for indemnification, and to perform any other act
arising under or pertaining to the Sublease and the Site Designation
Supplements. The Sublessor, and each of them, agree that service of
process upon the Agent in any action or proceeding arising under or
pertaining to the Sublease shall be deemed to be valid service of
process upon such Sublessor, and each of them, and any claim by
TowerCo against the Sublessors, or any of them, in respect to the
Sublease may be asserted against, and settled with, the Agent. The
Agent shall be deemed to have accepted the appointment herein upon its
execution of this Sublease.
(ii) Nothing contained herein shall be deemed to make the Agent liable to
the Sublessors because of service in its capacity as agent. In
performing any of its duties hereunder, the Agent shall not incur any
liability to the Sublessors for losses, damages, Liabilities or
expenses, except for its fraud, willful default or gross negligence.
(iii)It is expressly understood and agreed that this power of attorney and
the agency created hereby is coupled with an interest of the
respective Parties hereto and shall be binding and enforceable on and
against the respective successors and assigns of the Sublessors, and
each of them, and this power of attorney shall not be revoked or
terminated and shall continue to be binding and enforceable in the
manner provided herein.
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SIGNATURE PAGE TO LEASE AND SUBLEASE
IN WITNESS WHEREOF, the Parties have caused this Sublease to be
executed and sealed by their duly authorized representatives, all effective as
of the day and year first written above.
TOWERCO:
SOUTHERN TOWERS, INC.
By /s/Glen Spivak
-----------------------------------------------
Glen Spivak
Vice President
SOUTHERN TOWERS OF DELAWARE, INC.
By /s/Glen Spivak
-----------------------------------------------
Glen Spivak
Vice President
SBC TOWER HOLDINGS LLC,
a Delaware limited liability company
By: New Southwestern Bell Mobile Systems, Inc.,
its Managing Member
By /s/Gregory L. Gibson
-----------------------------------------------
Gregory L. Gibson, as attorney-in-fact
TOWERCO PARENT:
SPECTRASITE HOLDINGS, INC.
By /s/Richard Byrne
-----------------------------------------------
Richard Byrne
Executive Vice President
WIRELESS GUARANTOR:
SBC WIRELESS, LLC
By /s/Kathy Rehmer
-----------------------------------------------
Kathy Rehmer, as attorney-in-fact