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RLL
AGREEMENT TO LEASE REAL ESTATE
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THIS AGREEMENT TO LEASE REAL ESTATE (this "Agreement") is made as of
Friday, July 26, 1996, between STRAZZULA BROTHERS COMPANY INC., (hereinafter
"Lessor") and AMERICAN TOWER SYSTEMS, INC., a Delaware corporation, with an
address of 6400 N. Congress Avenue, Suite 1750, Boca Raton, Florida 33487 (hereinafter
"Lessee") (collectively, the "Parties").
WHEREAS, Lessor is the owner in fee simple of certain real property in northern St.
Lucie County, more fully described in the description attached hereto as Exhibit A and
incorporated herein by reference (the "Property"); and
WHEREAS, Lessee desires to lease the Property from Lessor, and Lessor desires
to lease the Property to Lessee on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual promises contained herein and
for other good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, and in consideration of the terms and conditions set forth herein and with
the intention of being legally bound hereby, Lessee and Lessor agree as follows:
1. LEASE: Owner leases to Lessee portions of the Property consisting of
an area which is 300' X 300' and described in Exhibit A, together with appurtenant Lease
easements for ingress and egress, 24 hour per day, seven days per week, on foot or by
motor vehicle (including by truck). Lessee shall have the right to install and maintain
transmission and utility wires and cables, conduits and pipes on the Property including
over, under or along a 20.foot right of way extending from the nearest public right-of-way for
use by the public utility, at no cost to Lessor.
(a) Commencement and Term of Lease: This Agreement shall
commence upon the date upon which all zoning and permits necessary for the Lessee to
build up to a 300' (three hundred) tower (the "Tower) on the Property have been secured
and construction is started ( the "Commencement Date"), and shall expire on the twenty-
fifth (25th) anniversary of the Commencement Date. If Lessee is unable to secure all
required zoning and permits for the Tower within 180 days of the date upon which this
Agreement is executed, either party may terminate this Agreement at its option with no
further liability to the other party.
(b) Renewal: This Agreement should renew for up to three (3)
successive five (5) year periods at a lease rate equal to the rate being paid at the
conclusion of the prior term, plus inclusion of the annual adjustment described in paragraph
1 (c) (2) below, unless written notice from Lessee is provided to Lessor ninety (90) days
prior to the termination of the then current term in effect.
(c) Lease Payment Commencing upon the Commencement Date,
The Lessee shall pay Lessor lease payments by the 15th calendar day of each month as
follows:
annually, paid in monthly installments
o spots on the Tower reserved for the Lessee or its successors,
or assigns. This annual rental rate will be adjusted upwards every five years by the
2. LESSEE'S DEFAULT: In the event of default by Lessee hereunder,
including without limitation nonpayment of any lease payment, which nonpayment remains
uncured for thirty (30) Days from the date on which Lessor gives Lessee written notice that
said payment was due, Lessor may declare Lessee in default and may seek to evict said
Lessee. In the event of any litigation over the performance of this Agreement by either
party, the prevailing party shall collect its reasonable costs and legal fees from the party
which did not prevail.
3. LESSOR'S DEFAULT: In the event of default by Lessor hereunder,
Lessee may, at its option, elect to enforce the terms hereof in any court of competent
jurisdiction or demand and be entitled to any and all appropriate damages in connection
with such default.
4. TITLE: Lessor represents and warrants to Lessee that as of the signing of this
Agreement it holds marketable title to the Property (subject only to a first and second
mortgage in favor to Metropolitan life and First Union) and will provide satisfactory evidence
thereof on or before the Commencement Date. If Lessor is unable to demonstrate on or
before the Commencement Date that it has an unencumbered and marketable title to the
Property, Lessor shall have thirty (30) days to remedy the title defects.
5. POSSESSION: Subject to paragraph 4 above, Lessor shall deliver and
Lessee shall accept possession of the Property on the Commencement Date. Lessor
represents that as of the Commencement Date, no party will possess any leasehold rights
in or to the Property. Lessor shall have the right to continue to occupy the Property as well
as Lessee, and shall carry on such activities as are consistent with law and which do not
interfere with Lessee's right to use the Property for a transmission facility as detailed in
paragraph 8 (a) below.
6. TAXES: All taxes and assessments which are due and owing or have
become a lien upon the Property as of the Commencement Date shall be paid by Lessor.
Lessee shall have the right to cure and remedy any future unpaid and delinquent taxes or
liens owing upon the Property and subtract a like amount, along with any reasonable costs
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and fees arising from the processing of such payments, from any future Lease payments
payable to Lessor.
7. BROIERIAGENT PARTICIPATION: A Broker's fee is part of this
transaction and will be paid by the Lessee. The only Broker's fee involved in this
transaction is between Chapman and Chapman Associates and the Lessee. The amount
of the brokerage fee has been negotiated at $7,500.
8. GENERAL PROVISIONS: The following general provisions shall apply to
the leasehold granted by this Agreement:
(a) Purpose: Lessee shall have the exclusive use of the Property for
purposes of operating a communications facility, limited to the erection of a transmission
tower, satellite downlink antennas, transmitter and receiver buildings, other receive and
transmit antennas, and other secondary communications facilities. Lessor will grant
approval to the construction plans of Lessee prior to the Commencement Date, which
approval shall not be unreasonably withheld. Lessee's operation of its facility shall at all
times be consistent with law, ordinance and administration regulation. Lessor's initialing of
Exhibit A shall signify Lessor's approval of the location of the Leased Premises and
appurtenant Lease easements Lessor also grants to Lessee rights to (i) install electric lines
from a main feed of off -site power source to the equipment and telephone lines from a main
or off -site telephone entry point to the equipment, and (ii) erect, construct or make Property
improvements, alterations or additions ("Lessee's Changes") appropriate for Lessee's use.
Lessee's Changes may include, if permitted by Law, fencing and landscaping the Leased
Premises. All Lessee's Changes shall remain Lessee's personal property, save for
culverts, cattleguards, fencing, and permanently installed drainage structures, which will
remain after lease expiration.
(b) Assignment and Sublease: Lessee may freely assign its rights under
this Agreement or sublet the Property or facilities on the Property subject to Lessor's written
approval, which shall not be unreasonably withheld.
(c) Condition of Premises: Lessee agrees that no representation as
to condition or repair of the Property, and no promise to alter, repair or improve the
Property has been made by Lessor. Lessee shall deliver the Property to Lessor in good
repair at the expiration of this Agreement, and shall remove all fixtures which it has placed
on the Property prior to the expiration of the lease term, yielding up and delivering the
Property in like condition as when taken, save for culverts, cattleguards, fencing, and
permanently installed drainage structures.
(d) Right To Enter Property: Lessor shall have full right to inspect or
gain access to the leasehold improvements made by Lessee in or to the Property at all
times given prior notice to the Lessee.
(a) Alterations: Lessee may freely make alterations, decorations,
additions or improvements in or to the Property, provided that said alterations, additions,
decorations or improvements are in compliance with federal, state and local laws,
regulations and ordinances. Any mechanic's lien filed against the Property for work
claimed to have been done for or materials claimed to have been furnished to Lessee shall
be discharged by Lessee within ten (10) days after filing. Lessor shall have the right, but
not the obligation, to pay or discharge any mechanic's lien. If Lessor should elect to
exercise this right, Lessee shall pay Lessor the amount so expended, within 10 days of
notice by Lessor of said obligation. Lessor will allow Lessee to make reasonably
appropriate alterations to the Property in order to accomplish Lessee's Changes, in
accordance with plans and specifications ("Plans') to be submitted to Lessor and reviewed
for approval not later than five (5) days from submission. After Lessor's written acceptance
of any Plans submitted by Lessee, the Plans shall be determined to be accepted to Lessor,
and shall incorporated in the Lease as E-4iibit T!'.
(f) Lessor's Nonliability: Lessor shall not be responsible or liable to
Lessee for any loss or damage that may be occasioned by or through the acts of omissions
of persons occupying adjoining property. In addition, Lessor shall not be liable for any
damage or injury to any person or property which occurs on the Property due to Lessee's
actions or omissions. Lessee shall maintain commercial liability insurance on the Property
of a type qW level consistent with good communications industry practice, but in no event
less than 411000and Lessor shall be named as an additional insured on said policy at
no cost to Lessor.
(g) Eminent Domain: If, during the tern of this Agreement,
proceedings shall be instituted under the power of eminent domain which shall result in an
eviction, total or partial, of Lessee, at the time the trial of such proceedings shall
commence, this Agreement shall be voidable at the option of Lessee and the terms above
shall cease and terminate if Lessee elects to void this Agreement. If the Lessee continues
in possession, it shall be as a Lessee from month to month and for no longer terms,
anything in this instrument to the contrary notwithstanding.
(h) Remedies Not Exclusive: Each of the rights provided in this
Agreement shall be cumulative.
(i) Right To Mortgage: Lessor shall have the right to mortgage its
property and Lessee agrees to subordinate this lease in exchange for an appropriate
agreement for quit enjoyment following foreclosure or a foreclosure event.
G) Quiet Enjoyment: Upon Lessee paying the rent and performing all
of the other provisions of this Agreement, Lessor agrees that Lessee shall peacefully and
quietly have, hold and enjoy the Property during the tern of this Agreement.
9. MISCELLANEOUS: The following additional terms and conditions apply to
the performance of this Agreement by the parties:
(a) Lessor agrees that Lessee's ability to use the Leased Premises is
contingent upon its suitability for Lessee's intended use from a technical engineering basis
and Lessee's ability to obtain any and all governmental leases, permits, and approvals
required or deemed necessary or appropriate by Lessee and/or govenmental authoritys for
its use of the Leased Premises (called "Governmental Approvals"). Lessor agrees to
cooperate with Lessee, and at Lessee's expense join in any applications for Governmental
Approvals. Lessor specifically authorizes Lessee to prepare, execute and file all necessary
or appropriate applications to obtain Governmental Approvals for its use under this Lease.
Lessee shall have a period of 180 days, from the execution date of this
Agreement, unless extended in writing by Lessor, to obtain all required governmental
approvals and licenses. Failure of Lessee to obtain said approvals, licenses or permits
shall render this Agreement null and void.
(b) Lessor also agrees that Lessee's ability to use the Leased Premises is
contingent upon the completion of contract arrangements with its sublicensee(s).
(c) Waiver of Default: Either party may waive or remedy any default in
any manner without waiving such default remedied and without waiving any other prior or
subseque0 clefault;ftiind either party may waive or delay the exercise of any right or remedy
under this Agreement without waiving that right or remedy or any other right or remedy
hereunder. No waiver of any of the terms, provisions or conditions hereof shall be effective
against either party unless the same is in writing and signed by the waiving party.
(d) Binding on Assigns: This Agreement shall be binding upon, and shall
inure to the benefit of the respective heirs, executors, administrators, successors and
assigns of the Parties.
(e) Survival of Covenants and Warranties: Each of the agreements,
covenants and warranties on the part of the Parties to this Agreement shall be deemed and
construed to be on a continuing basis and shall survive the execution and deliver of this
Agreement.
(f) Notices: All notices, demands or requests required or permitted
under this Agreement to be given by or to either of the Parties (i) shall be in writing and (ii)
unless and until otherwise speed in a written notice by the respective parties or any of
them, shall be sent to the parties at their following respective addresses:
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If to the Lessor.
Mr. Joseph P. Strazzulla, President
Strazzulla Bros. Co., Inc
PO Box 3152
Ft. Pierce, Florida 34948
Phone (561) 461-5200
Fax (561) 4615203
If to the Lessee: American Tower Systems, Inc.
6400 N. Congress Avenue
Suite 1750
Boca Raton, FL 33487
Atten: James S. Eisenstein
Telephone: 407-998-2280
Fax 407-998-2278
or to such other address as either party from time to time shall designate by written notice
to the other. Each such notice, demand or request shall be deemed to have been properly
served for all purposes if personally delivered or sent by Registered or Certified Mail, return
receipt requested, postage prepaid, to its addressee at its address as set forth herein
above, or by recognized overnight courier service. Each such notice, demand or request
so mailed by either party shall be deemed to have been received by its addressee on the
first business day after the day of mailing.
(e) Integration; Amendment; Modification: This Agreement represents
the entire agreement of the Parties as to the subject, and there exists no other oral or
written agreement or understanding which is not a part of this Agreement or which shall
have no force or effect. This Agreement shall not be amended or modified except by
written instrument executed by the Parties.
(f) Separability: Each section, subsection and lesser section of this
Agreement constitutes a separate and distinct undertaking, covenant or provision hereof.
In the event that any provision of this Agreement shall be determined by a court of
competent jurisdiction to be unlawful, such provision shall be deemed severed from this
Agreement, but every other provision of this Agreement shall remain in full force and effect.
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(g) Law of Forum; Venue: This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida. The Parties agree that
this Agreement was executed in St. Lucie County, Florida and the Parties contemplate that
its performance is to occur in St. Lucie County, Florida. Thus, the Parties agree that the
sole venues for all actions brought pursuant to this Agreement shall be the courts of law or
equity of St. Lucie County, Florida or in the courts of the United States of America located
in Ft. Pierce, Florida.
(h) Titles; Pronouns: Titles at the beginning of paragraphs,
subparagraphs, sections and subsections of this Agreement are placed there for the
convenience of the reader, and are of no force or effect. To the extent that said titles are
expressed or implied contrary to any provision in this Agreement, the terms of the provision
and not the title governs the interpretation of this Agreement. Pronouns, regardless of
gender, shall be interpreted as if they were of the gender of the noun to which they refer.
(i) Interpretation: Neither this Agreement nor any provision contained
herein shall be interpreted for or against either Party solely because that Party or that
Party's legal representative crafted the provision.
0) Counterparts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall constitute the
same agreement.
E
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound, have
executed and delivered this Agreement on the day and year first above written.
By.
Date: c/ w / 1996
AMERICAN TOWER SYSTEMS, INC.
By:
S. Eisenstein
1perating Officer
Date: .1996