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HomeMy WebLinkAbout813700_566925_Redacted Ground Lease_Including First and Second Amendments_RSECOND AMENDMENT TO OPTION AND LEASE AGREEMENT THIS SECOND AMENDMENT TO OPTION AND LEASE AGREEMENT (this "Amendment") dated as of the latter of the signature dates below (the "Effective Date") by and between J & E HALE ENTERPRISES, INC., a Florida corporation ("Lessor") having a mailing address of 5171 Yacht Club Road, Jacksonville, FL 32210 and CROWN CASTLE SOUTH LLC, a Delaware limited liability company ("Tenant"). WITNESSETH: WHEREAS, Joseph H. Hale and Eleanor H. Hale, individually and as Trustees of the Joseph H. Hale and Eleanor H. Hale Revocable Living Trust (collectively, the "Hales") and BellSouth Mobility, Inc. ("BellSouth'), a Georgia corporation, entered into that certain Option and Lease Agreement dated December 9, 1997 which is recorded in the Official Records of Saint Lucie County, Florida in Book 1177, Page 2662 and as Instrument No. 1669519; as amended by that certain First Amendment to Option and Lease Agreement date August 26, 1998 (collectively, the "Agreement"), whereby the Hales conveyed a lease to BellSouth for a portion of land consisting of approximately 22,500 square feet in Saint Lucie County, Florida, together with access and utility easements thereto, as more particularly described in the Agreement (the "Property"); and WHEREAS, Lessor is the current fee owner of the land of which the Property is a part; and WHEREAS, New Cingular Wireless PCS, LLC, a Delaware limited liability company, successor in interest to Bellsouth, assigned all its right, title and interest in the Agreement to Tenant pursuant to that certain Assignment and Assumption of Option and Lease Agreement dated April 11, 2011 as evidenced by that certain Memorandum of Assignment and Assumption of Option and Lease Agreement dated April 11, 2011 and recorded May 25, 2011 at File No. 3595583, Official Record Book 3296, Page 1514 of the Official Public Records of Saint Lucie County, Florida; and WHEREAS, the Agreement has an initial term and renewal terms that will expire on June 30, 2023 (the "Original Term"), and Lessor and Tenant desire to enter into this Amendment in order to amend the Agreement to, among other things, provide for additional extension terms beyond the Original Term. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, Lessor and Tenant agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby made a part hereof for all purposes. 2. Status of Parties/Estoppel. Lessor acknowledges that the Agreement is in full force and effect and Lessor does not have any presently existing claims against Tenant or any offsets against rent due under the Agreement. There are no (i) defaults of Tenant under the Site Name: Minute Maid BRA360 BU#: 813700 8y (initials D.1LP—)()JLs SUN: 13� ( Lafflft&ic Agreement, or (ii) existing circumstances which with the passage of time, or notice, or both, would give rise to a default under the Agreement. 3. Defined Terms. Any capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement. 4. Initial Term Commencement Date. The parties hereby ratify and affirm that the commencement date for the Initial Term of the Agreement was July 1, 1998. 5. Section 4 Amendment: Term. Section 4 of the Agreement is hereby amended by deleting the current text and inserting in lieu thereof the following: "Tenant shall have the option to extend this Agreement for nine (9) additional consecutive five (5) year terms, and such extensions shall automatically occur unless Tenant gives Lessor written notice of its intention not to extend this Agreement at least ninety (90) days prior to the end of the then current term." The Initial Term and any extension terms shall be collectively referred to herein as the "Lease Term." The parties acknowledge that pursuant to this Amendment the Lease Term exceeds the Original Term by twenty-five (25) years and that, unless terminated sooner, the final extension terms of the Agreement will expire on June 30, 2048. 6. Rent Adjustment. (a) On the first (151) day of the second (2"d) full month following full execution of this Amendment, the monthly rent shall increase to an amount equal to The monthly rent shall continue to adjust pursuant to the terms of the Agreement, as amended herein. (b) Commencing Julyl, 2014, and every year thereafter (the "Adjustment Date"), the annual rent shall increase based on the Consumer Price Index published by the Bureau of Labor and Statistics of the United States Department of Labor for all Urban Consumers, US City Average ("CPI-U"), indicator and shall be determined by dividing the CPI-U indicator, published three (3) months prior to the Adjustment Date, by the CPI-U indicator published one (1) year and three (3) months prior to the Adjustment Date, and multiplying the resultant number by the annual lease rental amount of the most recent rent. In no event shall the increase in rent calculated for any one (1) year period exceed of the most recent rent. In addition, in no event shall rent calculated for any one (1) year period be less than the most recent Rent. 7. Holdin2 Over. Section 6 of the Agreement is hereby amended to delete all references to "fourth (0) five (5) year extension term" and insert in lieu thereof "ninth (9t') five (5) year extension term." 8. Additional Rent. In addition to the rent currently paid by Tenant to Lessor pursuant to the Agreement, as further consideration for the right to exclusively use and lease the Property, if, after full execution of this Amendment, Tenant subleases, licenses or grants a similar right of use or occupancy in the Property to an unaffiliated third party not already a Site Name: Minute Maid BRA360 2 BU#: 813700 subtenant on the Property (each a "Future Subtenant"), Tenant agrees to pay to Lessor = of the rental, license or similar payments actually received by Tenant from such Future Subtenant (excluding any reimbursement of taxes, construction cost, installation cost, revenue share reimbursement or other expenses incurred by Tenant) (the "Additional Rent") within thirty (30) days after receipt of said payments by Tenant. Tenant shall no obligation for payment to Lessor of such share of rental, license or similar payments if not actually received by Tenant. Non-payment of such rental, license or other similar payment by a Future Subtenant shall not be an event of default under the Agreement. Tenant shall have sole discretion as to whether, and on what terms, to sublease, license or otherwise allow occupancy of the Property and there shall be no expressed or implied obligation for Tenant to do so. Lessor acknowledges that Lessor shall have no recourse against Tenant as a result of the failure of payment or other obligation by a Future Subtenant. Notwithstanding anything in this paragraph to the contrary, the parties agree and acknowledge that revenue from subtenants and any successors and/or assignees of such subtenants who commenced use and/or sublease of the Property prior to execution of this Amendment shall be expressly excluded from the Additional Rent and Lessor shall have not right to receive any portion of such revenue. 9. Section 18 Amendment: Notice. Section 18 of the Agreement is hereby amended by deleting the address for Lessor and Tenant, and inserting in lieu thereof the following: LESSOR: J & E HaIe Enterprises, Inc. 5171 Yacht Club Road Jacksonville, FL 32210 TENANT: Crown Castle South LLC c/o Crown Castle USA Inc. Attn: Legal Department Re: Cell Site #813700 — Minute Maid BRA360 2000 Corporate Drive Canonsburg, PA 15317 10. Right of First Refusal. If Lessor receives a bona fide offer ("Offer") that it desires to accept from any person or entity (other than a subsidiary or affiliate of Lessor) that owns towers or other wireless telecommunications facilities (or is in the business of acquiring Lessor's interest in the Agreement) to purchase, make a loan, or give any consideration in exchange for any interest in all, or a portion of, the Property, whether separate or as part of a larger parcel of property, including without limitation an Offer involving: (i) fee title, (ii) a perpetual or other easement, (iii) a lease, (iv) any present or future possessory interest, (v) any or all portions of Lessor's interest in this Agreement including the right to receive payments of rent, or (vi) an option to acquire any of the foregoing, an option for any of the foregoing, Lessor shall provide written notice to Tenant of said Offer ("Lessor's Notice"), and Tenant shall have a right of first refusal to acquire such interest on the same terms and conditions. For purposes of this right of first refusal, an "Affiliate" is any corporation or other entity which directly or indirectly controls or is directly or indirectly controlled by or is under common control with Lessor, "control" shall mean the possession, directly or indirectly, of the power to direct or Site Name: Minute Maid BRA360 BU#: 813700 cause the direction of the management and policies of such entity, whether through the ownership of voting securities or by contract or otherwise and a "Subsidiary" shall mean any corporation or other entity not less than of whose outstanding stock (or other form of equity ownership) shall, at the time, be owned directly or indirectly by Lessor or Lessor's parent, as applicable. If Lessor's Notice covers portions of Lessor's parent parcel beyond the Property, Tenant may elect to acquire an interest in only the Property, and the consideration shall be pro -rated on an acreage basis. Lessor's Notice shall include a copy of the Offer, and to the extent not clearly disclosed in the Offer, the prospective buyer's (or other parties') name, the purchase price and/or other consideration being offered, the other terms and conditions of the offer, the due diligence period, the proposed closing date and, if a portion of Lessor's parent parcel is to be sold, leased or otherwise conveyed, a description of said portion. Tenant shall have a right of first refusal (the "ROFR") to (a) purchase the interest described in Lessor's Notice on the terms and conditions outlined in Lessor's Notice, or (b) enter into with Lessor the transaction otherwise described in the Offer, in both cases excluding those terms which are not imposed in good faith or which are designed to defeat Tenant's ROFR. If the Lessor's notice shall provide for a due diligence period of less than sixty (60) days, then the due diligence period shall be extended to be sixty (60) days from exercise of the right of first refusal and closing shall occur no earlier than fifteen (15) days thereafter. if Tenant does not exercise its right of first refusal by written notice to Lessor given within thirty (30) days, Lessor may convey the property as described in the Lessor's Notice. If Tenant declines to exercise its right of first refusal, then the Agreement shall continue in full force and effect and Tenant's right of first refusal shall survive any such conveyance. Tenant shall have the right, at its sole discretion, to assign the right of first refusal to any person or entity, either separate from an assignment of the Agreement or as part of an assignment of the Agreement. Such assignment may occur either prior to or after Tenant's receipt of Lessor's notice and the assignment shall be effective upon written notice to Lessor. The ROFR granted hereunder shall run with the land of which the Property is a part. H . Renresentations, Warranties and Covenants of Lessor. Lessor represents, warrants and covenants to Tenant as follows: (a) The Property is owned by Lessor free and clear of any mortgage, deed of trust, lien, or right of any individual, entity or governmental authority arising under any option, right of first refusal, lease, license, easement or other instrument, except for the rights of Tenant arising under the Agreement as amended hereby and the rights of utility providers under recorded easements. (b) Upon Tenant's request, Lessor agrees to discharge and cause to be released (or, if approved by Tenant, subordinated to Tenant's rights under the Agreement as amended hereby) any mortgage, deed of trust, lien or other encumbrance that may now or hereafter exist against the Property. (c) Upon Tenant's request, Lessor agrees to cure any defect in Lessor's title to the Property which in the reasonable opinion of Tenant has or may have an adverse affect on Tenant's use or possession of the Property. Site Name: Minute Maid BRA360 4 BU#: 813700 (d) Lessor agrees to execute such further documents and provide such further assurances as may be reasonably requested by Tenant to affect any release or cure referred to in this paragraph, to evidence the full intention of the parties, and to assure Tenant's use, possession and quiet enjoyment of the Property under the Agreement as amended hereby. 12. Signing Bonus. In consideration for amending the Agreement, Tenant agrees to pay Lessor a one-time amount of I (the "Si nin Bonus") within sixty (60) days of the full execution of this Amendment (and a memorandum of lease and/or amendment). 13. IRS Form W-9. Lessor agrees to provide Tenant with a completed IRS Form W-9, or its equivalent, upon execution of this Amendment and at such other times as may be reasonably requested by Tenant. In the event Lessor's Property on which the Property is located is transferred, the succeeding lessor shall have a duty at the time of such transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in rental to the new lessor. Lessor's failure to provide the IRS Form W-9 within thirty (30) days after Tenant's request shall be considered a default and Tenant may take any reasonable action necessary to comply with IRS regulations including, but not limited to, withholding applicable taxes from rent payments. 14. Authority. Lessor represents and warrants that, as of the date of this Amendment, Lessor is duly authorized and has the full power, right and authority to enter into this Amendment and to perform all of the Lessor's obligations under this Amendment and the undersigned has the authority to execute and deliver this Amendment to Tenant. 15. Construction of Documents. Each party hereto acknowledges that this Amendment shall not be construed in favor of or against the drafter hereof. 16. Remainder of Agreement Unaffected. In all other respects, the remainder of the Agreement shall remain in full force and effect. Any portion of the Agreement that is inconsistent with this Amendment is hereby amended to be consistent. 17. Headings. The headings contained in this Amendment are for reference purposes only and shall not modify or affect this Amendment in any manner whatsoever. 18. Entire Agreement. This Amendment supersedes that certain Letter Agreement by and between Lessor and Tenant dated September 20, 2011 and in case of any conflict or inconsistency between the terms and conditions contained in the Letter Agreement and the terms and conditions contained in this Amendment, the terms and conditions in this Amendment shall control. 19. Counterparts. This Amendment may be executed in separate and multiple counterparts, each of which shall be deemed an original but all of which taken together shall be deemed to constitute one and the same instrument. Site Name: Minute Maid BRA360 BU#: 813700 • 0 20. Recordation. Tenant, at its cost and expense, shall have the right to record a memorandum of this Amendment in the conveyance records of Saint Lucie County, Florida, at anytime following the execution of this Amendment by all parties hereto. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY; SIGNATURE PAGES BEGIN ON FOLLOWING PAGE] Site Name: Minute Maid BRA360 6 BU#: 813700 IN WITNESS WHEREOF, the undersigned parties have caused this Amendment to be duly executed as of the Effective Date. Signed, sealed and delivered in the presence of: ) -/�r Print Name: 1y rIC140 r/�• STATE OF M" COUNTY OF 7 , LESSOR: J & E HALE ENTERPRISES, INC., a Florida corporation By: X Name os bi e— Title: Pr�,�o,�t Date: The foregoing Second Amendment to Option and Lease Agreement was acknowledged efore me this %w' day of Z&2011, by , of J & E HALE ENTERPRISES, INC., a Florida corporation, for and on ehalf o said entity and for the purposes, intents and consideration stated in the foregoing Second Amendment to Option and Lease Agreement. He/She is personally known to me or has produced a,U.rar�_ as identification. In Witness Whereof, I have hereunto si Is ed7t with said appearer and said witnesses, on the date set forth above. , My Commission Expires: 7/,e, 1,-*)- Site Name: Minute Maid BRA360 BU#: 813700 Sigpainfof Notary Pu Printed Name of Notary Public: [Seal] 7 PATRICIA A $HATLEY NotsfIl VI S e of Florida My Comm. EJul is. 2 (Commissbn 0 EE 109701 • Signed, sealed and delivered in the nrdse- ce of: n P t Name: -- _ �t VK P'6 h)-nS60% Print Name: 64ry(VA ! M 00 f C S STATE OFTGk(J S : ss COUNTY OF W*CetS TENANT: CROWN CASTLE SOUTH LLC, a Delaware limited liability company By: MAOL C Name: Van w° Title: ROWe ger Date: P - *- 11 001 The foregoing Second Amendment to Option and Lease Agreement was acknowledged bef8 �re me this 4 day of 'D6CGV _ Qj , 201 I , by -„ N OC,A * 5VVC L, , CE tAC& of CROWN CASTLE SOUTH LLC, a Delaware limited liability company, for and on behalf of said entity and for the consideration, intent and purposes set forth in the foregoing Second Amendment to Option and Lease Agreement. He/She is personally+ know or has produced as identification. In Witness Whereof, 1 have hereunto signed this acknowledgment with said appearer and said witnesses, on the date set forth above. My Commission Expires: 3.;0 -q t4 Site Name: Minute Maid BRA360 BU#: 813700 Signature of Notary Public tgsa—MCM aoc Printed Name of Notary Public: [Seal] 8 ,Sit:tF' n �-X13 •i _4µ a .• s ti �+_,—•F.arM1 _ •y .zis ..�<:.' ``r'.— FT Jt..�b— `G w - r _ W .. r__... --.._ a -...tea.:•- _ .. _ v _ _ - - s _ Y :-...a.__. ..... .yv..: AM I ASE - NT' w Agreement'. f this "Atadanent" ) -. , _ afld et�tntl '�' ckade - 98, by and between IOSEPH H. HALE - by_"ANIa:AS TRUSTEES OF -THE JOSEPH H. _ 1 LMNG `FRUST, whose add err is 24 - _ Marsh oad� P t d z ft. 4 Memor"}, end,BeJ40UTH MOB[I.fTY �:. _-� -.a -- - A _ 'l�etant" ' Ratoa 3�4$7- aagess veat�; -Boca , -. a.� �qd Tenant entered into as .option. sad .Lease ess l + t e n d the L;me as pr-ovade-did f Amendmeuc. - - the uMal covenasts-and Promiges set forth :_ ... -.....a _AXq aie r`� ticf �... — ° erattoq the receipt sad sufflt:iency of vhic r Q t�l e - , etuiment, the parties agree to amend. the Lease Rows. w. _ = 1 e o$o - _ _.. _ r_ a In tha event til`any conflict becwee shall caatrol; . All de _ - - .. tined -- - e _- - muag ascribed co -the' ia- the :Lease..77 ' -- 2 _ F All refer ---- tlttS=.Atnendme,�t:co the Lase shall include this AmendmeaL _.. t ✓y� _ rite the tweii=foot &= lie hereby ifed from - - _ e Pam, which ri t-of- wayfor access hatwn a .. ally Club t. A attached hereto and made a.:part of W AmetSdment. s• TheLLPe�goirsg e - Y o n4tas zckgdwed befo_ re me' ihit da f .. ?FG$SS77 5 - T _ gress -Easement `. A l_af land -ham a port�gtrV the:; West 1/4. of Section 5. Township 35= o4th R r a $ ast, n ,clso-a pQrtron . of. the West 1./4 of Section -:. ioSvnsha 34 a P .. �31 in -St. Lucie. County. Florida. said - parcel more J ,.oz# cular7 y_.de &4 sus fallowst, Beg�rxn �ti the Sauthwest__comor of- said Section 32 said Point being �lortwesE_Zorner a'� eeton 5 • ). proceed North O1' 07 OS East ai+vrag the. NI';`�t< Mi cation 32 -a distance. of 49:36 feet: thence' Soutk 36 57- ems# a -d%s#ice a{ si 90.. feet to a point on the South lins -said Se nn aid e aisq being the North line of said section 5)-. said-anteirig$7 feetEs{ o 4rd Southwest comer of Section 32. when measured errg: sod s,e; thence South 89' 48' 56' East dlong --the South AiSeCt!2n c .distance of 1201.20 feet to a point being 80,78 feel_ bte- of the ,Ss�tfieas# corner of said West .: 1/4 of 'Section 32..wFten- m osured f9,npscifidet, :line; thence South :65' 38' 21' East a .distance rof: 87=✓ feet to `axtn. ,the Eastline of said West 1 /4 of scid Section 5. -saii po,rtt = be-1 -16F. -feet South of the Northeast comer of said Westdjd -Sectrot_1_when -measured along the East line thereof; -thence:-S�#� O� i -dA ' hest `along -the East line of the West 1 /4 of sa►d _ertaoh = a _ dis#ane of :54:41 feet: thence North 6. 38' 21' West - c d�stanc�o-_ yof 13Y3 ence . North 990. 48' 560 West along. a --tine =50.00 feet youth : of th line. of said Section 5 a distance of 121$.35--feet;: t_h_ert :.(�lQrth: 0211 West :a distonc_e of 22.94 feet to _ a poi} on iheest �`ine ef—sped= 4ttibn 5; -thence North 01' OW29' East along _ ___ West= hne of -Section - 4-, once: of 31.73 feet to the POINT OF BEGINNINGS -- Contcininq = orr tffY820-1:. 41 .fi-t. or 1.54 acres. Maid', St Lucie County, R Lid 5'r� Secvl<c-e�s �. . iq. -Su vq t t Qom' _. Rhone {5 1) _S67 753 w,�µv.et XE z Mv €a� q aftzrst L"V_ AF46 $276 (361� t - -- - — SfAt'Lr`V FLQIPJLUf XHNa 100-007, a4Tr 3/12198 qar aF 1 2 L LNK or w r/s. W Stemy S? Mi'n,1.4K Ma,,d This.. -Agreement -is -made than• -day of 1997, between _-Joseph_11-Hale. -Trustee- and Eleanor H. Hale, Trustee, whose address is 2Marsh Road_=pernandina Beach. FL 32034, hereinafter designated LESSOR, --and .:BELLS-ti- fI-.MOB.ILITY INC, with offices at 5201 Congress Avenue, B.oca.Raton,_.:_-Florida 33487, hereinafter designated TENANT. RECITALS: LESSOR is -the owner-- of certain real property located at off Minute Maid Road..`Ft. Pierce: Parcel Number 123111100030005, St. Lucie County, -State -of Florida,- and TENANT desires to obtain an .Option to lease a -portion..-.-of Said real property, containing approximately. 22,506 square --feet, together with a twenty foot (201) wide right of way for access thereto (said leased parcel and right of way -hereinafter called -°Property"). The Property is more specifically described.1n acid substantially shown outlined in red on Exhibit "A".attached. hereto,-and.made a part hereof. NOW- MM.arVnVV i* t-nnsideration of a sum of inafter referred to as "Option Money", to be paid by TENANT.to the LESSOR, which TENANT will provide upon its execution.of this Agreement, the LESSOR hereby grants to TENANT. �the-.right 'and-Option'to lease said portion of said real property,. including a -right of way for access thereto, for the term and in accordance with the covenants and conditions set forth herein. - The Option may be exercised -at any time within twelve (12) months from final execution of this Agreement by LESSOR. At TENANT's election, and upon TENANT's prior written notifications- to LESSOR., the--timee during which the Option may be exercised. may be further extended for one (1) additi-onal .period of Rix (6)- months. :. :_sai.th_ an = additional payment of -TENANT-.-to- LESSOR for the Option Perioa so extended. The time during which the Option may be exercised may be further extended -by mutual -agreement in writing. If during said - Option Period, or during the term of the lease, if the Option is exercised, thee -LESSOR decides -to subdivide, sell or change the status of the Property.: or Lessor's property contiguous thereto, LESSOR shall -immediately notify,. TENANT in writing so that TENANT .can take steps -necessary to.protect TENANT's interest in the LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute -this Agreement. LESSOR further covenants that there are no other_ liens, judgments or impediments of title on the Property. This Option, may not be: sold, assigned or transferred at any time except, to TENANT's principal, affiliates or subsidiaries of its principal. ..As to other parties, this Option may not be sold, assigned or trans ferred. without the written consent of the LESSOR, such consent not to be unreasonably withheld. should TENANT.- fail to exercise this Option or any extension thereof within the time herein limited, all rights and privileges granted hereunder :shall be deemed completely surrendered, this Option terminated, and LESSOR shall retain all money paid for the Option, and no additional money shall be payable by either party to the other. The LESSOR shall permit TENANT during the Option Period free ingress and egress to the Property to conduct such surveys,_- structural strength analysis,. -subsurface boring tests and other activities of similar nature, as TENANT may deem necessary, at the sole cost of TENANT. In addition, TENANT shall have the right to file any applications for certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR agrees to cooperate with TENANT in its efforts to obtain such approvals and sign such -papers as may be required to file applications with the appropriate authorities. Notice of the exercise of the Option shall be given by TENANT to the LESSOR, in .writing by certified mail, return receipt requested. Notice shall -be- deemed effective on the date it is posted. On the date of such notice, the following Agreement shall take effect: - LEASE AGREEMENT 1. LESSOR hereby leases to TENANT that certain parcel of real property, containing approximately 22,500 square feet, situated at off Minute Maid Road Ft Pierce Parcel ID # 123111100030005, St. Lucie County, State of Florida, together with the nonexclusive right for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, cables, conduits and pipes over, under or along a twenty foot (201) wide right of way extending from the nearest 2 public right of way, namely Minute Maid Road , to the leased parcel, said leased parcel and right of way for access being substantially as described herein in Exhibit "A" and as shown enclosed within red lines on Exhibit "A" attached hereto and made a part hereof. Said leased parcel and right of way for access shall be hereinafter referred to as "Property". LESSOR shall cooperate with TENANT in TENANT's effort to obtain utility services along said right of .way by signing such documents or easements as may be required by said utility companies. In the event any public utility is unable to use the aforementioned right of way, the LESSOR hereby agrees to grant an alternative right of way or utility easement either to the .TENANT or to the public utility at no cost to the TENANT-. - 2. LESSOR also hereby grants to TENANT the right to survey said Property, and the legal description on said survey shall then become Exhibit "B", which shall be attached hereto and made a part hereof, and shall control in the event of discrepancies between it and Exhibit "A". LESSOR grants TENANT the right to take measurements, make calculations, and to note other structures, setbacks, uses, or other information as deemed by TENANT to be relevant and pertinent, as such information relates to LESSOR's real property, leased or otherwise abutting or _surrounding the Property. Cost for such survey work shall be borne by the'TENANT. 3. This Agreement shall be for an initial term of five (5) years beginning on the date the ODtion is exercised by TENANT at an annual rental of _ applicable taxes, to be paid in equal monthly instaiimencs on uie first day of the month, in advance to Joseph H. Hale. Trustee and Eleanor H Hale Trustee or to such other person, firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. 4. TENANT shall have the option to extend this lease for four (4) additional five (5) year terms, and such extensions shall automatically occur unless TENANT gives LESSOR written notice of its intention not to extend this Lease Agreement at least six (6) months prior to the end of the current term. 5 3 6. If at the end. of the fourth (4th) five (5) year extension term this Agreement has not been terminated by either party by giving to the other written notice of an intention to terminate it at least six (6) months prior to the end of such term, this Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and for annual terms thereafter until terminated by either party by giving to the other written notice of its intention to so terminate at least six (6) months prior to the end of such term. Monthly rental for this period shall be equal to the rent paid for the last month of the fourth (4th)-five (5) year extension term. 7. TENANT shall use the Property for the purpose of constructing, maintaining and operating a Communications Facility and uses incidental thereto, consisting of a building or buildings as necessary now or in the future to shelter telecommunications equipment and related office space, a free standing monopole or three sided antenna structure of sufficient height now or in the future to meet TENANT's telecommunication needs and all necessary connecting appurtenances. TENANT may at its discretion modify its antenna structure or building(s). A security fence consisting of chain link construction or similar but comparable construction may at the option of TENANT be placed around the perimeter of the Property (not including the access easement). All improvements shall be at TENANT's expense. LESSOR grants TENANT the right to use adjoining and adjacent land as is reasonably required during construction, installation, maintenance, and operation of the Communications Facility. TENANT will maintain the Property in a reasonable condition. It is understood and agreed that TENANT's ability to use the Property is contingent upon its obtaining after the execution date of this Agreement, all of the certificates, permits and other approvals that may be required by any federal, state or local authorities. LESSOR shall cooperate with TENANT in its effort to obtain such approvals, including dedicating right of way or other customary extractions, and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by TENANT. LESSOR agrees to sign such papers as are customarily and reasonably required to file applications with the appropriate zoning authority and/or commission for the proper zoning of the Property as required for the use intended by the TENANT. TENANT will perform all other acts and bear expenses associated with the rezoning procedure. LESSOR agrees not to register any written or verbal opposition to the rezoning procedures. Notwithstanding any other termination rights available to TENANT under this Agreement, TENANT, at its sole and absolute discretion, shall have the right to terminate this Agreement with ninety (90) days prior written notice to LESSOR and a lump sum payment to LESSOR in an amount equal to six months rental at the rate in effect at the time of termination. Notice of the TENANT's exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and w.. shall be effective upon receipt of such notice by the LESSOR as evidenced by the return receipt. All rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and all the parties shall have no further obligations, including the payment of money, to each other. 8. TENANT shall indemnify and hold LESSOR harmless against any claims of liability or loss from personal injury or property damage resulting from or arising out of the use and occupancy of the Property by the TENANT, its servants or agents, excepting, however, such claims or damages as may be due to or caused by the acts of the LESSOR, or its servants or agents. 9. LESSOR agrees that TENANT may self -insure against any loss or damage which could be covered by a commercial general public liability insurance policy. 10. TENANT shall be responsible for making any necessary returns for and paying any and all property taxes separately levied or assessed against its improvements on the Property. TENANT shall reimburse LESSOR as additional rent for any increase in real estate taxes levied against the Property which are directly attributable to the improvements constructed by TENANT and are not separately levied or assessed against TENANT's improvements by the taxing authorities. 11. TENANT upon termination of this Agreement, shall, within a reasonable period, remove its personal property and fixtures and restore the Property to its original above grade condition, reasonable wear and tear excepted. At LESSOR-s option when this Agreement is terminated and upon LESSOR's advance written notice to TENANT, TENANT will leave the foundation and security fence to become property of LESSOR. If such time for removal causes TENANT to remain on the Property after termination of this Agreement, TENANT shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of personal property and fixtures are completed. 12. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of his real property which includes the parcel of property leased by TENANT herein and/or the right of way thereto to a purchaser other than TENANT, such sale shall be under and subject to this Agreement and TENANT's rights hereunder. LESSOR agrees not to sell, lease or use any other areas of the larger parcel upon which the Property is situated for the placement of other communications facilities if, in TENANT's sole judgment, such installation would interfere with the facilities in use by TENANT. 13. LESSOR covenants that TENANT, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Property. 14. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the real property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there are no other liens, judgments or impediments of title on the Property. 15. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and TENANT and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or TENANT in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties. 16. This Lease Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State of Florida. 17. This Agreement may not be sold, assigned or transferred at any time except to TENANT's principal, affiliates or subsidiaries of its principal or to any company upon which TENANT is merged or consolidated. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of the LESSOR, such consent not to be unreasonably withheld. Notwithstanding the above, TENANT may permit other parties to co - locate on the Property, with no obligation to LESSOR, as long as this Agreement is in effect. 18. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or any other address that the party to be notified may have designated to the sender by like notice): LESSOR: Joseph H. Hale, Trustee Eleanor H. Hale, Trustee 24 Marsh Creek Road Fernandina Beach, FL 32034 TENANT: BellSouth Mobility Inc 5201 Congress Avenue Boca Raton, Florida 33487 Attn: Network Real Estate Manager 19. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of the parties 6 hereto. 20. At LESSOR's option, this Agreement shall be subordinate to any mortgage by LESSOR which from time to time may encumber all or part of the Property or right of way, provided, however, every such mortgage shall recognize the validity of this Agreement in the event of a foreclosure of LESSOR's interest and also TENANT's right to remain in occupancy of and have access to the Property as long as TENANT is not in default of this Agreement. TENANT shall execute in a timely manner whatever instruments as may reasonably be required to evidence this subordination clause. In the event the leased Property is encumbered by a mortgage, the LESSOR, no later than thirty (30) days after this lease is exercised, shall have obtained and furnished to TENANT a non -disturbance instrument in recordable form for each such mortgage. 21. If the whole of the Property or such portion thereof as will make the Property unusable for the purposes herein leased, are condemned by any legally constituted authority for any public use or purpose, then in either of said events the term hereby granted shall cease from the time when possession thereof is taken by public authorities, and rental shall be accounted for as between LESSOR and TENANT as of that date. Any lesser condemnation shall in no way affect the respective rights and obligations of LESSOR and TENANT hereunder. Nothing in this provision shall be construed to limit or affect TENANT's right to an award of compensation of any eminent domain proceeding for the taking of TENANT's leasehold interest hereunder. 22. LESSOR and TENANT agree that this Option and Lease Agreement will be forwarded for recording or filing in the appropriate office of the County of St. Lucie and LESSOR and TENANT agree to take such actions as may be necessary to permit such recording or filing. TENANT, at TENANT's option and expense, may obtain title insurance on the space leased herein. LESSOR, shall cooperate with TENANTI-s efforts to obtain such title insurance policy by executing documents or, at TENANT's expense, obtaining requested documentation as required by the title insurance company. If title is found to be defective, LESSOR shall use diligent effort to cure the defects in title. At TENANT's option, should the LESSOR fail to provide requested documentation within thirty (30) days of TENANT's request, or fail to provide the Non -Disturbance instrument(s) as noted in Paragraph 20 of this Agreement, TENANT may withhold and accrue the monthly rental until such time as the requested document(s) is (are) received, or if title is found to be defective and LESSOR has failed to cure the defects within a reasonable period, TENANT may cancel this Agreement or cure the title defect at LESSOR's expense utilizing the withheld payments. - 23. If TENANT defaults in fulfilling any of the covenants of 7 this Agreement and such default shall continue for sixty (60) days after TENANT's receipt of written notice from LESSOR specifying the nature of said default, or, if the said default so specified shall be of such a nature that the same cannot be reasonably cured or remedied within such sixty (60) day period, if TENANT shall not in good faith commence the curing or remedying of such default within such sixty (60) day period and shall not thereafter diligently proceed therewith to completion, then in any one or more of such events this Agreement shall terminate and come to an end as fully and completely as if such were the day herein definitely fixed for the end and expiration of this Agreement and TENANT shall then quit and surrender the Property to LESSOR as provided herein. 24. In connection with any litigation arising out of this Agreement, the prevailing party, whether LESSOR or TENANT, shall be entitled to recover all reasonable costs incurred including reasonable attorneys fees for services rendered in connection with any enforcement of breach of contract, including appellate proceedings and post judgment proceedings. 25. In accordance with Florida Law, the following statement is hereby made: RADON GAS: Radon is a natural occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 26. LESSOR shall hold TENANT harmless from and indemnify TENANT against and from any damage, loss, expenses or liability resulting from the discovery by any person of hazardous substance generated, stored, disposed of, or transported to or over Property, as long as such substance was not stored, disposed of, or transported to or over the Property by TENANT, its agents, contractors, employees, or invitees. TENANT will be responsible for any and all damages, losses, and expenses and will indemnify LESSOR against and from any. discovery by any persons or such hazardous wastes generated, stored, or disposed of as a result of TENANT's equipment and uses of the aforementioned Property. 27. This Agreement shall be executed in three (3) counterparts, each of which shall be deemed an original, and such counterparts shall constitute but one and the same Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals. LESSOR Signed, sealed and delivered in the presence of: s By - Pr' t jaeWitness Ti Print Name: MARWETANNWOOD`4 Address L Witness Q Print Name: N� t*. 10. 4Vyn/ STATE OF FLORIDA COUNTY OF na550.W The foregoingg instrument was acknowledged before me this c�� da of ©dal•• 19�_7, by 1016,126 A. 4d 41� as T ►wdw►l)� who is LpersTona11y_k_no_Z;5�o me or who has produced identification and who did (did not) take an oath. G4,, Lk) NOTARY POLIC My Commission Expires: . 8, Woo Print Na e : ... ET AWN D (Seal) 7MM10?N RG xE�T�ANN WOOD MB610N NO. CCS110M so. . t 9 LESSOR Signed, sealed and delivered in the presence of: W tness Print --� "xfka.,� J fitness Print Name: SVS'4"✓ P /6j z7d STATE OF FLORIDA COUNTY OF Da✓al By: Print Name: Eleanor if. Hale Title: as Trustee and Individually Address:24 Marsh Road Fernandina Beach, FL 32034 The foregoing instrument was acknowledged before me this day of Detembcr , 1997, by _ Eleanor H. Hale , as Trustee and Individually, of 1--- , a who is personally known to me or who has produced fla,ida Df veex Ua4r%se. as identification and who did (did n ) take an oath. �CGt.k—�tcZ4rw�-� NOTARY PUBLIC , My Commission Expires: 7Dtt 2L, 2j"'o Print Name: FGlsota. Ti;tonif (Seal) Edda Td" i.N W CaMH8310N / CC6MM E7PM aftalow a 2MQ �n�unavrwMwawcE, � Signed, sealed and delivered in the presence of: INC Print Name —..JW y*e Witness Title: Print Name : e- . tfU F, � t (1-, Wit ss Print Name: fA�:,Ezz STATE OF COUNTY OF�,� The foregoing i strument was acknowledged before me this �/�ay Of 199 J� , by S /zir.��� as of BELLSOUTH MOBILITY INC,—a Georgia co ration, who is personally known to me or who has produced — as identification and who did (did not) take an oath. NOTARY PURL My Commission Expires: Print Name: %dA GROUND LMSR 06/05/97 10 (Seal) A BONNEA �n oa►�wee�a+ � x ae�me Eabd 11n Norry i0010 litl�r� 900' 3po" ffor,L FPL �i 1nC<ess f.R�jrtss l�pt\tX ivt ►n9��s���. ass k-I.A >F] ' O `V o} }a ScAle L2SSor's /}Q " Q r orw Oh �AS�