OPTION AND LEASE AGREEMENT
THIS AGREEMENT, made this day of , 20 between
________________ (the "LESSOR") and ________________________ (the
"TENANT").
PROPERTYLESSOR is the owner of certain real property located in County, State of
_____________, and TENANT desires to obtain an option to lease a portion of such real
property, containing approximately square feet, together with a right of way thereto as
hereinafter described (such portion of real property and such right of way being hereinafter
called the "Property"). The Property is more specifically described in, and substantially shown
on, Exhibit "A" attached hereto and made a part hereof.
OPTIONNOW THEREFORE, in consideration of the sum of _____________ Dollars
($_____) (the "Option Money"), to be paid by TENANT to LESSOR upon TENANT's execution
of this Agreement, LESSOR hereby grants to TENANT the exclusive right and option (the
"Option") to lease the Property in accordance with the terms and conditions set forth herein.OPTION PERIOD. The Option may be exercised at any time on or prior to
20_____ (the "Option Period"). At TENANT's election, and upon TENANT's written notice to
LESSOR prior to expiration of the Option Period, the Option Period may be further extended for
one additional period of six (6) months, through and including 20 , with an additional
payment of Dollars ($ ), by TENANT to LESSOR for the extension of the Option
Period. The Option Period may be further extended by mutual agreement in writing. If TENANT
fails to exercise the Option within the Option Period, as it may be extended as provided herein,
the Option shall terminate, all rights and privileges granted hereunder shall be deemed
completely surrendered LESSOR shall retain all money paid for the Option, and no additional
money shall be payable by either party to the other.
TRANSFER OF OPTION. The Option may be sold, assigned, or transferred at any time
by TENANT to TENANT's parent company or any affiliate or subsidiary of TENANT or its
parent company. Otherwise, the Option may not be sold, assigned or transferred without the
written consent of LESSOR, such consent not to be unreasonably withheld.
CHANGES IN PROPERTY DURING OPTION PERIOD. If during the
Option Period or any extension thereof, or during the term of this Agreement if the Option is
exercised, LESSOR decides to subdivide, sell, or change the status of the zoning of the Property
or the other real property of LESSOR contiguous to, surrounding, or in the vicinity of the
Property ("LESSOR's Surrounding Property"), LESSOR shall immediately notify TENANT in
writing. Any sale of the Property shall be subject to TENANT's rights under this Agreement.
LESSOR agrees that during the Option Period or any extension thereof, or during the
term of this Agreement if the Option is exercised, LESSOR shall not initiate or c onsent to any
change in the zoning of the Property or LESSOR's Surrounding Property or impose or consent to
any other restriction that would prevent or limit TENANT from using the Property for the uses
intended by TENANT as hereinafter set forth in this Agreement.
TITLE. LESSOR warrants that LESSOR is seized of good and marketable title to the
Property and has the full power and authority to enter into and execute this Agreement. L ESSOR
further warrants that there are no deeds to secure debt, mortgages, liens, judgments, restricti ve
covenants, or other encumbrances on the title to the Property that would prevent TENANT from
using the Property for the uses intended by TENANT as hereinafter set forth in this Agreement.
INSPECTIONS. LESSOR shall permit TENANT or TENANT's employees, agents and
contractors during the Option Period, and any extension thereof, free ingress and egress to the
Property by TENANT or its employees, agents, and contractors to conduct structural strength
analyses, subsurface boring tests, environmental inspections (including Phase I and Phase 11
audits), radio frequency tests, and such other tests, investigations, and similar activiti es as
TENANT may deem necessary, at the sole cost of TENANT. The scope, sequence, and ti ming of
the Inspections shall be at the sole discretion of TENANT; upon notification to LESSOR, the
Inspections may be commenced at any time during the aforementioned Option Period and if the
Option is exercised, at any time during the Lease. TENANT and its employees, agents and
contractors shall have the right to bring the necessary vehicles and equipment onto the Property
and the LESSOR's Surrounding Property to conduct such tests, investigations, and similar
activities. TENANT shall indemnify and hold LESSOR harmless against any loss or damage for
personal injury or physical damage to the Property, LESSOR's Surrounding Property or the
property of third parties resulting from any such tests, investigations and similar acti vities. Upon
written request, TENANT shall furnish to LESSOR copies of the environmental findings.
However, LESSOR shall not rely on said tests for anything outside this Agreement and shall
indemnify and hold TENANT harmless from such findings.
SURVEYS. LESSOR also hereby grants to TENANT the right to survey the Property and
LESSOR's Surrounding Property, and the legal description of the Property on the survey
obtained by TENANT shall then become Exhibit "B", which shall be attached hereto a nd made a
part hereof, and shall control in the event of discrepancies between it and Exhibit "A". if as a
result of any tests or investigations conducted by TENANT, or if required in connection with
obtaining any necessary zoning approvals or other certificates, permits, licenses, or approvals,
TENANT desires to alter or modify the description of the Property in Exhibit "A" (and Exhi bit
"B" if then applicable) so as to relocate all or any portion of the Property to other port ions of
LESSOR's Surrounding Property (a "Relocation Site"), TENANT shall notify LESSOR of such
desire and deliver to LESSOR a copy of the survey and legal description of the portions of the
Property and LESSOR's Surrounding Property that TENANT proposes as a Relocation Site.
LESSOR shall have the right to approve any Relocation Site, and LESSOR agrees not t o
unreasonably withhold its approval, such approval to be based on commercially reasonable
standards. LESSOR agrees to review and consider TENANT's relocation request and any
proposed Relocation Site in good faith and to cooperate with TENANT to attempt, if reasonably
possible, to approve the TENANT's proposed Relocation Site or such other Relocation Site a s
may be agreed upon by LESSOR and TENANT as will allow TENANT to use the same for the
use intended by TENANT for the Property as hereinafter set forth in this Agreement. If LE SSOR
approves a Relocation Site, then TENANT shall have the right to substitute the R elocation Site
for the Property and to substitute the description of the approved Relocation Site for the
description of the Property in Exhibit "A" (and Exhibit "B" if then applicable), and the Prope rty
shall thereafter consist of the Relocation Site so approved and substituted. If requeste d by
TENANT, LESSOR shall execute an amendment to this Agreement to evidence the substi tution
of the Relocation Site as the Property.
GOVERNMENTAL APPROVALS. TENANT's ability to use the Property is contingent
upon its obtaining all certificates, permits licenses and other approvals that may be required by
any governmental authorities. LESSOR shall cooperate with TENANT in its effort to obta in such
certificates, permits, licenses, and other approvals. During the Option Period, and during the term
of this Agreement if the Option is exercised, LESSOR agrees to sign such papers as are required
to file applications with the appropriate zoning authority and other governmental authoriti es for
the proper zoning of the Property and for other certificates, permits, licenses, and approvals as
are required for the use of the Property intended by the TENANT. If requested by TENANT, any
such applications may be filed with respect to, not only the Property, but also LESSOR 's
Surrounding Property. TENANT will perform all other acts and bear all expenses associated wit h
any zoning or other procedure necessary to obtain any certificate, permit, license, or approval
for the Property deemed necessary by TENANT.
LESSOR agrees not to register any written or verbal opposition to any such procedures.
UTILITY SERVICES. During the Option Period, and during the term of this Agreement
if the Option is exercised, LESSOR shall cooperate with TENANT in TENANT's effort to obtain
utility services along the access right-of-way contained in the Property by signing such
documents or easements as may be required by the utility companies. In the event any utility
company is unable to use the aforementioned right of way, LESSOR hereby agrees to grant an
additional right of way either to TENANT or to the utility company at no cost to TENANT. If
LESSOR fails to fulfill LESSOR's obligations to cooperate with TENANT as required herein in
obtaining the governmental approvals or utility services contemplated by this Agreement , then
in addition to any rights or remedies that TENANT may have at law or in equit y, TENANT shall
also be entitled to reimbursement from LESSOR upon demand of all costs and expenses inc urred
by TENANT in connection with its activities under this Agreement, including but not li mited to
costs of environmental assessments, title examinations, zoning application fees, and at torneys'
fees, and other legal expenses of TENANT. In the event LESSOR desires to relocate the utilities
and utility easement(s), LESSOR will obtain all certificates, permits and other approvals required
by the utility company and bear all costs associated with such relocation. LESSOR shal l ensure
that all activities related to the relocation of such utilities shal l not interfere with the construction,
maintenance or operation of TENANT's facility.
EXERCISE OF OPTION. TENANT shall exercise the Option by written notice to
LESSOR by certified mail, return receipt requested. The notice shall be deemed effective on the
date it is posted. On and after the date of such notice, this Agreement shall also constitute a lease
agreement between LESSOR and TENANT on the following terms and conditions:
LEASE AGREEMENT
I. LEASE OF PROPERTY. LESSOR hereby leases to TENANT the Property,
which lease includes the grant of a nonexclusive right and easement during the term of this
Agreement 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 uti lity wires,
cables, conduits and pipes over, under or along the twenty foot wide right of way extending
from the nearest public right of way, which is known as , to the Property, as such
right-of-way is shown on Exhibit "A" hereto.
2. INITIAL TERM AND RENTAL. This Agreement shall be for an initial term of
five (5) years beginning on the date the Option is exercised by TENANT at an annual renta l of
Dollars ($ ) to be paid in equal monthly installments on the first day of each month during
the term, in advance, to LESSOR 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 a ny rental payment
date. If the Option is exercised on a date other than the first day of a calendar month,
TENANT shall make a prorated payment of the installment of the annual rental paya ble for the
first and last month of the term of this Agreement.
3. EXTENSION OF TERM. TENANT shall have the option to extend the term of
this Agreement for four (4) additional consecutive five (5) year periods. Each option for an
extended term shall be deemed automatically exercised without notice by TENANT to LESSOR
unless TENANT gives LESSOR written notice of its intention not to exercise any such e xtension
option at least six (6) months prior to the end of the then current term. If TENANT gives
LESSOR written notice of its intention not to exercise any such option, the term of this
Agreement shall expire at the end of the then current term. All references herein to the term of
this Agreement shall include the term as it is extended as provided in this Agreement.
4. EXTENDED TERM RENTAL. The annual rental for the extended terms shall be
as follows: Extended Term Annual Rental
1st $
2nd $
3rd $
4th $
The annual rental for the extended terms shall be payable in the same manner a s the annual rental
for the initial term.
5. CONTINUANCE OF LEASE. If, at least six (6) months prior to the end of the
fourth (4th) extended term, either LESSOR or TENANT has not given the other written notic e of
its desire that the term of this Agreement end upon the expiration of the fourth (4th) extended
term, then upon the expiration of the fourth (4th) extended term this Agreement shall continue in
full 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 wri tten notice
of its intention to so terminate at least six (6) months prior to the end of any such a nnual term.
Monthly rental during such annual terms shall be equal to the rent paid for the last month of the
fourth (4) extended term.
6. USE. TENANT shall use the Property for the purpose of constructing,
maintaining and operating a communications facility and uses incidental thereto, which facility
may consist of such buildings as are necessary to house telecommunications equipment, a fre e
standing monopole or three sided antenna structure of sufficient height, as determined by
TENANT, now or in the future to meet TENANT's telecommunication needs and all nec essary
appurtenances, and a security fence of chain link or comparable construction that may, at the
option of TENANT, be placed around the perimeter of the Property (collectively, the
"Communications Facility"). TENANT shall be allowed to modify, supplement, replace, re move,
or relocate any of its antennas, microwaves, or other appurtenances during the term of this
Agreement and any extensions thereof. All improvements, modifications, supplements,
replacements, removals, or relocation which are necessary for TENANT's use shall be made at
TENANT's expense. LESSOR grants TENANT the right to use such portions of LESSOR's
Surrounding Property as are reasonably required during construction, installation, maintenance,
and operation of the Communications Facility. TENANT shall maintain the Property in a
reasonable condition and shall be solely responsible for the repair and maintenance of all of
TENANT's improvements on the Property, excluding repair and maintenance due to the willful
misconduct or negligence of the LESSOR, its employees, agents or contractors. LESSOR shall
not be allowed to use the Property or the Surrounding Property in any manner which would
cause interference with the operation of TENANT's Communication Facilities or to a ny
SUBTENANTs . In the event there is interference due to LESSOR's actions or usage, LESSOR
shall immediately take all steps necessary to eliminate the interferenc e including, if required,
cutting off power to the objectionable equipment. Based on standard and accepted engi neering
practices, if LESSOR cannot eliminate the interference within twenty-four (24) hours of its
inception, LESSOR shall immediately remove the objectionable equipment and/or c ease
operations.
7. GOVERNMENTAL APPROVALS. LESSOR shall cooperate with TENANT in
its effort to obtain and maintain in effect all certificates, permits, lic enses and other approvals
required by governmental authorities for TENANT's use of the Property. The obligations of
LESSOR as set forth herein during the Option Period with respect to governmental approvals
shall continue throughout the term of this Agreement. If at any time during the term of this
Agreement, TENANT is unable to use the Property for a Communications Facility in t he manner
intended by TENANT due to imposed zoning conditions or requirements, or in the event that
after the exercise of the Option, any necessary certificate, permit, license or approval is finally
rejected or any previously issued certificate, permit, license or approval is cancele d, expires,
lapses, or is otherwise withdrawn or terminated by the applicable governmental authorit y, or soil
boring tests or radio frequency propagation tests are found to be unsatisfactory so that TENANT,
in its sole discretion, will be unable to use the Property for a Communications Facili ty in the
manner intended by TENANT, TENANT shall have the right to terminate this Agreement by
written notice to LESSOR and all rentals paid to LESSOR prior to the termination date shall be
retained by LESSOR. Upon such termination, this Agreement shall become null and void and
LESSOR and TENANT shall have no other further obligations to each other, other than
TENANT's obligation to remove its property as hereinafter provided.
8. TAXES. TENANT shall be responsible for making any necessary returns for and
paying any and all property taxes separately levied or assessed against the improvements
constructed by TENANT on the Property. Taxes are not to be considered as additional rent, but
rather as reimbursement to LESSOR and to be separately billed, TENANT shall pay for any
increase in ad valorem real estate taxes levied against the Property which are directly attributable
to the improvements constructed by TENANT on the Property and are not separately levied or
assessed by the taxing authorities against TENANT or the improvements of TENANT. LESSOR
shall pay all other ad valorem real property taxes levied against the Property on or before the
date such taxes become delinquent. LESSOR hereby agrees that if the taxes which are levied
against the LESSOR and TENANT's improvements on LESSOR's property are incorrectly
assessed, TENANT maintains the right to appeal the tax assessment to the appropriate
governmental authority, said appeal shall be paid for by TENANT. Should the State in which the
property is located offer an early payment tax incentive, LESSOR hereby agrees that TENANT
shall be allowed to pay the taxes under the incentive plan which shall allow for TE NANT to take
advantage of any offered incentives. LESSOR shall furnish TENANT within thirty (30) days of
receipt by LESSOR or LESSOR's representative of the tax assessment for any assessed taxes
which are levied against the Property.
9. INSURANCE. TENANT shall, at its sole cost and expense, at all times during the
term of this Lease maintain in effect a policy or policies of insurance: a) covering its personal
property located on the Leased Property and TENANT's improvements to the Leased Property
paid for and installed by TENANT, providing protection against any peril included under
insurance industry practices within the classification "fire and extended coverage," providing
protection as deemed desirable by TENANT with respect to its personal property and to the full
insurable value of its TENANT improvements paid for by TENANT; and b) Commercial
General Liability insurance with minimum limits of $1,000,000 for injury to or death of one or
more persons in any one occurrence and $1,000,000 for damage to or destruction of properties in
any one occurrence. TENANT shall name the LESSOR as an additional insured as its interest
may appear in regards to the aforementioned policies and shall furnish LESSOR with a
certificate of insurance upon request by the LESSOR. Should the Leased Property and/or
TENANT's personal property be sublet upon, said Subtenant shall be required to maintain
similar insurance and to agree to furnish LESSOR, if requested, certificates or ade quate proof of
such
insurance.
10. SELF- INSURANCE. LESSOR acknowledges that TENANT is or may be a
self-insurer with respect to all or a substantial portion of the risks commonly insured agai nst
under standard fire and extended coverage and commercial general liability insurance policies.
Notwithstanding any provision of the Lease to the contrary, so long as TENANT is BellSouth
Mobility Inc or any subsidiary, or principal or other affiliate thereof, and has a net worth in
excess of Fifty Million Dollars, ($50,000,000.00) TENANT shall not be required to obtain or
maintain any insurance policies otherwise required of TENANT under this Lease and any such
insurance as may be, from time to time, maintained by TENANT will be for the sole and
exclusive benefit of TENANT in furtherance of its risk management and self insurance polic ies
and programs. In the event that TENANT should no longer be BellSouth Mobility or any
subsidiary, or principal or other affiliate thereof, such TENANT shall be obligated to obtai n and
maintain the required insurance policies.
11. INDEMNIFICATION. TENANT shall indemnify and hold LESSOR harmless
against any liability or loss from personal injury or property damage resulting from or arising out
of the use and occupancy of the Property by TENANT or its employees or agents, excepting,
however, such liabilities and losses as may be due to or caused by the acts, omissions or
negligence of LESSOR, its employees, agents or contractors.
12. SALE OF PROPERTY. Should LESSOR, at any time during the initial or any
extended term of this Agreement, decide to sell the Property, or all or any part of LESSOR 's
Surrounding Property, to a TENANT other than TENANT, such sale shall be subject to this
Agreement and TENANT's rights hereunder. LESSOR agrees not to sell, lease or use any area s
of LESSOR's Surrounding Property for the installation, operation or maintenance of other
wireless communications facilities if, such installation, operation or maintenance would interfere
with TENANT's facilities; the existence or the potential for interference shall be determined by
performing radio propagation tests. TENANT hereby agrees to have radio frequency propagation
tests performed in order to determine if interference might exist; any and all tests shall be paid
for by the purchasing party. If the radio frequency propagation tests demonstrate levels of
interference unacceptable to TENANT, LESSOR shall be prohibited from selling, leasing or
using any areas of LESSOR's Surrounding Property. LESSOR shall not be prohibited from the
selling, leasing or use of any of LESSOR's Surrounding Property for non-wireless
communication use .
13. ASSIGNMENT. This Agreement may be sold, assigned or transferred at any time
by TENANT to TENANT's parent company or any affiliate or subsidiary of TENANT or its
parent company, to any entity resulting from a reorganization of TENANT or its parent
company. Otherwise, this Agreement may not be sold, assigned or transferred without the
written consent of LESSOR, such consent not to be unreasonably withheld. TENANT may
sublease the Property, but will provide notice to LESSOR of the sublease. Should TENANT
permit other parties to sublease the Property and TENANT's tower, there shall be no obligat ion
financial or otherwise to LESSOR other than providing notice to LESSOR. However, if
additional property is needed by the subtenant LESSOR and subtenant shall negotiate a se parate
ground lease between each other. The Subtenant shall be responsible for the terms and condi tions
of the ground lease and any additional compensation due to the LESSOR.
14. CONDEMNATION. If the whole of the Property, or such portion thereof as will
make the Property unusable for the purposes herein leased, is condemned by any legally
constituted public authority, then this Agreement, and the term hereby granted, shall ce ase from
the time when possession thereof is taken by the public authority, 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 paragraph shall be construed to limit or adversely affect TENANT's right to an award of
compensation from any condemnation proceeding for the taking of TENANT's leasehold interest
hereunder or for the taking of TENANT's improvements, fixtures, equipment, and personal
property.
15. SUBORDINATION. At LESSOR’s option, this Agreement shall be subordinate
to any deed to secure debt or mortgage by LESSOR which now or hereafter may encumber the
Property. No such subordination shall be effective unless the holder of every such deed to secure
debt or mortgage shall, either in the deed to secure debt or mortgage or in a separate agreement
with TENANT, agree that in the event of a foreclosure, or conveyance in lieu of foreclosure, of
LESSOR's interest in the Property, such holder shall recognize and confirm the validity a nd
existence of this Agreement and the rights of TENANT hereunder, and this Agreement shall
continue in full force and TENANT shall have the right to continue its use and occupanc y of the
Property in accordance with the provisions of this Agreement as long as TENANT is not in
default of this Agreement beyond applicable notice and cure periods. TENANT shall execute in
a timely manner whatever instruments, including a Subordination Agreement or Estoppel
Certificates, as may reasonably be required to evidence the provisions of this paragraph. In t he
event the Property is encumbered by a deed to secure debt or mortgage on the date of t he
exercise of the Option, LESSOR, no later than thirty (30) days after the Option has been
exercised, shall obtain and furnish to TENANT a Non-Disturbance Agreement in recordable
form from the holder of each deed to secure debt or mortgage.
16. TITLE INSURANCE. TENANT, at TENANT's option, may obtain title insurance
on the Property. LESSOR, at TENANT's expense, shall cooperate with TENANT's efforts to
obtain title insurance by executing documents or obtaining requested documentation as requi red
by the title insurance company. If LESSOR fails to provide requested documentation withi n
thirty (30) days of TENANT's request, or fails to provide any non-disturbance agreement
required in the preceding paragraph of this Agreement, TENANT, at TENANT's option, may
withhold and accrue the monthly rental until such time as all such documentation is received by
TENANT.
17. HAZARDOUS MATERIALS. LESSOR warrants, represents and agrees that
neither the LESSOR nor, to the best of LESSOR's knowledge, that any third party has used,
generated, stored, or disposed of any Hazardous Materials. (Hazardous Materials shall mean
petroleum or any petroleum product, asbestos, and any other substance, chemical or waste that is
identified as hazardous, toxic, or dangerous in any applicable Federal, State, or Local l aw, rule,
or regulation.) In the event that hazardous materials are found in, on, or under the Property,
which occurred prior to the date of this Agreement, LESSOR shall assume the liabili ty and costs
for any clean up resulting therefrom. TENANT and LESSOR shall be responsible for any and all
damages, losses, expenses, and will indemnify each other against and from any discovery by any
persons or such hazardous materials or wastes, generated, stored or disposed of as a result of
TENANT's or LESSOR's respective equipment, uses of the Property or any of the Surrounding
Property.
18. OPPORTUNITY TO CURE. If TENANT should fail to pay any rental or other
amounts payable under this Agreement when due, or if TENANT should fail to perform any
other of the covenants, terms or conditions of this Agreement prior to exercising any rights or
remedies against TENANT on account thereof, LESSOR shall first provide TENANT with
written notice of the failure and provide TENANT with a thirty (30) day period to cure such
failure (if the failure is a failure to pay rental or any other sum of money under this Agreement)
or a sixty (60) day period to cure such failure (if the failure is a failure to perform any ot her
covenant, term, or condition of this Agreement). If the failure is not a failure to pay rental or any
other sum of money hereunder but is not capable of being cured within a sixty (60) day period,
TENANT shall be afforded a reasonable period of time to cure the failure provided that
TENANT promptly commences curing the failure after the notice and prosecutes the cure to
completion with due diligence.
20. NOTICES. Except as otherwise provided herein, any notices or demands which
are required by law or under the terms of this Agreement shall be given or made by LESSOR or
TENANT in writing and shall be given by hand delivery, telegram or other similar
communication or sent via facsimile followed up by an original hard copy or by certified or
registered mail, or by a national overnight receipted delivery services which provides signed
acknowledgments of receipt (including Federal Express, UPS, Emery, Purolator, DHL, Airborne
and other similar couriers delivery services) and addressed to the respective parties se t forth
below. Such notices shall be deemed to have been given in the case of telegrams or similar
communications when sent; in the case of certified or registered mail when deposit ed in the
United States mail with postage prepaid, and in the case of overnight receipted del ivery service
the day the notice is deposited with the overnight delivery service. Every notice, demand, or
request hereunder shall be sent to the addresses listed below:
If to LESSOR: _________________________
_________________________ ___________________________________________________________________________
If to TENANT: _________________________ ____________________________________________________________________________________________________
For Legal Notices only, _________________________ ____________________________________________________________________________________________________
Attention: Legal Department
Rejection or refusal to-accept delivery of any notice, or the inability to deliver any notice
because of a changed address of which no notice was given, shall be deemed to be receipt of any
such notice.
CASUALTY. If TENANT's Communications Facility or improvements are damaged or
destroyed by fire or other casualty, TENANT shall not be required to repair or replace the
Communications Facility or any of TENANT's improvements made by TENANT. TENANT
shall not be required to expend for repairs more than twenty-five percent (25%) of the
replacement value of the Communications Facility or any improvements. Additionally, if
completion of the repairs is not possible within ninety (90) days following the date of the da mage
or destruction, TENANT may terminate this Agreement by giving written notice to LESSOR .
Termination shall be effective immediately after such notice is given. Upon suc h termination,
this Agreement shall become null and void other than the requirement that the LE SSOR pay of
any the pro rata share of the unused portion of the rent which was paid to LESSOR back to the
Tenant. Upon TENANT'S receipt of the rent, LESSOR and TENANT shall have no other further
obligations to each other, other than TENANT's obligation to remove its property as hereina fter
provided.
21. TERMINATION Notwithstanding any other termination rights available to
TENANT under this Lease, TENANT, at its sole and absolute discretion, shall have the right to
terminate this Lease with ninety (90) days prior written notice to LESSOR and a l ump sum
payment to LESSOR in an amount equal to twelve (12) months rent or the total of the remaining
months of the term, whichever is less. The rental rate shall be computed at the rate which is in
effect at the time of termination. Upon termination TENANT shall execute upon the request of
the LESSOR a written cancellation of the lease upon the TENANT vacating the Property or upon
termination of the lease, in recordable form and TENANT shall have no other further
obligations, other than TENANT's obligation to remove its property as hereinafter provided.
22. REMOVAL OF IMPROVEMENTS. Title to all improvements constructed or
installed by TENANT on the Property shall remain in TENANT, and all improvements
constructed or installed by TENANT shall at all times be and remain the property of TENANT,
regardless of whether such improvements are attached or affixed to the Property. Furthermore,
all improvements constructed or installed by TENANT shall be removable at the expira tion or
earlier termination of this lease or any renewal or extension thereof, provided TENANT sha ll not
at such time be in default under any covenant or agreement contained in this l ease. TENANT,
Upon termination of this Agreement, shall, within ninety (90) days, remove all improvements,
fixtures and personal property constructed or installed on the Property by TENANT and restore
the property to its original above grade condition, reasonable wear and tear excepted. If such
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 is completed.
23. MISCELLANEOUS. This Agreement cannot be modified except by written
modification executed by LESSOR and TENANT in the same manner as this Agreement is
executed. The headings, captions and numbers in this Agreement are solely for convenience and
shall not be considered in construing or interpreting any provision in this Agreement. Whenever
appropriate in this Agreement, personal pronouns shall be deemed to include other genders and
the singular to include the plural, if applicable. This Agreement contains all agreements,
promises and understandings between the LESSOR and TENANT, and no verbal or oral
agreements, promises, statements, assertions or representations by LESSOR and TENANT or
any employees agents, contractors, or other representatives of either, shall be binding upon
LESSOR or TENANT.
24. QUIET ENJOYMENT. LESSOR covenants Oil that paying the rental and
performing the covenants, terms, and conditions required of TENANT contained herein, shall
peaceably and quietly have, hold, and enjoy the Property and the leasehold estate grant ed to
TENANT by virtue of this Agreement.
25. SECURITY INTEREST. It is the express intent of the parties to this Lease that
LESSOR have no security interest whatsoever in any personal property of the TENANT
whatsoever, and, to the extent that any applicable statute, code, or law interest , LESSOR does
hereby expressly waive any rights thereto.
26. REPRESENTATION. LESSOR and TENANT warrant to each other that they
were represented in this transaction by and respectively and
by no other real estate brokerage firms. Additionally, the parties warrant to each other that they
will each hold the other harmless from and indemnify each other against claims made by any
broker claiming to have represented the indemnifying party in this transaction.
27. GOVERNING LAW. This Agreement shall be governed and interpreted by, and
construed in accordance with, the laws of the State Mississippi.
28. ATTORNEY'S FEES. In any proceeding which either party may prosecute to
enforce its rights hereunder, the unsuccessful party shall pay all costs incurred by the prevaili ng
party (as such parties are hereafter defined), including reasonable attorneys' fees.
29. MEMORANDUM OF LEASE. At the request of TENANT, LESSOR agrees to
execute a memorandum or short form of this Agreement, in recordable form, setting forth a
description of the Property, the term of this Agreement and other information desired by
TENANT for the purpose of giving public notice thereof to third parties.
30. CONFIDENTIALITY. LESSOR agrees not to discuss publicly, advertise, nor
publish in any newspaper, journal, periodical, magazine, or other forms of mass media, the terms
or conditions of this Lease Agreement. Doing so shall constitute a default under this Agreem ent
immediately. It is agreeable that both parties will not discuss terms and condi tions with any
parties not directly involved with this Lease.
31. BINDING EFFECT. This Agreement shall extend to and bind the heirs, personal
representatives, successors, and assigns of LESSOR and TENANT and shall constitute
covenants running with the land.
32. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall constitute an original and all of which shall constitute the same agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their
respective seals.
Signed, sealed and delivered
in the presence of: LESSOR:
_____________________(SEAL) ________________________________
Witness Name
_____________________(SEAL) ________________________________
Witness Name
Date:_________________
STATE OF____________
COUNTY OF__________
The foregoing instrument was acknowledged before me this day of , 20 ;
by who is personally know to me or who has produced
as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
(NOTARY SEAL)
Signed, sealed and delivered
in the presence of: TENANT:
_____________________(SEAL) ________________________________
WitnessName
_____________________(SEAL) ________________________________
Witness Name
Date:_________________
STATE OF____________
COUNTY OF__________
The foregoing instrument was acknowledged before me this day of , 20 ;
by who is personally know to me or who has produced
as identification.
NOTARY PUBLIC
Print Name:
My Commission Expires:
NOTARY SEAL
