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HomeMy Public PortalAbout100_010_4th AMD_062714. V2 tbTHE FOURTH AMENDMENT TO GROUND LEASE AGREEMENT This Fourth Amendment to Ground Lease Agreement (this “Amendment”) is made effective as of the latter signature date hereof (the “Effective Date”) by and between The City of Tybee Island, a municipal corporation of the State of Georgia (“Landlord”) and Spectrasite Communications, LLC, a Delaware limited company (“Tenant”) (Landlord and Tenant being collectively referred to herein as the “Parties”). RECITALS WHEREAS, Landlord owns the real property described on Exhibit A attached hereto and by this reference made a part hereof (the “Parent Parcel”); and WHEREAS, Landlord (or its predecessor-in-interest) and Tenant (or its predecessor-in-interest) entered into that certain Ground Lease Agreement dated December 11, 1997 (as the same may have been amended, collectively, the “Lease”), pursuant to which the Tenant leases a portion of the Parent Parcel and is the beneficiary of certain easements for access and public utilities and, if applicable, easements for guy wires and guy anchors, all as more particularly described in the Lease (such leasehold and easement rights and interests, collectively, the “Leased Premises”), which Leased Premises are also described on Exhibit A ; and WHEREAS, Landlord and Tenant desire to amend the terms of the Lease and to otherwise modify the Lease as expressly provided herein. NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants set forth herein and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Leased Premises. The parties agree and acknowledge that the Leased Premises is depicted in Exhibit A attached hereto. The depiction of the Leased Premises contained in Exhibit A replaces and supersedes any depictions of the Leased Premises previously included in the Lease which are hereby null and of no further force and effect. 2. Landlord and Tenant Acknowledgments. Except as modified herein, the Lease and all provisions contained therein remain in full force and effect and are hereby ratified and affirmed. The parties hereby agree that no defaults exist under the Lease. To the extent Tenant needed consent and/or approval from Landlord for any of Tenant’s activities at and uses of the Leased Premises and any other portions of the Parent Parcel prior to the Effective Date, Landlord’s execution of this Amendment is and shall be considered consent to and approval of all such activities and uses. Landlord hereby acknowledges and agrees that Tenant shall not need consent and/or approval from Landlord for any future activities at or uses of the Leased Premises, including, without limitation, subleasing and licensing to additional customers, installing, modifying, repairing, or replacing improvements within the Leased Premises, and/or assigning all or any portion of Tenant’s interest in this Lease, as modified by this Amendment. Tenant and Tenant’s sublessees and customers shall have vehicular (specifically including truck) and pedestrian access to the Leased Premises from a public right of way on a 24 hours per day, 7 days per week basis, together with utilities services to the Leased Premises from a public right of way. Upon request by Tenant, Landlord hereby agrees promptly to execute and deliver building permits, zoning applications and other forms and documents required for the use of the Leased Premises by Tenant and/or Tenant’s customers, licensees, and subleases. Landlord hereby acknowledges and agrees that Tenant shall have the right, exercisable by Tenant at any time during the term of the Lease, to replace, in whole or in part, the description(s) of the Leased Premises set forth on Exhibit A with a legal description or legal descriptions based upon an as-built survey. Upon Tenant’s request, Landlord shall execute and deliver any documents reasonably necessary to effectuate the foregoing description replacements, including, without limitation, amendments to the Lease and the Memorandum. The terms, provisions, and conditions of this Section shall survive the execution and delivery of this Amendment. 3. Landlord Statements. Landlord hereby represents and warrants to Tenant that: (i) to the extent applicable, Landlord is duly organized, validly existing, and in good standing in the jurisdiction in which Landlord was organized, formed, or incorporated, as applicable, and is otherwise in good standing and authorized to transact business in each other jurisdiction in which such qualifications are required; (ii) Landlord has the full power and authority to enter into and perform its obligations under this Amendment, and, to the extent applicable, the person(s) executing this Amendment on behalf of Landlord, have the authority to enter into and deliver this Amendment on behalf of Landlord; (iii) no consent, authorization, order, or approval of, or filing or registration with, any governmental authority or other person or entity is required for the execution and delivery by Landlord of this Amendment, other than the required approval by the Mayor and Council of the City of Tybee Island to enter into this Amendment; (iv) Landlord is the sole owner of the Leased Premises and all other portions of the Parent Parcel; (v) there are no agreements, liens, encumbrances, claims, claims of lien, proceedings, or other matters (whether filed or recorded in the applicable public records or not) related to, encumbering, asserted against, threatened against, and/or pending with respect to the Leased Premises or any other portion of the Parent Parcel which do or could (now or any time in the future) adversely impact, limit, and/or impair Tenant’s rights under the Lease, as amended and modified by this Amendment; and (vi) the square footage of the Leased Premises is the greater of Tenant’s existing improvements on the Parent Parcel or the land area conveyed to Tenant under the Lease. The representations and warranties of Landlord made in this Section shall survive the execution and delivery of this Amendment. 4. Counterparts. This Amendment may be executed in several counterparts, each of which when so executed and delivered, shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument, even though all Parties are not signatories to the original or the same counterpart. Furthermore, the Parties may execute and deliver this Amendment by electronic means such as .pdf or similar format. Each of the Parties agrees that the delivery of the Amendment by electronic means will have the same force and effect as delivery of original signatures and that each of the Parties may use such electronic signatures as evidence of the execution and delivery of the Amendment by all Parties to the same extent as an original signature. 5. Governing Law. Notwithstanding anything to the contrary contained in the Lease and in this Amendment, the Lease and this Amendment shall be governed by and construed in all respects in accordance with the laws of the State or Commonwealth in which the Leased Premises is situated, without regard to the conflicts of laws provisions of such State or Commonwealth. [SIGNATURES FOLLOW ON NEXT PAGE] LANDLORD: The City of Tybee Island, a municipal corporation of the State of Georgia Signature: _____________________________ Print Name: ____________________________ Title: ____________________ _____________ Date: _________________________________       [SIGNATURES CONTINUE ON NEXT PAGE] TENANT: Spectrasite Communications, LLC, a Delaware limited company Signature: _____________________________ Print Name: ____________________________ Title: _________________________________ Dat e: _________________________________ EXHIBIT A This Exhibit A may be replaced at Tenant’s option as described below PARENT PARCEL Tenant shall have the right to replace this description with a description obtained from Landlord’s deed (or deeds) that include the land area encompassed by the Lease and Tenant’s improvements thereon The Parent Parcel consists of the entire legal taxable lot owned by Landlord as described in a deed (or deeds) to Landlord of which the Leased Premises is a part thereof. LEASED PREMISES Tenant shall have the right to replace this description with a description obtained from the Lease or from a description obtained from an as-built survey conducted by Tenant.  ACCESS AND UTILITIES The Access and Utilities Easements include all easements of record as well as existing access and utilities currently servicing the Leased Premises to and from a public right of way.  EXHIBIT B FORM OF MEMORANDUM OF LEASE Prepared by and Return to: American Tower 10 Presidential Way Woburn, MA 01801 Attn: Land Management / Justin White ATC Site No: 303430 ATC Site Name: Tybee Island  Prior Recorded Lease Reference: Book 340E, Page 568 State of Georgia County of Chatham   MEMORANDUM OF LEASE This Memorandum of Lease (the “Memorandum”) is entered into on the __________ day of __________________, 201___ by and between The City of Tybee Island, a municipal corporation of the State of Georgia (“Landlord”) and Spectrasite Communications, LLC, a Delaware limited company (“Tenant”). NOTICE is hereby given of the Lease (as defined and described below) for the purpose of recording and giving notice of the existence of said Lease. To the extent that notice of such Lease has previously been recorded, then this Memorandum shall constitute an amendment of any such prior recorded notice(s). Parent Parcel and Lease. Landlord is the owner of certain real property being described in Exhibit A attached hereto and by this reference made a part hereof (the “Parent Parcel”). Landlord (or its predecessor-in-interest) and Tenant (or its predecessor-in-interest) entered into that certain DESCRIBE THE LEASE AGREEMENT, dated December 11, 1997 (as the same may have been amended, renewed, extended, restated, and/or modified from time to time, collectively, the “Lease”), pursuant to which the Tenant leases a portion of the Parent Parcel and is the beneficiary ofcertain easements for access and public utilities, all as more particularly described in the Lease (such leasehold and easement rights and interests, collectively, the “Leased Premises”), which Leased Premises is also described on Exhibit A. Expiration Date. Subject to the terms, provisions, and conditions of the Lease, and assuming the exercise by Tenant of all renewal options contained in the Lease, the final expiration date of the Lease would be November 30, 2037. Notwithstanding the foregoing, in no event shall Tenant be required to exercise any option to renew the term of the Lease. Leased Premises Description. Tenant shall have the right, exercisable by Tenant at any time during the original or renewal terms of the Lease, to cause an as-built survey of the Leased Premises to be prepared and, thereafter, to replace, in whole or in part, the description(s) of the Leased Premises set forth on Exhibit A with a legal description or legal descriptions based upon such as-built survey. Upon Tenant’s request, Landlord shall execute and deliver any documents reasonably necessary to effectuate such replacement, including, without limitation, amendments to this Memorandum and to the Lease. Effect/Miscellaneous. This Memorandum is not a complete summary of the terms, provisions and conditions contained in the Lease. In the event of a conflict between this Memorandum and the Lease, the Lease shall control. Landlord hereby grants the right to Tenant to complete and execute on behalf of Landlord any government or transfer tax forms necessary for the recording of this Memorandum. This right shall terminate upon recording of this Memorandum. Notices. All notices must be in writing and shall be valid upon receipt when delivered by hand, by nationally recognized courier service, or by First Class United States Mail, certified, return receipt requested to the addresses set forth herein; To Landlord at: City of Tybee Island GA, P.O. Box 2749, Tybee Island, CA 31328, To Tenant at: Attn: Land Management 10 Presidential Way, Woburn, MA 01801, with copy to: Attn Legal Dept. 116 Huntington Avenue, Boston, MA 02116. Any of the parties hereto, by thirty (30) days prior written notice to the other in the manner provided herein, may designate one or more different notice addresses from those set forth above. Refusal to accept delivery of any notice or the inability to deliver any notice because of a changed address for which no notice was given as required herein, shall be deemed to be receipt of any such notice. Counterparts. This Memorandum may be executed in multiple counterparts, each of which when so executed and delivered, shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Governing Law. This Memorandum shall be governed by and construed in all respects in accordance with the laws of the State or Commonwealth in which the Leased Premises is situated, without regard to the conflicts of laws provisions of such State or Commonwealth. [SIGNATURES FOLLOW ON NEXT PAGE] IN WITNESS WHEREOF, Landlord and Tenant have each executed this Memorandum as of the day first above written. LANDLORD The City of Tybee Island, a municipal corporation of the State of Georgia Signature: _____________________________ Print Name: ____________________________ Title: _________________________________ Date: _________________________________ WITNESS Signature: _____________________________ Print Name: ____________________________ Signature: _____________________________ Date: _________________________________      WITNESS AND ACKNOWLEDGEMENT State/C ommonwealth of _____________________ County of ________________________ On this ____ day of _____________________, 201___, before me, the undersigned Notary Public, personally appeared __________________________________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s) or the entity upon which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ___________________________________ Notary Public Print Name: _________________________ My commission expires: _______________ [SEAL] [SIGNATURES CONTINUE ON NEXT PAGE] TENANT Spectrasite Communications, LLC, a Delaware limited company Signature: _____________________________ Print Name: ____________________________ Title: _________________________________ Dat e: _________________________________ WITNESS Signature: _____________________________ Print Name: ____________________________ Signature: _____________________________ Date: ___________________ ______________      WITNESS AND ACKNOWLEDGEMENT Commonwealth of Massachusetts County of Middlesex On this ____ day of _____________________, 201___, before me, the undersigned Notary Public, personally appeared __________________________________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s) or the entity upon which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ___________________________________ Notary Public Print Name: _________________________ My commission expires: _______________ [SEAL] EXHIBIT A This Exhibit A may be replaced at Tenant’s option as described below PARENT PARCEL Tenant shall have the right to replace this description with a description obtained from Landlord’s deed (or deeds) that include the land area encompassed by the Lease and Tenant’s improvements thereon The Parent Parcel consists of the entire legal taxable lot owned by Landlord as described in a deed (or deeds) to Landlord of which the Leased Premises is a part thereof. LEASED PREMISES Tenant shall have the right to replace this description with a description obtained from the Lease or from a description obtained from an as-built survey conducted by Tenant.  ACCESS AND UTILITIES The Access and Utilities Easements include all easements of record as well as existing access and utilities currently servicing the Leased Premises to and from a public right of way.