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Home My Public Portal AboutAssignment No. 1 to Contract No. 088-2005 - ERS Telecom - SBA Towers February 28, 2011 VIA OVERNIGHT MAIL Richmond Chief of Police c/o Department of Law City of Richmond Attn: Marilyn Miles 50 North 5th Street Richmond, Indiana 47374 Phone: 765-983-7220 RE: Lease Agreement, dated June 16th, 2005, by and between City of Richmond, an Indiana municipal corporation, by and through its Board of Public Works and Safety, ("Landlord") and ERS Telecom Properties, LLC, an Indiana limited liability company, (“Tenant”), as amended by that certain Lease Agreement Amendment No. 1, dated October 28, 2005, and further amended by that certain Lease Agreement Amendment No. 2, dated November 10, 2010, (the "Ground Lease") with respect to that certain real property located in Wayne County, Indiana ("Property"). SBA Site ID: IN14312-A, Richmond Dear Ms. Miles: SBA Towers III LLC (“SBA”) may take an assignment of the Ground Lease and purchase certain of Tenant’s assets located on the Property including the communications tower. As part of SBA’s due diligence review in determining whether to consummate this transaction, we would ask that you confirm the following: 1. Attached as Exhibit "A" is a true and complete copy of the Ground Lease and all amendments or modifications thereto. Lease Agreement Amendment No. 2, dated November 10th, 2010 is in full force and effect. The Ground Lease constitutes the entire agreement between you and Tenant with respect to the subject matter thereof. Tenant is the current tenant under the terms of the Ground Lease. 2. The Ground Lease commenced on June 16, 2005 and the expiration date of the initial term of the Ground Lease is June 15, 2055. Tenant has the option to extend the term of the Ground Lease for one (1) additional term of ten (10) years. 3. Currently, Tenant provides to Landlord, at no cost, and Landlord accepts as rental consideration, space for four (4) antennas and one (1) coax cable for each of the antennas on the communications tower for the installation of the Landlord’s emergency services communications system, as more particularly described in Section V of the Ground Lease. Tenant pays no additional monthly rent. 4. Tenant shall remit all rental payments to Landlord at the address stated above unless otherwise indicated below: Phone: 5. Neither you nor Tenant is in default under the Ground Lease and there is no event which, with the giving of notice and/or the passage of time, would constitute such a default and you have no claim or defense of any nature whatsoever against Tenant with respect to the Ground Lease and there is no event which, with the giving of notice and/or the passage of time, would constitute the basis of such a claim or defense. 6. You consent to the proposed transaction with the understanding that this consent will be effective only if the transaction closes. 7. Tenant hereby waivers all of their rights under Section VII of the Ground Lease with respect to the current transactions with SBA. In addition and following the acquisition of the real property by SBA, Tenant confirms that the terms of Section VII shall not apply to any transfer(s) to any affiliate of SBA. 8. Tenant may freely sublease space on the ground and/or on the tower without obtaining your consent, so long as Landlord’s existing use pursuant to the Ground Lease is not affected or interfered with by Tenant. 9. SBA may from time to time grant to certain lenders selected by SBA and its affiliates (the “Lenders”) a lien on and security interest in SBA’s interest in the Ground Lease and all assets and personal property of SBA located on the leased space (the “Personal Property”) as collateral security for the repayment of any indebtedness to the Lenders. Landlord hereby agrees to subordinate any security interest, lien, claim or other similar right, including, without limitation, rights of levy or distraint for rent, Landlord may have in or on the Personal Property, whether arising by agreement or by law, to the liens and/or security interests in favor of the Lenders, whether currently existing or arising in the future. Nothing contained herein shall be construed to grant a lien upon or security interest in any of Landlord’s assets. Should Lender exercise any rights of SBA under the Ground Lease, including the right to exercise any renewal option(s) or purchase option(s) set forth in the Ground Lease, Landlord agrees to accept such exercise of rights by Lenders as if same had been exercised by SBA, and SBA, by signing below, confirms its agreement with this provision. If there shall be a monetary default by SBA under the Ground Lease, Landlord shall accept the cure thereof by Lenders within fifteen (15) days after the expiration of any grace period provided to SBA under the Ground Lease to cure such default, prior to terminating the Ground Lease. If there shall be a non-monetary default by SBA under the Ground Lease, Landlord shall accept the cure thereof by Lenders within five (5) days after the expiration of any grace period provided to SBA under the Ground Lease to cure such default, prior to terminating the Ground Lease. The Ground Lease may not be amended in any respect which would be reasonably likely to have a material adverse effect on Lenders’ interest therein or surrendered, terminated or cancelled, without the prior written consent of Lenders, which consent shall not be unreasonably withheld. If the Ground Lease is terminated as result of an SBA default or is rejected in any bankruptcy proceeding, Landlord will enter into a new lease with Lenders or their designee on the same terms as the Ground Lease within 15 days of Lenders’ request made within 30 days of notice of such termination or rejection, provided Lenders pay all past due amounts under the Ground Lease. The foregoing is not applicable to normal expirations of the term of the Ground Lease. In the event Landlord gives Tenant any notice of default under the terms of the Ground Lease, Landlord shall simultaneously give a copy of such notice to Lender at an address to be supplied by Tenant. SBA shall have the right to record of memorandum of the terms of this paragraph. 10. In the event the actual current tower and related improvements lay outside the legal descriptions for the leased area and access, utility and guy wire easements, SBA shall have the right to survey the improvements and record an Amended Memorandum of Lease reflecting the actual current location of the leased area and access, utility and guy wire easements, provided that any Amended Memorandum of Lease shall be approved by the Landlord prior to recordation. 11. If requested by SBA, you will execute a Memorandum of Lease to be recorded in the public records containing the metes and bounds description provided that all descriptions will be reviewed by the Landlord and provided that any Memorandum of Lease shall be approved by the Landlord prior to recordation. 12. You (i) have not assigned your interest in the Ground Lease, (ii) are not under agreement to or negotiating an agreement to assign your interest in the Ground Lease, and (iii) will not assign your interest in the Ground Lease except in connection with a sale of the underlying fee title. We would appreciate you reviewing and signing this letter at your earliest possible convenience as we would like to conclude this transaction a quickly as possible. If you could fax a copy of this signed letter to my attention at 561-226-3535 and return the original in the enclosed pre-paid return federal express envelope it would be greatly appreciated. Please do not hesitate to contact me at (561) 226-9278, if you have any concerns or questions. Sincerely, SBA TOWERS III LLC S/S Katie Rawlinson_____________________ Katie Rawlinson Executive Assistant ACKNOWLEDGED AND CONFIRMED: City of Richmond in the State of Indiana through its Board of Public Works and Safety By:_S/S Vicki Robinson____________ Vicki Robinson, President By:_S/S Dian Lawson______________ Dian Lawson, Member By:_S/S Anthony L. Foster___________ Anthony L. Foster, II, Member Date:__April 28, 2011________________ APPROVED:_S/S Sarah L. Hutton_____ Sarah L. Hutton, Mayor Date:_April 29, 2011__________________