2nd Amendment & Consent to Assignment Wq 111
is .e....to, Kevin Madok, CPA
s,4,4. 1
4,y . ;; Clerk of the Circuit Court& Comptroller—Monroe County, Florida
DATE: August 26, 2020
TO: Kathy Peters, CP
County Attorney's Office
FROM: Pamela G. Han rIC .C.
SUBJECT: August 19th BOCC Meeting
Attached is an electronic copy of the following item for your handling:
P7 2nd Amendment and Assignment of Lease from Assignor Telcom Systems LTD to
Datapath Vertical Bridge LLC.
Should you have any questions please leel free to contact me at(305) 292-3550.
cc: Finance
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 Plantation Key,Florida 330
305-294-4641 305-289-6027 305-852-7145 305-852-7145
Site Name: US-FL-5389
Site ID: Long Key DS
2nd AMENDMENT AND CONSENT TO ASSIGNMENT OF LEASES
This 2"d AMENDMENT AND CONSENT TO ASSIGNMENT OF LEASES (the
"Agreement") is made and entered into as of August 19, 2020 ('Effective Date"). by and between
Telcom Systems, Ltd., a Florida Limited Partnership ("Assignor"), Datapath Vertical Bridge,
LLC, a Delaware Limited Liability Company ("Assignee"), and the Board of County
Commissioners of Monroe County, Florida("Landlord").
WITNESSETH:
WHEREAS, Assignor and Landlord are parties to a certain Lease Agreement-last dated
April 20,2011, as amended by that certain First Amendment to Lease Agreement between Mope _°
County and Telcom Systems Inc. dated October 17, 2014 (as further amended aqd assig(tlU,
collectively, the "Leases") (a full copy of which Leases are annexed as Exhibit A), f6rlhe leaee
of a tract of land on Long Key, Monroe County, Florida, as more particularly-descriad n
o
in the Leases (the "Premises"): and
CO
C o
WHEREAS, Assignor and Assignee concurrently entered into an Asset Purchase
Agreement, dated June 4th, 2019, and Assignment and Assumption of Ground Lease, dated June
attached as Exhibit B. by which Assignor assigned and Assignee assumed of all of 4th, 2019,
Assignor's right,title, and interest, and obligations first accruing from and after the Transfer Date,
(as defined in the Assignment and Assumption of Ground Lease) under the Leases; and
WHEREAS, Landlord desires to consent to such assignment and assumption,all upon the
terms and conditions set forth herein; and
WHEREAS, Landlord, Assignor, and Assignee desire by this Agreement to amend the
Leases to give Assignee the unilateral option to extend the term of the Leases for (2) successive
ten (10) years terms to April 19,2041.
NOW, THEREFORE, for valid consideration the receipt and sufficiency of which is
acknowledged, the parties agree as follows:
Incorporation. The Whereas clauses set forth above are hereby incorporated
into and made part of this Agreement.
2. Consent. To the extent any such consent is required by the Leases, Landlord
hereby consents to the Assignment and Assumption of Ground Lease and acquisition by
Assignee or its affiliates, directly or indirectly, of Assignor's interest in the Leases, and
releases Assignor from any liability or obligation under the Leases first arising or
incurred on or after the Effective Date. Landlord also hereby acknowledges and confirms
to Assignee that:
(i) Assignor and Landlord are the parties to each of the Leases;
(ii) the Leases represent the entire understanding of the parties with respect to
the matters that are the subject thereof. and have not been amended or otherwise modified;
Site Name: US-FL-5389
Site ID: Long Key DS
(iii) the Leases (a full copy of which Leases, including all amendments
thereto is annexed as Exhibit A) are in full force and effect in accordance with their terms.
which terms have not been further modified;
(iv) Assignor has paid to Landlord all amounts due and payable under the
Leases to date and has performed all non-monetary obligations under the Leases to date;
(v) to Landlord's knowledge, no defaults on behalf of either Assignor or
Landlord have occurred and are continuing under the Leases, nor have any events
occurred which with the giving of notice, the passage of time or both would constitute
defaults under the Leases:
(vi) there are no present charges, liens, or claims of offset under the
Leases:
(vii) the address for notices to be sent to Landlord is as expressly set forth
in the Leases:
(viii) Landlord has no cause of action against Assignor arising out of any
of the Leases, nor to the best of Landlord's knowledge does the basis for any cause of
action exist;
(ix) the term of the Leases shall terminate on April 19, 2021 . subject only
to Assignor's or its permitted successors' or assigns' unilateral option to extend the term
of the Leases for ten (10) years to April 19, 2031 ;
(x) the rent under the Leases currently is $1,068.54, plus sales tax per
month;
(xi) No security deposit is due under the terms of the Leases; and
(xi i) there are no additional capital expenditures other than those expressly stated
in the Leases.
3. Agreement with Respect to the Leases. Following the consummation of this
Agreement:
(i) Assignee shall have the option to extend the term of the Leases for
one (I) successive term of ten (10) years (the "Renewal Term"). Subsequent to the
Renewal Term, Assignee shall have the option to extend the term of the Leases for one
(1) successive term of ten (10) years to April 19, 2041 (the "Subsequent Renewal Term")
if on or prior to April 19, 2022 Assignee completes construction and obtains a Certificate
of Occupancy for a 185 feet communications tower. The Renewal Term and Subsequent
Renewal Term shall commence automatically unless Assignee delivers written notice to
Landlord prior to the end of the then current term of Assignee's intent not to renew. All
terms, covenants, and conditions of the Leases shall remain in full force and effect during
the Renewal Term and Subsequent Renewal Term. Should Assignee or any assignee,
sublessee, or licensee of Assignee holdover the Premises or any part thereof after the
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Site Name: US-FL-5389
Site ID: Lone Key DS
expiration of the Leases, such holdover shall constitute and be construed as a tenancy
from month-to-month only, but otherwise upon the same terms and conditions as set forth
in the Leases.
(ii) At least ninety (90) days prior to the expiration of the Subsequent
Renewal Term. Assignee and Landlord shall use good faith and diligent efforts to extend
the term of the Leases for one (I) successive term of ten (10) years to April 19, 2051 on
mutually agreeable commercially reasonable terms and conditions.
(iii) Revenue Share.
I) From and after May I, 2021 until April 30, 2031, Assignee
will pay Landlord an amount equal to fifteen percent (15%) of the Aggregate Rents
(defined below) collected pursuant to all new subleases or licenses procured by Assignee
for the Premises after the Effective Date. For an avoidance of doubt, Landlord shall not
be entitled to any rents or other revenues collected from any sublessee or licensee existing
at the Premises as of the Effective Date or any replacement thereof.
2) From and after May I. 2031 until April 19, 2041, Assignee
will pay Landlord an amount equal to twenty-five percent (25%) of the Aggregate Rents
(defined below) collected pursuant to all new leases or sublicenses procured by Assignee
for the Premises after the Effective Date. For an avoidance of doubt, Landlord shall not
be entitled to any rents or other revenues collected from any sublessee or licensee existing
at the-Premises as of the Effective Date or any replacement thereof.
3) For purposes hereof, "Aggregate Rents" shall mean all rents,
license fees, payments and other amounts including, without limitation, escalation of any
such rents, license fees, payments and such other amounts collected by Assignee from its
sublessees or licensees, but exclusive of reimbursements and pass-through expenses from
such sublessees or licensees paid directly to Assignee, including but not limited to
utilities and taxes.
(iv) Assignee and Landlord acknowledge and agree that the
communications tower currently installed on the Premises is in disrepair and inadequate
for its intended use. In the event Assignee is unable to decommission the existing
communications tower or construct and develop a new communications tower ("Tower")
on the Premises to its sole satisfaction, then Assignee shall have the unilateral right to
terminate the Leases upon ninety (90) days prior written notice to Landlord.
4. Full Force and Effect. The Leases and Assignment and Assumption of
Ground Lease shall continue in full force and effect and the Leases and Assignment and
Assumption of Ground Lease are ratified. In the event of a conflict between the terms of
the Leases and this Agreement, this Agreement shall prevail.
5. Binding Effect. This Agreement. which shall include the exhibits attached
hereto, shall be binding upon and shall inure to the benefit of Assignor, Assignee,
Landlord, and their respective and permitted successors and assigns.
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Site Name: US-FL-5389
Site ID: Long Key DS
6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all which counterparts
together shall constitute one agreement with the same effect as if the parties had signed
the same signature page.
7. Amendments to the Lease Agreement dated April 20, 2011 terms.
(i) Article 4 of the Lease Agreement is amended to read as follows;
Rental Amount. LESSEE shall pay to LESSOR as rent the sum of One Thousand Sixty
Eight and 54/100 Dollars ($1,068.54) per month plus sales tax ("Fee"), payable on or
before the ninth day of each month for the first two years of the term of the lease, and
increasing 2% every year thereafter. The Fee shall be made payable to Monroe County
and paid to the Clerk of Monroe County at 500 Whitehead Street, Key West. FL 33040.
The Fee shall be due and payable on or before the first day of each calendar month during
which this Lease is in effect. Upon the failure of LESSEE to pay the Fee when due, the
COUNTY will be entitled to charge and collect, and LESSEE will be obligated to pay, a
late fee of twenty dollars ($20) or twenty percent (20%), whichever is lesser of any such
overdue amount. Such late fees will be in addition to the amount of rent due. The
acceptance by the COUNTY of the overdue rental amount plus applicable late fees shall
cure what would otherwise constitute a default by LESSEE under the terms of this lease.
In the event that any check, draft, or negotiable instrument by which LESSEE has
tendered any rent payment is returned to the COUNTY and not honored, whether for
insufficient funds or other reason, the COUNTY will be entitled to charge and collect, in
addition to any applicable late payment fees as provided above a service charge of$25 if
the face value does not exceed $50; $30 if the face value exceeds $50 but does not exceed
$300: $40 if the face value exceeds $300; or 5 percent of the face value of the payment
instrument, whichever is lesser. Such fees and charges shall also be in addition to the
amount of rent due. The acceptance by the COUNTY of the rental payment plus any
applicable late fee and penalties following the receipt of a dishonored instrument shall
cure what would otherwise constitute a default under the terms of this lease.
(ii) Article 19 of the Lease Agreement is amended to read as follows:
Notice. Notices to the parties shall be sent by certified mail, postage prepaid and
addressed to the following:
FOR LESSOR: COPY TO: FOR LESSEE:
County Administrator Emergency Communications Vertical Bridge REIT, LLC
1100 Simonton Street Laura White 750 Park of Commerce Dr.
The Gato Building 10600 Aviation Boulevard Suite 200
Key West, Florida 33040 Marathon, Florida 33050 Boca Raton, FL 33487
Site #: US-FL-5389
Site Name: Long Key DS
Attention: General Counsel
4
Site Name: US-FL-5389
Site ID: Long Key DS
(iii) The following language is incorporated in the Lease Agreement as
Article 43:
Nondiscrimination. The parties agree that there will be no discrimination against any
person. The parties agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited
to: I) Title VII of the Civil Rights Act of 1964 (Pt. 88-352), which prohibit discrimination
in employment on the basis of race, color, religion, sex, and national origin; 2) Title IX
of the Education Amendment of 1972, as amended (20 USC §§ 1681 -1683, and 1685-
1686). which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC § 794), which prohibits discrimination
on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC
§§ 6101-6107), which prohibits discrimination on the basis of age; 5) The Drug Abuse
Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination
on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism
Prevention. Treatment and Rehabilitation Act of 1970 (PL 91 616), as amended, relating
to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, §§ 523 and 527 (42 USC §§ 690dd-3 and 290ee-3), as amended,
relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the
Civil Rights Act of 1968 (42 USC §§ 3601 et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC §§ 12101), as amended from time to time, relating to
nondiscrimination in employment on the basis of disability; 10) Monroe County Code
Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex,
religion, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any federal or
state statutes which may apply to the parties to. or the subject matter of, this Agreement.
8. Amendment to the First Amendment to Lease Agreement between Monroe
County and Telcom Systems Inc. dated October 17, 2014 ("Amendment") terms.
(i) Article 7 of the Amendment is deleted in its entirety.
[Signature Page Follows]
5
Site Name: US-FL-5389
Site ID: Long Key DS
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the
day and year first written above.
TELCOM SYSTEMS LTD. -Assignor
Witn
/uv'SCCC-i By: VS Ma f 0�, a Ilk
Name: James F. Spisiak
Z/Ce if; Title: President
DATAPATH VERTICAL BRIDGE, LLC -
Assignee
Witnesses
By: (See nex-I- pgge)
Name:
Title:
(7g,
7° BOARD OF COUNTY COMMISSIONERS
r. KEVIN MADOK OF MONROE COUNTY, FLORIDA—
Landlord
CLERK
By: l f"^^^ "w^-*"--12-.7 By: A b
As Deputy Clerk Mayor/Chan , TILER CARRUTHERS
OE COUNTY fOi• EY
P OVED A AI
PEDRO . R
ASSI ATT�U�yyR tY
Date _ T1 .2,11
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DowSign Envelope ID'0723E9E1-7139-4A4F-9706-262192845D78
Site Name: US-FL-5389
Site ID: Long Key DS
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the
day and year first written above.
TELCOM SYSTEMS LTD. -Assignor
Witnesses
By: (See previous Rage
Name:
Title:
DATAPATH VERTICAL BRIDGE, LLC-
Assignee
Witnesses
/ By:
Name: ptgvaprf8rI GsIlman
Title: CEu
DS
LEGAtrr7
bi,
. � ' BOARD OF COUNTY COMMISSIONERS
- ✓ KEVIN MADOK OF MONROE COUNTY,FLORIDA—
Landlord
((//l,CLERK �J
By: Va-W •. ^^ ci By:
As Deputy Clerk Mayor/Chairman,REA'PHER CARRUTHERS
MO E COUNTY
PP D AS F
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PEORO J.ME CADO
SSISTANT
6
Site Name: US-FL-5389
Site ID: Long Key DS
EXHIBIT A
Leases
JATTACHEDI
7
EXHIBIT A
Ira%AGREEMENT
THIS LEASE AGREEMENT is made between MONROE COUNTY('LESSOR'of"'County"),a political
subdivision of the State of Florida,whose address is 1100 Simonton Street,Gato Building,Key West,
Florida 33040,and TELCOM SYSTEMS,Inc.('LESSEE"),a Florida Corporation,having an address at 450
NE 1"Road,Homestead,Florida 33030.
WHEREAS,the LESSOR owns certain real property located on US 1 Long Key,Florida("Leased
Premises');and
WHEREAS,the LESSEE owns and operated a communication tower and certain improvements
related to the tower,and
WHEREAS,the prior lease with LESSEE has expired;and
WHEREAS,it Is in the best Interest of the public that the communication tower continue to be
operated continuously without interruption on the site;and
NOW THEREFORE,for good and valuable consideration,the receipt and sufficiency of which are
hereby acknowledged,the LESSOR and LESSEE hereby agree as follows:
1. Ownership Interest in Leased Premises.The LESSOR owns a tract of land on Long,Key
Florida,which is more particularly described as Ednibit'A',attached hereto and made a part hereof.
2. Ownership of Communication Tower The LESSEE owns the Communication Tower and
other improvements located on the leased premises,and have leased the premises from the County
since April 15,2009.LESSEE purchased the tower from the prior owner and received the lease by
assignment from the prior owner with approval of the County.
3. Term. LESSEE shall have and hold the above described lease premises for a term
commencing April20,2011 and terminating April 19,2021.
4. Rental Amount.LESSEE shall pay to LESSOR the sum of One Thousand Dollars($1,000)
per month,payable on or before the ninth day of each month for the first two years of the term of the
lease,and Increasing 2%every year thereafter.The fee shall be made payable to Monroe County and
paid to the Clerk of Monroe County at 500 Whitehead Street,Key West,FL 33040.
5. Tower Utilities.LESSEE shall promptly pay all gas,water,electric,cable and any other
utility charges which may become payable for utilities used by the LESSEE during the term of this
agreement.
6. Maintenance and Repairs,LESSEE shall be responsible for all maintenance and repairs
on the premises in accord with generally accepted business practices.Lessee shah also be responsible
for any of the premises damages by the LESSEE,its officers,agents,employees,or equipment
7. Alterations.LESSEE shall have the right to make ary alterations in and to the demised
premises during the term of this lease upon first obtaining the written consent thereto of the LESSOR,
which consent shall not be unreasonably withheld
1( Page
•
8. Rleht of Ingress and Egress. LESSEE shall have the right of ingress to and egress from the
premises.
9. Hold Harmless.Notwithstanding any minimum insurance requirements presaibed
elsewhere in this agreement the LESSEE covenants and agrees that he shall defend,indemnify and hold
the COUNTY and the COUNTY,elected and appointed officers and employees harmless from and
against(I)any claims,actions or causes of action,BB any litigation,administrative proceedings,appellate
proceedings,or other proceedings relating to any type of injury(including death),loss,damage,fine,
penalty or business interruption,and(iii)any costs or expenses that may be asserted against,initiated
with respect to,or sustained by,any Indemnified party by reason of,or In connection with,(A)any
activity of LESSEE or any of Its employees,officers,agents,or employees or other Invitees during the
term of this AGREEMENT,(B)the negligence or willful misconduct of LESSEE or any of its employees,
officers,agents,or other Invitees,except to the extent the claims,actions,muses of action,'ligation,
proceedings,costs or expenses arise from the intentional or sole negligent acts or negligent acts In part
or omissions of the COUNTY or Monroe County Sheriffs office any of their employee,elected or
appointed officers,agents,or invitees. Insofar as the claims,actions,causes of action,litigation,
proceedings,costs or expenses relate to events or circumstances that occur during the term of this
AGREEMENT,this section will mamas the expiration of the term of this AGREEMENT or any earlier
termination of this AGREEMENT.
The parties agree that good and valuable consideration has been received for the indemnification
provided for the above.
The extent of liability Is in no way limited to, reduced, or lessened by the insurance requirements
contained elsewhere within this AGREEMENT.
10. Insurance, The LESSEE shall obtain,at Its own expense,Insurance as specified below.
The LESSEE shall maintain the required Insurance throughout the entire term of this agreement.Failure
to comply with this provision may result in the immediate termination of the lease agreement and the
return of all property owned by the County and the immediate loss of the right of Ingress and egress
onto the premises,at the discretion of the County,until such Insurance has been provided.
The LESSEE shall provide to the County as satisfactory evidence of the required Insurance,a Certificate
of Insurance or a certified copy of the actual insurance policy.Al insurance policies must specify that
they are not subject to cancellation,non-renewal,material change,or reduction in coverage unless a
minimum of thirty(30)days prior notification is given to the County by the Insurer.The acceptance
and/or approval of the LESSEE's insurance shall not be construed as relieving the LESSEE from any
liability or obligation assumed under this contract or imposed by law.
The LESSEE shall maintain General Liability Insurance throughout the fife of the contract and include,as
a minimum:
-Premises Operations
-Products and Completed Operations
-Blanket Contractual Liability
-Personal Injury Liability
-Expanded Definition of Property Damage
-Fire Legal Liability(with limits equal to the fair market value of the leased
property
2j Page
-Workers compensation limits as required by law
-Vehicle Liability
The minimum limits acceptable shag be$300,000 Combined Single Umit(CSL).If split limits are
provided,the minimum limits acceptable shall be$100,000 per person,$300,000 per occurrence and
$50,000 property damage.
The County,at Its sole option,has the right to request a certified copy of any orall insurance policies
required by this contract.
The acceptance and/or approval of the LESSEE's insurance shall not be construed as relieving the LESSEE
from any liability or obligation assumed under the lease or imposed by law.
The Monroe County Board of County Commissioners,its employees and officials will be included as
"Additional Insured"on all policies,except for Workers'Compensation.
Any deviation from these insurance requirements must be requested in wilting on the County prepared
form entitled"Request for Waiver of Insurance Requirements'and approved by the Monroe County
Risk Management.
11. Jnlury or Damage to Properly on Premises. LESSEE shall be responsible for all property
of any kind that may be on the premises during the term of this lease,and,except for any negligence of
the LESSOR,the LESSOR and or MCSO shall not be gable to the LESSEE or any other person for any Injury,
loss or damage to property or to any person on the premises.In the event that the demised premises or
a major part thereof are destroyed by storm or other casualty,the LESSOR shag,forthwith restore the
demised premises at its own cost and expense it order to restore the operation of the rower for the
benefit of the residents of the county.Rental on the demised premises will cease until the completion or
the restoration or for ninety(90)days whichever sooner.If the demised premises cannot after such
casualty,be restored within ninety(90)days,LESSEE or LESSOR may terminate the lease upon giving
written notice to the other.
12. fxniration of Term. At the expiration of the term of the lease,the LESSEE shall
peaceably yield up to the LESSOR the demised premises in good and tenantable repair which shall
include removal of the tower and other improvements,unless the LESSOR and LESSEE an agree in
writing to other conditions regarding removal of the structure upon expiration. It is understood and
agreed that the LESSEE Will have the right to remove from the premises all personal property of the
LESSEE and all fixtures,machinery,equipment,appurtenances,and appliances placed on the premises
by LESSEE.LESSEE shall be solely responsible for any hazardous materials on the premises.
13. Assignment, The LESSEE shall not assign the demised premises without prior written
consent of the LESSOR,provided,however,that LESSEE may assign the lease to an affiliate of the LESSEE
without such consent upon giving written notice to LESSOR of the assignment and full contact
information of the affiliate to the LESSOR.
14. successors and Assigns Bound by Covenants.All the covenants,stipulations and
agreements herein shall extend to and bind the legal representatives,successors,and assigns of the
respective parties hereto.
15. Early Termination. The LESSOR shall have the right,upon giving thirty(30)calendar days
Written notice to the Lessee of its intent to terminate this agreement due to a breach or default of any
of the Lessee's covenants under this agreement,unless the Lessee shall correct the breach or default
) ( Page
within that thirty(30)day period.Either party may terminate this lease without cause upon giving one
hundred and eighty(180)days written notice to the other party.
16. Construction of New Tower on Premises.The parties agree that a new tower will
become necessary during the term of this lease and that in the event that the Communications
Department of the Monroe County Sheriffs Department(MCSO)determines that the present tower Is
obsolete,damaged,dangerous,or in serious need of repair,the MCSO shall notify the LESSEE. If the
LESSEE is willing to construct a new tower to the specifications of the County and/or MCSO,and in the
time frame required by the County and/or the MCSO;the term of the lease will be extended upon the
issuance of a certificate of occupancy for an additional ten(10)years on the same terms and conditions •
as set forth herein.If the LESSEE Is unwilling or unable to build a new tower the lease may be terminated
by the LESSOR upon one hundred and eighty(180)days written notice to the LESSEE.
17. Waiver The waiver by the LESSOR of any breach of this lease by the LESSEE shall not be
construed as a waiver of any subsequent breath of any duty or covenant imposed by this lease.
18. Right of Insoection. The County may enter upon the premises now or during the term of
the lease at any reasonable time for any purpose necessary,incidental to,or connected with the
performance of its obligations hereunder,or in the exercise of it governmental functions.
19. Notice. Notices to the parties shall be sent by certified mail,postage prepaid and
addressed to the following:
FOR LESSOR: COPY TO: FOR LESSEE:
County Administrator Emergency Communications James E.spislak
1100 Simonton Street Laura White TELCOM SYSTEMS,Ltd.,Inc
The Gato Building 10600 Aviation Boulevard 450 NE 1'r Road
Key West,Florida 33040 Marathon,Florida 33050 Homestead,Florida 33030
20. Tams and Assessments.LESSEE shall pay all taxes and assessments which may be
lawfully levied by a duly constituted taxing body with respect to the demised premises.
21. ;unender of Possession. Upon the expiration or other termination of this lease renewal
thereof,LESSEE's right to use the premises,facilities,rights,licenses,services and privileges herein shall cease and LESSEE shall forthwith upon such expiration or termination surrender same in good repair.
22. Discrimination. The LESSEE,in exercising any of the rights or privileges herein granted
to LESSEE,shall not discriminate or permit discrimination against any person or groups of persons on the
basis of race,color,sex,age,national origin,religion,or any other basis set forth in local,state or federal
la23. AS IS. The LESSEE acknowledges that he has leased the premises under another lease
for an extended period of time and agrees to accept the premises In as is condition and LESSOR shall not
be obligate to repair,maintain or renovate same.
24. Govemiret Law.Venue and Interoretatkm. This Lease Agreement shaft be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be
performed entirely in the State.In the event that any cause of action or administrative proceeding is
Instituted for the enforcement or interpretation of this Lease Agreement,the Lessor and Lessee agree
4IPage
that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County,Florida.
The LESSOR and LESSEE agree that,In the event of conflicting Interpretations of the terms or a term of
this Lease Agreement by or between any of them the issue shall be submitted to mediation prior to the
institution of any other administrative or legal proceeding.
25. No Representation. County makes no representation,warranty,guarantee,or averment
of any kind whatsoever concerning the physical condition of the premises at the commencement of this
term,and it is agreed that County will not be responsible for any loss,damage,or cost which may be
Inured by LESSEE by reason of any such physical damage.
26. Severabllity. Ifany term,covenant,condition or provision of this Lease Agreement(or
the application thereof to any circumstance or person)shall be declared invalid or unenforceable to any
extent by a court of competent Jurisdiction,the remaining terms,covenants,conditions and provisions
of this Lease Agreement,shall not be affected thereby;and each remaining term,covenant,condition
and provision of this Lease Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law unless the enforcement of the remaining terms,covenants,conditions and provisions
of this Lease Agreement would prevent the accomplishment of the original intent of this Lease
Agreement. The Lessor and Lessee agree to reform the Lease Agreement to replace any stricken
provision with a valid provision that cones as dose as possible to the intent of the stricken provision.
27. Attorney's Fees and Costs. The LESSOR and LESSEE agree that in the event any cause of
action or administrative proceeding is Initiated or defended by any party relative to the enforcement or
interpretation of this Agreement the prevailing party shalt be entitled to reasonable atomey's fees,and
court costs only,as an award against the non-prevailing party,and shall include attorneys fees and
courts costs only in appellate proceedings. Mediation proceedings initiated and conducted pursuant to
this Lease Agreement shall be In accordance with the Florida Rules of CMI Procedure and usual and
customary procedures required by the circuit court of Monroe County.The parties agree that mediation
not arbitration shall be used in the event any dispute arises between the parties.
28. Binding FffPy The terms,covenants,conditions,and provisions of this Lease
Agreement shall bind and Inure to the benefit of the LESSOR and LESSEE and their respective legal
representatives,successors,and assigns.
29. Au forty. Each party represents and warrants to the other that the execution,delivery
and performance of this Lease Agreement have been duly authorized by all necessary County and
corporate action,as required by law.
_ 30. revenant of No Interest. LESSOR and LESSEE covenant that neither presently has any
interest,and shall not acquire any interest,which would conflict in any manner or degree with its
performance under this Leese Agreement,and that the only interest of each Is to perform and receive
benefits as recited in this Lease Agreement.
31. No solicitation/PavmenL. The LESSOR and LESSEE warrant that,in respect to itself,It has
neither employed nor retained any company or person,other than a bona fide employee working solely
for it,to solicit or secure this Lease Agreement and that it has not paid or agreed to pay any person,
company,corporation,Individual,or firm,other than a bona fide employee working solely for it any fee,
5) Page
commission,percentage,gift,or other consideration contingent upon or resulting from the award or
making of this Lease Agreement. For the breach or violation of the provision,the Lessee agrees that the
Lessor shall have the right to terminate this Lease Agreement without liability and,at its discretion,to
offset from monies owed,or otherwise recover,the full amount of such fee,commission,percentage,
gift,or consideration.
32. Publir Acres. The LESSOR and LESSEE shall allow and permit reasonable access to,and
inspection of,all documents,papers,letters or other materials in Its possession or under its control
subject to the provisions of Chapter 119,Florida Statutes,and made or received by the Lessor and
Lessee in conjunction with this Lease Agreement and the Lessor shall have the right to unilaterally
cancel this Lease Agreement upon violation of this provision by Lessee.
33. Non-Waiver of Immunity. Notwithstanding the provisions of Sec.28628,Florida
Statutes,the participation of the LESSOR and LESSEE in this Lease Agreement and the acquisition of any
commercial liability insurance coverage,self-Insurance coverage,or local government liability insurance
pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage,nor shall any
contract entered into by the Lessor be required to contain any provision for waiver.
34. Prhri ees and Immun its, NI of the privileges and immunities from liability,
exemptions from laws,ordinances,and rules and pensions and relief,disability,workers'compensation,
and other benefits which apply to the activity of officers,agents,or employees of any public agents or
employees of the Lessor,when performing their respective functions under this Lease Agreement within
the territorial limits of the County shall apply to the same degree and extent to the performance of such
functions and duties of such officers,agents,volunteers,or employees outside the territorial limits of
the County.
35. Lceal Obleations and Responsibilities. Non-Delegation of Constitutional or Statutory
Duties. This lease Agreement Is not Intended to,nor shall k be construed as,relieving any partldpating
entity from any obligation or responsibility Imposed upon the entity by law except to the extent of
actual and timely performance thereof by any participating entity,in which case the performance may
be offered in satisfaction of the obligation or responsibility. Further,this Lease Agreement Is not
intended to,nor shall It be construed as,authorizing the delegation of the constitutional or statutory
duties of the LESSOR,except to the extent permitted by the Florida constitution,state statute,and case
law.
36. Non-Rellance_bv Non-Parties. No person or entity shall be entitled to rely upon the
terms,or any of them,of this Lease Agreement to enforce or attempt to enforce any third-party claim or
entitlement to or benefit of any service or program contemplated hereunder,and the Lessor and Lessee
agree that neither the Lessor nor the Lessee or any agent,officer,or employee of either shall have the
authority to Inform,counsel,or otherwise indicate that any particular individual or group of individuals,
entity or entitles,have entitlements or benefits under this Lease Agreement separate and apart,Inferior
to,or superior to the community in general or for the purposes contemplated in this lease Agreement.
37. Attestations. Lessee agrees to execute such documents as the Lessor may reasonably
require,to Include a Public Entity Crime Statement an Ethics Statement,and a Drug-Free Workplace
Statement.
38. No Personal Debility. No covenant or agreement contained herein shall be deemed to
Wage
be a covenant or agreement of any member,officer,agent or employee of Monroe County in his or her
individual capacity,and no member,officer,agent or employee of Monroe County shall be liable
personally on this Lease Agreement or be subject to any personal liability or accountability by reason of
the execution of this lease Agreement.
39. Execution in Counterparts. This Lease Agreement may be executed m any number of
counterparts,each of which shall be regarded as an original,all of which taken together shall constitute
one and the same instrument and any of the parties hereto may execute this Lease Agreement by
signing any such counterpart.
40. Section Headinos. Section headings have been Inserted In this Lease Agreement as a
matter of convenience of reference only,and It is agreed that such section headings are not a part of
this Lease Agreement and will not be used in the interpretation of any provision of this Lease
Agreement.
41. Mutual Review This Lease agreement has been carefully reviewed by Lessee and Lessor,
and the counsel of their choice,therefore this Lease agreement Is not to be construed against either
party on the basis of authorship.
42. The county's performance and obligation to pay under this contract is contingent
upon an anneal appropriation by the legislature.
THIS IS TO BE A LEGALLY BINDING CONTRACT.IF NOT FULLY UNDERSTOOD,SEEK THE
QF AN ATTORNEY PRIOR TO SIGNING.
t
K r i rrs1 4ESS WHEREOF,the pasties hereto have set their hands and seals the day and year first
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•
EXHIBIT aar
Legal description of the premises which County leases to TELCOM SYSTEMS Inc:
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US.NOlnar No. I b a throw al 31o731aw to
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Pro Slaws at soli loot to the mini at bagering
d M bad S old h_tphr dabbed said
point at groin bM Sib as. on 6s IrAuawy
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a d ariboohnis l Yet ooUSr h� He a
alders S 3000 keen b a robe twee at fight
asyr and redheads* for a distance al X0.0
b a past Brea S right was and
narif'ar__M far a lions al 3000 fad b b mint
Highway No I; tw qn ,oc
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EXHIBIT A
FIRST AMENDMENT TO THE LEASE AGREEMENT
BETWEEN MONROE COUNTY AND TELCOM SYSTEMS INC.
THIS FIRST AMENDMENT to the LEASE AGREEMENT("Agreement")dated April 20,2011,
is entered into this /7N day of Ai AeC°2014 by and between TELCOM SYSTEMS, LTD. ("LESSEE
or TELCOM"),a Florida Limited Partnership, having an address at 450 NE 1° Road, Homestead, Florida
33030, and Monroe County ("COUNTY or LESSOR"), a political subdivision of the State of Florida,
whose address is 1100 Simonton Street,Gam Building, Key West, Florida 33040.
WHEREAS, COUNTY is the owner of certain property located at Lot I, Section 5, T. 65 S., R.
35 E.,on Long Key, Monroe County. Florida,and
WHEREAS,TELCOM owns and operates two communication towers and certain improvements
related to the towers,and
WHEREAS, the COUNTY and TELCOM entered into a LEASE AGREEMENT ("LEASE")
commencing April 20, 2011.and;
WHEREAS,the parties agree that a new tower is necessary at the Long Key location and further
agree that TELCOM desires to demolish and remove the present communications towers and to build a
new communications tower on that site,and
WHEREAS, it is in the public interest that the COUNTY facilitate the improvement of
communication towers and facilities throughout the Keys.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein,
the parties agree to amend its earlier Agreement as follows:
TELCOM and COUNTY agree that TELCOM shall remove and demolish the present
towers located on the COUNTY premises more definitely described below and shall replace the existing
towers, which are in bad repair, with a new communications tower within 180 days of the execution of
this First Amendment. 'FELCOM shall bear all the costs of demolition, disposal of the old towers, any
parts or appurtenances, and associated buildings. TELCOM shall bear all the costs of construction,
installation, clean-up of construction debris, and the costs of maintaining egress and ingress to the site
during construction.
2. The completion of construction of a new tower is pursuant to Paragraph 16 of the
Agreement which invokes an extension of the Agreement for an additional term. TELCOM shall obtain
all relevant permits, approvals, certificates of occupancy or other requirements from any governmental
entity related to, the demolition of existing towers, the construction of a new tower and clean-up of the
site during and after the construction. TELCOM shall prepare at its expense all necessary drawings and
specifications for the construction of a tower and telecommunications equipment, which COUNTY shall
have the right to approve, such approval shall not be unreasonably withheld or delayed.
3. Nothing in this Amendment shall change the responsibility of TELCOM for Maintenance
and Repairs under paragraph 6 of the AGREEMENT; however, if TELCOM wishes to maintain, make
repairs or alterations to the towers prior to the demolition, removal and rebuild of the towers the County
authorizes the maintenance and make repairs, so long as they are all accomplished as required according
to applicable Federal State and County Ordinance,and"MCSO"requirements).
4. Copies of all proposals for maintenance, repair, demolition, including but not limited to
proposed design/construction specifications of a new tower shall be submitted to the Monroe County
Sheriffs Office Department and COUNTY prior to the work being started and prior to submission to any •
State, Federal or County entity for approval. In addition, prior to work on the present towers or
construction of a new tower the Monroe County Sheriff's office shall approve, in writing, the engineered
designs for any repairs, maintenance, and demolition of the present towers and for construction of a new
tower. Such approval shall not be unreasonably withheld or delayed.
5 The construction of a new communications tower shall be completed within 365 days of
the date of this amendment; however, this time frame may be enlarged by agreement of the parties in an
amendment signed with same formality as the original Agreement.
6. All permitting or other requirements, including any and all FCC or FAA permissions,
registrations and requirements, or necessary documents of any nature whatsoever related to the design,
demolition of the present towers, construction and final completion of the tower shall be the full
responsibility of TELCOM, including any fees of any kind. TELCOM shall comply with all requirements •
•
for painting, maintaining and illumination of the tower as prescribed by the Federal Communications
Commission ("FCC"). TELCOM shall at its sole expense pay any development costs for the new tower
and for the existing towers including installation of the equipment, improvements, fixtures, dishes, lights,
switches, batteries,grids antenna(s),lines, accessories, structures appurtenances, or services necessary for •
the demolition and decommission of the presently existing towers and for the design and construction of
the new tower. TELCOM shall also be solely responsible for any elements related to the tower including
but not limited to the ground ring, concrete pad/foundation, fencing/enclosure, tower, site preparation, •
engineering. surveying, environmental and other fees and costs for professional and other services •
required for the construction of the tower. It is understood that this responsibility is part of the
consideration for the COUNTY allowing TELCOM to build a new tower and rent space on the tower to •
third parties. However,TELCOM shall not demolish the present towers until the new tower is constructed •
and in operation.
7. TELCOM agrees that during the term of the Agreement, it will hold space on the tower
for use by the County for Monroe County Sheriffs Office (MCSO) communication equipment; and •
acknowledges that the ability to locate equipment on the tower is part of the consideration for the County
allowing TELCOM to construct a tower. MCSO shall work with TELCOM to determine the appropriate
location for MCSO's facilities to be mounted on the tower. TELCOM acknowledges that this space must
be free of interference to the MCSO equipment and transmissions. MCSO shall give TELCOM a
minimum of thirty(30)days' notice prior to adding equipment to the tower,except in cases of emergency
at which time the panics shall work together to provide space immediately but no longer than seven (7)
days after notice is given of the need for space to TELCOM by the County or MCSO. TELCOM agrees to
allow installation by MCSO of equipment of a type and frequency which will be acceptable to MCSO.
8. TELCOM shall procure and maintain additional insurance, over and above that required
in paragraph 10 of the Agreement, due to the construction of the Tower and for the remainder of the term
of the agreement.
8.1 TELCOM shall obtain and maintain insurance, as specified in the Agreement and this
First Amendment, in effect at all times during the term of the Agreement and its Amendments. In the
event the completion of the project (to include the work of others) is delayed or suspended as a result of
TELCOM'S failure to purchase or maintain the required insurance, the CONSULTANT shall indemnify.
the COUNTY from any and all increased expenses resulting from such delay.
8.2 The coverage provided herein shall be provided by an insurer with an A.M. Best rating of
VI or better,that is licensed to do business in the State of Florida and that has an agent for service
of process within the State of Florida. The coverage shall contain an endorsement providing sixty
(60)days' notice to the COUNTY prior to any cancellation of said coverage. Said coverage shall
be written by an insurer acceptable to the COUNTY and shall be in a form acceptable to the
COUNTY.
8.3 TELCOM shall obtain and maintain the following policies:
A. Workers' Compensation insurance as required by the State of Florida,sufficient to respond to
Florida Statute 440. Employers Liability Insurance with limits of $100,000 per Accident,
$500,000 Disease policy limits,$100,000 Disease each employee.
B. Comprehensive business automobile and vehicle liability insurance covering claims for
injuries to members of the public and/or damages to property of others arising from use of
motor vehicles, including onsite and offsite operations, and owned, hired or non-owned
vehicles, with $200,000 per person, $300,000 per Occurrence, $200,000 Property Damage or
$300,000 combined single limit.
C. Commercial general liability, including Personal Injury Liability, covering claims for injuries
to members of the public or damage to property of others arising out of any covered act or
omission of TELCOM or any of its employees, agents or subcontractors or subconsultants,
including Premises and/or Operations, Products and Completed Operations, Independent
Contractors; Broad Form Property Damage and a Blanket Contractual Liability Endorsement
with $1 Million dollar Combined Single Limit.
An Occurrence Form policy is preferred. If coverage is changed to or provided on a Claims
Made policy, its provisions should include coverage for claims filed on or after the effective
date of this contract. In addition, the period for which claims may be reported must extend
for a minimum of 48 months following the termination or expiration of this contract.
D. COUNTY shall be named as an additional insured with respect to TEI,COM'S insurance
coverages identified in Paragraph C.
E. TELCOM shall require its agents, design professionals and subcontractors to be adequately
insured at least to the limits prescribed above,and to any increased limits of CONSULTANT
if so required by the COUNTY during the term of this Agreement.
F. TELCOM shall provide to the COUNTY certificates of insurance or a copy of all insurance
policies including those naming the COUNTY as an additional insured. The COUNTY
reserves the right to require a certified copy of such policies upon request.
G. It TELCOM participates in a self-insurance fund, a Certificate of Insurance will be required.
In addition, TELCOM may be required to submit updated financial statements from the fund
upon request from the COUNTY.
9. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of
TELCOM and the COUNTY in this Agreement and the acquisition of any commercial liability insurance
coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be
deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the
COUNTY be required to contain any provision for waiver.
10. If the tower to be constructed by TELCOM should be totally or substantially destroyed or
damaged (so that TELCOM may not operate the facility as contemplated under the Agreement and
amendment) TELCOM may rebuild the Tower at its sole and complete expense. If TELCOM elects to
rebuild the Tower as provided for in this paragraph,then in that case the Agreement shall be renegotiated
as to term of the Agreement. In any event, due to such damage or destruction TELCOM's use of the
premises is completely disrupted,any fees due to the COUNTY shall abate until the use is restored in full
or in part, or for a period of no longer than 90 days(from the date of complete disruption )or whichever
occurs first. TELCOM shall immediately notice the destruction date and the restoration date to the County
and MCSO.
I I. If TELCOM fails to comply with the requirements of the Agreement and of this
Amendment, that failure shall constitute a breach of the Amendment and, in the sole discretion of the
COUNTY and MCSO, be reason to terminate the LEASE pursuant to paragraph 15 of the LEASE. Upon
termination TELCOM shall surrender possession of the tower pursuant to paragraph 21 of the LEASE,
and without compensation from the COUNTY to TELCOM.
12. In accordance with Florida Statues 713.10, neither TELCOM or anyone claiming through
TELCOM shall have the right to file construction liens or any other kind of lien on the Site or Premises
and the filing of this notice under the Agreement constitutes notice that such liens are invalid against the
COUNTY. Further, TELCOM agrees to give actual notice to any contractors, subcontractors or suppliers
of good, labor, services that such liens will NOT be valid and to provide County with copies of such
Notice and to record the Notice in the Public Records of Monroe County. TEI,COM will immediately
notify MCSO and Office of County Attorney if a lien is filed regarding the site and send a copy of such
lien to both MCSO and Office of County Attorney.
13. Paragraph 12 of the original Agreement shall be amended to read:
'Expiration of Term. At the expiration of the term of the Agreement and amendments thereto,
TELCOM shall peaceably yield up to COUNTY the demised premises, including the tower.
fixtures and improvements, as contemplated under the Agreement and Amendments, in good
and tenantable repair. It is understood and agreed that TELCOM shall have the right to
remove from the premises all personal property of TELCOM which is not permanently
attached to the land, including,machinery, equipment, appurtenances, and appliances
placed on the premises by TELCOM. TELCOM shall be solely responsible for any
hazardous materials on the premises at the end of the term."
14. County requires and TELCOM agrees to enter into a payment and performance bond
with the entity TELCOM hires to construct the new tower in an amount equal to the contract
amount pursuant to Sec. 255.05, Florida Statutes.
I5. This Amendment shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this
Agreement,COUNTY and CONSULTANT agree that venue shall lie in the 16" Judicial Circuit, Monroe
County, Florida, in the appropriate court or before the appropriate administrative body. This agreement
shall not be subject to arbitration. Mediation proceedings initiated and conducted pursuant to this
Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary
procedures required by the circuit court of Monroe County.
16. TELCOM shall insure that all contracts, contractors, and subcontractors comply with
local, state and Federal laws; and that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction that discrimination •
has occurred,this Agreement automatically terminates without any further action on the part of any party, •
effective the date of the court order. In addition,TELCOM agrees to comply with all Federal and Florida
statutes, and all local ordinances, as applicable, relating to the demolition, removal of demolition debris, '
construction and operation of communications towers.
•
17. Paragraph 13 of the Agreement shall be amended to read as follows:
"Assignment. TELCOM shall not assign the demised premises without prior written consent of
COUNTY, in the form of an Amendment to the AGREEMENT accomplished with the same formality of
this AMENDMENT:provided,however,that TELCOM may assign the lease to an affiliate of the
LESSEE without such consent upon giving written notice to COUNTY a minimum of thirty(30)days
prior to the assignment and by providing legal proof detailing the full contact information of the affiliate
to the LESSOR. •
18. In all other respects,the original Agreement with TELCOM for Long Key
Communications tower remains unchanged.
IN WITNESS WHEREOF,each party caused this First Amendment to be executed by its duly authorized
• representative on the day and year first above written.
•
` (SEAL) BOARD OF COUNTY COMMISSIONERS
At(eaC AMY HF,AVILIN C�P�.Ae,��1C1ark OF MONRlJOf.'fOU _ FLORIDA
By: t�s-
Y �'e -e4A By:
Deputy Clerk ayor/Chairman
Witness to TELCOM's Signaturegn� TELCOM SYSTEMS, LTD. J}
By: ,�2G�1/aizac By: ��am-it�� �pp. � . cL�L
WITNESS Signature 6 Signature ofC6rporate Agent with
April authority to bind the corporation
tp rtl O'Narn __ Iamec F Spiciak
Print Witness Name Print Name of Corporate Agent
Date: 10/01/14 Date: 10/01/14
MONROE COUNTY ATTORNEY
PROVED AS �T)OF M.
tv AT!LEENE N/ CASSEL
ASSISTANT COLATY ATTORNEY
Date /O ' /- /y
Site Name: LS-FL-5389
Site ID: Long Key DS
EXHIBIT B
Assignment and Assumption of Ground Lease
JATTACHEDI
8
EXHIBIT B
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement(this"Agreement")is made this, day of line,2019(the
"Effective Dare") by and among Tdeoa Systems, Ltd., a Florida limited partnership ("Seller"),
Datapatb Vertical Bridge,LLC,a Delaware limited liability company('Rrvdua n.
In consideration of the promises and the representations, warranties, covenants and
agreanans herein contained and other valuable consideration,the receipt and adequacy whereof are
hereby acknowledged,the parties hereto,intending to be legally bound,hereby agree as follows:
I. Ae eenunt to Buv and Sell. Subject to the tams and conditions set forth in this
Agrcemmt,at the Closing(as defined below),Seller shall sell,assign,transfer,convey and deliver to
Purchaser, and Purchaser shall purchase(the"Purchase") from Seder, all of Seller's right,tide and
interest in and to the Tower Assets, five and clear of any Liens of any nature other than Permitted
Liens.
A. For purposes of this Agreement, the tam "Tower Assets" shall mean,
individually,and collectively, the Owned Property, the Ground Leased Property,and all of the real
and personal tangible and intangible assets,properties and rights owned by Seller that are used in,or
accounted for as a part of the ownership and operation of the Towers (defined below), and the
operation of the business related thereto (except for any Excluded Assets (as defined below)),
including without limitation the following
(i) Six(6)wireless communications towers(each a"Tower",and together
the"Toviag") located at the sites set forth in Schedule Nadi). (each a it ", and together the
(ii) all Tenant Leases relating to the Sites existing as of the Closing,
including without limitation those set forth in Schedule 1(al(ii) which schedule shall identify for
each Tenant Lease, each Tenant's name, any Security Deposit(as defined below)held by landlord
or due to tenants,and the ctmart monthly rem payable
(iii) the real property owned by Seller relating to the applicable Sites as set
forth in Schedule lfaWiii)(the"Owned Property);
(iv) the ground leases(the"Ground Lease")relating to the applicable Sites
set forth in gchedde 1(aNiv)(the"Ground Lessad Prooertd);
(v) all buildings,structures,improvements and fixtures located at the Sites
and owned or used by Seller in connection with the ownership and operation of the Tower Assets
and all physical assets(other than the Towers and other real property and interests therein),owned
by Seller and located at the Sites;
(vi) all prepaid expenses, aedits, advance payments, claims, security,
refunds,rights of recovery,rights of setoff,rights of recommit,deposits,charges,sums and fees
(including,without limitation,any such item relating to the payment of Taxes)related to the Tower
Assets:
(vii) all insurance benefits, including rights and proceeds,arising from or
relating to the Tower Assets;
(viii) all other assets used or useful in connection with the ownership or
operation of the Towers;
(ix) (A)the security deposits(if any)from tenants paid to Seller under the
Tenant Lasts (each a"Security Deposit",and collectively,the "Security Depgtjfl all of which
are disclosed in Schedule Rally),(B)all rights to any wammtiea held by Seller with respect to the
Tower Assets, including without limitation the Towers (C) all rights under any Governmental
Authorizations held by Seller with respect to the ownaship or the operation of the Tower Assets,
(D)utility deposits and reservation fees paid by or on behalf of Seller with respect to the Sites and
(E) any condemnation or eminent domain proceeds received by Seller after the date hereof with
respect to the Tower Assets;
(x) all rat or other amounts received or receivable by Seller under the
Tenant Leases relating to the period following the Closing;and
(xi) the microwave transport network,including all licenses and associated
assets necessary or cunently used in the operation of such network(collectively, the"Microwave
Assets").
B. For purposes of this Agreement, the term"Excluded Assets" shall mean the
bank and securities accounts of Seller.
2. Assumption of Liabilities and Oblisations.Subject to the tams and conditions of this
Agreement, at the Closing. Purchaser shall assume and agree to pay, discharge and perform only
those executory liabilities aaxuing from and after the Closing relating to the Owned Property,under
the Ground Lease and under the Tenant Leases(the"Assumed Obligations").Except for the Assumed
Obligations,Purchaser shall not assume or in any way undertake to pay,perform,satisfy or discharge
any obligation or liability of Seller (contingent or otherwise), and Seller agrees to pay, perform,
satisfy or discharge when due any obligation or liability other than the Assumed Obligations (the
"Excluded Ob1iSia "). The Excluded Obligations include, without limitation, all contracts,
obligations, Taxes, assessments, accounts payable, commitments, a expenses, arrangements,
understandings,Claims,debts,demands,obligations and liabilities of any description not specifically
assumed herein as Assumed Obligations,including those that arc(a)incurred or made by Seller prior
to the Closing in connection with the Tower Assets or the operation thereof;(b)caused by,accruing
out of, or resulting from, any act or omission of Seller,its owners,tanagers, officers, employees,
agents or independent contractors,acting in any such capacity on behalf of Seller;or(c)any liability
(whether direct or as a result of transferee liability,joint and several iiability,contractual liability)of
Seller for Taxes (including, without limitation, all income Taxes incurred on, after or before the
Closing).All Excluded Obligations shall amain and be the obligations and liabilities solely of Seller.
3. Iti m.
A. Inspection Period.Purchaser shall have the right, between the Effective Date
and the date ninety(90)days after the Effective Date(the inspection Period"),to atter upon,inspect,
investigate and conduct legal, financial, business, envhmmahtal, technical and any other due
diligence that Purchaser determines is necessary in its reasonable discretion with respect to the Tower
Assets In the event Purchaser provides written notice to Seller on or before the expiration of the
Inspection Period that it is not satisfied,in its sole discretion,with the condition of the Tower Assets
or the results of its due diligence investigation,upon the delivery of such notice this Agreement shall
be deemed terminated and of no further farce or effect.
B. Entry and Insoectitm. During the Inspection Period and through the date of
Closing, Seller shall permit Purchaser and its representatives full and free access (during normal
business hours)to all of the Tower Assets,and Seller shall furnish to Purchaser all reports,documents,
records,and information,including without limitation,electronic copies thereof;to permit Purchaser
to perform its due diligence investigation with respect to the Tower Assets.Purchaser may undertake
a complete physical inspection of the Tower Assets; provided, however, that any such physical
inspection shall not result in any damage to the same. Except as otherwise provided herein,no such
inspections, investigations or examinations shall unreasonably interfere with Seller's business or
operations.After completing any physical inspections of the Sites and Tower Assets,Purchaser shall
restore and repair any damage to the same caused by such inspections to the condition existing
immediately prior to Purchaser's entry in all material respects The cost and expanse of the inspection
by Purchaser contemplated under this Section 3,B shall be borne by Purchaser.
C. Due Diligence Items. Not more than ten (10) Business Days following the
Effective Date,Seller shall make available to Purchaser, true,correct and complete copies of such of
the following itans as am in Seller's possession or control, including,without limitation,electronic
versions (if any) (collectively, the "Due Diligence Items": (I) all structural analyses, engineering
reports and condition reports for the Towers,and all environmental reports and NEPA reports relating
to the Sites; (2) the Ground Lease, all Tenant Leases, easements and licenses presently in force
coveting the Tower Assets or any part thereof, (3) the most recent surveys, title commitments, title
policies or abstracts of title together with all copies of all documents and instruments (as recorded
where applicable)rofi,..al to or identified in the tide commitment,title policies or abstracts,including,
but not limited tn,all deeds and other conveyance documents evidencing transfer of tide into Seller,
lien instruments,leases,plats,reservations,restrictions and easements,and all curative documentation
executed subsequent to the commitment, policy or abstract (4) the most revert construction,
engineering architectural or other plans or drawings and related site plans, plats and approved
drawings pertaining to the construction,ownership or operation oldie Tower Assets,as well as zoning
permits,variances,building and other permits,which have been granted or for which Seller has made
application, and the FCC and FAA applications, responses, approvals and registration numbers
submitted or received for the Towers;(5)the most recent reel estate and personal property tax bill for
the Tower Assets and any petitions for pending tax appeals or revaluations or adjustments to the tax
bill for the Tower Assets; (6) current tenant and landlord contact infomation4 the most current
accounts receivable listing,aged based on invoice date, for the Towers, invoice and tenant;the most
current accounts payable listing, aged based on invoice date, by vendor and imroice, and a
reconciliation of both reports to the general ledger,(7)support for any accounts receivable allowance
or reserve in place as of the most recent date,by tenant and invoice;an itemized listing of all reversals
and write-offs of accounts receivable balances, during the past twelve (12) months for the Towers,
invoice and tenant due to uncollecdble amounts;accounts receivable roll-forward,over the past twelve
(12)months for the Towers and tenant,displaying invoiced amounts,collection thereof,or reversal of
amounts invoiced;(9)(i)cash receipts supporting the most recent month's collection of rental income
for each Tenant Lease, and cash disbursements supporting the most recent month's payment of rent
for the Ground Lease,(ii)for annual or other frequencies,the latest cash receipt collected and(iii) for
annual or other frequencies, the latest cash disbursement made; (9) cash disbursement and invoice
supporting the most recent annual property tax expense recorded; (10) an executed W-9 for the
owners)of the Owned Property and for the ground lessor(s)under the Ground Lease; (11)available
bank statements and deposit/disbursement support to reconcile all amounts paid and received to the
bank statesnenk and(12)the deeds with respect to the Owned Property. In the event that Seller fails
to deliver or make available to Purchaser any of the Due Diligence Items within ten (10) Business
Days following the Effective Date,the Inspection Period shall be extended by an amount of ti me equal
to any such delay for a maximum extension of ten(10)Business Days.
4. ProoMv Snecific Provisions. With respect to the Owned Property and the Ground
Leased Property,as applicable:
A. Title Commitment. Purchaser shall,at its sole cost and expense,obtain a title
report for an ALTA title insurance policy with respect to the Owned Property and the Ground Leased
Property in form and substance reasonably satisfactory to Purchaer(one or more such commitments,
the`Tide Commitment"),together with a copy of all cleanness referenced therein.
B. Survey. Purchaser may, at its sole cost and expense, obtain a survey of the
Owned Property and the Growl Leased Property(one or more such surveys,the
C. Executions to Title.
(i) Unoemitted Exceptions. Notwithstanding any provision to the
contrary in this Agreement and other than the Permitted Exceptions,Seller agrees that the following
shall constitute unpennitted exceptions:(A)any mortgages,deeds of trust or other security interests
for any financing affecting the Owned Property or the Ground Leased Property,in each case incurred
by Seller, (B) Taxes which would be delinquent if unpaid at Closing, and if any such Taxes are
payable in installments,such obligation shall apply to all such installments which would be payable
whether prior to or after Closing;provided,however,that Seller shall have the right to remove such
Tax exceptions at Closing with proceeds from the sale of the Tower Aeries (C) mechanics' and
judgment liens, (D)liens,mortgages, security interests, claims, charges, easements,rights of way,
encroachments,restrictive covenants,or other title exceptions or encumbrances resulting solely by,
through or under Seller or its Affiliates, agents, employees, representatives,or managers, not first
appearing in the Title Commitment, and (E) such matters as appear on Schedule B-1 to the Title
Commitment capable of being satisfied by the payment of a monetary sum. The unpermitted
exceptions referenced in items (A)through(E) in the prior sentence are collectively referred to as
"Monetary Unpermitted Exegtions".
- - _- - (ii) Undated Title Commitment or Survey. If any update of the Title
Commitment delivered to Purchaser discloses title matters which are not disclosed in the Title
Commitnent, (a"New Title Exception"), or the Survey or any update of the Survey delivered to
Purchase discloses any survey matter which is not disclosed in the Survey(a")_Jew Swvev Defect"
and together with New Tide Exception,collectively a"Weer),then Purchaser shall have the right
to request Seller to remove or Cure such Defect at or prior to Closing by providing written notice to
Seller, on or before the date which is five(5) Business Days after Purchaser's discovery of such
Defect,but in no event later than the Closing,after determining in its sole discretion that such Defect
is not acceptable to Purchaser(the")Jew Title and Survey Objection Notice").If Purchaser provides
a New Title and Survey Objection Notice to Seller,Seiler may elect,by providing written notice(the
"New Title and Survey Election Notice')to Purchaser within the earlier of five(S) Business Days
after Seller's receipt of such New Title and Survey Objection Notice or up to two(2)Business Days
prior to the Closing Date(the"Seller Response Period"),to(a) accept such Defect as an additional
unpemitted exception to be removed or Cured at or prior to Closing,or(y)refuse,in its reasonable
discretion, to remove or Curs such Defect; provided, however, that if such Defect constitutes a
Monetary Unpennitted Exception,Seller shall be obligated to remove or Cure such Defect at or prior
to Closing. If Seller does not provide a New Tide and Survey Election Notice to Purchaser within
such time period,then Seller shall be cleaned to have elected to refuse to rove or Cure such Defect
(other than Monetary Unpermitted Exceptions)as provided in clause(y)of the preceding se hence.
If Purchaser provides a New Title and Survey Objection Notice to Seller within the time periods set
forth herein, and Seller elects or is deemed to have elected not to remove or Cure a Defect(other
than Monetary Unpennitted Exceptions), then Purchaser shalt have the right,in its sole discretion,
to elect, by providing prompt written notice("New Tide and Survey Response Notice to Seller
within the earlier of(i)five(S)Business Days after Pimdhaser's receipt of the New Title and Survey
Election Notice or the expiration of the Seller Response Period,as applicable,or(ii)the Closing(1)
to terminate this Agreement or(2)to proceed to Closing pursuant to this Agreement and accept title
to the Owned Property or the Ground Leased Property,as applicable,subject to such Defect(other
than Monetary Unpennitted Exceptions), in which sae such Defect (other than Monetary
Unpermitted Exceptions)shall be deer tat to be a Permitted Exception.If Purchaser does not provide
a New Title and Survey Response Notice to Seller within such time period, Purchaser shall be
deemed to have elected to proceed to Closing pursuant to clause(2)of the preceding sentence. Any
Defects that Seller elects to remove or is obligated to remove hereunder together with the Monetary
Unpenmitted Exceptions are referred to as"jlncemnitted Exceptions".
(iii) )removal of UnuermithQExceptions.Setter shall remove or Cure all
Unpermitted Exceptions at or prior to Closing by(A)removing such Unpermitted Exceptions from
title or(B)causing the title company to commit to rernove,such that it does not appear of record,or
insure over such Unpermitted Exceptions in the Title Policy,orithddod,bowcvcr that such removal
or insuring over by the title company is in form and substance acceptable to Purchaser in its
reasonable discretion. If the Title Commitment discloses judgments, bankruptcies or other returns
against other persons or entities having names the sane as or similar to that of Seller,then Seller,on
request and to the extent applicable,shall deliver to Purchaser or the title company affidavits to the
effect that such judgments,bankruptcies or other returns are not against Seiler.
D. Title Policy. At Closing, Purchaser shall cause the title company to issue to
Purchaser an ALTA form of title insurance policy with respect to the Owned Property and the Ground
Leased Property(or equivalent form of owner's title insurance policy they customarily being accepted
by purchasers of properties in the state where the applicable Owned Property and the Ground Leased
Property is located), or binding commitment therefor to issue the same, dated, or updated, to the
Closing Date, insuring, or irrevocably committing to insure, at normal statutory premium rates,
without the requirement for additional premiums or escrows to be posted by Purchaser,with extended
coverage with respect to the Owned Property and the Ground Leased Property, with customary
enders n sits, the Owned Property and the Ground Leased Property and improyaments on each,
subject only to the Permitted fiats(one or more such policies, the'Title Policy").The Title Policy
shall be dated as of the Closing Date with gap coverage from Seller from the Closing through the date
of recording and shall be issued at such parry's sole cost and expense as is customary for a similar
Purchase in the jurisdiction of the Owned Property and the Ground Leased Property,as applicable.
E. Conveyance of Real Property.At Closing,Seller shall convey to Purchaser(i)
good,marketable and insurable fee simple interest in the Owned Property and good leasehold title to
the Ground Leased Pmpetty, subject only to (A) the Permitted Liens relating thereto and (B) any
Unpamitted Exceptions which are Cured by causing the title company to remove or insure ova such
matters in the Tide Policy in accordance with Section 4.C(iiil but which otherwise ate not removal
from tide,and(ii)good,marketable and insurable title to the personal property, free and clear of all
Liens other than Permitted Liens.
5. Furthest Price:Holdback:Refund.
A. Purchase Price.ThepurcasepriceibrtheTowerAssets(the '1
shall be
subject to adjustment pursuant to section 13 which shall be
paid by Purchaser to Sella by wire transfer of immediately available funds upon delivery of the
'on hereunder.
B. Luna Key HQadback. At Closi , Purchaser shall hold back and retain an
amount equal to (the"Lone Key
HoldbadtFunds,as security the renewal of the Ground Lease for the Long Key Site.The parties
acknowledge that the Ground Lease for the Long Key Site is expiring April 19,2021 and negotiations
for the renewal of the Ground Lease for the Long Key Site is ongoing.Upon the renewal and mutual
execution of the Ground Lease for the Long Key Site by the landlord or lessor thereunder and
Purchaser or one of its affiliates, the Long Key Holdback Funds shall be disbursed to Seller.
Notwithstending, if the Ground Lease for the Long Key Site is not renewed and mutually executed
by the landlord or lessor thereunder and Purchaser or one of its affiliates on or before April 19,2022,
the Long Key Holdback Funds shall be released to Purchaser,and Sella shall have no further rights,
interests,or claims to the Long Key Holdback Funds or any other consideration for the Long Key Site
undo this Agreement Seller shall use good faith and diligent effort to facilitate the renewal and
mutual execution of the Ground Lease for the Long Key Site by the landlord or lessor thereunder,but
has no affirmative obligation to take any action in furtherance thereof.
C. Tower Defects. Purchaser and Sella acknowledge and agree that there are
certain defects with respect to the Towers) as set forth on Schedule l(advii) (JQj ").
Purchaser will endeavor to remediate the Tower Defects post-Closing to its sole satisfaction.
Purchaser shall receive a audit against the Purchase Price at Closing in the amount ors
("Reosir Credit towards the renediation of the Tower
Defects end be eased from obligation and liability with respect to the Tower Defects. Purchaser
will be responsible for any costs and expenses to remediate the Tower Defects that exceeds the Repair
Credit
D. Tenant Rent Abatement Purchaser and Seller acknowledge that postLiosing,
Sprint has the right to abate rem under its Tenant Lease in the amount of
as a result of a prior overpayment to Seller
("Rent Abatement,. Purchaser shall receive a reedit against the Purchase Price at Closing in the
amount of ) to
offset such Rent Abatement.
6. Time and Place for Performance. Provided that all conditions to Closing hereunder
have been satisfied or waived by the applicable parties,the closing of the transactions contemplated
hereby(the"Closing")will take place on June 4,2019(the"Anticipated Closina Date")or any other
date or dates agreed to in writing by the parties.The parties intend to exchange executed documents
prior to the Closing,to be held in escrow by each patty's respective counsel,with such Closing to be
conducted by telephone and email. In the event that all conditions to Closing have not been met or
waived by the Anticipated Closing Date, the Closing shall occur on the fifth (5th) Business Day
following the satisfaction or waiver of all such conditions, or on such other date as Seller and
Purchaser shall mutually agree.The date that the Closing occurs shall be w ..red to as the"il.�ttg+
7. Representations and warranties of Seller. Seller hereby represents and warrants to
Purchaser as follows:
A. Oronization and Authority. Seller is a limited partnership, duly organized,
validly existing and in good standing under the Laws of the State of Florida,and possesses all requisite
organizational power and authority to own,lease and operate its assets as now owned or leased and
operated and is duly qualified and in good standing in each other jurisdiction in which the character
of the assets owned or leased by such Entity requires such qualification.Seller has all requisite power
and authority necessary to own and operate the Tower Assets and to execute and deliver, and to
perform its obligations under each Closing Document to which it is a party and to consummate the
transaction and the other transactions contemplated hereby and thereby,and the execution,delivery
and performance by Seller of each Closing Document to which it is a party have been duly authorized
by all requisite partnership action.This Agreement and each Closing Document are or will be legal,
valid and binding agreements of Seller enforceable in accordance with their..awl.ye terms,except
in each case as such enforceability may be limited by bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting or limiting the enforcement of creditors'rights garaally
and except as such enforceability is subject to general principles of equity(regardless of whether such
enforceability is considered in a proceeding in equity or at law).
B. No Conflict&. The execution, delivery and performance by Seller of this
Agreement and the other Closing Documents to which it is a panty, and the consummation of the
transactions contemplated hereby and thereby, do not and will not: (i) conflict with or result in a
violation or breach of, or default under, any provision of the partnership agreement, certificate of
limited partnership, or other organizational documents of Seller, (u) conflict with or result in a
violation-or breach of any provision of any Law or Order applicable to Seller, its business or the
Tower Assets;(iii)conflict with,result in a breach of;constitute(with or without due notice or lapse
of time or both)a default under,result in the acceleration of create in any party the right to accelerate,
terminate, modify or cancel, or require any notice, consent or waiver under, any contract, lease,
sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed
money,instrument of Indebtedness, lien or other arrangement to which Seller is a party or by which
Seller is bound or to which any of their respective assets am subject;or(iv)result in the creation or
imposition of any Lien on the Tower Assets.No consent,approval,permit,Ott,declaration or filing
with,or notice to,any Person or Authority is required by or with respect to Seller in connection with
the execution and delivery of this Agreement or any of the Closing Documents and the consummation
of the transactions contemplated hereby and thereby.
C. Leaal Actions/Govemmemal Orden. There are no Actions pending or, to
Seller's Knowledge, threatened in writing against or by Seller (i) relating to or affecting Seller's
business, the Tower Assets or the Assumed Obligations; or(ii) that challenge or seek to prevent,
enjoin or otherwise delay the transactions contemplated by this Agreement No event has occurred,
or circumstances exist that may give rise to, or serve as a basis for, any such Action. There are no
outstanding or pending Orders and no unsatisfied judgments,penalties or awards against,relating to
or affecting the Tower Assets or that would reasonably be expected to impair Seller's ability to
consummate the Closing or perform its obligations under this Agreement
D. Tenant Leases. Seller has provided to Purchaser true, correct and complete
copies of each of the Tenant Leases and all amendments thereto_ Except as set forth in Section 5
hereinabove,each of the Tenant Leases is in full force and effect,has been duly authorized,executed
and delivered by Seller and,to Seller's knowledge,the other parties thereto,and is a legal,valid and
binding obligation of Seller, enforceable in accordance with its respective terms. Seller will assign
its interests in the Tenant Leases to Purchaser at Closing free and clear of all Liens,excepting only
the Permitted Liens. Other than the Tenant Leases, there arc no leases, subleases, licenses or other
occupancy agreements(written or oral)which pant any possessory interest in or to the Tower Accats
or the improvements thereon, or which grant any other rights with respect to the use of any of the
Tower Assets. Seller has performed its obligations under each of the Tenant Leases in all material
respects,and is not in material default thereunder,and to Seller's Knowledge,no other party to any
-0f the-Tenant Leases is in default thereunder in any material respect With respect to each Tenant
Lease: (i) Seller is collecting the rem set forth in such Tenant Lease on a current basis and there are
no past due amounts thereunder,(ii)the tenant is not entitled to any rental concessions or abatements
in rent for any period subsequent to the Closing Date; (iii) Seller has not given notice to the tenant
claiming that the tenant is in default under the Tenant Lease,and,to the best of Seller's knowledge,
there is no event which, with the giving of notice or the passage of time or both, would constitute
such a default; (iv) Seller has not received written notice from the tenant claiming that Seller is in
default under the Tenant Lease,or claiming that there are defects in the improvements;(v)Seller has
not received written notice from the tenant asserting any Claims, offsets or defenses of any nature
whatsoever to the performance of its obligations under the Tenant Lease and to the best of Seller's
Knowledge,there is no event which,with the giving of notice or the passage of time or both,would
constitute the basis of such Claim,offset or defense; (vi)except as expressly set forth in the Tenant
Lease, there are no security deposits or prepaid rentals under such Tenant Lease; (vii) the Tenant
Lease does not provide for non-monetary rent or other consideration to the lessor thereunder; (viii)
the tenant is not an Affiliate of Seller, and (ix) Seller has not received notice from or had any
correspondence with the tenant regarding any pending or contemplated badwptcy proceedings with
respect to such tenant,and there are no facts known to Seller that would lead it to reasonably believe
that the tenant intends to file(voluntarily or involuntarily)a case in bankruptcy or reorganization in
any state or federal court. No consent is needed under any Tenant Lease to assign such lease to
Purchaser.
E. Owned Property.Except as set forth on Schedule 1(a)(vii) Seller has good and
marketable fee simple title to the Owned Property,free and clear of Liens other than Permitted Liens,
and is the sole owner of the improvements thereon. Seller has obtained all easements and rights-of-
way that are necessary to provide access to and from the Owned Phuperty and no action is pending or
to Seller's Knowledge threatened or event existing which would have the effect of terminating or
limiting such access. No part of the Owned Property is subject to any pending or, to Seller's
Knowledge,threatened suit for condemnation or other taking by any public authority.
F. Condition of Property. To Seller's Knowledge and except as set forth on
Schedule I(aXvii) all buildings and other improvements included in the Owned Property are in good
operating condition and repair(ordinary wear and tear excepted) and free from material defect or
damage and comply with applicable zoning,health and safety laws and codes.
G. Ground Lease. Seller has pod and marketable leasehold title to the Ground
Leased Property, free and clear of Liens other than Permitted Liens, and is the sole owner of the
improvements thereon Seller has provided to Purchaser a true, correct and complete copy of the
Ground Lease and all amendments thereto. Each Ground Lease is in full force and effect,has been
duly authorized,executed and delivered by Seller and,to Seller's Knowledge,the other party thereto,
and is a legal, valid and binding obligation of Seller,enforceable in accordance with its respective
terms.Seller is the original lessee(or has validly succeeded to the rights of the original lessee)under
each applicable Ground Lease. Seller will assign its interests in each Ground Lease to Purchaser at
Closing free and clear of all Liens,excepting only the Permitted Liens. Each Ground Lease includes
all necessary access to and from the applicable Ground Leased Property.With respect to each Ground
Lease: (i)Sella has paid the rent set forth in the Ground Lease on a cruretnt basis and there are no
past due amounts; (ii) Seller is not obligated to pay any additional rent or charges to the landlord
thereunder for any period subsequent to the Closing Date;(iii)Seller has not prepaid any rent under
theCroud Lease more than one(I)year in advance•,(iv)Seller has not received notice from or given
notice to the landlord thereunder claiming that landlord or Seller is in default under the Ground Lease,
and, to the best of Seller's Knowledge, there is no event which, with the giving of notice or the
passage of time or both,would constitute such a default;(v)Seller is in actual possession of the leased
premises under the Ground Lease;and(vi)the landlord is not an Affiliate of Sella.
H. Sites and ToweeAssets.
(i) Sella owns the Tower Assets, free and dear of all Liens other than
Permitted Liens,and will transfer to Purchaser at the Closing, good,marketable and insurable title
thereto,free and clear of all Liens other than Permitted Liens.
(ii) The Tower Assets are sufficient to permit Purchaser to operate the
business of the Towers as currently conducted by Seller and constitute all the assets used or held for
use in the business or operation of the Towers.Seller has not received notice that any Site is not in
-compliance with all Applicable Laws. All improvements of Seller on the Sites are in compliance
with applicable zoning,NEPA,FCC,FAA,the National Historic Preservation Act and any related
or similar state laws and land use laws.Except as set forth on Schedule l(aXvii),no consent,approval
or authorization of or registration or filing with any Person or Authority (each, a"7Lird-Party
Consent")is required to be obtained in connection with the execution and delivery of this Agreement,
the Closing Documents,or the consummation of the transactions contemplated hereby.There are no
removal bonds,cash deposits,letters of credit or other security that Seller has posted relative to the
Towers or the Sites.Except as set forth on Schedule I(a)(vii) there are no ground systems,generators
or generator fuel tanks located on the Sites.There are no agreements to which a third party has the
right to market or lease space to any Person at the Sites,or to receive income from any Tenant at the
Sites,pursuant to a marketing or managanent agreement,compensation agreement or other similar
arrangement
I. Towers. To Sellers' Knowledge, (i) there are no physical, structural or
mechanical defects in the Towers,and the Towns am suitable and adequate for its intended use•, (ii)
the Towers and improvements arc structurally sound,am in good operating condition and repair, are
adequate for the uses to which they are being put, and have beat maintained in accordance with
industry standards; and (iii) except as set forth on Schedule lta)(viil, neither the Towers nor the
improvements are in need of maintenance or repairs except for ordinary, routine maintenance and
repairs that are not material in nature or cost.
J. Ordinary Course of Business. During the twelve-month period immediately
preceding the date hereof:(i)Seller has conducted and operated the business and the Tower Assets in
the usual and ordinary course of business consistent with past practice,used its best efforts to maintain
and preserve the business and the Tower Assets and has not disposed of any of the Tower Assets,
except for obsolescence and repairs and replacements in the ordinary course of business,and(ii)there
has beat no Material Adverse Effect
K. Broker or Finder. There are no agent, broker, investment banker, financial
advisor or other firm or Person has been engaged by or on behalf of Sella or Purchaser,or will be
entitled to any fee or commission in connection with the transactions contemplated under this
AgreanentS
L. gnvironmental Matters.
(i) Except as set forth on Schedule l(alIvii), since Seller acquired
ownership and/or control of the Sites and/or Tower Assets, no Hazardous Substance or waste
(including, without limitation,petroleum products)or other material regulated under any applicable
Environmental Health and Safety Requirements is located orhas been generated,stored,transported
or released on, in,from or to the Sites or the Tower Assets. Seller has not attend into or received
any consent decree, compliance order or administrative order issued pursuant to any Environmental
Health and Safety Requirements and Sella is not a party in interest with respect to any judgment,
order, writ, injunction or decree issued pursuant to any Environmental Health and Safety
Requirements. Sella is not the subject of or, to Seller's Knowledge, threatened with any Action
involving a demand for damages or other potential liability with respect to violations or breaches of
any Environmental Health and Safety Requiranens relating to its ownership or operation of the
Tower Assets.Seller has not received any written notice that(i)any Environmental Permit is not in
full fora and effect or(ii)it is not in compliance in all material respects with the terms of all of its
Environmental Permits or all Environmental Health and Safety Requirements. To Seller's
Knowledge, neither the Sites nor the Tower Assets are the subject of any investigation by any
Authority with respect to a violation of any Environmental Health and Safety Requirements.
(ii) To the Sellers' Knowledge, Seller is in compliance with, and has all
pennits required by,all Environmental Health and Safety Requirements.
M. No ' -Party Rides. No Person other than Purchaser by reason of this
Agreement has any contractual or other right of first refusal or any other right or option to acquire
the Tower Assets(including without limitation the Owned Property and the Ground Lease)or any
portion thereof, including through any merger, consolidation, liquidation, dissolution or other
reorganization.
N. Legal Actions. There am: (a)no Legal Actions of any kind pending or,to the
Knowledge of Sella,threatened, at Law, in equity or by or before any Authority against or relating
to the ownership or operation of any of the Tower Assets or the business,and neither Seller nor its
Affiliates has received notice of any of the foregoing,and(b)no Orders by any Authority against or
affecting the Tower Assets or that are otherwise binding on any of the Tower Assets.
O. Authorizations.
(i) To Seller's Knowledge,Schedule l(a1vi(sets forth a hue,correct and
complete list of all Authorizations in the possession of or issued to Seller relating to the Sites (the
"Business Permits").
(ii) Except as set forth in Scher ule 1(al(viil and other than with respect to
the Microwave Assets:
(A) to Seller's Knowledge,each Site(and all related Improvements)
has been constructed and the Business has been conducted and operated,and is being conducted and
operated, in accordance with all Authorizations in all material respects (including from the FAA,
FCC,United States Army Corps of Engineers,Tribal Historic Preservation Officer and State Historic
Preservation Officer, if applicable) and in compliance with all Applicable Laws (including Laws
relating to zoning and similar restrictions relating to the use or enjoyment of real pvyvfy);
(B) to Seller's Knowledge, the Business Permits constitute all the
material Authorizations that are necessary for the ownership and operation of the Business,and each
Tower Asset (including from the FAA, FCC, United States Army Corps of Engineers and State
Historic Preservation Office,if applicable);
(C) to Seller's Knowledge, all Business Permits are valid and in
good standing, are in full force and effect and are not impaired in any material respect by any act or
omission of Seller or any of its Affiliates or Representatives,and the ownership and operation of the
Tower Assets are in accordance, in all material respects, with the Business Permits, including all
lighting and marking requirements imposed by the FAA and FCC;
(D) to Seller's Knowledge,all Improvements are in compliance in
all material respects with applicable zoning requirements, wetlands requiremads, die National
Historic Preservation Act and any Sated or similar state Laws, land use Laws and applicable title
covenants,conditions,restrictions and reservations in all respects,now and at the time of development
of the related Site as a communications facility,and
(E) there are noNOTAMs associated with any of the Sites that have
not been properly closed or extended in accordance with Applicable Law.
P. Taxes. Seller has filed all foreign, federal, state, county and local income,
excise, property, sales, use, franchise, anployment and other Tax retinas and reports which are
required to have been filed by it under Applicable Law in connection with the Sites and the Tower
Assets, and has paid all Taxes which have become due pursuant to such returns or pursuant to any
assessments which have become payable. There are no Tax Liens on any of the Tower Assets that
will not be paid prior to or at Closing or contested by Seller prior to or at Closing or, to Seller's
Knowledge any Lien,action, suit, proceeding, investigation, audit,examination or assessment with
regard to any Taxes t hat related to the Tower Assets or which could result m a Lien, other than a
Permitted Lien,on any of the Tower Assets.
Q. Utilities. To Seller's Knowledge, all water, sewer, electric, telephone, and
drainage facilities,and all other utilities required by Applicable Law or for the normal operation of
the Sites as currently conducted by Seller have been connected to the buildings constructed upon the
Sites, are connected with valid permits, are in good working order and are adequate to service the
Sites.
R. Bankruptcy Mamas. Seller has not had proceedings pending or threatened by
or against it in bankruptcy or reorganization in any state or federal court,resolved or otherwise agreed
to file a case in bankruptcy or reorganization in any state or federal court,or admitted in writing its
inability to pay its debts as they become due.
S. Overatine Expenses.Schedule tfal(viii)set forth the true and correct amounts
payable by Seller as operating expenses with respect to all of the Tower Assets for the most recent
pay period(monthly or annual,as applicable,depending on the type of expense,and identifying such
pay period on Schedule l(aMvjjjj), which shall include all utilities, insurance, real and personal
property taxes,recurring maintenance,monitoring,and such other expenses as are routinely incurred
,n the operation,ownership and maintenance of the Tower Assets.
T. Disclosure. No representation or warranty by Seller, or any statement or
certificate furnished by Seller to Purchaser pursuant to this Agreement or in connection with the
transaction contemplated by this Agreement,contains any untrue statement of a material fact or omits
any statement of a material fact necessary in order to make the statements and information contained
in this Section 7 not misleading.
Notwithstanding anything to the contrary in this Agreement, Seller's representations
and warranties set forth is this Section 7 shall not survive Closing or the termination of this
Agreement.Further,Purchaser acknowledges and agrees that,except as expressly set forth is
Section 5,the Purchase of the Tower Assets shall be on an"AS IS" basis.To the extent that the
Agreement is not signed simultaneously with the Closing, the parties agree that for all intents and
purposes the Agreement shall be domed to have been signal simultaneously with the Closing,such
that there shall be no period of time which is after the Effective Date and prior to the Closing.The
�:es nether agree that Purchaser's remedies relative to Seller's representations and warranties are
liit_d to
limited to those expressly set forth in Section 5.The parties agree that neither Purchaser nor Seller is
under any obligation to consummate the Purchase contemplated in the Agreement and neither patty
is under any obligation to close the Purchase.
8. Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller as follows:
A. Organization and Authority. Purchaser is a limited liability company, duly
organized, validly existing and in good standing under the Laws of the State of Delaware, and
possesses all requisite organizational power and authority to own,lease and operate its assets as now
owned or leased and operated and is duly qualified and in pod standing in each other jurisdiction in
which the character of the assets owned or leased by such Entity requires such qualification.Purchaser
has all requisite power and authority necessary to execute and deliver,and to perform its obligations
under each Closing Document to which it is a party and to consummate the transaction and the other
transactions contemplated hereby and thereby, and the execution, delivery and performance by
Purchaser of each Closing Document to which it is a party have been duly authorized by all requisite
limited liability company action.
B. No Conflicts. The execution, delivery and performance by Purchaser of this
Agreement and the other Closing Documents to which it is a party, and the coastmmnation of the
transactions contemplated hereby and thereby, do not and will not: (i) conflict with or result in a
violation or breach of, or default under, any provision of the articles of organization, operating
agreement or other organizational documents of Purchaser or(ii)conflict with or result in a violation
or breach of any provision of any Law or Order applicable to Purchaser.No consent,approval,permit,
Order,declaration or filing with,or notice to,any Person or Authority is required by or with respect
to Purchaser in connection with the execution and delivery of this Agreement or any of the Closing
Documents and the conswmnation of the transactions contemplated herby and thereby.
C. Broker or Finder. There is no agent, broker, investment banker, financial
advisor or other firm or Person engaged by or on behalf of the Pumhaseror any of its Affiliates which
is or will be nettled to a fee or commission in connection with the Purchase or the execution,delivery
or performance of this Agreement.
--- --- --- -
Notwithstanding anything to the contrary herein this Agreetnent, Purchaser's
representations and warranties set forth in this Section 8 shall not survive Closing or the
termination of this Agreement.
9. Conduct of Business by Seller Palling the Closing.After the Effective Date and prior
to the Closing Date, Seller shall own,operate and maintain the Tower Assets in the ordinary course
of business consistent with past practice,which shall include,without limitation,(a)keeping each of
the Tower Assets free of debris and excessive vegetation. in good commercial working order and
NOTAM free;(b)preserving the business of the Tower Assets,paying accounts payable and collects
accounts receivable,all in the ordinary course of business consistent with past practice,(c)operating
the Tower Assets in compliance with FCC, FAA and other Applicable Laws;(d)keeping the Tower,
improvements, Owned Property and the Ground Leased Property in good operating condition
(ordinary wear and tear excepted)and preserving intact the Tower Assets;(e)not selling,disposing
of or otherwise transferring the Sites or the Tower Assets;(1)not creating,assuming or permitting to
exist-ary-Liens on the Tower Assets except Permitted Liens;(g)not undertaking or commencing any
renovations or alterations of the Tower Assets;and(h)maintaining insurance on the Tower Assets in
such amounts as are commercially reasonable and consistent with past practice. In addition, Seller
shall not enter into, cancel, modify, alter, amend, consent to the assignment of or terminate any
contracts, leases, arrangements, understandings or agreements that will affect any of the Tower
Assets,including.but not limited to,any amendment,renewal,modification,assignment,termination
or other alteration of any Tarim Lease or the Grand Lease. To the extent that Seller proposes to
eater into any new Tenant Lease between the Effective Date and the Closing Date,Seller shall use
Purchaser's form of tenant lease agreement and shall submit such new Tenant Lease to Purchaser for
its approval,which approval shall not be unreasonably withheld,delayed or conditioned.
10. Notice of Certain Even(g.From the date hereof until the consununation of the Closing.
Seller shall promptly notify Purchaser in writing of
A. any fact, circumstance,event or action the existence, occurrence or taking of
which(i)has had,or could reasonably be expected to have,individually or in the aggregate,a Material
Adverse Effect, (ii) has resulted in,or could reasonably be expected to result in, any representation
or wanmty made by Seller hereunder not being rue and correct, or(iii) has resulted in, or could
reasonably be expected to result in,the failure of any of the coalitions set forth in Section 12 to be
satisfied;
B. any notice or other communication from any Person alleging that the consent
of such Person is or may be required in connection with the transactions contemplated by this
Agreement;
C. any notice or other communication from any Authority in connection with the
transactions contemplated by this Agreement;and
D. any Actions commenced or,to Sellers Knowledge,threatened against,relating
to or involving or otherwise affecting the Tower Assets or the Assumed Obligations that, if pending
on the date of this Agreement, would have been required to have been disclosed pursuant to
Section 7.0 or that Sates to the consummation of the transactions contemplated by this Agreement
Purchaser's receipt of information pursuant to this Section l0 shall not operate as a
waiver or otherwise affect any representation,warranty or agreement given or made by Seller in this
Agreement and shall not be deemed to amend or supplement any disclosure schedules.
I I. Closing Doc rnen .
A. At Closing, Sella shall execute mid deliver to Purchaser such normal transaction
documents as may reasonably be required by Purchaser or its title insurance company, each in a fern
reasonably acceptable to Seller and Purchaser, including,without limitation,the following(collectively, the
"Closgna Docu natal"): (a)a certificate stating that Seller is not a"foreign person"as defined by the Federal
Foreign Investment in Real Property Tax Act;(b)a copy of Seller's organizational documents and kesolatione
of the governing body of Sella authorizing the execution,delivery and paloninoce of ibis Agreement, the
transfer of title to the Tower Assets and die other Closing Doamam by Seller,and an officers certificate of
Seller,dated the Closing Date,that such resolutions were duly adopted and am in fell force and effect;(c)a
Bill of Sale tnnskring title to the Towers in the far attached hereto as Exhibit A;(d)an Assignment and
Assumption of Tenant Lasses in the form attached hereto as Exhibit B'(e)special warranty desk with aspect
to the Owned Propaty duly accented and acknowledged, in the form attached hereto as Exhibit Ci; an
Assignment and Assumption of Ground Leases in the form attached hereto as Exhibit 1)• (0 an estoppel
ceatifiraie from and executed by the tenant under each Tenant Lase,in the form attached batten ExhibiI
(g)an estoppel cetificate from and executed by landlord under the Ground Lase,in the form attached hereto
as Fxhbit F•(h)intentionally deleted;(ll amyreasonable and customary affidavits required by,and satisfactory
to,the title company in ode that a title insurance policy with respect to the Ground teased Property.at animal
statutory premium rates and without the requirement for additional premiums or eacsows to be posted by
Purchase and generally in form and substance reasonably satisfactory to Purchaser,may be issued fr a and
clear of the standard exceptions which a tide company is pernitted by Applicable Law to rave or modify
upon delivery of such affidavits; (j)a certificate signed by an executive officer of Seller catifying that(i)
St has performed and complied with all agreements and covenants required to be performed or complied
with by it under this Agreement at or prior to the Closing,and(ii)each oldie pasons executing and delivering
this Agreement and the Closing Documents to which it is aparty on behalf of Seller has the authority mexecute,
deliver and consummate this Agreement and each Closing Document;and(k)payoff amounts and evidence of
termination to the reasonable satisfaction of Purchaser's counsel of all Liens affecting the Tower Assets.
B. At or prior to Closing,Seller shall complete in the FCC's antenna structure registration
system (the "FCC's ASR Database") its portion of FCC Form 854 (Application for Antenna Structure
Registration)and provide the signature of an authorized pawn to assign the antenna structure registration for
the Towers in the FCC's ASR Database from Seller to Purchaser.Seller shall initially log into the FCC's ASR
Database to initialize the transfer of ownership of the antenna structure registration for the Towers from Seller
to Purchaser and then Purchaser,upon receipt of notice from the FCC of Seller's completion of its portion of
FCC Form 854,shall finalize the transfer of ownership of the antenna structure registration by completing its
portion of FCC Form 854 and submitting the application electronically to the FCC. Seller's point of contact
for the FCC Form 854 is with an email address of
12. Conditions to Closing.
A. Conditions to Obligations of Each Party. The respective obligations of each
party to consummate the Purchase shall be subject to the condition at or prior to the Closing Da
which condition may be waived in writing by the applicable party,in whole or in part,to the extent
permitted by Applicable Law,that no Action shall be pending before any Authority seeking to enjoin,
restrain,prohibit or make illegal the consummation of the Purchase.
B. Conditions to Obligations of Purchaser. The obligation of Purchaser to
consummate the Purchase shall be subject to the satisfaction of the following conditions,any or all
of which may be waived in writing, in whole or in part, by Purchaser to the extent permitted by
Applicable Law:
(i) (A)the representations and warranties of Seller contained herein shall
be true and correct in all material respects (except for representations and warranties that are
qualified as to materiality, which shall be true and correct); (B) Seller shall have performed all
agreements contained herein required to be performed by it at or before the Closing;and (C)Seller
shall have executed and delivered each of the Closing Documents;
(ii) Purchaser shall have received,at Purchaser's expense,a Title Policy,
in form acceptable to Purchaser,inswing fee title in the Owned Property and leasehold title to the
Ground Lease;
(iii) Between the Effective Date and the Closing Date,no event shall have
occurred that has had or is reasonably expected to have a Material Adverse Effect on the Tower
Assets;and
(iv) All Authorizations, Third-Party Consents, waivers or approvals
required by the provisions of this Agreement to be obtained from all Persons or Authorities shall
have been obtained,including without limitation any consents needed to assign the Ground Lease or
the Tenant Leases to Purchaser.
C. Conditions to the Obligations of Sella. The obligation of Sella to
consummate the Purchase shall be further conditioned upon(A) the payment of the Purchase Price
by Purchaser to Sella at the Closing and(B)Seller's receipt of a certificate signed by an executive
officer of Purchaser certifying that(i)Putxha crhas performed and complied with all agreements and
covenants required to be performed or complied with by it under this Agreement at or prior to the
Closing, and (ii) each of the persons executing and delivering this Agreement and the Closing
Documents to which it is a party on behalf of Purchaser has the authority to execute, deliver and
consummate this Agreement and each Closing Document
13. Proration. Appropriate proations shall be made on a daily basis as of the close of
business on the Closing Date with respect to rental and lease payments, scarily deposits, utilities,
current year real and personal property Taxes and all other items of income and expense due or
payable relating to the Owned Property and/or under the Grotnid Lease and/or the Tenant Leases,in
each case,of a nature ordinarily prorated as of closing in real estate transactions (and not separately
addressed elsewhere in this Agreement)with Seller being entitled to all such income and responsible
for all such expenses relating to the Tower Assets for all periods on or prior to the Closing Date and
Purchaser being entitled to all such income and responsible for all such expenses relating to the Tower
Assets for all periods subsequent to the Closing Date.A reasonable estimate of such proration shall
be agreed to by Seller and Purchaser at least five (5)Business Days prior to the Closing Date(the
"Prorations Estimate"), and shall be settled in immediately available funds at the Closing. All past
due real estate and personal property taxes, if any, shall be paid by Seller at or before the Closing.
Seller expressly agrees that if it receives any rents, revenues or other payments under the Tenant
Leases after the Closing Date, it shall renit to Purchaser the moneys so received within five (5)
Business Days after receipt thereof and Purchaser shall promptly apportion such amounts in
accordance with the terms of this Section 13 and deliver to Seller the amount,if any,to which Seller
is entitled pursuant to the terms hereof.Notwithstanding the foregoing,at the Closing Date,Purchaser
shall receive a credit for the full amount of all rent due under the Tenant Leases for the month
immediately following such Closing and Seller shall be entitled to keep all such amounts that it
receives from tenants under the Tenant Leases for such month; provided,however,that if Purchaser
subsequently receives any rents,revenues or other payments under theTenant Leases for such month,
Purchaser shall remit such amounts to Seller within five(5)Business Days after receipt thereof.Seller
expressly agrees that if it receives any rents, revenues or other payments under the Tenant Leases
after the Closing Date, it shall hold such funds in Mist for the benefit of Purchaser and remit to
Purchaser the moneys so received within five(5)Business Days after receipt thereof.The faegoing
provision shall survive the Closing. Each party hereunder shall reasonably cooperate with the other
party to execute their obligations under this Section 13.
l4. Indemni}y.
A. Indemnification by Seller. Seller agrees that from and after the consummation
of the Closing it shall indannify,defend and hold harmless Purchaser and its Affiliates,and each of
their respective members, stoddroldes, directors, officers, employees, managers, partners, agents
and representatives(collectively,the"Purchaser Indemnified Parties")from and against any and all
damages, Claims, losses, expenses, costs, obligations, and liabilities, including without limitation
reasonable fees and expenses of attorneys, accountants, and other experts and those incurred to
enforce the terms of this Agreement or any Closing Document(collectively, "Loss and Expense").
suffered by the Purchaser Indemnified Parties by reason of or arising out of:
(i) any failure by Seller to perform or fulfill any of its covenants or
agreements set forth herein or in this Agreement or any Closing Document(without reference to any
materiality exceptions);
(ii) the business and operation of the Tower Assets prior to Closing and
(iii) all Excluded Obligations.
B. Indemnification by Purchaser.Purchaser agrees that from and after the Closing
Dale it shall indemnify, defend and hold harmless Seller and its members, stockholders, directors,
officers, employees, agents and representatives(collectively,the"Seller Indemnified Parties")from
and against any Loss and Expense suffered by the Seller Indemnified Parties by reason of or arising
out of(i) all Assumed Obligations and (ii) the business and operation of the Tower Assets after
Closing.
C. Indannificetion Procedures. If an indemnified patty believes that it has
suffered or incurred any Loss and Expense, including, without limitation, as a result of any Action
instituted by a third party(a"Third-Party Claim'), it shall notify the indemnifying party, in writing,
promptly after becoming aware that it has suffered such Loss and Expense or of such Third-Party
Claim, describing such Loss and Expense in reasonable detail to the extent reasonably known or
practicable;provided,however,that any failure to so notify the indemnifying party shall not relieve
such indemnifying party of its obligations wider this Section 14 except,solely with respect to Third-
Party Claims, to the extent such failure to notify materially prejudices such indemnifying parry's
ability to defend against such Third-Party Claim. Except as otherwise set forth below, the
indemnifying party shall have the right, at its option and at its own expense, to participate in or,by
giving written notice to the indemnified party no later than fifteen (15) days after delivery of the
notice specified above, to take control of; the defense, negotiation and/or settlement of any such
Third-Party Claim with counsel reasonably satisfactory to the indemnified party;provided however.
that no indemnifying party shall settle or consent to any judgment regarding any Third-Party Claim
without the consent of the indemnified party, unless such settlement contains an unconditioned
release of the indemnified party from any and all liabilities, contains a customary confidentiality
provision, and does not otherwise impose any restriction, liability or obligation of any kind
whatsoever on the irdannified party.Except as provided in this Section 14 with respect to any such
Third-Party Claim, the defense, negotiation and/or settlement of which the indemnifying party has
taken control,the indemnified party shall have the right to retain separate counsel to represent it and
the indemnified party shall pay the fees and expenses of such separate counsel.
D. All indemnification payments made by Seller under this Agreement shall be
treated by the parties as an adjustment to the Purchase Price for tax purposes, unless otherwise
required by Applicable Law.
15. Termination. This Agreement may be terminated at any time after expiration of the
Ip_rwtion Period and prior to the Closing only pursuant to the following provisions:
A. by mutual consent of Seller and Purchaser,
B. by Purchaser by written notice to Seller in the event that Seller is in material
breach of any of its representations and warranties contained in this Agreement or in any Closing
Document,or breach of its covenants or agreements contained in this Agreement or in any Closing
Document, and such breach is not capable of being cured or is not sued within ten (IQ) Business
Days of written notice
C. by Seller by written notice to Purchaser in the event that Purchaser is in
material breath of any of its representations and warranties contained in this Agreement or in any
Closing Document, or breach of its covenants or agreements contained in this Agreement or in any
Closing Document, and such a breach is not capable of being cured or is not cured within ten (10)
Business Days of written notice;
D. by either Purchaser or Seller if the Closing has not occurred by July 1,2019;
E. by Purchaser pursuant to Section IA;or
F. by Purchaser pursuant to Section 16.
Notwithstanding anything to the contrary in this Agreement,in the event Seller fails to complete the
Closing in accordance with the terms and within the time stipulated herein and Purchaser is otherwise
ready,willing and able to proceed to the Closing in accordance with this Agreement,or in the event
Seller breathes any of its obligations under this Agreement and fails to cure such breach as provided
for in this Agreement, Purchaser shall be entitled either to (i)enforce specific performance of this
Agreement with respect to the Sites or(ii)terminate this Agreement.Termination of this Agreement
shall not relieve any party of any liability for breach or default under this Agreement prior to the date
of tennination. Notwithstanding anything contained haein to the contrary, Sections 17.A
(Confidentiality),and DI(Costs and Expenses)shall survive any termination of this Agreement.
The panics agree that Purchaser cannot require Seller to close the Purchase as contemplated by this
Agreement.
16. Risk of Loss.The risk of loss,damage,or destruction to the Tower Assets including,
without limitation, any of the equipment, inventory, or other personal property to be conveyed to
Purchaser under this Agreement shall be borne by Seller until the consummation of the Closing. In
the event of such loss,damage,or destruction,Seller shall serve immediate written notice to Purchaser
regarding the nature of such loss,damage,or destruction.If such damage does occur to a Tower Asset
prior to Closing,then Seller shall repair same and restore such Tower Asset to its forma condition at
its sole expense. Upon receipt of such notice, Purchaser shall have the option, exercisable in
Purchaser's sole discretion,to()terminate this Agreement by written notice to Seller or(ii)proceed
to Closing and receive at Closing an assignment of insurance proceeds on account of such loss,
damage or destruction(and Seller shall pay to Purchaser any"deductible"amounts under the policy)
or an adjustment of the Purchase Price in the amount of the reasonably estimated costs to repair such
loss, damage or destruction. in the event that Purchaser elects to receive any insurance proceeds,
Sella shall execute any and all documents and do all things reasonably necessary in order to
effectuate an assignment of claims,proceeds or benefits to Purchaser under said insurance policy(ies).
Seller agrees to maintain any existing fire and extended coverage casualty insurance through and
including the Closing covering all of the Tower Assets
17. Certai u&Additional Covenants.
A. Confidentiality. From and after the Closing and except for disclosures of
confidential information made by Purchaser to its equity holders and lenders,each of Purchaser and
Seller shall,and shall cause its respective Affiliates to,hold,and shall use its best efforts to cause its
or their respective representatives to hold, in confidence any and all information,whether written or
oral,concerning the Tower Assets,except to the extent that Seller can show that such information is
generally available to and known by the public through no fault of Purchaser or Seller,respectively,
any of its respective Affiliates or their respective representatives. If Purchaser, Seller or any of their
respective Affiliates or their respective representatives are compelled to disclose any information by
judicial or administrative process or by Applicable Laws,such party shall promptly notify the other
party in writing and shall disclose only that portion of such information which the disclosing party is
advised by its counsel in writing is legally required to be disclosed,provided that the disclosing party
shall use reasonable best efforts to obtain an appropriate protective order or other reasonable
assurance that confidential treatment will be accorded such information.
B. Non-Competition. For the three (3) year period commencing on the Closing
Date through and including the third(3s)anniversary of the Closing Date(the"Restricted Period"),
except pursuant to the existing Tenant Leases,neither Seller nor any of its Affiliates(and Seller will
ensure that none of their respective shareholders,partners,employees,representatives or agents)will,
directly or indirectly,own or operate(whether as owner,partner,officer,director,employee,investor,
lender or otherwise)any communications tower or site that is located within a two(2)mile radius of
each Site. The Restricted Period shall be tolled with respect to Seller and its Affiliates during any
period of violation of this covenant not to compete by any of them and during any other period
required for litigation during which Purchaser seeks to enforce this covenant against Seller or any of
its Affiliates.In the event that any of the covenants contained in this Section 17.8 shall be determined
by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a
period of time or over too large a geographical area or by reason of its being too extensive in any
other acapc.t, it shall be interpreted to extend only over the longest period of time for which it may
be m:urceable, over the largest geographical area as to which it may be enforceable, and/or as
extensive in any other respect as to which it may be enforceable. Seller acknowledges that both the
three(3)year length of time,the geographic scope,and the breadth of the non-competition provision
set forth in this Section 17.8 are all considered by it to be reasonable given the nature of the business
of Purchaser and are necessary to the protection of the business.
18. Atacama to Cooperate. Each of the parties shall use reasonable business efforts(x)
to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under
Applicable Law to consummate the Purchase and(y)to refrain from taking,or cause to be refrained
from taking,any action and to refrain from doing or causing to be done,anything which could impede
or impair the consummation of the Purchase, including, in all cases, without limitation using its
reasonable business efforts (i) to prepare and file with the applicable Authorities as promptly as
practicable after the execution of this Agreement all requisite applications and amendments thereto,
together with related information,data and exhibits,necessary to request issuance of orders approving
the Purchase by all such applicable Authorities, (ii)to obtain all necessary or appropriate waivers,
consents and approvals, and (iii) to effect all registrations, filings and submissions necessary for
Purchaser to own and operate the Sites.
19. Intentionally Deicted-
20. Miscellaneous.
A. This Agreement may be executed in multiple counterparts, via facsimile or
.PDF sent via email, which collectively shall constitute one and the same instrument and is to be
construed pursuant to the laws of the State of Florida without regards to the principles of conflicts of
law thereof This Agreement sets forth the entire contract between the parties, is binding upon and
inures to the benefit of the parties hereto and their respective heirs,successors and assigns,and may
be cancelled,modified or amended only by a written agreement of both Seller and Purchaser.
B. All notices and other communication which by any provision of this
Agreement an required or permitted to be given shall be given in writing and shall be sent to such
other Person(s)or address(es),as the party to receive any such notice or communication may have
designated by written notice to the other party.Such notice shall be deemed given:(a)when received
if given in person; (b) three(3)days after being deposited in the U.S. mail (certified or registered
mail), with postage prepaid; and (c) if sent by a nationally or internationally recognized overnight
delivery service,the day such overnight delivery services confirms delivery via tracking number.
If to Purchaser If to Seller.
Datapath Vertical Bridge,LLC Telcom Systems, Ltd.
750 Park of Commerce Drive,Suite 200 2902 August Drive
Boca Raton,FL 33487 Homestead, FL 33035
Attention:General Counsel Attention:James E. Spisiak
Deal: Telcom Systems
With a copy to:
Richard losepher, Esq.
2101 Corporate Blvd.,#107
Boca Raton, FL 33431
Email: rjosepher@floridatax.com
Phone: 561-99S-7847
C. Jurisdiction:Service of Process. Any action or proceeding seeking to enforce
any provision of,or based on any right arising out of this Agreement,the Closing Documents and/or
any collateral document shall be brought exclusively in any United States federal court or state courts
located in the State of Florida in the County of Miami-Dade and shall have jurisdiction over the
parties with respect to any dispute or controversy between them arising under or in connection with
this Agreement,the Closing Documents,or any collateral document. Each of the parties irrevocably
consents to the exclusive jurisdiction of such courts(and of the appropriate appellate courts)in any
such action or proceeding and waives any objection to venue laid therein. Process in any action or
proceeding may be served on any party anywhere in the world.
- D. Specificjerfotmance. In the event Seller should refuse to perform any of its
obligations under this Agreement or any Closing Document,the remedy at law would be inadequate,
and for breach of such obligation, Purchaser shall, in addition to such other remedies as may be
available to it at law or in equity,be entitled to injunctive relief and to enforce its rights by an action
for specific perfomtance to the extent permitted by Applicable Laws.Nothing herein contained shall
be construed as prohibiting Purchaser from pursuing any other remedies available to it pursuant to
the provisions of this Agreement, any Closing Document or Applicable Laws, including, without
limitation,the recovery of damages.In the event of any dispute between the parties which results in
a legal action, the prevailing party shall be entitled to receive from the non-prevailing party
reimbursement for reasonable legal fees and expenses. Notwithstanding anything to the contrary,
Seller waives any remedy of specific performance against Pub.
E. .This Agreement shall not be assignable by either party except that
Purchaser may assign this Agreement to any Affiliate,any successor by operation of law,or by way
of merge consolidation or sale of all or substantially all of its assets.Any assignment carded out in
accordance with this Section 20.E shall not relieve the Putt.of its obligations hereunder. This
Agreement shall be binding upon and inure to the benefit of the parties and their successors and
Permitted assigns.
F. Costs and Expenses.Each party shall bear its own legal fees and costs incurred
in connection with the transactions contemplated hereby.Purchaser shall bear the costs of recordation
of any of the Closing Documents.Notwithstanding anything to the contrary in this Agreement,Seller
shall be solely repoasllk for payment of any transfer or similar taxes incurred in connection with
the transfer of the Tower Assets to Purchaser.
G. Limitation on Liability. Notwithstanding anything to the contrary contained
herein,Purchaser's liability for any breach of this Agreement shall be limited to Seller's actual out-
of-pocket damages, inclusive of reasonable attorneys' fees, in no event to exceed a
H. No Recousee Against Nonparty Affdiateg. All claims, obligations,liabilities,
or causes of action(whether in contact or in tort,in law or in equity,or granted by statute)that may
be based upon, in respect of, arise under,out or by reason of, be connected with, or relate in any
manna to this Agreement, or the negotiation, execution, or performance of this Agreement
(including, without limitation, any representation or wananty made in, in connection with, or as an
inducement to,this Agreement),may be made only against(and are those solely of)the entities that
are expressly identified as parties in the preamble to this Agreement(each a"Contracting Party"and
collectively,the"Contractive Parties").No Person who is not a Contracting Party,including without
limitation any director, officer, employee, incorporator, member, partner, manager, stockholder,
affiliate,agent,attorney,or representative of,and any financial advisor or lender to,any Contracting
Party, or any director, officer, employee, inoorporata , member, partner, manager, stockholder,
affiliate, agent, attorney, or representative of; and any financial advisor or lender to, any of the
foregoing("Nonparty Affiliates"),shall have any liability(whether in contract or in tort,in law or in
equity,or granted by statute)for any claims,causes of action,obligations,or liabilities arising under;
out of in connection with,or related in any manner to this Agreement or based on,in respect of,or
by reason of this Agreement or its negotiation, execution, perfomrmrce, or breach; and, to the
maximum extent permitted by law, each Contracting Party hereby waives and releases all such
!iebilitis, claims,causes of action, and obligations against any such Nonparty Affiliates. Without
limiting the foregoing,to the maximum extent pem!tted by law,(a)each Contracting Party hereby
waives and releases any and all rights, claims, demands, or causes of action that may otherwise be
available at law or in equity, or granted by statute, to avoid or disregard the entity form of a
Contracting Party or otherwise impose liability of a Contracting Patty on any Nonparty Affiliates,
whether granted by statute or based on theories of equity,agency,control,instrumentality,alter ego,
domination, sham, single business anaprist, piecing the veil, unfairness, undercapialimfion, or
otherwise and(b)each Contracting Party disclaims any reliance upon any Nonparty Affiliates with
respect to the perfume nce of this Agreement orany representation orwarranty made in,in connection
with,or as an inducaneat to this Agreement.
21. pefinitions. As used in this Agreement, the tams below shall have the following
meanings:
"AUian" means any claim, action, cause of action, demand, lawsuit arbitration, inquiry,
audit,notice of violation,pmrndingg,litigation,citation,summons,subpoena or investigation of any
nature,civil,criminal,administrative,regulatory or otherwise,whether at law or in equity.
"Affiliate" mans, with respect to any Person, (a) any other Person at the time directly or
indirectly controlling,controlled by or under direct or indirect common control with such Person,(b)
any executive offiar, director or senior management of such Person, (c) with respect to any
partnership,joint venture,limited liability company,or similar entity,any general lamer or manager
thereof, and (d) when used with respect to an individual, shall include any member of such
individual's immediate family or a family bust.
"Aoalicable Law"means any law of any Authority, whether domestic or foreign,to which a
Person is subject or by which it or any of its business or operations is subject or any of its property
or assets is bound.
"Authority" means any governmental or quasi-governmental body, whether administrative,
executive, judicial, legislative, police, regulatory, taxing, or other authority, or any combination
thereof, including any international, federal, state, territorial, county, city, municipal or other
government or governmental or quasi-governmental agency, arbitrator, authority, board, body,
branch, bureau, or comparable agency or Entity, commission, corporation, court, department,
instnunentality, mediator,panel,system or other political unit or subdivision or other Entity of any
of the foregoing,whether domestic or foreign.
"Authorizations"means an approvals,concessions,consents,franchises,licenses,certificates,
permits,plans,registrations and other authorizations of all Authorities, including all zoning permits,
variances and building permits and approvals by and registrations with the FAA and the FCC held by
the Company or are necessary for the consummation of the transaction and the other transactions
contemplated by this Agreement and the Closing Documents.
"Business Day" means any day other than Saturday, Sunday or a day on which banking
institutions in New York,New York arc required or authorized by Law to be closed.
'Claim" means any and all debts, liabilities, obligations, losses, damages, deficiencies,
assessments and penalties, together with all Legal-Actions, pending or threatened, claims and
judgments of whatever kind and nature relating thereto, and all fees, costs, expenses and
disbursements(including reasonable attorneys' and other legal fees, costs and expenses)relating to
any of the foregoing.
"Cownences" or "Commenced" means, with respect to any Tenant Lease, the tenant
thereunder has commenced paying regularly scheduled installments of rent pursuant to the terms
thereof and has completed installation of its equipment on the Towers.
"Cure"or"Cured" means, with respect to any Defect: (i) if relating to a title matter, Seller
will mane for the benefit of Purchaser an irrevocable commitment from a tide company to insure
against any and all loss incurred or that may be incurred by Purchaser as a result of such Defect(with
all costs and expenses relating to such title insurance to be paid by Seiler);(ii)Seller agrees,in writing,
to reimburse Purchaser(or provide Purchaser with a credit against the Purchase Price at Closing)an
amount equal to the cost to repair the Defect or the loss in the value of the Tower Asset as a result of
the Defect, as determined in Purchaser's reasonable discretion; or (iii) Seller has taken any other
action with respect to the Defect that causes such condition or matter to no longer constitute a Defect,
as determined in Purchaser's reasonable discretion.
"J;nvimnmeatal Health and Safety Requirements"means all federal,state and local statutes,
regulations, ordinances and other provisions having the force or effect of law, all judicial and
administrative orders and determinations,all contractual obligations and all common law concerning
public health and safety,worker health and safety,and pollution and protection of the environment,
including without limitation,all those relating to the presence,use,production,generation,handling,
transportation, treaunent, storage, disposal, distribution, labeling, testing, processing, discharge,
release,control,or cleanup of any hazardous materials,substances or wastes,chemical substances or
mixtures, pesticides,pollutants, contaminants,toxic chemicals, petroleum products or by products,
asbestos, polychlorinated biphenyls,noise or radiation,each as amended and as now or hereafter in
effect.
"Environmental Permit' shall mean any Governmental Authorizations required by or
pursuant to any Environmental Health and Safety Requirements.
"FAA"means the United States Federal Aviation Administration,or any successor Authority.
"FCC" means the United States Federal Communications Commission, or any successor
Authority.
'Govenmmental Authorization( means all approvals, concessions, consents, franchises,
licenses,permits,registrations and other authorizations of all governmental authorities,in connection
with the Tower Assets.
"Hazardous Substance" shall mean any substance that is deemed by any Environmental
Health and Safety Requirements to be 'hazardous,' "toxic," a "contaminant" or 'haste" or is
otherwise regulated by any Environmental Health and Safety Requirements.
included Tenant Agreement"means a Tenant Lease that meets all of the following criteria
as of the TCF Date and the Closing Date. (a) Seller has a valid landlord's, lessor's or licensor's
interest under such Tenant Lease, (b)that is executed in writing and in Nil force and effect,(c)that
has not expired and will not expire within five(5)years from the date hereof in accordance with its
terms,(d)is not on a"month-to-month"term,(e)the tenant thereunder is not currently involved in a
bd'^aptey proceeding,(t)that has not otherwise been terminated(and Seller shall not have received
any notice of termination), (g) which has Commenced, (h)the tenant thereunder may not terminate
for convenience except upon expiration of the tam of any Tenant Lease,and(i)with respect to which
that is no material default on the part of either Seller or the tenant thereunder, including, without
limitation,any monetary default by such tenant for greater than thirty(30)days.
")f"shall mean any of the following:mortgage;lien(statutory or other);or other security
agreement, arrangement or interest; pledge; assignment; charge; attachment; garnishment;
encumbrance(including,without limitation,any easement,exception,reservation or limitation,right
of way,and the like);conditional sale;title retention;preemptive or similar right;any financing lease;
the filing of any financing statement under the Uniform Commercial Code or comparable law of any
jurisdiction; restriction on sale, transfer, assignment, disposition or other alienation; or any option,
equity,claim or right of or obligation to,any other Person, of whatever kind and character.
"Material Adverse Change"or"Material Adverse Effect means a fact, condition, change,
event or occurrence that is, or could reasonably be expected to become, individually or in the
aggregate, materially adverse to (a) the business, results of operations, condition (financial or
otherwise) or assets of Seller, (b) the value of the Tower Asses, or (c) the ability of Seller to
consummate the transactions contemplated hereby on a timely basis.
"NEPA"means the National Environmental Policy Act of 1969,as amended.
"NOTAIT means a"Notice to Airman"issued by and as such term is used by the FAA.
"Orders"means any writ,order,judgment, injunction, decree, ruling or consent of or by an
Authority.
"Permitted Exceptions" means, with respect to each Site, encumbrances to fee simple or
leasehold title for.(a)real estate taxes or other property taxes,assessments,govemnnntal charges or
levies not yet due; (b) easements, rights-of-way, zoning matters, licenses, restrictions and similar
encumbrances incurred in the ordinary course of business that do not materially impair the
marketability, use or operation of such Site as a communications tower facility, and (c) rights of
Tenants in possession of such Site pursuant to the Tenant Leases to be assigned to the Purchasers
Permitted Lien" shall mean (a) Liens on real estate or other property fin taxes not yet
delinquent and those the non-payment of which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves have been set aside on the books of Seller
or for which Purchaser is receiving a credit;(b)Liens of carries,warehousemen,mechanics,vendors
(solely to the extent arising by operation of law), and mataiabnen or other similar encumbrances
incurred in the ordinary course of business for sums not yet due or being diligently contested in good
faith so long as it is disclosed in writing to Purchaser, and (e) existing building restrictions
ordinances, easements of roads,privileges,or rights of public service companies.
"Person"means any natural individual or any entity.
"Seller's Knowledge"means both the actual knowledge and constructive knowledge oflames
E. Spisiak and the officers and managers of Seller, which should reasonably be expected to acquire
by ordinary attentiveness to duty and by reasonably prudent internal inquiry given the nature of such
individual'y position and responsibilities.
"-fax" or "Tat e " shall mean, with respect to any Person, (a) all taxes, including without
limitation any income(net,gross or other including recapture of any tax items such as investment tax
credits),alternative or add-on minimum tax, gross income,gross receipts, gains,sales, use, leasing,
lease,user,ad valorem,transfer,recording,franchise,profits,property, fuel,license,withholding on
amounts paid to or by such Person, payroll, employment, unemployment, social security, excise,
severance, stamp, occupation, custom, duty or other tax, or other bate assessment or charge of any
kind whatsoever, together with any interest, levies,assessments,charges,penalties,additions to tax
or additional amount imposed by any Authority,(b)any joint or several liability of such Person with
any other Person for the payment of any amounts of the type described in(a),and(c)any liability of
such Person for the payment of any amounts of the type described in(a)as a result of any express or
implied obligation to indemnify any other Person.
"Tenant Lease"shall mean any written lease agreement pursuant to which Seta has demised
a leasehold interest,leasehold estate or other real property interest in the Sites to a sublessee or tenant,
including, without limitation,the associated access easements and rights of way including, without
limitation,those set forth in Schedule Ifa)fii).
!SIGNATURE PAGE FOLLOWS]
The parties have executed this Asset Purchase Agreement as an instrument under seal as of
the day and year Cost written above.
SF11FR: PURCHASER:
Telco=Systems,Ltd., Datapad'V Beal Bridge,LLC,
a Florida limited partnership A Delaware ited liability company
By.Telcom Systems, Inc., By:
a Florida corporation,its General Partner Name:
f Title:
By. (,((/.f..nw left at.
Name: Ja
nus is E. irist&Jc
Title: PnLxde.'k.
Schedule 1(af
Towers
d641363 meted QSRA6l9AW Uooeed a 33131 EAA 4A1 WA SST
*al *WOO WEISWIWNSB rod it RBI BM ash 1!i aged
t6413705 WOO 1deSWdrpianda Wbe a B011 XX3 aad YA9 fqd
%RSA Sapled tOISI USU6AMAC134SYNXUSIWr3rAB selrtdier a Sly its asM 3711 aged
USAWW eg3W4SWd.Xod SWCi6VAW RIM ft air XS71 41T11 103 SS
(6AnII kR143 TOWSWdytaAdW t W a 3101 XXl La 3X9 9Ud
[Signature Page to Bill of Sale]
IN WITNESS WHEREOF,each party has caused this Bid of Sale to be duly executed and
delivered in its name and on its behalf';as of the date first above written.
SELLER:
Telcom Systems,Ltd.,
a Florida limited partnership
By.Telcom Systems,/ Inc.,its General Partner
By 2nWJvI 11 ie�,.�!
Name:Cl
Tide;
PURCHASER:
Datapatb V Bridge,LLC,
a Delaware li ted liability company
By.
Name:
Title:
EXHIBIT B
When Recorded Return to:
Fidelity National Title Insurance Corp.
7130 Glen Forest Drive, Suite 300
Richmond, VA 23226
Prepared by:
Datapath Vertical Bridge, LLC
750 Park of Commerce Dr., Suite 200
Boca Raton, Florida 33487
Site Number: US-FL-5305
Site Name: Long Key
Commitment# 28509554
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (this ".Assignment")
is entered into as of this Lj day of June, 2019 (the "Transfer Date"), by and between Telcom
Systems, Ltd., a Florida limited partnership ("Assignor"), having an address at 2902 August
Drive, Homestead, Florida 33035, and Datapath Vertical Bridge, LLC, a Delaware limited
liability company, having an address at 750 Park of Commerce Drive, Suite 200, Boca Raton,
Florida 33487 ("Assignee")_
W ITN ES ETH
WHEREAS,Assignor and Assignee have entered into an Asset Purchase Agreement dated
as of the LI day of June, 2019 (the "Purchase Agreement", with capitalized terms used herein
without definition having the meanings set forth therein), which provides for the purchase by
Assignee from Assignor of the Tower Assets; and
WHEREAS, the Purchase Agreement requires that Assignor assign to Assignee all of
Assignor's right, title, and interest as tenant under the Ground Lease,such Ground Lease being set
forth on Exhibit A attached hereto; and
WHEREAS, Assignor and Assignee now desire to effect and consummate the various
transactions contemplated in the Purchase Agreement upon the terms and conditions therein set
forth.
NOW,THEREFORE,in consideration of the mutual agreements and covenants hereinafter
and in the Purchase Agreement set forth, and good and other valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, the parties hereto each agree with the
other as follows:
I. Incorporation. The "Whereas" clauses set forth above are hereby incorporated into
and made part of this Assignment.
2 Assignment of Ground Lease. Assignor has bargained, assigned, transferred, sold
and conveyed, and by these presents does hereby bargain, assign, transfer, sell and convey unto
Assignee, its successors and assigns, all of the right, title, claims, and interests of Assignor as
tenant in and under the Ground Lease, effective as of the Transfer Date, TO HAVE AND TO
HOLD the same unto the Assignee, its successors and assigns, for and during all the rest, residue
and remainder of the term of the Ground Lease and any extensions or renewals thereof, all as set
forth in the Ground Lease, the provisions of which are by this reference thereto incorporated
herein, all free and clear of Liens other than Permitted Liens.
3. Acceptance and Assumption of Ground Lease. Assignee hereby accepts the
assignment of the Ground Lease and expressly assumes and covenants in favor of Assignor to
discharge and perform, as and when due, all obligations of Assignor first accruing under the
Ground Lease from and after the Transfer Date.
4. Representations. The representations and warranties contained in the Purchase
Agreement with respect to the Ground Lease are incorporated by reference herein and made a part
hereof as if fully set forth herein.
I. Purchase Agreement Controls. Nothing in this Assignment shall be deemed to
expand or diminish the scope of the rights of any party to the Purchase Agreement that are
contained in the Purchase Agreement, If there is conflict or an apparent conflict between the
provisions of this Assignment and the provisions of the Purchase Agreement, the provisions of the
Purchase Agreement shall control.
2 Indemnification. The indemnification provisions contained in the Purchase
Agreement are hereby incorporated by reference with respect to the Ground Lease.
3. Counterparts; Facsimile Signatures. This Assignment may be executed in
counterparts, each of which shall be deemed to be an original, but which together shall constitute
one and the same instrument. Facsimile or PDF signatures on this Assignment shall be deemed to
he original signatures.
4. Successors and Assigns. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
5. Further Assurances. Assignor and Assignee agree that, from time to time, each of
them will execute and deliver such further instruments of conveyance and transfer and lake such
other actions as may be reasonably necessary to carry out the purposes and intents of this
Assignment and the transactions contemplated hereby.
[SIGV.PURE PAGE IMMEDIATELY FOLLOWING]
2
[Signature Page to Assignment and Assumption of Ground Lease]
IN WITNESS WHEREOF,the parties hereto have executed and delivered this Assignment
to be effective as of the Transfer Date.
Witnesses:
ASSIGNOR:
Telcom Systems,Ltd.,
By: (� ll11 a Florida limited partnership
Name: Lapel 3h 4. 5c4} By: Telcom Systems, Inc.,
a Florida corporation,
its General Partner
By: By: /q.>y,tn G /ljv.nl[.G
Name: /JAr•r, �;. h- Nam James E. prsi , Sr.
Title: President
STATE OF FLORIDA:
COUNTY OF: film.; Nat
The foregoing instrument was acknowledged before me this day of
Viti'J2 , 2019 by g2/Y ieS . 421 s iek Sr , the ros of Telcom
Systems, Inc., a Florida corporation, general partner of Telcom Systems, Ltd., a Florida limited
partnership, on behalf of the company. He is personally known to me or has produced
11 hn mar's 4Cita-, as id ification. ^
No Public `. w 4,,�
Print Name: Renee Ann Winslow
My Commission Expires: aA o
[NOTARY SEAL
ry.
RQEE/NrlYalii�Orr
�� o wrwvnssia+rrr msrw
I J' g:yq ibicumA
k 9aitleAilry NWryNdtcaMd*r�'��
3
[Signature Page to Assignment and Assumption of Ground Lease]
IN WITNESS WHEREOF,the parties hereto have executed and delivered this Assignment
to be effective as of the Transfer Date.
Witnesses:
ASSIGNEE:
Datapath Ve , cal Bridge,LLC,
BY: iA Ira, C.. Cam-- a Delaware Ii ,T liability company
Name: fVJulie A. Carson By: ij_
Name: .ante 'ann. - e
tQ� � Title: and General Counsel
By: j#0112kr
`'
Name: �ao _
STATE OF FLORIDA:
COUNTY OF PALM BEACH:
The foregoing instrument was acknowledged before me this day of June, 2019 by
!.:/!}hol itohh bar, , theSVP [Ld &f01'aJtj (tbfDatapath Vertical Bridge, LLC,
a Delaware limited liability company, on behalf of the company. He is personally known to me or
has produced as identification.ary Public �....‘04/ /
Print Name: Rena Ann Winslow
My Commission Expires:Ai.a3 ales.
[NOTARY SEAL]
1 asErmaataaon
tr . - areeaVUatomat• 985510
a EXPeESAWMr1.3020
Bm4Alxvngryp�yagMya
4
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
Site Number: US-FL-5305
Site Name: Long Key
Original Landlord Name: Monroe County, a political subdivision of the State of Florida
Original Tenant Name: Telcom Systems, Ltd.
Lease Exe Date: April 7, 2011
Recording information for Lease: N/A
Ground Lease Description: See EXHIBIT A-I
5
EXHIBIT A-I OF ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
LEGAL DESCRIPTION
Parent Parcel (for reference):
An interest in land, said interest being over a portion of the following described parent parcel:
The following described land situate, lying and being in the County of Monroe and State of
Florida, to-wit:
All of the lands heretofore deeded to the Overseas Road and Toll Bridge District from the Florida
East Coast Railway Company by deed date November 09, 1936, and recorded in Deed Record
G-6, Pages 46 to 55, both inclusive, Monroe County, Florida, Public Records excepting
therefrom all lands which have been deeded by said Overseas Road and Toll Bridge District and
which deeds are of record as of the date of this conveyance to Monroe County, Florida, and also
excepting the strip of land One Hundred feet(100') Wide being Fifty feet (50') in width on each
side of the center line of the right-of-way of the former Florida East Coast Railway, as same was
constructed and operated between the center line dividing Sections Twenty-one(21) and Twenty
(20) in Township 64, South of Range 36 East,to the Section Line between Sections Twenty-five
(25)and Twenty-six (26) in Township 66, South of Range 29 East, including all trestles,
structures, bridges mid riparian rights, all in Monroe County, Florida, being part of the lands
deeded to the Overseas Road and Toll Bridge District by deed dated November 09, 1936, and
recorded in Deed Record G-6, Pages 46-to 55, both inclusive, Monroe County, Florida, Public
Records.
LESS AND EXCEPT that portion of property conveyed to The Board of Parks and Historic
Memorials, an agency of the State of Florida from Monroe County, State of Florida, a political
subdivision of the State of Florida by Deed dated May 01, 1969 and recorded May 14, 1969 in
Deed Book 431, Page 457.
LESS AND EXCEPT that portion of property conveyed to The Board of Parks and Historic
Memorials, an agency of the State of Florida from Monroe County, State of Florida, a political
subdivision of the State of Florida by Deed dated January 01, 1970 and recorded January 21,
1970 in Deed Book 445, Page 774.
AND BEING a portion of the same property conveyed to Monroe County, Florida, a political
subdivision of the State of Florida from Overseas Road and Toll Bridge District, a political
subdivision of the State of Florida by Warranty Deed dated September 04, 1954 and recorded
September 22, 1954 in Deed Book 15, Page 374.
Tax Parcel No. 00098780-000000
6
EXHIBIT A-I OF ASSIGNMENT AND ASSUMPTION OF GROUND LEASE CONTINUED
Premises:
Said interest being over land more particularly described by the following description:
A blast of land Ina pat of Government Lot 1.
Section 5, T. 6b S_ R 35 E. on Lang Key. Marmot
County, Flodda, and being more paticulady
described by metes and bounds as fans
Commencing at the centerane of U.S. Highway No.
1 and the Point of Curve of Station 24068 piss 96.1.
Florida Bost Coast Ra4way Right at Way and Tract
Map, bee northeasterly along the centerline of
U.S. Highway Na. ] for a distance of 330.22 feet to
a point thence at right angles and
for a distance of 50A feet to the point at Inn southeasterly
of the tract of land hereinafter desatbed said
Point of beginning also being on the southeasterly
vlghtot-way line of U.S. Highway No. 1; from said
point of beginning, continue begin; southeast**
end at right angles to U.S. dray No. 1 for a
distance of 300.0 feet to a point thence at right
angles and northeasterly for a distance of 300.0
feet to a point, thence at right angles and
northwesterly for a distance of 300.0 feel to a point
on the southeasterly right-away line of U.S.
Highway No. 1: thence beat southwastedy don;
the southeastery righted-way pee of U.S. Highway
Na. 1 for a distance of 300.0 fast. bock to the point
of beginning.
7
DRUG-FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that:
Veracol $ricegP_
(Name of Business)
1. Publish a statement notifying employees that the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance is prohibited in the workplace
and specifying the actions that will be taken against employees for violations of such
prohibition.
2. Inform employees about the dangers of drug abuse in the workplace, the business' policy
of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and
employee assistance programs, and the penalties that may be imposed upon employees
for drug abuse violations.
3. Give each employee engaged in providing the commodities or contractual services that
are under bid a copy of the statement specified in subsection (1).
4. In the statement specified in subsection (1), notify the employees that, as a condition of
working on the commodities or contractual services that are under bid, the employee will
abide by the terms of the statement and will notify the employer of any conviction of, or
plea of guilty or nob contendere to, any violation of Chapter 893 (Florida Statutes) or of
any controlled substance law of the United States or any state, for a violation occurring in
the workplace no later than five (5)days after such conviction.
5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance
or rehabilitation program if such is available in the employee's community, or any
employee who is so convicted.
6. Make a good faith effort to continue to maintain a drug-free workplace through
implementation of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with the above
requirements. DataBath Vertical Bridge II, LLC
(Signatu
Date: 19Cs46'f- Pit
DS
STATE OF: Florida LEGAL it
COUNTY OF: Po/n; Beach
Subscribed and sworn to (or affirmed) before me, by means of$physical presence or 0 online
notarization, on g-/41.-QOao (date) by
"Way ,-d rnan (name of affiant).�-le he is personally known to
me or has produced — l� (type of identification) as
identification. • ,
_g_o
NOTARY PUBLIC
My Commission Expires: cqr- /7 ,.-Z).2a
SWORN STATEMENT UNDER ORDINANCE NO. 010-1990
MONROE COUNTY, FLORIDA
ETHICS CLAUSE
Ver-Hcal BrnJJ e
(Company)
"...warrants that he/it has not employed, retained or otherwise had act on his/her behalf any
former County officer or employee in violation of Section 2 of Ordinance No. 010-1990 or any
County officer or employee in violation of Section 3 of Ordinance No. 010-1990. For breach or
violation of this provision the County may, in its discretion, terminate this Agreement without
liability and may also, in its discretion, deduct from the Agreement or purchase price, or otherwise
recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the
former County officer or employee." DataPath verti cal Bri dge II, LLC
By:
(Signature
Date: 8-/4-o?0P0
STATE OF: F/oriC/q LEGAL �
COUNTY OF: Pall/ 6ich
Subscribed and sworn to (or affirmed) before me, by means of Xphysical presence or ❑ online
notarization, on Ru4u5* /14 4oQ0
(date) by /9Iex Gel/rnan (name of affiant). 3•he is
personally known to me or has produced — (type of
identification) as identification.
•
i'Wr.�i 42,47t �OIYV
doo Notary Public sidle o,Florida NOTARY PUBLIC
My Co vvonamson
My Commission GG 266524
• p;▪ ,;dr e.p,raa,onrno22 My Commission Expires: Oe+ /7 c t
PUBLIC ENTITY CRIME STATEMENT
"A person or affiliate who has been placed on the convicted vendor list following a conviction for
public entity crime may not submit a bid on a contract to provide any goods or services to a public
entity, may not submit a bid on a contract with a public entity for the construction or repair of a
public building or public work, may not submit bids on leases of real property to public entity, may
not be awarded or perform work as a CONTRACTOR, supplier,subcontractor, or CONTRACTOR
under a contract with any public entity, and may not transact business with any public entity in
excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period
of 36 months from the date of being placed on the convicted vendor list."
I have read the above and state that neither (Respondents name)
nor any Affiliate has been placed on the convicted vendor list within the last 36 months.
DataPath Vertical Bridge II, LLC
By:
(Signatur
Date: S -/51-cgcoo
DS
LEGAL 7E
STATE OF: FOr%ck
COUNTY OF: PQ/M Raid,
Subscribed and sworn to (or affirmed) before me, by means ofXphysical presence or 0 online
notarization, on Ac guS/- /f}� aOa0 (date) by
(name of affiant). C.he is personally known to
me or has produced — (type of identification) as
identification. _ l
F.$ W. Notary Public slate or Florida �K.2C4e.4 �i�i@AXA J6tL)
r Rachel Williamson NOTARY PUBLIC
My Comm� sice GG 266524
�w�ee Expires 10/17/2022
My Commission Expires: ck*- 17 670 -
Client#: 1700812 140VERTIBRII
ACORD.. CERTIFICATE OF LIABILITY INSURANCE DATE IM;ODTYYY)
8/13/2020
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(les)must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on
this certificate does not confer any rights to the certificate holder in lieu of such endorsemen(s).
PRODUCER LONIALi
xAMS: Jennifer Burton
McGriff Insurance Services Writ,.spy 410480-4400 FAX 866-548-4197
INC,5850cmI:
Waterloo Suite 240 E-Mae ennifer.burton me nHlnsurance.com
Columbia, MD 21045 poREss; 1 g
Insurance AFFORDING COVERAGE NAICtl
410 480-4400 -
_ INSURER A_Hanover lreurance Company 22292
INSURED INSURER B:Fireman'sInsurance
FundCompany 21873
Vertical Bridge REIT LLC - -- - -
750 Park of Commerce Drive INSURER c_Lloyds
Suite 200 INSURER D:
Boca Raton,FL 33487 INSURER s: _ I,
INSURER F:
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
IIiR TYPE OF INSURANCE ADDLSUBR POLICY EMI POLICYEXP
INSR WO POLICY NUMBER IMMIDO/WYn IMWONYVYYI I LIMITS
A )( COMMERCIAL GENERAL UABILITY LHQA33010207 06/03/2020 06/03/2021!EACH OCCURRENCE S1,000,000
CLAIMS-MADE ' X OCCUR I N�EO
- DAMAGfETTOR e . ncel Is1,000,000
i APPROVED RISK MANAGEMENT MEO EXP(Any one person) �
a $70,000 _
iita
�b� �.a� m
PERSONAL ADV INJURY '.a1,000,000
GENL AGGREGATE LIMIT APPLIES PER I GENERAL AGGREGATE 52,000,000
PRO-
POLICY JECT I X ILOD PRODUCTS-COMPIOP AGG $2,000,000
OTHER. 8-14-2020 $
A ------ -ASILI I AHQD961361 06/03/2020 06/03/2021 COMEwsDSINGLE LIMIT - 1,000,000
BODILYdNJl $
^X ANY OWNED
e BODILY INJURY(Per person) $
OWNED IgCHEOVLED
AUTOS ONLY AUTOS
BODILY TY Pe,awaenp $
HIRED AUTOSDAMAGEONLY oNLv ! (Per accident) S• _
's
A x UMBRELLA LIAR X OCCUR UHQA33283606 06/03/2020I!06/03/2021 EACH OCCURRENCE S10,000,000
/( EXCESS LIAB CLAIMS-MADE' ! AGGREGATE S10,000,000
B LIED l X RETENTION sO _ SMX00024742058 _ O6/03/2020�06/03/2021i Each Occ/Agg s25,000,000 -
A WORKERS COMPENSATION • WHQA931504 06/03/2020 06/03/2021,X ER I ]oPH-
ANDEMPLOYERS'LIABILITY Y,N STATUTE R
ANY PR oPRIETOR/PARTNER/EXECUTIVE I E L.EACH ACCIDENT _ _$1,000,000
'(Mandatory
MndatoIn OFFICER/MEMBER EXCLUDED, N NIA
(Mes.describe
NI, ELDISEASE-EA EMPLOYEE E1,000,000
• I e: eeavme untie,
IDscRIPnaNOF ovERAnol+s below _ _ IIEL DISEASE-Poucv LIMIT $1,000,000 _.
C Professional Liab LL0007400 06/03/2020 06/03/2021i $2M Per Wrongful Act
$2M Aggregate
DESCRIPTION OF OPERATIONS I LOCATIONS IMBRUES IACORD 101,AddXIonal Remarks Schedule,may be atta4bd II more apace Is required)
Re:Site ID US-FL-5389 Long Key DS. If required by written contract,Monroe County Board of County
Commissioners, its employees and officials are additional insured on the General Liability,Automobile
Liability and Umbrella Liability policies,subject to policy provisions.A waiver of subrogation applies in
favor of the certificate holders on the General Liability,Automobile Liability and Umbrella Liability,
subject to policy provisions.
(See Attached Descriptions)
CERTIFICATE HOLDER CANCELLATION
Monroe County Board of County SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
Commissioners ACCORDANCE WITH THE POLICY PROVISIONS.
1111 12th Street,Suite 408
Key West,FL 33040 AUTHORIZED REPRESENTATIVE
4%0k( I. 2B44,c
®1988-2015 ACORD CORPORATION.All rights reserved.
ACORD 25(2016/03) 1 of 3 The ACORD name and logo are registered marks of ACORD
#S26330790/M26281428 JMBU
DESCRIPTIONS (Continued from Page 1)
"ADDITIONAL NAMED INSUREDS"
AWN TOWER COMPANY
B.A.C.K.TOWERS, LLC
BAY COMMUNICATIONS III,LLC
BRT GROUP,LLC
CIG COMP TOWER,LLC
CIG SERVICES,LLC
CIG WIRELESS CORP.
DATA PATH VERTICAL BRIDGE, LLC
DATAPATH VERTICAL BRIDGE II, LLC
GOTHAM VERTICAL BRIDGE,LLC
INDEPENDENT TOWER&WIRELESS CORP.
INLAND-VB,LLC
MIDWEST NT 1,LLC
MIDWEST NT 2,LLC
NTCH-VB,LLC
RANGE TOWERS, INC
ROWSTAR, LLC
TELCOM BRIDGE, LLC
TOWER ECONOMICS COMPANY, LLC
VB ACQUISITIONS 2018,LLC
VB LPE PARENT, LLC
VB LPE,LLC
VB MIDWEST I,LLC
VB MIDWEST II,LLC
VB MIDWEST III,LLC
VS US REIT,LLC_...
VBA II, LLC(DE)
VBA II, LLC(FL)
VBDTP, LLC
VBHV, LLC
VBJV4,LLC
VB-JV5,LLC
VBJV6,LLC
VBS1 ASSETS,LLC
VBS1 ISSUER,LLC
VB-S1 PARENT,LLC
VBT SUB 1,LLC
VB-TC, LLC
VERTICAL BRIDGE ACQUISITIONS II(FL)
VERTICAL BRIDGE ACQUISITIONS III,LLC
VERTICAL BRIDGE ACQUISITIONS,LLC
VERTICAL BRIDGE AM II,LLC
VERIICALBRIDGE AM,LLC
VERTICAL BRIDGE BAY,LLC
VERTICAL BRIDGE BROKERAGE LLLP(FL)
VERTICAL BRIDGE CC AM, LLC
VERTICAL BRIDGE CC FM, LLC
VERTICAL BRIDGE CC PARENT,LLC
VERTICAL BRIDGE CC,LLC
VERTICAL BRIDGE CCR,LLC
VERTICAL BRIDGE CJV,LLC
VERTICAL BRIDGE DC,LLC
VERTICAL BRIDGE DEVELOPMENT II,LLC
VERTICAL BRIDGE DEVELOPMENT,LLC
VERTICAL BRIDGE EMPLOYEES,LLC
SAGITTA 25.3(2016/03) 2 of 3
AS26330790/M26281428
DESCRIPTIONS (Continued from Page 1)
VERTICAL BRIDGE ENGINEERING,LLC
VERTICAL BRIDGE GRAND CANYON, LLC
VERTICAL BRIDGE HOLDCO PARENT,LLC
VERTICAL BRIDGE HOLDCO, LLC
VERTICAL BRIDGE HOLDINGS,LLC
VERTICAL BRIDGE LANDCO,LLC
VERTICAL BRIDGE MANAGEMENT,LLC
VERTICAL BRIDGE MIDWEST, LLC
VERTICAL BRIDGE NT,LLC
VERTICAL BRIDGE NTCF,LLC
VERTICAL BRIDGE PR, LLC
VERTICAL BRIDGE REAL ESTATE II, LLC
VERTICAL BRIDGE REAL ESTATE,LLC
VERTICAL BRIDGE REIT, LLC
VERTICAL BRIDGE S3 ASSETS,LLC
VERTICAL BRIDGE STRUCTURES,LLC
VERTICAL BRIDGE TOWERS II,LLC
VERTICAL BRIDGE TOWERS III,LLC
VERTICAL BRIDGE TOWERS, LLC
VERTICAL BRIDGE-CONTERRA TOWERS, LLC
VERTICAL SKY I, LLC
VERTICAL SKY II, LLC
VERTICAL SKY III,LLC
VOGUE XIII,LLC
Berkley Assets, LLC
VB Berkley,LLC
VB Nimbus,LLC
SAGITTA 25.3(2016/03) 3 of 3
#526330790/M26281428
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