Common use of Facility Sharing Clause in Contracts

Facility Sharing. (a) The Landlord wishes to promote and encourage the sharing of communications facilities. Therefore, all improvements constructed by the Tenant on the Premises shall be of sufficient load-bearing capacities, sufficient signal, and sufficient size so as to accommodate the use of the tower by entities specified by the Tenant and licensed operators operating communications facilities substantially similar to those of the Tenant on the Premises. In determining the sufficiency of said capacities, signal, and size, the Tenant may assume that other “licensed operators” will require the load-bearing capacities, size, and signal that are average for such operators on similar towers that are in existence on the date that the Tenant completes construction of the tower on the Premises. (b) If, during the term of this Lease, Tenant unreasonably refuses to enter into an agreement with a “licensed” willing and able person, firm, or corporation, by which Tenant would act as sublessor or licensor to sublease or license the right to construct and operate communications facilities on the tower on the Premises, Tenant shall pay Landlord as follows: an amount equal to the greater of five percent (5%) of (i) the gross monetary rent that the proposed agreement would have provided to the Tenant (or from any said sublessee or licensee of the Tenant by reason of the sublease or license) plus the fair market value of the nonmonetary consideration, or (ii) the gross annual fair market rent or consideration that Tenant could have received for the sublease or license. For purposes hereof, fair market rent shall be the average rent being paid for similar leased or subleased space on similar towers located in the Raleigh / Durham / Research Triangle area for a similar use as that intended by such prospective subtenant. Making such a payment to Landlord will suspend, for a twelve month period following the date of the unreasonable refusal, Tenant’s obligation to enter into agreements to sublease or license rights on the tower with respect to the portion of the Premises that the proposed lease or license should have occupied. Following the expiration of the twelve month period, Tenant’s obligation under this Section 2(b) shall resume with respect to said portion of the Premises. Tenant’s refusal to enter into any sublease will not be unreasonable for purposes of this section, if Tenant determines (and is able to document the basis for such determination) that: (i) the prospective subtenant’s intended use of the subleased space would reasonably be expected to interfere with the use of the tower and/or the Premises by Tenant or any other then-existing subtenant; and (ii) the prospective subtenant’s intended use exceeds the then-available load-bearing capacities, size and signal of the tower.