EXHIBIT 10.10
MASTER TOWER SPACE RESERVATION AND LICENSE AGREEMENT
This Master Tower Space Reservation and License Agreement (this "Agreement") is
entered into as of the 20th day of July 2002 by and between American Tower,
L.P., a Delaware limited partnership, with an address at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 (hereinafter referred to as the "Licensor"), and iPCS Wireless,
Inc., a Delaware corporation, with an address at 000 Xxxxxxxxx Xxxxxx, N.E.,
Xxxxxx Tower Suite 1700, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Licensee").
BACKGROUND
From time to time Licensee and/or its Affiliates may have the need to reserve or
license space on communication towers then-owned or operated by Licensor and/or
its Affiliates. This Agreement sets forth the terms and conditions by which
Licensee may request to reserve or license space on a communication tower and
the terms and conditions by which Licensor shall reserve or license such tower
space to Licensee.
AGREEMENTS
In consideration of the mutual covenants benefiting the parties hereto, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms defined in the body of this Agreement or in
the Schedules hereto are indexed by location on Appendix I hereto. Capitalized
terms used in this Agreement but not defined herein are defined in Appendix I.
2. PARTIES. Unless otherwise mutually agreed, the parties hereto agree that the
terms and conditions herein shall be binding upon and exclusive to each party
hereto and their respective Affiliates with respect to any license or lease of
space by Licensee or any of its Affiliates on any communications tower and/or
communications building or shelter then-owned or operated by Licensor or any of
its Affiliates ("Communication Tower(s)") entered into during the Term of this
Agreement. This Agreement shall not, unless Licensor specifically agrees
otherwise, be applicable to any communication tower, building or shelter which
is managed or marketed by Licensor, as agent or representative, on behalf of a
third party.
3. RESERVATION AND LICENSE OF TOWER SPACE.
3.1 APPLICATION FOR CO-LOCATION/REQUESTS TO RESERVE OR LICENSE SPACE.
From time to time during the Term, Licensee may submit applications to Licensor
to request the reservation or licensing of tower space on any one or more of
Licensor's Communication Towers. An application to reserve or license any
particular Communication Tower shall be made by Licensee submitting two duly
completed counterparts of Schedule 1 (to apply to reserve co-location space) or
Schedule 2 (If the request is to license space), in each case, identifying the
tower space that Licensee desires to reserve or license. Licensee may submit
requests for multiple spaces at one time, and shall complete for each space two
original counterparts of Schedule 1 (to apply to reserve co-location space) or
Schedule 2 (if the request is to license space).
(a) RESERVED SPACE. Within ten (10) Business Days after
receiving a completed reservation request in the form of Schedule 1 from
Licensee, Licensor will notify Licensee if the requested space is available and
the terms under which Licensor shall make such Communication Tower available to
Licensee by completing, executing and returning an original counterpart of the
Schedule 1 submitted by Licensee. The reservation of space requested by Licensee
on such Schedule 1 shall be deemed reserved exclusively for Licensee, in
accordance with the reservation terms detailed in such Schedule 1 as executed by
both parties, upon the complete execution of such Schedule 1 by both parties.
The Reservation Fee for such Reserved Space shall be payable to Licensor by
Licensee on or before the tenth (10th) Business Day following Licensee's receipt
of the Schedule 1 executed by Licensor. Tower space reserved in accordance with
the foregoing procedures is referred to herein as Reserved SPACE. Licensee may
not install any equipment on any Reserved Space unless and until it has been
converted to Licensed Space in accordance with Section 3.1(b). Licensee shall
have access to the relevant Communication Tower during the Reservation Period in
accordance with Section 8 herein to the extent reasonably necessary to
facilitate any reasonable due diligence that Licensee desires to perform. In the
event that Licensee elects to commission a Phase I environmental assessment
during the Reservation Period or Term, Licensee shall promptly provide a
photocopy of any such assessment to Licensor. It is expressly agreed that under
no circumstances shall Licensor be obligated to perform any remediation of
environmental concerns at any of the Communication Towers, subject to the
obligations of both parties hereto pursuant to Section 8.3.
(b) CONVERSION AND EXPIRATION OF RESERVED SPACE. Licensee may
elect to convert Reserved Space into Licensed Space (as hereinafter defined) by
delivering to Licensor (a) within the Reservation Period for such Reserved Space
a signed and completed Schedule 2 indicating, among other things, a License
Commencement Date not later than the last day of the Reservation Period and (b)
together with such Schedule 2, the Initial License Fee for such space. Any
Schedule 2 conversion notice that is submitted without the required payment
shall be of no force or effect. Licensee acknowledges that it shall not be
entitled to any refund of any portion of any Reservation Fee if Licensee elects
to convert Reserved Space to Licensed Space prior to the expiration of the
Reservation Period. Any Reserved Space that has not been converted to Licensed
Space during the Reservation Period and otherwise in accordance with this
Section 3.1(b) shall, upon expiration of the Reservation Period, expire and
thereafter Licensor shall be free to reserve or license such space to any other
Person. Tower space licensed in accordance with the foregoing procedures and
Section 3.1(c) is referred to herein as LICENSED SPACE.
(c) LICENSED SPACE. In the event that Licensee desires to
license space on a Communication Tower which is not then Reserved Space,
Licensee may submit a completed Schedule 2 to Licensor to request the licensing
of such space. Within ten (10) Business Days after receiving a completed
Schedule 2 from Licensee, Licensor will notify Licensee if the requested site is
available and the terms under which Licensor is willing to license such
Communication Tower to Licensee by completing and returning an original
counterpart of the Schedule 2 submitted by Licensee. The licensing of space
requested by Licensee on such Schedule 2 shall be deemed licensed by Licensee in
accordance with the license terms of such Schedule 2 upon execution by both
parties and the receipt by Licensor of the Initial License Fee for such Licensed
Space on or before the fifth (5th) business day following Licensee's receipt of
Licensors executed Schedule 2. Tower space licensed in accordance with the
foregoing procedures and Section 3.1(b) Is referred to herein as LICENSED SPACE.
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(d) REMAINING TERMS. The remaining terms and conditions of
this Agreement shall apply to all Reserved Space and Licensed Space. Additional
terms which only apply to a particular reservation or license of space at a
Communication Tower shall be set forth on the executed Schedule 1 or Schedule 2,
as applicable. In the event of a conflict between the terms of this Agreement
and the terms of an individual Schedule, the terms of the Schedule shall govern.
(e) PAYMENT. Any payment due to Licensor by Licensee under
this Agreement shall be payable to Licenser in the form of a company check (that
can be immediately deposited by Licensor) or by wire transfer.
3.2 CHANGES TO SCHEDULES. The Licensor anticipates needing, and hereby
reserves the right, to revise the (unexecuted) forms of Schedules 1 and 2 from
time to time. The Licensor will furnish Licensee with such Schedules if and when
the same are revised, and upon receipt from Licensor, such revised Schedules
shall replace the blank form of Schedules attached hereto with respect to space
subsequently reserved or licensed.
4. TERM: EXTENSION PERIODS.
4.1 TERM OF THIS AGREEMENT. The term of this Agreement (the "TERM")
shall commence on the date first written above (the "Effective Date") and,
unless earlier terminated in accordance with Section 5, shall continue until the
earlier to occur of: (a) February 18, 2005; or (b) the date upon which a merger
or other acquisition transaction between iPCS and Airgate PCS, Inc. or any of
the affiliates or subsidiaries of Airgate PCS, Inc. is consummated and becomes
effective. This Agreement shall remain in effect, with respect to each
individual fully executed Schedule attached hereto from time to time, for so
long thereafter as any License remains in effect in accordance with the
remaining provisions of this Section 4 and for so long as any Reservation period
remains unexpired.
4.2 TERM OF EACH LICENSE. The primary term of each License shall
commence on the License Commencement Date for such License and shall continue
for the number of years specified as the Primary Term in Schedule 2 (the
"PRIMARY TERM"). The term of each License may be extended as follows: (a) the
term shall be extended automatically beyond its Primary Term for the number of
years specified on Schedule 2 as the First Extension Period (the "FIRST
EXTENSION PERIOD") unless Licensee notifies Licensor that it does not wish to
extend the term and such notice is given at least ninety (90) days before the
First Extension Period is scheduled to begin, (b) the term shall be further
extended beyond the First Extension Period for the number of years specified on
Schedule 2 as the Second Extension Period (the "SECOND EXTENSION PERIOD") unless
Licensee notifies Licensor that it does not wish to extend the term and such
notice is given at least ninety (90) days before the Second Extension Period is
scheduled to begin and (c) the term shall be further extended automatically
beyond the Second Extension Period for the number of years specified on Schedule
2 as the Third Extension Period (the "THIRD EXTENSION PERIOD") unless Licensee
notifies Licensor that it does not wish to extend the term and such notice is
given at least ninety (90) days before the Third Extension Period is scheduled
to begin. The LICENSE TERM of any License shall be the period commencing on the
first day of the Primary Term and ending on the last day of the last applicable
extension period, if so renewed.
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4.3 EXCEPTIONS TO EXTENSION PERIODS. Notwithstanding anything to the
contrary in this Agreement, in the event that any particular Communication Tower
subject to a License hereunder is located on property or Licensor's use of such
property is subject to the terms and provisions of an easement, ground lease,
license, or right of way (hereinafter collectively referred to as an "UNDERLYING
DOCUMENT") that expires prior to the term of the relevant License then such
affected License shall automatically terminate upon termination of Licensee's
right to possession of the Communication Tower and/or property under said
Underlying Document; provided that such Underlying Document has not been
extended by Licensor, Licensor agrees that, it will not do anything concerning
an Underlying Document to cause such affected License to be prematurely
terminated. Further, Licenser agrees to use commercially reasonable efforts to
negotiate an acceptable extension term of any such Underlying Document with a
term at least as long as such next applicable extension period or the end of the
initial term of the affected License, as applicable: provided that in no event
shall Licensor be required to commence negotiations more than six months in
advance of the scheduled expiration date of the Underlying Document. Licensor
hereby warrants and agrees that it shall exercise any renewal option available
to it pursuant to the Underlying Document. If Licensor has not received
Licensee's notice that it does not wish to extend the term of any License within
any of the applicable 90-day notice provisions described in Section 4.2,
Licensee will be deemed to have confirmed its intent to extend the License for
the next applicable extension period, and Licensor will commence negotiations
with the owner of the property in accordance with the terms herein.
5. TERMINATION.
5.1 BY LICENSOR. Notwithstanding the provisions of Section 4, (a)
Licensor may terminate this Agreement and each License upon the occurrence of a
Licensee Default and/or (b) upon giving Licensee 12 months' advance notice,
Licensor may terminate any particular License in the event Licenser determines
in good faith that the Tower Facilities to which such License relates are no
longer economically viable according to Licensor's financial return and other
investment objectives.
5.2 BY LICENSEE. Notwithstanding the provisions of Section 4, (a)
Licensee may terminate this Agreement and any License, upon the occurrence of a
Licensor Default, (b) Licensee may terminate this Agreement in accordance with
Section 10, (c) Licensee may terminate this Agreement in accordance with Section
8.5, (d) Licensee may terminate this Agreement in accordance with Section 8.6,
and (e) Licensee may terminate this Agreement, or any license if Licensee Is no
longer authorized as a manager for SprintCom, Inc., its affiliates, successors,
or related parties.
5.3 EFFECTIVENESS; EFFECT OF TERMINATION. No termination under this
Section 5 shell be effective until a termination notice is given by the
terminating party to the other party and such notice is specifically identified
as a termination notice under this Section 5. The party exercising its
termination rights in accordance with this Section 5 shall have such cumulative
rights and remedies as may be available at law or in equity. Termination shall
not affect any obligations or liabilities arising under this Agreement prior to
the effective date of such termination or those obligations that expressly
survive such termination.
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6. FEES AND OTHER REMUNERATION.
6.1 LICENSE FEE. With respect to each License, Licensee shall pay
Licensor a license tee (the "LICENSE FEE") equal to the sum of (a) the License
Fee as specified in Schedule 2 relating to such License (as such License Fee may
escalate from time to time as provided in such Schedule) plus (b) the amount of
utility charges directly attributable to Licensee's equipment.
6.2 TAXES AND OTHER FEES. Licensee shall pay any and all taxes, fees,
assessments, and any other similar expense attributable to Licensee's equipment
or Licensee's use of the Communication Tower (whether constituting a portion of
real estate, sales, use, franchise fees or taxes or otherwise).
6.3 PAYMENTS. With respect to each License, Licensee shall pay to
Licensor the License Fee on or before the dates specified on Schedule 2, without
setoff, deduction or demand. Payments shall be made to the REMITTANCE ADDRESS
specified on Schedule 2 or to such other address as Licensor may specify from
time to time in writing to Licensee. Any payment not received by Licensor within
ten (10) days after the due date shall bear interest from the due date until the
date received by Licensor at a rate equal to the lesser of (a) the maximum
non-usurious rate of interest permitted by applicable law or (b) Eighteen
Percent (18%) per annum (the "PAST DUE RATE"). In addition, with respect to any
late payment, Licensee shall pay Licensor an Administrative Fee in the amount
specified on Schedule 2 to compensate Licensor for the additional administrative
costs incurred or anticipated to be incurred by reason of such late payment.
6.4 REIMBURSEMENT OF COSTS. Licensee shall provide copies of
intermodulation studies and NEPA compliance studies performed on the site.
7. ACCESS RIGHTS. With respect to each License, Licensee's authorized
technicians or other persons under Licensee's direct supervision ("AUTHORIZED
PERSONNEL" including SprintCom, Inc., its successors, affiliates and related
parties) shall have rights of ingress and egress during the License Term in and
over the Tower Facilities relating to such License for the purposes of
installing, repairing, maintaining, operating, servicing or removing Licensee's
equipment and antennae described in Schedule 1 or Schedule 2, as applicable.
Licensee understands and agrees that other licensees and their authorized
representatives shall have similar access, ingress and egress rights to such
Tower Facilities associated therewith for similar purposes. In the event that
Licensee requires Authorized Personnel to enter the Tower Facilities and such
Authorized Personnel is not in possession of Licensee's lock codes or keys,
Licensor shall provide access to the Authorized Personnel by prearrangement with
Licensor and in accordance with the Administrative Fees outlined in Schedule 2.
8. COVENANTS.
8.1 EQUIPMENT. Licensee agrees that all of the equipment to be
installed upon Licensor's tower and within equipment shelters (if applicable),
and upon Licenser's ground space, will be in substantial compliance with that
specified within Schedule 2. Licensee agrees to provide final configuration and
equipment list to Licensor prior to executing specific site
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agreement or commencing construction. Licensee shall have the right to maintain
and optimize site with respect to antenna type, configuration, downtilt and
orientation.
8.2 PERFORMANCE OF WORK. Prior to installing any equipment or making
any modifications, enhancements or changes thereto (other then replacements of
identical items at the same location) (collectively, the "WORK"), the following
procedures shall be taken:
(a) Licensee shall submit to Licensor detailed plans and
specifications accurately describing all aspects of the proposed work to be
performed including, without limitation, weight and wind load requirements and
power supply requirements and evidence that Licensee has obtained all approvals,
permits and consents required by, and has otherwise complied with, all Legal
Requirements applicable to the performance of the Work.
(b) Licensee shall not commence any of the Work until Licenser
notifies Licensee of its written approval thereof, which approval, with respect
to Licensee's initial installation, will not be unreasonably withheld,
conditioned or delayed.
(c) Licensee shall perform, or cause to be performed, all of
the Work in compliance with the plans and specifications approved by Licensor
and with all applicable Legal Requirements. Licensee shall ensure that the Work
does not interfere with communications systems and equipment of other
pre-existing licensees or tower space users on the affected tower and tower
facilities or, at any time, with any of Licensor's video, data, audio or other
transmission system (whether or not installed or modified before or after the
License Commencement Date).
(d) All Work shall be performed at Licensee's sole cost and
expense (including but not limited to any structural analysis or structural
modifications and the installation of any of Licensee's equipment), and Licensee
shall pay all invoices of labor and materialmen in a timely manner to prevent
the imposition of any liens on Licenser's property or Licensee's property
located on Licensor's property. In engaging any Person to perform any portion of
the Work, Licensee shall require a written waiver from any contractor,
subcontractor, laborer or materialman of all rights under state material and
mechanic lien laws or other laws to impose a lien on any of Licensors' property.
(e) Licensor may elect to provide access to standard 110 volt
circuitry for the operation of Licensee's equipment. Any other modifications,
enhancements or requirements with respect to the electrical power supply will be
at Licensee's expense: provided, all such modifications, enhancements and other
requirements shall be identified in Licensee's plans and specifications
submitted in accordance with Section 8.1(a) and approved of by Licensor.
(f) All Work shall be performed by qualified contractors
(including but not limited to steeplejacks or other tower climbers), subject to
the approval of Licensor, with worker's compensation and general liability
insurance certificates on file with Licensor naming Licensor as an additional
insured and otherwise satisfying the coverage requirements described in Appendix
II. Notwithstanding the foregoing, Licensor reserves the right, in its sole
discretion, to refuse to permit any person or company to climb any tower
structure owned or leased by the Licensor. Licensee shall be solely responsible
and liable to Licensor for Licensee's failure to
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obtain or deliver to Licensor the required insurance certificates from
Licensee's approved contractor.
(g) Upon the completion of Licensee's installation of its
equipment at any site, but in no event later than ten (10) Business Days
following such completion, Licensee shall provide Licensor with as-built
drawings of the equipment installed on the tower and on the premises.
(h) In no event shall Licensee install or cause to be
installed any additional utilities without the prior consent of Licensor, which
consent shall not be unreasonably withheld, conditioned or delayed. Further,
upon request by Licensor, Licensee shall (at Licensee's expense) secure, to
Licensor's reasonable satisfaction, any propane tanks or generators owned by
Licensee at any Communication Tower to prevent any damage which might otherwise
occur during earthquakes.
(i) Licensee agrees to comply with the reasonable directions
and requirements which Licensor, in its discretion, may from time to time
establish in connection with each of the Tower Facilities and the operations of
Licensee thereunder, provided that such directions and requirements do not
unreasonably interfere with Licensee's ordinary course of business or
operations.
(j) Licensee acknowledges and agrees that, upon reasonable
prior notice (except for emergency situations), Licensee shall reduce operating
power or cease operation of its equipment when it is necessary to prevent the
overexposure of workers on any Communication Tower to RF radiation.
(k) Licensor reserves the right to perform a pre-installation
and/or post-installation audit and review with Licensee and Licensee shall fully
cooperate with any such reasonable request by Licensor and shall respond to and
address any reasonable concern of Licensor as a result of such audit.
8.3 COMPLIANCE WITH LAWS. Licensee shall comply with all Legal
Requirements applicable to each License, Licensee's use of the Tower Facilities
related to such License and the installation, ownership, maintenance and use of
Licensee's antennae and other equipment contemplated by such License including,
without limitation, Legal Requirements governing the transmission or operation
of radio communications systems and related equipment, environmental laws and
regulations, OSHA, the Federal Aviation Administration (the "FAA"), and the
Federal Communication Commission (the "FCC"). The Licensor shall cooperate with
Licensee in Licensee's efforts to obtain any permits or other approvals that may
be necessary to comply with the preceding sentence; provided, notwithstanding
the foregoing, Licenser shall not be required to expend any funds or undertake
any liability or obligation in connection with such cooperation. Licensor may,
in its sole discretion and if available, make available to Licensee in exchange
for an Administrative Fee information which it may periodically collect from all
users of a particular Communication Tower which may be useful to Licensee in
demonstrating RF compliance.
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8.4 LICENSEE'S MAINTENANCE OF APPROVED EQUIPMENT. Licensee shall
maintain its equipment in compliance with applicable Legal Requirements. Without
limiting the foregoing, Licensee shall comply with all applicable requirements
imposed by Part 17 of FCC rules and regulations and any other applicable Legal
Requirement as soon as practicable after installation or approved modification
of any equipment on any of the Tower Facilities.
8.5 MAINTENANCE BY LICENSOR.
(a) During the Term, Licensor will maintain the applicable
Tower Facilities marking and lighting in good order and repair and in material
compliance with all applicable Legal Requirements including without limitation,
Part 17 of the rules and regulations of the FCC. In the event Licensee receives
notice or otherwise obtains knowledge that a tower is not in compliance with any
Legal Requirement, Licensee will immediately so notify Licensor by telecopy and,
to the extent necessary, will cooperate in all reasonable respects with Licenser
in curing any such noncompliance.
(b) If Licensor, in its reasonable opinion, determines that
any structural modifications or repairs are needed to be made to its tower or
surrounding premises due to the presence of Licensee's equipment or approved
modifications or such modification which are required to comply with
then-current laws or regulations, Licensor shall notify Licensee of such
modifications or repairs and give Licensee an estimate of their costs. If such
estimate exceeds the annual License Fee, Licensee may terminate the applicable
License by notifying Licensor within ten (10) Business Days of receiving such
estimate. If Licensee does not terminate the applicable License in accordance
with this Section 8.5, Licensor shall proceed with such repairs and
modifications and invoice Licensee for the costs and expenses arising from such
work. Licensee shall pay Licensor all amounts so invoiced within ten (10) days
after receipt of the invoice. Past due amounts will bear interest at the Past
Due Rate from the due date until the date paid. In addition, with respect to any
late payment, Licensee shall pay Licensor an Administrative Fee in the amount
specified on Schedule 2 to compensate Licensor for the additional administrative
costs incurred or anticipated to be incurred by reason of such late payment.
8.6 NO INTERFERENCE.
(a) Notwithstanding anything to the contrary in this
Agreement, Licensee shall ensure, and Licensee's use of any Tower Facilities
shall be subject to its ability to ensure, that the operation of all of its
equipment is conducted in a manner that does not interfere electrically, or in
any other manner whatsoever, with Licensor's use of the tower on which
Licensee's equipment is installed for Licensor's transmission services, if any,
with any of Licensor's or other licensee's building systems, or with any
pre-existing licensee's or other tower space user's use of such tower. Licensee
shall ensure, and Licensee's use of any Tower Facilities shall be subject to its
ability to ensure, that operation of all of its equipment is conducted in a
manner that does not interfere with Licensor's lighting system located on any of
the Communication Towers or, in the event that Licensee's equipment is installed
on the rooftop of a building, with equipment of any kind used by building
tenants. Upon notice, Licensee shall at its expense take all actions necessary
to eliminate such interference and shall immediately cease operations if
requested by Licensor until the interference is eliminated. If Licensee does
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not immediately cease any interfering operation, Licensor shall have the right,
in addition to any other rights that it may have, to enjoin such interference or
to terminate this Agreement. Subsequent to a written request by Licensor, in
Licensor's sole discretion, each Licensee transmitter shall have a circulator
and harmonic filter installed between the transmitter output and antenna
feedline. Also, Licensor may, at its option, require Licensee to supply
additional radio frequency interference (RFI) limiting equipment for
installation on the equipment of such person whose equipment is experiencing
such interference.
(b) Licensee acknowledges and agrees that Licensor will from
time to time market and license to third parties space on the same tower and in
the same tower facilities (including equipment structures) as are licensed to
Licensee; provided that, Licensor agrees to cause any persons that are installed
or modified subsequent to the Commencement Date of the relevant License, on any
tower or other Tower Facilities after Licensor enters into a License with
Licensee with respect to such same tower or Tower Facilities not to interfere
with the operation of Licensee's equipment approved of by Licensor as it exists
at the time Licensor enters into a license agreement with such other person. In
the event Licensee experiences interference caused by other licensees, Licensee
shall notify Licensor of such interference and if Licensor is unable to
eliminate the interference, or reduce it to a level acceptable to Licensee,
within a period of thirty (30) days, then Licensee may terminate that particular
License with written notice to Licensor.
8.7 LABELING AND IDENTIFICATION. Licensee shall identify its equipment
and equipment cabinets (unless such cabinet is located in a building owned by
Licensee) by labels provided by Licensor (or, if not provided by Licensor,
labels provided by Licensee and designed for such purpose) and shall permanently
identify its coaxial cable at the top and bottom. FAILURE BY LICENSEE TO SO
IDENTIFY ITS EQUIPMENT MAY CAUSE AN INTERRUPTION IN SERVICE OF LICENSEE'S
OPERATION AND SHALL CONSTITUTE A DEFAULT OF THIS AGREEMENT.
8.8 INSURANCE. Licensee and Licensor shall keep in full force and
effect during the term of this Agreement and the term of any License insurance
coverage in accordance with Appendix II attached hereto.
9. INDEMNIFICATION.
9.1 BY LICENSEE. Licensee shall indemnify, defend and hold harmless
Licensor, its Affiliates and their respective directors, officers, shareholders,
successors and assigns from all Damages arising from (a) any Claim to the extent
such Claim is attributable to the joint, concurrent or sole negligence, gross
negligence, or willful misconduct or strict liability of Licensee, or its
agents, employees, representatives, contractors or other Persons acting or
engaged by, through or under Licensee, and (b) any material breach by Licensee
of any provision of this Agreement.
9.2 BY LICENSOR. The Licensor shall indemnify, defend and hold harmless
Licensee, its Affiliates and their respective directors, officers, shareholders,
successors and assigns from all Damages arising from (a) any Claim to the extent
such Claim is attributable to the joint, concurrent or sole negligence, gross
negligence, or willful misconduct or strict liability of Licensor, or its
agents, employees, representatives, contractors or other Persons acting or
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engaged by, through or under Licensor., (b) any material breach by Licensor of
any provision of this Agreement.
9.3 LIMITS ON INDEMNIFICATION. Neither party shall be responsible or
liable to any of the foregoing Indemnified Parties for any Damage arising from
any Claim to the extent attributable to any acts or omissions of other licensees
or tower users occupying any particular Tower Facilities or for any structural
or power failures or destruction or damage to the Tower Facilities except to the
extent caused by the joint, concurrent, sole or gross negligence, or willful
misconduct of such party.
9.4 WAIVER OF CERTAIN DAMAGES. Notwithstanding the provisions of
Sections 9.1 and 9.2, the Indemnified Parties hereby waive the right to recover
consequential (including lost profits), punitive, exemplary and similar damages
and the multiplied portion of damages except to the extent such damages are
suffered by any of the Indemnified Parties in a third-party proceeding.
9.5 EXPRESS NEGLIGENCE. THE FOREGOING INDEMNITIES SET FORTH IN THIS
SECTION 9 ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH
THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY STATE'S EXPRESS
NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT
INDEMNITIES BECAUSE OF THE SIMPLE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT,
ACTIVE OR PASSIVE) OR OTHER FAULT OR STRICT LIABILITY OF ANY OF THE INDEMNIFIED
PARTIES.
9.6 SURVIVAL. The provisions of this Section 9 shall survive the
termination of this Agreement with respect to any events occurring on or before
termination whether or not Claims relating thereto are asserted before or after
termination.
10. DESTRUCTION OR CONDEMNATION.
(a) In the event that any Communication Tower is destroyed or
damaged by fire, lightning, windstorm, flood, earthquake, explosion, collapse,
aircraft or other vehicle damage or other casualty, Licensor shall, unless it
shall elect to terminate the term of this Agreement and the related Schedule
with respect to the affected Communication Tower as hereinafter provided,
promptly reconstruct or repair the Communication Tower to substantially the same
condition as existed before the destruction or damage and upon completion give
possession to Licensee of substantially the same space licensed under the
affected Schedule. If the Communication Tower Is In need of such repair or is so
damaged by fire, lightning, windstorm, flood, earthquake, explosion, aircraft or
other vehicle damage, collapse or other casualty that reconstruction or repair
cannot reasonably be undertaken without dismantling Licensee's Facilities, then
Licensor may, upon giving written notice to Licensee, remove any Licensee's
Facilities and interrupt the signal activity of Licensee but will use reasonable
efforts to have Licensee's Facilities replaced as soon as reasonably possible.
Licensee will be afforded the right, at Licensee's sole cost and expense, to
install temporary facilities pending repairs, provided such temporary facilities
do not interfere in any way with the construction, rebuilding or operation of
the Communication Tower. Licensor agrees to provide Licensee alternative
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space, if available, on the Communication Tower during such reconstruction/
repair period. If Licensor elects not to restore the Communication Tower within
six month's from the date of any casualty, Licensor may, by notice to Licensee,
terminate the term of this Agreement and the related Schedule only with respect
to the affected Communication Tower on the date (not less than thirty day
thereafter) set forth in such notice. Should Licensor not substantially restore
or replace the Communication Tower in a fashion sufficient to allow Licensee to
replace Licensee's Facilities thereon within six (6) months of the date of
casualty provided that such 6 month period shall be automatically extended for
so long as Licensor has commenced and diligently continues to restore or replace
such Communication Tower, then Licensee, upon thirty (30) days' written notice
to Licensor may, at its option, terminate the term of this Agreement and the
related Schedule with respect to the affected Communication Tower.
(b) Licensor shall be entitled to terminate the term of this
Agreement and the related Schedule with respect to any particular Communication
Tower if all or any part of such Communication Tower is acquired, transferred,
condemned or taken pursuant to any eminent domain proceeding if as a result any
of such event, Licensor has determined not to continue to operate the
Communication Tower. Irrespective of the form in which recovery may be had by
law, all nights to damages or compensation shall belong to Licensor in all
cases. Licensee hereby grants to Licensor all of Licensee's rights to such
damages and covenants to deliver such further assignments thereof as Licensor
may from time to time request. Nothing contained herein shall be construed to
prevent Licensee from prosecuting in any eminent domain proceedings a claim for
relocation expenses, provided that such action shall not affect the amount of
compensation otherwise recoverable by Licensor from the taking authority.
(c) The License Fee with respect to the affected Communication
Tower shall be abated during any period that the Communication Tower has not
been restored following an event described in clauses (a) or (b) above so as to
permit Licensee's Facilities to be replaced on the Communication Tower.
11. SURRENDER.
11.1 GENERAL. Upon the expiration or termination of any License,
Licensee shall peaceably deliver up and surrender the facilities on which
Licensee's equipment was installed or located.
11.2 ALTERATIONS AND IMPROVEMENTS. Upon the termination or expiration
of any License, all permanent alterations, installations, changes, replacements,
additions or improvements that (a) have been made by Licensee to the related
Tower Facilities and (b) cannot be removed without material damage to the
remainder of such Tower Facilities, shall be deemed a part of such Tower
Facilities and the same shall not be removed.
11.3 LICENSEE'S PROPERTY. Upon the termination or expiration of any
License and so long as Licensee is not in Default hereunder, Licensee may remove
all property owned by Licensee so long as the removal thereof would not cause
material damages to property not owned by Licensee and shall repair any damage
caused to the Tower Facilities due to the removal of such property at Licensee's
expense. Licensee shall remove such property to one (1) foot below grade, and
such removal shall be performed by a qualified steeplejack, tower climber
11
or contractor in a workmanlike manner without any interference, damage or
destruction to any other equipment, structures or operations of the tower, and
without injury or damage to the tower, the surrounding real property or
improvements located thereon. If Licensee fails to make such repairs within ten
(10) days after occurrence of such damage, Licensor may perform the necessary
repairs at Licensees expense. Licensee shall pay Licensor all amounts so
invoiced within ten (10) days after receipt of the invoice. Past due amounts
will bear interest at the Past Due Rate from the due date until the date paid.
In addition, with respect to any late payment, Licensee shall pay Licensor an
Administrative Fee in the amount specified on Schedule 2 to compensate Licensor
for the additional administrative costs incurred or anticipated to be incurred
by reason of such late payment. If Licensee falls to remove such property within
thirty (30) days after the termination on expiration any License, such property
shall be deemed abandoned. The Licensor may, at its option, (a) cause any such
abandoned property to be removed at the expense of Licensee which must be paid
prior to Licensee claiming equipment, b) sell all or any part of such property
at public or private sale, without notice to Licensee, and retain the proceeds
of such sale and/or (c) declare that title to such property shall be deemed to
have passed to Licensor.
11.4 RELEASE DOCUMENTS. Upon the termination or expiration of any
License, Licensee shall immediately upon the request and at the expense of
Licensor, deliver a release in recordable form of any instruments of record
evidencing such License.
12. MISCELLANEOUS.
12.1 NOTICES. All notices, consents, approvals, and other
communications given to either party under this Agreement shall be in writing to
such party at the address set forth for such party as its Notice Address in the
Schedules or at such other address as such party shall designate by notice to
the other party hereto in accordance with this Section 12.1 and may be delivered
personally (including delivery by private courier services, including overnight
courier delivery) or by telecopy, or by first-class United States mail, postage
prepaid, registered or certified mail with return receipt requested, to the
party entitled thereto, and shall be deemed to be duly given or made when
received. In the event that conflicting Notice Addresses appear in the
Schedules, the most recent Schedule shall control.
12.2 CHOICE OF LAW. This Agreement shall be construed and interpreted
and the rights of the parties determined in accordance with the internal laws of
the Commonwealth of Massachusetts. Each individual License shall be construed
and interpreted and the rights of the parties determined in accordance with the
internal laws in the state in which the Communication Tower is located, provided
that in the event that more than one License is involved in the dispute or
controversy the laws of the Commonwealth of Massachusetts shall govern.
12.3 ENTIRE AGREEMENT; DISCLAIMERS, AMENDMENTS AND WAIVER.
(a) This Agreement, the Appendixes and the Schedules hereto
and the additional Schedules that may be executed from time to time by the
parties constitute the entire agreement between the parties pertaining to the
subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties.
12
(b) No endorsement or statement on any check or letter
accompanying a check for payment of fee or other amount shall be deemed an
accord and satisfaction, and Licensor may accept such check or payment without
prejudice to Licensor's right to recover the balance of such fee or other
payment or to pursue any other remedy provided in this Agreement. No payment by
Licensee or receipt by Licensor of a lesser amount than the periodic
installment(s) of the License Fee shall be deemed to apply to any amount other
than the earliest then outstanding payment due hereunder.
(c) LICENSEE ACKNOWLEDGES THAT THE LICENSOR HAS NOT MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR AT COMMON LAW, BY STATUTE, OR
OTHERWISE RELATING TO ANY TOWER FACILITIES INCLUDING, WITHOUT LIMITATION, THE
CONDITION OF ANY TOWER FACILITIES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR
EXPRESSED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, ENVIRONMENTAL CONDITION, OR
GEOLOGIC CONDITION). IN FURTHERANCE OF THE FOREGOING, THE LICENSOR EXPRESSLY
DISCLAIMS AND NEGATES, AND LICENSEE HEREBY WAIVES (I) ANY IMPLIED OR EXPRESSED
WARRANTY OF MERCHANTABIILITY, (II) ANY IMPLIED OR EXPRESSED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, (III) ANY IMPLIED OR EXPRESSED WARRANTY OF CONFORMITY
TO MODELS OR SAMPLES OF MATERIALS, (IV) ANY CLAIM FOR DAMAGES BECAUSE OF ANY
LATENT OR PATENT DEFECTS OR OTHER DEFECTS, WHETHER KNOWN OR UNKNOWN AND (V) ANY
AND ALL IMPLIED WARRANTIES EXISTING UNDER APPLICABLE LAW. IT IS THE EXPRESS
INTENTION OF THE PARTIES HERETO THAT ALL TOWER FACILITIES BE LICENSED ON AN AS
IS, WHERE IS BASIS. THE PARTIES HERETO AGREE THAT, TO THE EXTENT REQUIRED BY
APPLICABLE LAW TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED
IN THIS SECTION ARE CONSPICUOUS DISCLAIMERS.
(d) No amendment, supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall constitute a
waiver of any other provision hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless expressly agreed to in writing by
the affected party.
12.4 ASSIGNMENT.
(a) In the event Licensor mortgages, grants a security
interest in or otherwise collaterally assigns its interest in this Agreement or
in any License, Licensee will execute and deliver to Licensor's lender or other
party to whom such interest is granted (x) an Estoppel certificate certifying as
to such reasonable matters as are customarily expressed to lenders and (y) a
subordination, attornment and non-disturbance agreement pursuant to which any
interest Licensee may have in any Tower Facilities by reason of this Agreement
or any License is subordinated to a mortgage lien or other security interest
granted in favor of Licensor's lenders; provided, Licensee shall only be
obligated to enter into any such subordination, attornment and
13
non-disturbance agreement if, pursuant to the terms thereof, the lender agrees
not to disturb Licensees interest in any of the Tower Facilities arising from
this Agreement or any License so long as Licensee continues to perform its
obligations according to the terms hereof and thereof.
(b) Licensee may not assign, sublease or sublicense or
otherwise transfer all or any interest under this Agreement or any individual
Schedule (including, without limitation, diplexing of signals, granting of
shared use rights, or utilizing digital or analog interconnect facilities for
itself or others) without the prior written consent of Licensor. Notwithstanding
the foregoing and so long as Licensee is not then in Default, Licensee may
assign this Agreement or any individual Schedule with Licenser's prior written
consent which shall not be unreasonably withheld, conditioned or delayed to any
of the following: (i) Any corporation, partnership or other entity which
controls, is controlled by or under common control with Licensee, provided that
Licensee shall continue to remain liable to Licensor hereunder; (ii) Any
corporation or other entity resulting from the merger of consolidation of
Licensee; (iii) Any corporation, partnership, or other entity, or person which
acquires all or substantially all of the assets of Licensee, provided that such
assignee assumes in full the obligations of Licensee under the Lease: or (iv)
SprintCom, Inc., its successors, affiliates, or related parties. In the event
that Licensee requests Licensor's consent to any assignment of this Agreement,
Licensee shall be required to pay Licensor an administrative fee of $N/A. In the
event that Licensee requests Licensor's consent to any assignment or sublease of
any individual Schedule, Licensee shall be required to pay Licensor an
Administrative Fee for each License as specified in the affected Schedule 2.
12.5 BROKERAGE FEES. Each of Licensor and Licensee represent and
warrant to the other that no broker was involved for such representing person in
connection with this transaction and each of Licensor and Licensee agrees to
indemnify and hold Licensor harmless from and against the claims of any broker
acting on behalf of the indemnifying party in connection with this transaction.
12.6 QUIET ENJOYMENT. The Licensor covenants and agrees that, upon
Licensee's paying the License Fee and observing and performing all of the terms,
covenants and conditions on Licensee's part to be observed and performed under
this Agreement (including any License), Licensee shall peacefully and quietly
enjoy the Tower Facilities covered by each License during the applicable License
Term.
12.7 REFERENCES. Any reference herein to a Section shall be deemed to
refer to the applicable Section of this Agreement unless otherwise expressly
stated herein. Any reference to an Appendix shall be deemed to refer to the
applicable Appendix attached hereto, all such Appendix being incorporated herein
and made a part hereof by this reference. Any reference to a Schedule shall be
deemed to refer to any Schedule signed by Licensor and Licensee and, when so
signed, shall be incorporated herein and made a part hereof by this reference.
12.8 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto, their successors and assigns permitted under this
Agreement and the indemnified parties under Sections 9.1 and 9.2, and no
provisions of this Agreement shall be deemed to confer upon any other Person any
remedy, claim, liability, reimbursement, cause of action or other right.
14
12.9 RECORDATION OF MEMORANDUM. At Licensee's request and expense
(including all reasonable expenses incurred by Licensor hereunder), Licensor
agrees to execute a memorandum of agreement for a particular License in a form
acceptable to Licensor. Licensee agrees to provide Licensor with a certified
copy of any such memorandum with five (5) Business Days following any
recordation of such memorandum.
12.10 LIMITED RELATIONSHIP. Nothing contained in this Agreement shall
be deemed or construed by the parties hereto or by any third Person to create
the relationship of principal and agent, partnership, joint venture or any
association between Licensor and Licensee other than contracting parties.
12.11 APPLICABLE STANDARD. Any approval, consent, decision or election
to be made or given by a party hereunder may be made or given in such party's
sole judgment and discretion, unless a different standard (such as
reasonableness or good faith) is provided for explicitly.
12.12 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.13 INTEREST. Any payment not made on the date required by this
Agreement shall accrue interest at the Past Due Rate from the due date of such
payment until the date such payment is paid.
12.14 INTERPRETATION. Each of the parties has agreed to the use of the
particular language of the provisions of this Agreement, and any questions of
doubtful interpretation shall not be resolved by any rule or interpretation
against the draftsman, but rather in accordance with the fair meaning thereof,
having due regard to the benefits and rights intended to be conferred upon the
parties hereto and the limitations and restrictions upon such rights and
benefits intended to be provided.
12.15 DISPUTE RESOLUTION.
(a) The parties shall first attempt to resolve any claim,
controversy or dispute, whether sounding in contract, statute, tort, fraud,
misrepresentation or other legal theory, arising between the parties to this
Agreement or between one of the parties to this Agreement and the employees,
agents, officers, directors or affiliated business of the other party, through
amicable settlement discussions. In the event the parties are unable to settle
such dispute within thirty (30) days after initiation of settlement discussions,
either party may refer the matter for final resolution by arbitration as
prescribed in this Section 12.15.
(b) All controversies relating to this Agreement and any
License shall be settled by arbitration, unless otherwise expressly provided to
the contrary elsewhere in this Agreement. The arbitration proceedings shall be
held in Suffolk County, Massachusetts or, if arbitration is unavailable there,
in the closest county in which arbitration is available, decided by one
arbitrator, and governed by the Commercial Arbitration Rules of the American
Arbitration Association, as they may exist at the time of the arbitration
(excluding payment of all fees and expenses of the parties relating to the
arbitration, including without limitation attorneys' fees, and the costs and
expenses of the arbitration proceeding, which fees and expenses shall be borne
15
by the losing party in the arbitration unless otherwise required by the
applicable state law), and otherwise in accordance with the governing law
applicable pursuant to Section 12.2. A judgment upon the award rendered by the
arbitration may be entered in any court of competent jurisdiction. All notices
of judicial services in reference to arbitration or enforcement shall be deemed
given if transmitted as required by the aforesaid rules, unless otherwise
required by the governing law applicable pursuant to Section 12.2.
12.16 DEFAULTS.
(a) Licensee and Licensor shall have fifteen (15) days after
receipt of written notice to cure any monetary Licensor Default or Licensee
Default, respectively, and thirty (30) days after receipt of written notice to
cure any non-monetary Licensor Default or Licensee Default, respectively;
provided however, that if any Licensor Default or Licensee Default is not
capable of being cured within the requisite period of time, then so long as the
party charged with the default has diligently pursued such cure of the default
within the prescribed period, the party shall be given the necessary time to
cure the default. If subsequent to the foregoing requisite periods of time,
there continues to be an event of Licensor Default or Licensee Default, the
non-defaulting party may upon thirty (30) days written notice, terminate this
Agreement with respect to the applicable Schedule and institute any other
proceedings at law or in equity to recover damages from the other party.
(b) Upon the occurrence of any Licensee Default which is not
cured in accordance with Section 12.16(a), Licensor may enter upon the affected
Licensed Space(s) without being liable for prosecution or any claims of Damages
of such entry, and do whatever Licensee is obligated to do under the terms of
this Agreement or any individual License to correct the default. Licensee agrees
to reimburse Licensor on demand for any expenses that Licensor may incur in
effecting compliance with Licensee's obligations under this Agreement or any
License in this manner, and Licensee further agrees that Licensor shall not be
liable for any Damages resulting from such action. No action by Licensor
pursuant to this Section 12.16(b) shall be construed as an election on
Licensor's part to terminate this Agreement or any individual License, unless a
written notice of such intention is given to Licensee.
16
ATC SITE NAME & NUMBER ___________
CUSTOMER SITE NAME & NUMBER ________
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
20th day of July 2002 (the "EFFECTIVE DATE").
LICENSOR:
AMERICAN TOWER, L.P.,
a Delaware limited partnership
By ATC GP, Inc., its sole general partner
By: /s/ Xxxxxx Xxxxxxxxx (SEAL)
Name: Xxxxxx Xxxxxxxxx
Title: __________________________
Date: 7/19/02
LICENSEE:
IPCS WIRELESS, INC.,
a Delaware limited partnership
By: /s/ Xxxxx X. Xxxxxxx (SEAL)
Name: Xxxxx X. Xxxxxxx
Title:__________________________
Date: 6/13/02
17
APPENDIX I
DEFINED TERMS
ADMINISTRATIVE FEE -- as defined in Schedule 2.
AFFILIATE(S) means, with respect to any Person, (i) any other Person directly or
indirectly controlled by, controlling or under common control with such first
Person and (ii) any director or officer of such first Person or of any Person
referred to in clause (i) above. For the purposes of this definition control of
any Person means ownership, directly or indirectly, of 50% or more of the voting
stock of such Person, if a corporation, and ownership of 50% or more of the
equity or beneficial interest in any other Person. The general partner of any
Person which is a partnership will be deemed to control such Person.
AGREEMENT -- as defined in the introductory paragraph.
AUTHORIZED PERSONNEL -- as defined in Section 7.
BUSINESS DAY means a day other than a Saturday, Sunday or legal holiday for
commercial banks under the laws of the United States or the Commonwealth of
Massachusetts.
CLAIMS means demands, claims, suits, actions, proceedings or investigations
brought against a Person by an unrelated or unaffiliated Person.
COMMUNICATION TOWER(S) -- as defined in Section 2.
DAMAGES means debts, liabilities, obligations, losses, damages, cost and
expenses, whether actual, consequential or punitive, interest (including,
without limitation, prejudgment interest), penalties, reasonable legal fees,
disbursements and costs of investigations, deficiencies, levies, duties and
imposts.
EFFECTIVE DATE -- as defined in Section 4.1.
FCC -- as defined in Section 8.3.
FIRST EXTENSION PERIOD -- as defined in Schedule 2.
INDEMNIFIED PARTY -- shall mean any Person entitled to indemnification under
Section 9.1 or Section 9.2 hereof.
INITIAL LICENSE FEE -- as defined in Schedule 2.
LEGAL REQUIREMENTS -- shall mean any law, statute, code, ordinance, order, rule,
regulation, judgment, decree, injunction, franchise, permit, certificate,
license, authorization, or other directional requirement (including, without
limitation, any of the foregoing that relates to environmental standards or
controls) of any governmental authority.
18
LICENSE -- shall mean, with respect to any Licensed Space, the terms and
conditions between Licensor and Licensee governing the license of such space as
set forth in this Agreement and the Schedule or Schedules relating to the
licensing of such space.
LICENSE COMMENCEMENT DATE -- as defined in Schedule 2.
LICENSE TERM -- as defined in Section 4.2.
LICENSED SPACE -- as defined in Section 3.1.
LICENSEE -- as defined in the introductory paragraph.
LICENSEE DEFAULT -- means the occurrence of either or both of the following
events: (a) failure by Licensee at any time to pay, when due, any sums payable
by Licensee hereunder within ten (10) days after notice of such failure is given
to Licensee by Licensor and (b) failure by Licensee to observe or perform any
other covenant, agreement, condition or provision of this Agreement or any
License, if such failure shall continue for more than thirty (30) days after
notice of such failure is given to Licensee by Licensor, provided that there
shall not be a Licensee Default under this clause (b) with respect to matters
that cannot be reasonably cured within such 30 day period so long as within such
30 day period Licensee has commenced such cure and diligently proceeds in a
reasonable manner thereafter to complete the same.
LICENSE FEE -- as defined in Section 6.1.
LICENSOR -- as defined in the introductory paragraph.
LICENSOR DEFAULT -- means the occurrence of either or both of the following
events: (a) failure by Licensor at any time to pay, when due, any sums payable
by Licensor hereunder within ten (10) days after notice of such failure is given
to Licensor by Licensee and (b) failure by Licensor to observe or perform any
other covenant, agreement, condition or provision of this Agreement or any
License, if such failure shall continue for more then thirty (30) days after
notice of such failure is given to Licensor by Licensee, provided that there
shall not be a Licensor Default under this clause (b) with respect to matters
that cannot be reasonably cured within such 30 day period so long as within such
30 day period Licenser has commenced such cure and diligently proceeds in a
reasonable manner thereafter to complete the same.
NOTICE ADDRESS -- as defined in the Schedules.
PAST DUE RATE -- as defined in Section 6.4.
PERSON means any natural person, firm, partnership, association, corporation,
limited liability company, company, trust, entity, public body or government.
PRIMARY TERM -- as defined in Schedule 2.
REMITTANCE ADDRESS -- as defined in Schedule 2.
RESERVATION FEE -- as defined in Schedule 1.
19
RESERVATION PERIOD -- as defined in Schedule 1.
RESERVED SPACE -- as defined in Section 3.1.
RFI -- means radio frequency interference.
SCHEDULE(S) -- means Schedule 1 (with respect to Reserved Space) or Schedule 2
(with respect to Licensed Space), collectively or individually, which is
executed by both Licensor and Licensee and accepted by both parties during the
Term in accordance with Section 3.
SECOND EXTENSION PERIOD -- as defined in Schedule 2.
TERM -- as defined in Section 4.1.
THIRD EXTENSION PERIOD -- as defined in Schedule 2.
TOWER FACILITIES -- means, with respect to any License, the tower site, tower,
equipment structures and other facilities covered by such License.
WORK -- as defined in Section 8.2.
20
APPENDIX II
INSURANCE
A. LICENSOR shall maintain in full force during the term of this Agreement the
following insurance:
1. Worker's Compensation and Employers' Liability Insurance as prescribed by
applicable law, including insurance covering liability under the Longshoremen's
and Harbor Workers' Act and the Xxxxx Act, if applicable;
2. Comprehensive General Liability Insurance (Bodily Injury and Property
Damage), the limits of liability of which shall not be less than $1,000,000 per
occurrence.
3. An umbrella policy of not less than Five Million Dollars ($5,000,000).
The above insurance shall provide that LICENSEE will receive not less than 30
days written notice prior to any cancellation of, or material change in
coverage. The insurance specified in this Item A shall contain a waiver of
subrogation against LICENSEE and shall name LICENSEE as additional insured
provided that the insurance is primary coverage with respect to all insured, and
contains a standard cross-liability endorsement.
B. LICENSEE shall maintain in full force during the term of this Agreement, and
shall cause all contractors or subcontractors performing Work on any Licensed
Site prior to the commencement of any such Work on behalf of Licensee, the
following insurance:
1. Worker's Compensation and Employers' Liability Insurance as prescribed by
applicable law, including insurance covering liability under the Longshoremen's
and Harbor Workers' Act and the Xxxxx Act, if applicable;
2. Comprehensive General Liability Insurance (Bodily Injury and Property
Damage), the limits of liability of which shall not be less than $1,000,000 per
occurrence.
3. An umbrella policy of not less than Five Million Dollars ($5,000,000).
The above Insurance shall provide that LICENSOR will receive not less than 30
days written notice prior to any cancellation of, or material change in
coverage. The insurance specified in this Item B shall contain a waiver of
subrogation against LICENSOR and shall name LICENSOR as additional insured
provided that the insurance is primary coverage with respect to all insured, and
contains a standard cross-liability endorsement.
C. Notwithstanding the foregoing insurance requirements, (a) the insolvency,
bankruptcy, or failure of any insurance company carrying insurance for LICENSEE,
or failure of any such insurance company to pay claims accruing, shall not be
held to waive any of the provisions of this Agreement or relieve LICENSEE from
any obligations under this Agreement, and (b) the Licensor reserves the right,
from time to time, to increase the required liability limits described above in
A Items A and/or B in accordance with then-current customary insurance
requirements in the tower industry nationally.
21
SCHEDULE 1
SITE LICENSE APPLICATION
22
SCHEDULE 2
LICENSE AGREEMENT
ATC CONTRACT NO:
This LICENSE AGREEMENT ("Agreement") made this _____ day of ______, 200_,
("Effective Date") by and between ______________________, a ___________________
[corporation/limited partnership], with a place of business at 00 Xxxxxxxxxxxx
Xxx, Xxxxxx, XX 00000 ("Licensor") and _______________, a ________________
[corporation/limited partnership], with a place of business, at
_____________________ ("Licensee").
This Agreement is a to that certain Master Tower Space Reservation and License
Agreement between IPCS WIRELESS, INC. and AMERICAN TOWER, L.P. dated July 20,
2002 ("MLA"). All of the terms and conditions of the Agreement are incorporated
herein by reference and made a part hereof without the necessity of repeating or
attaching the MLA. Capitalized terms used in this Agreement shall have the same
meaning described for them in the MLA unless otherwise indicated herein
COMMUNICATION TOWER SITE INFORMATION:
Site Name:
Site Number:
Address and/or location of Communication Tower Site: __________________________
Coordinates: Lat._____________________ Long._____________________
NOTICE & EMERGENCY CONTACTS:
o Licensee's local emergency contact (name and number):
o Licensor's local emergency contact (name and number): Network Operations
Communications Center (000) 000-0000.
o Notices to Licensee shall be sent to the address above to the attention
of ________________.
o Notices to Licensor eliminate shall be sent to the address above to the
attention of Contracts Manager.
APPROVED USE OF TOWER SITE BY LICENSEE:
Transmitting frequencies: ______________ Receiving frequencies: _______________
Antenna mount height on tower: ft. AGL (See EXHIBIT A for specific
location description)
All other permitted use of the Tower Facility including, without limitation,
Licensee's Equipment, frequencies, channels and the identification and location
of the Tower Facility are described in EXHIBITs A and B, are incorporated herein
by reference and made a part hereof. Licensee shall provide As-Built Drawing as
described in EXHIBIT C, which is incorporated herein by reference and made a
part hereof, within forty-five (45) days of commencement of installation or
construction of Licensee's Equipment at the Tower Facility.
FEES & TERM
The monthly License Fee shall be the sum of (i) Dollars ($ ), adjusted on July
1, 2003 and on each July 1st thereafter during the initial Primary Term and
during any renewal terms by the "Annual Escalator" and (ii) the amount of
utility charges directly attributable to Licensee's Equipment. If the
Commencement Date is earlier than July 1, 2003, then the Annual Escalator
23
adjustment made to the monthly License Fee on July 1, 2003 shall be pro-rated
for each full calendar month between the Commencement Date and July 1, 2003. The
Annual Escalator shall be (i) four percent (4%) per year or (ii) the Consumer
Price Index for the year ended two calendar months prior to each applicable July
1st, but in no event to exceed five percent (5%) per annum.
Initial Term: The "Primary Term" of this Agreement shall be for a period of five
(5) years beginning on the Commencement Date. The "Commencement Date" shall be
defined as the earlier of: (i) the commencement of installation or construction
of any improvements by Licensee at the Tower Facility; or (ii), 2 (but in no
event to exceed forty-five (45) days following the Effective Date).
Renewal Terms: First Extension Period Five (5) years
Second Extension Period Five (5) years
Third Extension Period Five (5) years
Electricity for operation of Licensee's Equipment is to be provided by (check
one):
|_| Licensor at the monthly rate of $ , adjusted annually by the Annual
Escalator OR |
|X| Licensor, with such being included in the monthly License Fee, OR
|_| Licensee, at its sole expense.
OTHER PROVISIONS:
Other provisions: (check one): |_| None |X| As listed below
24
ATC SITE NAME & NUMBER ___________
CUSTOMER SITE NAME & NUMBER ___________
IN WITNESS WHEREOF, the Parties, each in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, intending to be
legally bound, have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date first above-written;
PROVIDED, HOWEVER, that this Agreement shall not become effective as to either
Party until executed by both Parties.
LICENSOR LICENSEE
By: __________________________ By: ____________________________
Print Name: __________________ Print Name: ____________________
Its: _________________________ Its: ___________________________
Date: ________________________ Date: __________________________
25
ATC SITE NAME & NUMBER ___________
CUSTOMER SITE NAME & NUMBER ___________
EXHIBIT A
APPROVED EQUIPMENT
26
ATC SITE NAME & NUMBER ___________
CUSTOMER SITE NAME & NUMBER ___________
EXHIBIT B
SITE DRAWING INDICATING THE LOCATION OF GROUND SPACE FOR LICENSEE'S EQUIPMENT
SHELTER OR SPACE IN LICENSOR'S BUILDING (AS APPLICABLE)
Licensee shall not commence installation until Licensor has approved in writing
said drawing and attached it hereto.
27
ATC SITE NAME & NUMBER ___________
CUSTOMER SITE NAME & NUMBER ___________
EXHIBIT C
AS BUILT DRAWINGS OR CONSTRUCTION DRAWINGS
To be attached hereto within 45 days of the date after commencement of
installation or construction of Licensee's Equipment at the Tower Facility.
28
ATC SITE NAME & NUMBER ___________
CUSTOMER SITE NAME & NUMBER ___________
EXHIBIT D
FORM OF COMMENCEMENT DATE NOTICE
[Date]
Via Return Receipt Requested First Class Mail
American Tower
Attn: Contracts Manager
Re:______ATC Tower Site # _________, ATC Tower Site Name: ___________________
Dear Contracts Manager:
In accordance with Section 1 of that License Agreement ("Agreement")
dated ____________ between __________________ ("Licensor") and ____________
("Licensee"), this letter serves as notice that Licensee commenced its
construction and/or installation at the Tower Site described above on
_____________ ___, 20___.
The Agreement states that the Commencement Date for the purposes of the
monthly License Fee is the earlier of the commencement of installation or
construction or ______________ __, 2____ (but in no event later than 45 days
after the Effective Date of the Agreement).
In accordance with the Agreement, the correct Commencement Date for
this Agreement is __________________, 2_______.
It you have any questions, please contact me at _____________________.
Sincerely,
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