EXHIBIT 10.52
MASTER TOWER SPACE RESERVATION AND LICENSE AGREEMENT
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This Master Tower Space Reservation and License Agreement (this
"Agreement') is entered into as of the 19th day February, 1999 by and between
AMERICAN TOWER, L.P., a Delaware limited partnership, whose business address is
000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (hereinafter referred to as the
"Licensor"), and AGW LEASING COMPANY, INC., a Delaware corporation, whose
business address is 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000 (hereinafter referred to as the "Licensee").
BACKGROUND
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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
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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
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the Schedules hereto are indexed by location on Appendix 1 hereto, Capitalized
terms used in this Agreement but not defined herein are defined in Appendix 1.
2. Parties. Unless otherwise mutually agreed, the parties hereto agree that
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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.
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3.1 Application for Co-location/Requests to Reserve or License Space. From
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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
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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
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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
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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 3,11(c) is referred to herein as Licensed Space.
(c) Licensed Space. In the event that Licensee desires to license
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space on a Communication Tower which is riot 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 Pee for such Licensed Space on or before the
fifth (5th) business day following Licensee's receipt of Licensor's executed
Schedule 2. Tower space licensed in accordance with the foregoing procedures
and Section 3.1(b) is referred to herein as Licensed Space.
(d) Remaining Terms. The remaining terms and conditions of this
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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
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Agreement shall be payable to Licensor 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
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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.
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4.1 Term of this Agreement. The term of this Agreement (the "Term") shall
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commence on the date first written above (the "Effective Date") and, unless
earlier terminated in accordance with Section 5, shall continue for the three-
year period following the Effective Date and 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 as long as any Reservation
period remains unexpired. Notwithstanding the foregoing, the Term of this
Agreement shall automatically renew in accordance with the terms and conditions
herein for successive periods of three (3) years each as of the end of each
then-current
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three-year period unless either party has given the other no less than 90 days
prior written notice of its intention to terminate this Agreement effective as
of the end of the then-current three-year period.
4.2 Term of Each License. The primary term of each License shall commence
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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.
4.3 Exceptions to Extension Periods. Notwithstanding anything to the
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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, Licensor 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
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5.1 By Licensor. Notwithstanding the provisions of Section 4, (a)
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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 Licensor 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)
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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
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Section 5 shall 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
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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.
6. Fees and other Remuneration
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6.1 License Fee. With respect to each License, Licensee shall pay
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Licensor a license fee (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,
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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
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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 nonusurious 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
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itermodulation studies and NEPA compliance studies performed an the site.
7. Access Rights. With respect to each License, Licensee's authorized
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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.
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8.1 Equipment. Licensee agrees that all of the equipment to be installed
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upon Licensor's tower and within equipment shelters (if applicable), and upon
Licensor'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 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
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modifications, enhancements or changes thereto (other than 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.
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(b) Licensee shall not commence any of the Work until Licensor
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 Licensors 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 Licensor'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 Licensor's 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 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 which 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.
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8.3 Compliance with Laws. Licensee shall comply with all Legal
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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 t)y 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, Licensor 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.
8.4 Licensee's Maintenance of Approved Equipment. Licensee shall maintain
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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.
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(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 Licensor
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 xxxx xxxx 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.
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(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 riot 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 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
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to terminate this Agreement. Subsequent to o written request by Licensor, in
Licensors 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 shelf 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
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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
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during the term of this Agreement and the term of any License insurance coverage
in accordance with Appendix II attached hereto.
9. Indemnification
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9.1 By Licensee. Licensee shall indemnify, defend and hold harmless
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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
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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
engaged by, through or under Licensor., (b) any material breach by Licensor of
any provision of this Agreement.
9.3 Limitation Indemnification. Neither party shall be responsible or
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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 mused 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
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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
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SECTION 9 ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH
THE
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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
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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.
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(a) In the event that an, 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 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 relating 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 rights 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 Lip and surrender the facilities on which Licensee's
equipment was installed or located.
8
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 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 ell amounts so
invoiced within ten (10) days after receipt of the invoice. Past due amounts
xxxx xxxx 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 fails to remove such property
within thirty (30) days after the termination or 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 Related 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 duty 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 Waivers.
----------------------------------------------------
(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.
(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
9
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 MERCHANTABILITY, (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 tender 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 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, duplexing 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 Licensor'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 $NA. In the event that
Licensee requests Licensor's consent to any assignment or sublease of
10
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 war, 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 he 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.
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 dare 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
11
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 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 19th of February, 1999 (the "Effective Date").
LICENSOR:
AMERICAN TOWER, L.P.,
a Delaware limited partnership
By: ATC GP Inc. its sole general partner
By: (SEAL)
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Date: February 8, 1999
12
LICENSEE:
AGW LEASING COMPANY, INC.,
a Delaware corporation
By: (SEAL)
---------------------
Name: Xxxxxxx Xxxxxxx
Title: Secretary
Date: February 19, 1999
13
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 (1) 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.
License - shall mean, with respect to any Licensed Spare, 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.
14
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 than 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 Licensor 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.
Reservation Period - as defined in Schedule 1.
Reserved Space - as defined in Section 11.
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.
15
APPENDIX 11
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 tie less than
$1,000,000 per occurrence.
3. An umbrella policy of riot 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 off
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.
16
SCHEDULE 1
SPACE RESERVATION REQUEST/CO-LOCATION APPLICATION
This Schedule 1 is executed and delivered pursuant to that certain Master Tower
Space Reservation and License Agreement between Licensor and Licensee dated
, 1999 (the "Master Agreement"). All terms and conditions of the Master
Agreement are incorporated herein by reference and made a part hereof for all
purposes.
Licensee hereby requests that the following space be reserved on the terms
indicated below:
TO BE COMPLETED BY LICENSEE:
---------------------------
Licensee Information:
--------------------
Licensee's Name: ___________________________________
Notice Address: ___________________________________
Contact Name: ___________________________________
Contact Number: ___________________________________
Tower Information:
Tower Name: ____________ Coordinates:________
Tower Number: ____________
Reservation Information:
-----------------------
Reservation Period: _____ months commencing ____, 199__
Licensee Equipment Information:
------------------------------
Call Sign: ____________ RX Frequency:_______
Antenna Height: ____________ Antenna Type:_______
TX Frequency: ____________ Trans. Line:________
Antenna Equipment to be installed on Tower:
------------------------------------------------------------------------------------------
#1 #2 #3
------------------------------------------------------------------------------------------
Quantity:
------------------------------------------------------------------------------------------
Manufacturer:
------------------------------------------------------------------------------------------
Type & Model #:
------------------------------------------------------------------------------------------
Antenna Weigh/Length:
------------------------------------------------------------------------------------------
Line Type:
------------------------------------------------------------------------------------------
Line Quality & Diameter:
------------------------------------------------------------------------------------------
Antenna Mount Height:
------------------------------------------------------------------------------------------
Tower Leg:
------------------------------------------------------------------------------------------
Direction of Radiation:
------------------------------------------------------------------------------------------
Requested Mounting Position:
------------------------------------------------------------------------------------------
Transmission and Other Equipment to be located in (check one):
____ Licensee's Building, or ____ Licensor's Building
---------------------------------------------------------------------------------------------
#1 #2 #3
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Number of cabinets: L
---------------------------------------------------------------------------------------------
# of Transmitters per Cabinet:
---------------------------------------------------------------------------------------------
Manufacturer:
---------------------------------------------------------------------------------------------
Type & Model #:
---------------------------------------------------------------------------------------------
Type of Service:
---------------------------------------------------------------------------------------------
Rack Dimensions:
---------------------------------------------------------------------------------------------
Rated Power:
---------------------------------------------------------------------------------------------
17
---------------------------------------------------------------------------------------------
Call Sign:
---------------------------------------------------------------------------------------------
TX Frequency:
---------------------------------------------------------------------------------------------
RX Frequency:
---------------------------------------------------------------------------------------------
Elec. Service Amps/volts*
---------------------------------------------------------------------------------------------
Number of Outlets:
---------------------------------------------------------------------------------------------
Power Outlets:
---------------------------------------------------------------------------------------------
ERP:
---------------------------------------------------------------------------------------------
Dimensions (W" x D" x H")
---------------------------------------------------------------------------------------------
Combiner/# of Parts:
---------------------------------------------------------------------------------------------
Cabinet also contains:
---------------------------------------------------------------------------------------------
Ground Space Dimension (If app)
---------------------------------------------------------------------------------------------
TO BE COMPLETED BY LICENSOR
---------------------------
In the event that Licensee requests ground space for the construction or
installation of a building or shelter to be owned by Licensee, the space to
be reserved for the location of such building is described on Exhibit A
attached hereto.
Reservation Fee: $________________
Administrative Fees: Access pursuant to Section 7 $_______
Assignment pursuant to Section 12.4 $_______
Late Payments pursuant to
Sections 6.3 and 8.5(b) $_______
RF Compliance Information (if
then available) pursuant to
Section 83 $_______
Notice Address: 0000 Xxx Xxxxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Contact Name: Xxx X. Xxxxxxx
Contact Number: (000) 000-0000
[OPTIONAL] In the event that the Reserved Space described herein is
converted to Licensed Space, the following terms shall apply to such
License:
License Fee: $__________ , payable _________________________
Annual Escalation of License Fee: Amount equal to the greater of (a) four
percent (4%), or (b) the Consumer Price
Index, but in no event to exceed five
percent (5%) per annum.
Primary Term: Five (5) years
First Extension Period: Five (5) years
Second Extension Period: Five (5) years
Third Extension Period: Five (5) years
18
Agreed to and Accepted by Agreed to and Accepted by:
LICENSEE: LICENSOR:
AGW Leasing Company, Inc. American Tower, L.P.
By: ATC GP Inc., its sole general partner
By: (SEAL) By: (SEAL)
---------------------------- ----------------------------
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
This Schedule does not constitute Reserved Space until completed and executed by
both parties in accordance with Section 3.1(a)
19
SCHEDULE 2
TOWER SPACE LICENSE REQUEST/REQUEST TO CONVERT
This Schedule 2 is executed and delivered pursuant to that certain Master Tower
Spare Reservation and License Agreement between Licensor and Licensee dated
, 1999 (the "Master Agreement"). All terms and conditions of the Master
Agreement are incorporated herein by reference and made a part hereof for all
purposes.
Licensee hereby requests that the following space be licensed, or converted from
previously Reserved Space, on the terms indicated below:
Licensee Information:
--------------------
Licensee's Name: ______________________________
Notice Address: ______________________________
______________________________
______________________________
Contact Name: ______________________________
Contact Number: ______________________________
Licensor Information:
--------------------
Notice Address: American Tower, LP
0000 Xxx Xxxxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Contact Name: Xxx X. Xxxxxxx
Contact Number: 000-000-0000
Remittance Address: American Tower, L.P.
0000 xxx Xxxxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Accounting Department
Tower Information:
-----------------
Tower Name: ___________Coordinates:_______
Tower Number: ___________
Licensee Fees and Term:
-----------------------
License Commencement Date:____________________________________
License Fee: __________________, payable _________
Annual Escalation of License Fee: Amount equal to the greater of (a) four
percent (4%), or (b) the Consumer Price
Index, but in no event to exceed five
percent (5%) per annum.
Primary Term: Five (5) years
First Extension Period: Five (5) years
Second Extension Period: Five (5) years
Third Extension Period: Five (5) years
20
Administrative Fees:
--------------------
Access pursuant to Section 7 ____________
Assignment pursuant to Section 12.4 ____________
Late Payments pursuant to Sections
6.3 and 8.5(b) ____________
RF Compliance Information (if then available)
pursuant to Section 8.3 $___________
Licensee Equipment Information:
------------------------------
Call Sign: __________ RX Frequency:________
Antenna Height: __________ Antenna Type:________
TX Frequency: __________ Trans. Line: ________
In the event that Licensee desires ground space for the construction or
installation of a building or shelter to be owned by Licensee, the space to
be licensed for the location of such building is described on Exhibit A
attached hereto.
Antenna Equipment to be installed on Tower:
------------------------------------------------------------------------------------------
#1 #2 #3
------------------------------------------------------------------------------------------
Quantity:
------------------------------------------------------------------------------------------
Manufacturer:
------------------------------------------------------------------------------------------
Type & Model #:
------------------------------------------------------------------------------------------
Antenna Weigh/Length:
------------------------------------------------------------------------------------------
Line Type:
------------------------------------------------------------------------------------------
Line Quality & Diameter:
------------------------------------------------------------------------------------------
Antenna Mount Height:
------------------------------------------------------------------------------------------
Tower Leg:
------------------------------------------------------------------------------------------
Direction of Radiation:
------------------------------------------------------------------------------------------
Requested Mounting Position:
------------------------------------------------------------------------------------------
Transmission and Other Equipment to be located in (check one):
____ Licensee's Building, or ____ Licensor's Building
------------------------------------------------------------------------------------------
#1 #2 #3
------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Number of cabinets:
---------------------------------------------------------------------------------------------
# of Transmitters per Cabinet:
---------------------------------------------------------------------------------------------
Manufacturer:
---------------------------------------------------------------------------------------------
Type & Model #:
---------------------------------------------------------------------------------------------
Type of Service:
---------------------------------------------------------------------------------------------
Rack Dimensions:
---------------------------------------------------------------------------------------------
Rated Power:
---------------------------------------------------------------------------------------------
Call Sign:
---------------------------------------------------------------------------------------------
TX Frequency:
---------------------------------------------------------------------------------------------
RX Frequency:
---------------------------------------------------------------------------------------------
Elec. Service Amps/volts*
---------------------------------------------------------------------------------------------
Number of Outlets:
---------------------------------------------------------------------------------------------
Power Outlets:
---------------------------------------------------------------------------------------------
ERP:
---------------------------------------------------------------------------------------------
Dimensions (W" x D" x H")
---------------------------------------------------------------------------------------------
Combiner/# of Parts:
---------------------------------------------------------------------------------------------
Cabinet also contains:
---------------------------------------------------------------------------------------------
Ground Space Dimension (If app)
---------------------------------------------------------------------------------------------
21
Other Provisions:
----------------
All licenses for tower sites located in the state of Florida shall include
the following provisions in this section: "Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and
radon testing may be obtained from your county public health unit."
Additional provisions may be inserted here on a site-specific basis.
Agreed to and Accepted by Agreed to and Accepted by:
LICENSEE: LICENSOR:
AGW Leasing Company, Inc. American Tower, L.P.
By: ATC GP Inc., its sole general partner
By: (SEAL) By: (SEAL)
---------------------------- ------------------------------
Name:__________________________ Name:__________________________
Title:_________________________ Title:_________________________
Date:__________________________ Date:__________________________
This Schedule does not constitute Licensed Space until completed and executed by
both parties in accordance with Section 3.1
22
FIRST AMENDMENT TO SCHEDULE 2
-----------------------------
TOWER SPACE LICENSE
-------------------
THIS FIRST AMENDMENT TO SCHEDULE 2, TOWER SPACE LICENSE (the "Amendment")
is made and entered into as of the 20th day of July, 2000, by and between
AMERICAN TOWER, LP. ("Licensor") and AGW LEASING COMPANY, INC., ("Licensee").
WITNESSETH:
-----------
WHEREAS, Licensor and Licensee entered into that certain Master Tower Space
Reservation and License Agreement dated February 19, 1999, ("Master Lease") for
the reservation and/or licensing of space by Licensee on tower owned or operated
by Licensor ("Master Lease"); and
WHEREAS, Licensor and Licensee entered into that certain Tower Space
License, Schedule 2 to the Master Lease, dated June 26, 2000, for the tower site
located at 000 Xxxxx Xxxxx Xxxx, Xxxxxx, Xxxxx Xxxxxxxx ("License Agreement");
and
WHEREAS, Licensor and Licensee wish to modify the License Agreement as set
forth hereinafter.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and the sum of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The "Antenna Mount Height" as described under section entitled Antenna
Equipment" on page 2 of the License Agreement is hereby amended to read 265
feet.
2. All terms used herein shall have the same meaning as when used in the
License Agreement unless specifically revised, altered or amended herein.
3. Except as specifically revised or amended hereby, all of the terms,
conditions, covenants and agreements in the License Agreement and the Master
Agreement shall remain in full force and effect, shall be binding upon Licensor
and Licensee, their heirs, successors and assigns and are hereby ratified and
affirmed.
SIGNATURES BEGIN ON FOLLOWING PAGE
23
IN WITNESS WHEREOF, Licensor and Licensee have set their hand and
affixed their respective seals as of the day and year first above written.
LICENSOR:
Signed, sealed and delivered in AMERICAN TOWER, LP.,
in the presence of: by: ATC GP, Inc., its sole general partner
_____________________________
Unofficial Witness
By:______________________________
_____________________________ Name: Xxxxxxx X. Xxxxxxx
Notary Public Title: Vice President/Area Gen. Manager
Date: 1st August 2000
[NOTARY SEAL]
[CORPORATE SEAL]
LICENSEE:
Signed, sealed and delivered in AGW LEASING COMPANY, INC.
in the presence of: a Delaware corporation
_____________________________
Unofficial Witness
By:_____________________________
_____________________________ Name: Xxxxxxx Xxxxxxx
Notary Public Title: V.P. Law & Secretary
Date: 7/22/00
[NOTARY SEAL]
[CORPORATE SEAL]
24
