LICENSE AGREEMENT
THIS LICENSE AGREEMENT, made the 31st day of December, 1998 (this "License
Agreement"), between XXXX ATLANTIC NETWORK SERVICES, INC., a Delaware
corporation for and on behalf of
XXXX ATLANTIC - DELAWARE, INC., a Delaware corporation,
XXXX ATLANTIC - MARYLAND, INC., a Maryland corporation,
XXXX ATLANTIC - NEW JERSEY, INC., a New Jersey corporation,
XXXX ATLANTIC - PENNSYLVANIA, INC., a Pennsylvania corporation,
XXXX ATLANTIC - VIRGINIA, INC., a Virginia corporation,
XXXX ATLANTIC - WASHINGTON, D.C., INC., a New York corporation, and
XXXX ATLANTIC - WEST VIRGINIA, INC., a West Virginia corporation, shall each be
referred to from time to time as an "OTC" or "Licensor" and collectively as the
"OTCs" or "Licensors"
and AQUIS COMMUNICATIONS, INC., a Delaware corporation formerly known as BAP
Acquisition Corp., referred to from time to time as the "Licensee".
NOW THEREFORE, for good and valuable consideration and intending to be
legally bound, the parties hereto covenant and agree as follows:
1. Premises:
(a) Licensors are the respective owners or lessees of the real
properties described in Exhibit A annexed hereto (the "Properties").
Subject to the restrictions contained in the various leases of
Properties to Licensors, where applicable (the "Master Leases"),
Licensors agree to license to Licensee certain space in or on the
buildings, roof tops, towers and lands of the Properties depicted in
Exhibit B annexed hereto (the "Premises") for the purposes of
installing, operating, maintaining, repairing, and replacing the
communications equipment described in Exhibit C annexed hereto
("Equipment"). Licensee's rights to occupy space on Properties
leased by Licensors under the Master Leases are subject to the
rights of the respective lessors thereunder and the terms of the
respective Master Leases.
(b) For those locations for which Licensors have authority to grant such
rights and subject to Licensors' access requirements as set forth
hereinafter, Licensors also grant to Licensee a non-exclusive
license over so much of the Properties as is reasonably necessary
for:
i. access to the Premises by vehicle and foot, and
License Agreement
ii. the installation, maintenance, and repair and replacement of
requisite wires, cables, conduits and pipes for the
installation, operation and maintenance.
2. Use:
(a) The Premises shall be used by the Licensee for the installation,
maintenance, operation, repair and replacement of the Equipment
which shall be used to provide communications services licensed by
the Federal Communications Commission ("FCC").
(b) Licensee will provide Licensor a statement containing the
manufacture and model of any new or replacement Equipment.
(c) Licensee will provided Licensor with a copy of any amendments to the
FCC licenses which authorize the operation of the Equipment.
3. Term and Commencement Date:
(a) The Initial Term of this License Agreement shall be five years
("Initial Term"), commencing the date of this Agreement
("Commencement Date").
(b) Except as set forth in subsection (c) hereinafter, this License
Agreement shall automatically be renewed for each Premises without
need of further documentation for one (1) additional five-year term
("Renewal Term") unless Licensee provides notice of its intention
not to renew at least 90 days prior to the expiration of the Initial
Term. Licensee may provide such notice for one or more Premises.
(c) Pursuant to Section 6.11 of that certain Asset Purchase Agreement
dated as of July 2, 1998 among the OTCs, Xxxx Atlantic Paging, Inc.
and Licensee (the "Purchase Agreement"), Licensee has agreed to
remove Equipment from certain of the Premises in accordance with
certain agreements and schedules referred to in such Section.
Licensor's obligations hereunder to lease or sublease such Premises
shall expire on the earlier of the date Licensee has removed such
Equipment from such Premises or the date by which Licensee is
obligated under Section 6.11 of the Purchase Agreement to have
removed such Equipment from such Premises; provided, however, that
with respect to Transmitters (as defined in the Purchase Agreement)
and Equipment associated therewith, Licensor shall identify and make
available for lease to Licensee under the terms of this License
Agreement as a site for such Equipment other premises in non-secure
locations of the same Property.
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License Agreement
4. License Fee:
(a) During the Initial Term and the Renewal Term, if any, the monthly
license fee for each of the Premises shall be $375.00 per month,
subject to increase pursuant to Section 4(b) below (the "Monthly
License Fee"); provided that there shall be no charge for the first
month.
(b) The Monthly License Fees shall increase by three percent (3%)
(cumulatively) on each one-year anniversary of the Commencement
Date.
(c) The Monthly License Fees for all of the Premises shall be paid to
Licensors at the following address:
Xxxx Atlantic - Maryland, Inc.
0 X. Xxxxx Xxxxxx, 0X
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Assistant Manager - Real Estate
(d) The first month's Monthly License Fees (prorated to the extent
necessary to give Licensee the benefit of one full month's free
rent) shall be paid on the first day of the calendar month following
the Commencement Date, and thereafter the Monthly License Fees shall
be paid in advance on the first day of each month.
5. Real Estate Taxes, Taxes and Operating Expenses:
(a) Licensee shall not pay any real estate taxes on the Properties or
buildings thereon.
(b) Licensor shall provide electrical service to the Premises for use by
Licensee. Licensee shall pay Licensor for its electrical utilities
usage to the extent such usage exceeds $10 per month at each of the
Premises.
(c) Any tax, assessment, levy, charge, fee or license imposed or
required by reason of or in connection with property ownership or
lease by Licensor, with regard to the Premises, shall be paid in
full by the Licensor. Any tax, assessment, levy, charge, fee, or
license required by reason of the use of the Premises by Licensee
shall be paid in full by Licensee.
6. Permits and Approvals:
Upon request, Licensors agree to cooperate with Licensee in obtaining, at
Licensee's sole expense, any licenses, permits and other approvals
required by any federal, state or local
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authority to be held by Licensee for Licensee's use of the Premises and/or
the Equipment (the "Approvals"). Licensee agrees that it shall maintain
all licenses, permits and other approvals required by any federal, state
or local authority to be maintained by Licensee for Licensee's use of the
Premises and/or the Equipment.
7. Indemnification:
(a) Licensee shall indemnify Licensors, their affiliates and its and
their directors, officers and employees against, and protect, save
and hold them harmless from, and assume liability for, any and all
claims, suits, penalties, actions, judgments, settlements,
obligations, liabilities and other damages (and all reasonable costs
and expenses incidental thereto, including reasonable attorney's
fees) (i) arising by reason of any injury or death to any person or
persons (including employees or agents of Licensee), or damage to
property of Licensors or other person or persons, where such
injuries, losses or damage have been caused by, or arising out of,
any act or omission of Licensee, its agents, or employees at or
around the Premises or (ii) arising from third party claims of
liability or loss resulting from service outages, failures,
malfunctions or damage to Licensee's equipment located on the
Property (collectively, "Losses").
(b) No indemnity in favor of Licensors under this Agreement against
Losses shall apply to any such injury or damage caused by or
resulting primarily from the negligence of Licensors, their agents
or employees.
8. Limitation on Licensors' Liability:
Notwithstanding anything to the contrary contained in this License
Agreement, Licensee agrees that Licensors shall have no liability or
responsibility to Licensee under this License Agreement due to an
interruption or suspension of utility services or other services at the
Premises or to Licensee's Equipment, if access is denied due to labor
dispute or any other reason, or for any malfunction or non-functioning of
Licensee's Equipment for any cause, except that in the event electric
service to Licensee's Equipment is interrupted for more than 24
consecutive hours due to the negligence of Licensors, Licensors' agents,
contractors or employees, then Licensee shall be entitled to damages equal
to one day's license payment for each additional 24 consecutive hour
period that such interruption continues, which damages may, at either
party's option, be paid in the form of a credit against the next accruing
monthly license payment hereunder. The maximum liability, if any, of
Licensors for any damages arising out of or in connection with this
License Agreement, including without limitation contract damages and
damages for injuries to persons or property and regardless of whether a
claim is based on contract, tort, strict liability or otherwise, shall be
limited to an amount not to exceed the aggregate amount of
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Monthly Rental Fees received by Licensors hereunder. In no event shall
Licensors be liable for any special, indirect, incidental or consequential
damages, including without limitation lost revenues or profits, even if
they have been advised of the possibility of such damages. Licensors shall
not be liable hereunder for any delay or failure in performance caused by
acts beyond Licensors' reasonable control, including without limitation,
acts of God, war, vandalism, sabotage, accidents, fires, floods, strikes
or labor disputes (including without limitation strikes by or labor
disputes with Licensors' unionized labor force), interruption of utility
services, or acts of any unit of government or governmental agency.
9. Compliance with Law:
(a) Licensee shall, at Licensee's sole cost and expense, comply with all
of the requirements of the county, municipal, state, federal, and
other applicable governmental, authorities, now in force, or which
may hereinafter be in force and shall defend, indemnify, and save
harmless Licensor from any claims or suits arising by reason of
Licensee's failure to comply with such requirements.
(b) Licensor shall, at Licensor's sole cost and expense, comply with all
of the requirements of the county, municipal, state, federal, and
other applicable governmental, authorities, now in force, or which
may hereinafter be in force and shall defend, indemnify, and save
harmless Licensee from any claims or suits arising by reason of
Licensor's failure to comply with such requirements.
(c) The failure of either party to enforce any terms or conditions of
this License Agreement shall not constitute a waiver of the same or
other terms and conditions or otherwise prevent or preclude such
party from exercising the rights or remedies hereunder, at law or in
equity.
(d) This License Agreement shall be deemed to have been executed in the
Licensors' respective States, and the parties hereto agree that the
terms and performances hereof shall be governed by and construed in
accordance with the laws of the Licensors' respective States, so
that the law of the State in which a Property is located shall apply
to that Property.
10. Interference:
(a) Licensee agrees that the Equipment shall not cause interference with
the use or enjoyment of the property of Licensors, other licensees
located at the Premises or neighboring landowners, including, but
not limited to interference with radio communications facilities. In
the event that Licensee's equipment causes such
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interference to such use or enjoyment, Licensee agrees immediately
to cease operations until such interference is removed by Licensee,
at its sole expense.
(b) Licensors shall not knowingly allow any other licensee of the
Property to cause interference with the Licensee use of the
Premises. In the event of such interference, Licensors will take
reasonable action to ensure that the party causing the interference
takes appropriate action to correct and eliminate the interference.
11. Improvements:
(a) All Equipment mounted on a roof or tower must be attached securely
with approved mounts, hangers, and clamps as approved by the
Licensor. All cables and wires entering or exiting equipment and/or
buildings must do so in a manner approved by the Licensor. Failure
to correct any non-compliance with the terms and conditions of this
Paragraph within three (3) days after notice thereof is given to
Licensee shall be cause for immediate termination of this License
Agreement by Licensor at its sole discretion. Additionally no
materials may be used in the installation, maintenance or upgrade of
the antennas, cables, and wires that will cause corrosion, rust, or
deterioration of the building, roof, tower or appurtenances thereof.
(b) Each antenna must be identified by a metal tag fastened securely to
its mounting bracket. Licensee shall have thirty (30) days from the
date of this License Agreement to comply with this requirement.
(c) Installation and maintenance of the Licensee's Equipment shall be
done at the Licensee's sole expense, using contractors having the
applicable Licensor's prior approval, shall be in accordance with
the standards and requirements of the Licensor, and shall be done
under the Licensor's supervision and shall be subject to Licensor's
final written approval, which shall not be unreasonably withheld.
The supervision, approval and other activities of Licensor under
this Paragraph, however, shall not constitute the waiver of any term
or condition of this License Agreement. Scheduling of and all work
shall be coordinated with the Licensor. Any future maintenance
involving antennas and transmission lines must be coordinated with
Licensor within a reasonable time of not less than twenty-four (24)
hours prior to work being done, except in case of emergency. Failure
to comply with the terms and conditions of this Paragraph shall be
cause for immediate termination of this License Agreement by
Licensor at its sole discretion.
(d) It is understood and agreed by and between the parties hereto that
the Equipment shall, unless otherwise agreed in writing, remain the
personal property of Licensee
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License Agreement
and Licensee shall have the privilege and right to remove the same
at any time during the term of this License Agreement, by
contractors approved by Licensors (which approval shall not be
unreasonably withheld) and in accordance with the terms of Section
6.11 of the Purchase Agreement and that certain Maintenance
Agreement dated the date hereof between Licensee and Xxxx Atlantic
Network Services, Inc., on behalf of Licensors (the "Maintenance
Agreement").
(e) Licensee agrees not to damage the Premises or any personal property
or fixtures thereon in any way. The liability for any such damage,
if committed, shall be the liability of Licensee in accordance with
the Indemnification Paragraph 7.
(f) It is agreed that any fixtures, structures, signs, or other
improvements placed upon the Premises by Licensee other than the
Equipment, may only be so placed with the express written approval
of Licensor.
12. Maintenance:
Licensee agrees to keep and maintain the Equipment at all times and at its
expense, in a good state of repair and maintenance and in compliance with
all laws, rules and regulations of any and all governmental authorities by
Licensee, and Licensee shall defend, indemnify and save Licensor harmless
from any claims or suits arising by reason of Licensee's failure to so
keep and maintain the Equipment or to comply with such laws, rules or
regulations. Licensee agrees that Licensee's Equipment will comply with
American Standard Nation Safety Levels with Respect to Human Exposure to
Radiofrequency Electromagnetic Fields, 300KHz to 100GHz (ANSI/IEEE
C95.1-1992). Licensors assume no responsibility for maintaining the
Equipment except as explicitly stated in the Maintenance Agreement.
13. Restoration:
Licensee shall remove the Equipment, as well as its fixtures, structures,
signs or other improvements, if any, placed upon the Premises, upon the
expiration of the term of this License Agreement or the termination
hereof, whichever first occurs, unless the parties otherwise expressly
agree in writing. In performing such removal, Licensee shall restore the
Premises and any personal property and fixtures thereon to as good a
condition as they were prior to the installation or placement of such
Equipment, fixtures, signs or other improvements, reasonable wear and tear
excepted, as determined in the reasonable opinion of Licensor. If Licensee
fails to remove such Equipment, fixtures, signs or other equipment upon
expiration of this License Agreement, Licensor may, after reasonable
notice of not longer than thirty (30) days, remove and dispose of such
equipment, fixtures, signs or other improvements and Licensee shall
reimburse Licensor for the costs of such
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removal and disposal. Licensee must use contractors approved by Licensors
to remove the Equipment.
14. Insurance:
Licensee shall at its own expense during the term of this License
Agreement maintain throughout the term of this License, as the same may be
extended:
(a) commercial general liability insurance with $1 million combined
single limit for bodily injury and/or property damage, together with
an endorsement for contractual liability and broad form property and
personal injury endorsements; and
(b) all-risk property insurance for full replacement value of Licensee's
Equipment, with a waiver of subrogation on behalf of Licensee; and
(c) statutory worker's compensation insurance; and
(d) employers liability insurance in the amount of $1 million; and
(e) automobile liability insurance with $1 million combined single limit
coverage; and
(f) umbrella/excess liability insurance with $5 million of coverage
which applies to the policy set forth in (a) above.
Such policies shall be in a form and with such insurance companies as
shall be reasonably satisfactory to Licensors and will contain a provision
for ten (10) days' prior notice to the Licensors of any cancellation. Such
insurance policies as set forth in (a), (d) and (f) shall name Licensors
as an additional insured. An approved certificate of eachsuch insurance
policy shall be furnished to Licensors.
15. Access:
Licensee will provide to Licensors on or before the effective date of this
License Agreement, a list of all personnel authorized by Licensee to have
access to its Equipment, and will update such list as soon as reasonably
practicable, upon a change in such personnel; provided, however, that any
personnel not on such list may not enter upon the Premises. In the
alternative to maintaining such a list, however, Licensee may supply its
employees with photographic identification which is acceptable to
Licensors that clearly and prominently identifies its employees as
employees of Licensee, and, except as set forth hereinafter, Licensor
agrees to allow Licensee's employees access to the Premises upon
presentation of such identification. Notwithstanding anything to the
contrary herein,
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unless accompanied by an employee of a Licensor, Licensee shall not have
access to those Premises at which the Licensee's equipment is maintained
by Licensors or which is located in the Xxxx Atlantic Tower.
16. Termination:
(a) Licensor may terminate this License Agreement upon written notice to
Licensee of a breach or default hereunder and, except where
immediate termination or termination after another specified notice
and cure period is provided for under this License Agreement, by
affording Licensee a reasonable opportunity, not to exceed thirty
(30) days from the date of Licensee's receipt of such notice (unless
expressly extended in writing by the Licensor), to correct the
breach or default.
(b) Licensee may terminate this License Agreement with respect to
certain Premises, without further liability hereunder with respect
to such Premises, upon providing not less than ninety (90) days
prior notice to Licensor:
(i) if Licensee is unable to obtain or maintain any necessary
approval to operate and maintain the Equipment at such
Premises; or
(ii) if, due to changed circumstances, Licensee determines that the
Premises is no longer suitable for its intended purpose; or
(iii) if Licensee determines that any of the Equipment at such
Premises cannot be used without interference from, or to,
other nearby property.
(c) Licensee or Licensors may terminate this License Agreement with
respect to certain Premises, without further liability hereunder
with respect to such Premises, upon providing notice if such
Premises or the Equipment thereon is destroyed or damaged and
rendered unsuitable for normal use (unless such damage or
destruction resulted from acts of Licensor and the Equipment is
again rendered suitable for normal use as promptly as reasonably
practicable) or if the Property is taken pursuant to a condemnation
action. In such event, all rights and obligations of the parties
shall cease with respect to such Premises as of the date of the
damage or destruction or taking. The foregoing notwithstanding, if
such destruction or damage of the Premises results from acts of
Licensor and if reconstruction of the Premises would cost less than
sixty (60) times the Monthly License Fee for such Premises, Licensee
shall be entitled to require Licensor not to terminate this License
Agreement and to reconstruct the Premises.
(d) [Reserved]
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License Agreement
(e) For those Properties that are not owned by a Licensor, the license
granted hereunder will terminate contemporaneously with the
termination of the applicable Licensor's right of occupancy.
(f) Licensors may terminate this License Agreement upon the occurrence
and during the continuance of an Event of Default under the
Promissory Note (as defined in the Purchase Agreement).
17. Sale or Mortgage of Property:
Should Licensors, at any time after the execution date of the License
Agreement, decide to sell, mortgage or encumber all or any part of a
Property, such transaction and its documentation shall be subject to this
License Agreement and Licensee's rights hereunder.
18. Assignment:
This License Agreement may be sold, assigned or transferred by Licensee to
Licensee's owner, affiliates controlled by Licensee's owner or
subsidiaries controlled by Licensee's owner, whose net worth equals or
exceeds that of the Licensee, with the prior written approval of Licensor,
which shall not be unreasonably withheld. No other sale, assignment or
transfer is permitted without the prior written consent of Licensor.
19. Notice:
Any and all notices or other written communications required or permitted
hereunder shall be in writing and mailed postpaid via United States
Registered Mail or Certified Mail, or by overnight courier as follows:
Licensors:
Manager - Real Estate Leasing
Xxxx Atlantic Network Services, Inc.
0000 X. Xxxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Licensee:
Aquis Communications, Inc.
0000X Xxxxx 00, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
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with copies to:
Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
and, if such notice is a notice of default, to
FINOVA Capital Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Vice President, Law
Telecopy No: (000) 000-0000
20. No Third Party Rights:
This License Agreement shall not create for, nor give to, any third party
any claim or right of action against either party to this License
Agreement that would not arise in the absence of this License Agreement.
21. Quiet Enjoyment and Eminent Domain:
(a) Provided Licensee has made all payments required hereunder and is
otherwise in compliance with the terms of this license, Licensee
shall have quiet enjoyment of the Premises, from Licensors or anyone
claiming through Licensors. Licensors make no warranty of quiet
enjoyment from its landlords on behalf of Licensee.
(b) If the property or any part thereof is taken by eminent domain, this
Agreement shall expire with respect to that property only on the
date when the leased property shall so be taken and the rental shall
be apportioned as of that date. Licensee shall have the right to
make a separate claim with the condemning authority for the value of
the Licensee's property and for moving and relocation expenses;
provided, however, that such separate claim shall not reduce or
adversely affect the amount of Licensors' award.
22. Entire Agreement:
This License Agreement, including the Exhibits annexed hereto which form a
part hereof, contains the entire understanding of the parties hereto with
respect to the subject matter contained herein and supersedes all prior
understandings or agreements with respect to
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such subject matter. This License Agreement may not be amended or modified
except by a writing duly executed by both of the parties hereto. Any term
or provision of this License Agreement may not be waived without the
written consent of the party hereto entitled to the benefit thereof by a
writing duly executed by such party. Any failure by either party hereto to
exercise its rights hereunder is not a waiver or such rights.
23. Time is of the Essence:
Time is of the essence in all terms of this License Agreement, except as
may be otherwise expressly provided herein.
24. Miscellaneous:
(a) Any and all rights and remedies hereunder are cumulative and are in
addition to such other rights and remedies as may be available at
law or in equity.
(b) This License Agreement grants a license only, revocable or
terminable under the terms and conditions herein, and does not grant
any lease, easement or other interest in real estate.
(c) This License Agreement may be executed and delivered originally or
by facsimile and in two counterparts, each of which shall constitute
an original, but both of which taken together shall constitute one
and the same instrument.
(d) Headings used in this License Agreement are provided for convenience
only and shall not be used to construe meaning or intent.
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IN WITNESS WHEREOF, the parties hereto, consenting to be legally bound,
have placed their hands and seals below as of the date set forth hereinabove.
LICENSEE:
WITNESS: AQUIS COMMUNICATIONS, INC.
______________________ By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
LICENSORS:
XXXX ATLANTIC NETWORK SERVICES, INC.
For and on behalf of:
Xxxx Atlantic - Delaware, Inc.
Xxxx Atlantic - Maryland, Inc.
Xxxx Atlantic - New Jersey, Inc.
Xxxx Atlantic - Pennsylvania, Inc.
Xxxx Atlantic - Virginia, Inc.
Xxxx Atlantic - Washington, D.C., Inc.
Xxxx Atlantic - West Virginia, Inc.
WITNESS:
______________________ By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Operating Officer
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EXHIBITS A AND B
DESCRIPTION OF PROPERTIES
DESCRIPTION OF DEMISED PREMISES
See Attachment
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EXHIBIT C
DESCRIPTION OF EQUIPMENT
See Schedule 3.1.3(a) to the Asset Purchase Agreement, which lists
which Equipment is located on the respective Premises.
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