1
EXHIBIT 10.24
MASTER TOWER ATTACHMENT LEASE AGREEMENT
THIS MASTER TOWER ATTACHMENT LEASE AGREEMENT ("Master Lease") is executed
this _______ day of August, 1998, by and between SpectraSite Communications,
Inc., ("SpectraSite"), and Airadigm Communications, Inc. ("Airadigm").
WHEREAS, SpectraSite and Airadigm entered into that certain Asset
Purchase Agreement ("Purchase Agreement") dated the 14th day of August, 1998 in
which Airadigm conveyed to SpectraSite certain communications towers and related
facilities ("Tower Facilities");
WHEREAS, Airadigm also assigned to SpectraSite the entire right, title
and leasehold interest of Airadigm in and to the real property leased by
Airadigm upon which the Tower Facilities were constructed ("Prime Lease"); and
WHEREAS, as part of the Purchase Agreement SpectraSite agree to enter
into this Master Lease to define the terms by which Airadigm will continue to
have the right to use and occupy space on the Tower Facilities and on the ground
in the vicinity of the Tower Facilities.
NOW THEREFORE, for and in consideration of the terms and mutual promises
herein contained and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, SpectraSite and Airadigm agree as
follows:
1. PREMISES. SpectraSite hereby leases to and grants Airadigm the
right to maintain, operate and remove wireless communications equipment and
appurtenances on towers owned by SpectraSite which are located on certain
property owned or leased by SpectraSite and to install equipment on the ground
in the vicinity of the Tower Facilities. Each individual tower upon which
Airadigm has attached equipment and each Property upon which Airadigm has
constructed installed equipment and other improvements pursuant to this Master
Lease between SpectraSite and Airadigm shall each be considered and referred to
as a separate site for purposes of this Master Lease ("Site"). Each Site
conveyed by Airadigm to SpectraSite pursuant to this asset Purchase Agreement
executed contemporaneously with this Master Lease or otherwise occupied by
Airadigm pursuant to this Master Lease shall be identified by separate site
lease agreements ("SLAs") which shall be executed by Airadigm and SpectraSite
incorporated by reference into the terms of this Master Lease, a prototype of
which is attached hereto as Exhibit "A", each of which is a separate leasehold
on the terms and conditions set forth herein. Each SLA shall include a legal
description of the real property upon which the Tower is situated (the real
property described in the various SLAs as Property may hereinafter be
individually or collectively referred to as the "Property or Properties"), a
legal description of any easements for ingress, egress and utilities (the real
property described in the various SLAs as Easement may hereinafter be
individually or collectively referred to as the "Easement or Easements"), and
description of Airadigm's equipment which will be located on the Site
("Equipment"). SpectraSite hereby grants to Airadigm the right to install,
maintain and operate Airadigm's wireless communications equipment and
appurtenances on a tower owned by SpectraSite ("Tower"), and to install,
maintain, operate and remove Airadigm's equipment cabinet or compound and
related devices owned by Airadigm on a portion of the Property at a location to
be depicted on plans provided by Airadigm and approved by SpectraSite (the space
occupied by
1
2
Airadigm on the Property and the Tower hereinafter shall be referred to
collectively as the "Premises"). SpectraSite also grants Airadigm rights of
ingress, egress and utilities to the Premises twenty-four (24) hours per day,
seven (7) days per week during the Initial Term and any Renewal Term (as
hereinafter defined in paragraphs 3 and 4) of this Master Lease) over that real
property described in Exhibit "B" attached to the SLA.
2. USE. Airadigm may use the Premises for the receipt and transmission
of wireless communications signals. The use granted Airadigm by this Master
Lease shall be non-exclusive and limited in strict accordance with the terms of
this Master Lease. SpectraSite shall have the right to continue to occupy the
Property and to enter into lease, sublease, license and other agreements with
others for the Property and the Tower in the sole discretion of SpectraSite.
Each SLA shall also be subject to the terms and continued existence of the Prime
Lease for the Site. SpectraSite shall give Airadigm written notice of such
termination or expiration of the Prime Lease as provided herein or as soon as
practicable but no later than sixty (60) days prior to the date of an
anticipated termination or expiration.
SpectraSite shall give Airadigm advance written notice of any sublease,
license or other agreement granting a third party right to occupy space on a
tower which is the subject of this Master Lease which notice shall specify the
proposed location of the antennas or other equipment on the tower, the frequency
of operation of the equipment and copies of engineering plans depicted the
location and method of installation of the equipment.
SpectraSite shall give notice to Airadigm at the same time that
SpectraSite receives notice of any default under any Prime Lese, and SpectraSite
shall allow Airadigm to cure any non-monetary default on SpectraSite's behalf.
In such case, Airadigm shall be entitled to reimbursement from SpectraSite of
any amount paid or obligation incurred in respect thereof; provided, however,
that in the event that SpectraSite disputes such alleged default in good faith,
SpectraSite shall have no duty to reimburse Airadigm for any amount paid or
obligation incurred in respect of such alleged default unless Airadigm obtains
SpectraSite's consent to Airadigm's cure of any such default.
3. INITIAL TERM. The Initial Term of the Master Lease shall be a
period of seven (7) years from the date of this Master Lease. The Initial Term
of the SLA for each Site shall be for a period of seven (7) years commencing on
the Closing date as that term is defined by the Asset Purchase Agreement
executed between Airadigm and SpectraSite contemporaneously with the execution
of this Master Lease ("Commencement Date") and expiring on the seventh (7th)
anniversary of the Commencement Date ("Initial Term").
4. RENEWAL TERMS. This Master Lease and each SLA shall be deemed
extended for each of four (4) additional five (5) year terms (each a "Renewal
Term") unless Airadigm gives advance written notice to SpectraSite which notice
shall be tendered by Airadigm not less than six (6) months prior to the end of
the then existing term of this Master Lease. Each Renewal Term shall be on the
same terms and conditions as set forth in this Master Lease except that
consideration for this Master Lease shall increase as provided in paragraph
5(b).
5. CONSIDERATION.
(a) Initial Term. During the Initial Term, Airadigm shall pay monthly
to SpectraSite on the first day of each calendar month for the first twenty four
(24) months of this Master Lease as consideration for each SLA the sum of One
Thousand Five Hundred and No/100 Dollars ($1,500.00) ("Rent"). In the event that
the Commencement Date is other than the first day of the
2
3
calendar month, Rent shall be prorated for that month for the number of days
remaining in that month. The Rent paid by Airadigm to SpectraSite shall be due
without set-off notice or demand. Any Rent or other sum not received by
SpectraSite within ten (10) days of the date when due shall be subject to a late
penalty of five percent (5%) of the amount which is overdue. Beginning on the
twenty-fifth month of the Initial Term Rent shall be increased to One Thousand
Eight Hundred and No/100 Dollars ($1,800.00) per month.
(b) Renewal Term. The Rent applicable to such Renewal Term shall be
paid monthly in advance beginning on the first day of the respective Renewal
Term in accordance with the following schedule:
First Renewal Term $2070.00 per month
Second Renewal Term $2380.50 per month
Third Renewal Term $2737.58 per month
Fourth Renewal Term $3148.21 per month
6. WARRANTY OF TITLE AND QUIET ENJOYMENT. SpectraSite warrants that
(i) SpectraSite leases the Property and operates the Tower; and (ii) SpectraSite
has full right to make and perform this Master Lease subject to the terms,
covenants and conditions of the Master Lease. This Master Lease shall be
subordinate and inferior to the Prime Lease and any mortgage, lien or other
encumbrance or agreement of record which currently or hereafter encumbers the
Property, the Easement or the Tower.
7. IMPROVEMENTS BY AIRADIGM.
(a) Plans, Structural Analysis and RF Analysis. Prior to the
commencement of any construction or installation by Airadigm of any original,
additional or replacement of any Equipment on the Premises, Airadigm shall
furnish, for review and approval by SpectraSite, which approval may be withheld
in SpectraSite's reasonable discretion, plans and specifications which may be
required by SpectraSite for such construction or installation of the
improvements and Airadigm shall not commence the construction or installation on
the Premises until such time as Airadigm has received written approval of the
plans and specifications from SpectraSite. Airadigm shall be responsible for
paying in advance to SpectraSite the cost of any structural enhancements to be
made to the Tower to accommodate the Equipment. Upon completion of and payment
by Airadigm for the structural enhancement, such structural enhancements shall
become the property of SpectraSite, and upon request, Airadigm shall promptly
provide to SpectraSite any bills of sale or documentation evidencing Airadigm's
ownership of said enhancements. Airadigm shall use a construction firm
reasonably acceptable to SpectraSite for any construction activities to be
conducted by Airadigm on the Property and the Easement and the installation of
Airadigm's equipment on the Tower. Airadigm shall upon the written request of
SpectraSite conduct at Airadigm's sole cost and expense a structural analysis
and wind load analysis of the Tower which includes any existing loads and the
load of Airadigm's antennas, cabling and appurtenances. Upon the written request
of SpectraSite, Airadigm shall conduct at Airadigm's sole cost and expense a
radio frequency interference analysis ("RF Analysis") of the Equipment with all
other equipment which is on the Tower as of the Commencement Date. Airadigm
shall use the company of SpectraSite's choice for structural analysis, RF
Analysis and the design and construction of platforms, antenna systems, cable
runs and any other modification of any type to the Premises and Airadigm shall
be solely responsible for and shall indemnify Airadigm from all costs and
expenses associated with these materials and services. Airadigm shall be
responsible for securing all building permits from any and all applicable
governmental authorities prior to the
3
4
commencement of any construction or installation on the Premises by Airadigm.
Copies of the construction permit issued to Airadigm shall be provided to
SpectraSite.
(b) Equipment. A description of the Equipment owned or operated by
Airadigm which Airadigm may locate on the Premises will be attached to the SLA.
SpectraSite hereby grants Airadigm reasonable access to the Tower and the
Premises for the purpose of installing, upgrading, and maintaining the Equipment
and appurtenances. Airadigm shall be responsible for all work related to the
Equipment to be done on the Premises pursuant to this Master Lease. Airadigm
shall provide all materials and shall pay for all labor for the construction,
installation, operation, maintenance and repair of the Equipment. Airadigm shall
not construct or install any equipment or improvements on the Premises other
than which are described in Exhibit "C" of the SLA or alter the radio frequency
of operation of the Equipment (except for routine operational adjustments)
without first obtaining the prior consent of SpectraSite which consent may be
withheld by SpectraSite in SpectraSite's reasonable discretion which discretion
shall be reasonably withheld if no additional capacity exists on the Tower.
Airadigm shall pay SpectraSite fair market rental value as consideration for the
installation of any additional equipment. SpectraSite's determination of whether
additional capacity exists shall take into consideration the structural and
windloading capacity of the Tower, the potential for interference caused by the
operation of the additional Equipment with the equipment of other users or
occupants of the Tower and the size of the additional Equipment. The Equipment
shall remain Airadigm's exclusive personal property throughout the term and upon
termination of the SLA. Airadigm shall have the right to remove all Equipment at
Airadigm's sole expense on or before the expiration or earlier termination of
the Master Lease; provided, Airadigm repairs any damage to the Property or the
Tower caused by such removal. If Airadigm does not remove the Equipment on or
prior to the expiration or termination of this Master Lease, Airadigm shall
remove such Equipment within a reasonable period thereafter provided Airadigm
pays to SpectraSite 115% of the Rent in effect during such holdover period.
(c) Compliance with Governmental Rules. All work shall be performed by
Airadigm or Airadigm's employees, contractors or agents in a good and
workmanlike manner. SpectraSite shall be entitled to require compliance with the
plans and specifications approved by SpectraSite pursuant to paragraph 7(a),
including specifications for the grounding of Airadigm's equipment and antennas.
All construction, installations and operations in connection with this Master
Lease by Airadigm shall meet with all applicable Rules and Regulations of the
FCC, FAA and all applicable codes and regulations of the city, county, and state
concerned. SpectraSite assumes no responsibility for the licensing, operation
and maintenance of the Equipment. Airadigm has the responsibility of carrying
out the terms of Airadigm's FCC license with respect to tower light observation
and notification to the FAA if those requirements as imposed on Airadigm are in
excess of those required of SpectraSite. Subject to the terms hereof, Airadigm
covenants that the Equipment and the construction, installation, maintenance and
operation thereof shall not damage the Tower or improvements or interfere with
the use of the Tower by SpectraSite.
8. UTILITIES. All utility services installed on the Premises for the
use or benefit of Airadigm shall be made at the sole cost and expense of
Airadigm and shall be separately metered from SpectraSite's utilities. Airadigm
shall be solely responsible for the payment of utility charges including
connection charges and security deposits incurred by Airadigm.
9. TAXES. Except as provided immediately below, SpectraSite shall pay
all real property taxes SpectraSite is obligated to pay under the Master Lease.
Airadigm shall reimburse SpectraSite for any increases in real property taxes
which are assessed as a direct result of
4
5
Airadigm's improvements to the Premises. As a condition of Airadigm's obligation
to pay such tax increases, SpectraSite shall provide to Airadigm the
documentation from the taxing authority, reasonably acceptable to Airadigm,
indicating the increase is due to Airadigm's improvements.
10. INTERFERENCE. Airadigm shall install equipment of types and radio
frequencies which will not cause interference to communications operations being
conducted from the Property or the Tower by other occupants of the Property or
the Tower which are in place as of the Commencement Date. Airadigm also
covenants that the Equipment installed by Airadigm shall comply with all
applicable laws, ordinances and regulations including but not limited to those
regulations promulgated by the FCC. In the event the Equipment causes such
interference, Airadigm will take all steps necessary to correct and eliminate
the interference. If such interference cannot be eliminated within forty-eight
(48) hours after receipt by Airadigm of notice from SpectraSite describing the
existence of the interference, Airadigm shall temporarily disconnect the
electric power and shut down Equipment (except for intermittent operation for
the purpose of testing, after performing maintenance, repair, modification,
replacement, or other action taken for the purpose of correcting such
interference) until such interference is corrected. If such interference is not
corrected within fifteen (15) days after receipt by Airadigm of such prior
written notice from SpectraSite of the existence of interference, this Master
Lease shall then terminate without further obligation on either part except as
may be specifically enumerated herein and Airadigm agrees to then remove the
Equipment from the Premises. SpectraSite shall incorporate a provision similar
to this paragraph 10 in all future licenses or leases of space upon the Tower to
ensure that subsequent tenants do not cause interference with Airadigm's
communications operations.
11. MAINTENANCE AND REPAIRS.
(a) Airadigm shall perform all repairs necessary or appropriate to the
Equipment on or about the Premises or located on any appurtenant rights-of-way
or access to the Premises in good and tenantable condition, reasonable wear and
tear excepted. Damage to the Equipment resulting from the acts or omissions of
SpectraSite shall be repaired by SpectraSite at SpectraSite's cost and expense,
or at the option of Airadigm, SpectraSite shall reimburse Airadigm for the
actual costs incurred as evidenced by adequate documentation by Airadigm in
repairing such damage or replacing such Equipment.
(b) SpectraSite, at SpectraSite's sole cost and expense, shall
maintain, repair and replace the Tower, and any other portions of the Property
and improvements thereto to the extent required to be maintained by SpectraSite
pursuant to the Master Lease, in good order and repair, wear and tear excepted
so that the Tower will support Airadigm's use thereof under this Master Lease.
Damage to the Tower or the equipment or improvements of SpectraSite or others
located on the Property or the Tower, which results from the acts or omissions
of Airadigm shall be repaired by Airadigm at Airadigm's cost and expense, or at
the option of SpectraSite, Airadigm shall reimburse SpectraSite for the actual
costs incurred as evidenced by adequate documentation by SpectraSite in
repairing such damage or replacing such equipment or improvements.
12. TOWER MARKING AND LIGHTING REQUIREMENTS. SpectraSite shall be
responsible for compliance with any applicable marking and lighting requirements
of the FAA and the FCC provided that if the requirement for compliance results
from the presence of the Equipment on the Tower, Airadigm shall pay the costs
and expenses therefor (including any lighting automated alarm system so
required). SpectraSite shall indemnify and hold Airadigm harmless from any and
all losses, damages, fines, penalties or costs of any kind which may arise from
the improper design, maintenance or operation of the Tower or tower lighting
systems, or which may be
5
6
imposed by the FAA, FCC or any other federal, state or local agency arising from
the improper design, maintenance or operation of the Tower or tower lighting
systems unless such obligations arise solely as a result of the installation of
the Airadigm Equipment on the Tower. Should Airadigm be cited due to the
operation of Airadigm's Equipment or because the use of Premises by Airadigm are
not in compliance and, should Airadigm fail to cure the conditions of
noncompliance, SpectraSite may either terminate the Site Lease applicable to the
site which is not in compliance or, with prior notice from SpectraSite to
Airadigm and allowing Airadigm a reasonable opportunity to cure, proceed to cure
the conditions of noncompliance at Airadigm's expense. Amounts of all expenses
to cure such conditions of non-compliance, together with any such fine or
citation paid by Airadigm, may be deducted by Airadigm from the Rent.
13. MECHANICS' LIENS. Neither Airadigm nor SpectraSite shall permit any
mechanic's, materialmen's, contractors' or subcontractors' liens arising from
any construction work, repair, restoration or removal or any other claims or
demands against such party to be enforced against the Premises or any part
thereof. SpectraSite shall have the right at any time to post and maintain upon
the Premises such notices as may be necessary to protect SpectraSite against
liability for all such liens and encumbrances. Airadigm shall give SpectraSite
written notice prior to the commencement of any work or the delivery of any
materials connected with such work or construction, repair, restoration, or
removal of materials on the Premises (except routine maintenance). SpectraSite
shall assume no liability for the payment of materials or labor which accrue in
the installation of Airadigm's improvements upon the Premises and no mechanics'
or materialmen's liens for Airadigm's improvements shall attach to the interest
of SpectraSite in the Premises.
14. INDEMNIFICATION. Airadigm and SpectraSite shall each exonerate,
hold harmless, indemnify, and defend the other from any and all claims,
obligations, liabilities, costs, demands, damages, expenses, suits or causes of
action, including costs and reasonable attorneys' fees, which may arise out of
(i) any injury to or the death of any person; or (ii) any damage to property, if
such injury, death or damage arises out of or is attributable to or results from
the negligent or intentional acts or omissions of the indemnifying party or the
indemnifying party's principals, employees, agents or independent contractors
relating to or arising from out of the indemnifying party's use and operation of
the Premises. Airadigm's indemnity obligations under Section 14 shall be subject
to the following: (i) If any claim is asserted against SpectraSite that would
give rise to a claim by SpectraSite against Airadigm for indemnification under
the provisions of this Section, then SpectraSite shall promptly give written
notice to Airadigm concerning such claim and Airadigm shall, at no expense to
SpectraSite, defend the claim and (ii) Airadigm shall not be required to
indemnify SpectraSite as to any Site for an amount that exceeds $250,000 per
Site.
15. FINANCING AGREEMENTS. Airadigm may, upon written notice to
SpectraSite, mortgage or grant a security interest in and to the Equipment and
its interest in the SLA to any such mortgagees or holders of security interests
including their successors and assigns (hereinafter collectively referred to as
"Secured Parties").
16. DISCLAIMER OF WARRANTIES, INCIDENTAL AND CONSEQUENTIAL DAMAGES.
SPECTRASITE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE PREMISES OR THE TOWER.
AIRADIGM ACCEPTS THE PREMISES "AS IS". SPECTRASITE SHALL NOT BE RESPONSIBLE FOR
ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED RESULTING FROM (i) AIRADIGM'S
USE OR AIRADIGM'S INABILITY TO USE THE PREMISES; OR FROM (ii) DAMAGE TO
6
7
AIRADIGM'S EQUIPMENT WHICH IS CAUSED BY THE NEGLIGENCE OF SPECTRASITE.
17. ENVIRONMENTAL INDEMNIFICATION.
(a) Airadigm, its heirs, grantees, successors, and assigns, shall
indemnify, defend, reimburse and hold harmless SpectraSite from and against any
and all environmental damages caused by activities conducted on the Premises by
Airadigm, and (i) arising from the presence of any substance, chemical or waste
identified as hazardous, toxic or dangerous in any applicable federal, state or
local law or regulation including petroleum or hydrocarbon based fuels such as
diesel, propane or natural gas (collectively, "Hazardous Materials") upon, about
or beneath the Premises or migrating from the Premises, or (ii) arising in any
manner whatsoever out of Airadigm's use or operations which are a violation of
any environmental requirements pertaining to the Premises and any activities
thereon. Airadigm shall not nor shall Airadigm allow its employees, agents or
independent contractors to treat, store or dispose of any Hazardous Materials on
the Premises or the Property except in compliance with law.
(b) SpectraSite, its heirs, grantees, successors, and assigns, shall
indemnify, defend, reimburse and hold harmless Airadigm from and against any and
all environmental damages caused by activities conducted on the Premises by
SpectraSite, and (i) arising from the presence of any substance, chemical or
waste identified as hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation including petroleum or hydrocarbon based fuels
such as diesel, propane or natural gas (collectively, "Hazardous Materials")
upon, about or beneath the Premises or migrating from the Premises, or (ii)
arising in any manner whatsoever out of SpectraSite's use or operations which
are a violation of any environmental requirements pertaining to the Premises and
any activities thereon. SpectraSite shall not nor shall SpectraSite allow its
employees, agents or independent contractors to treat, store or dispose of any
Hazardous Materials on the Premises or the Property except in compliance with
law.
18. LIABILITY INSURANCE.
(a) Airadigm and SpectraSite shall each carry during the term of this
Master Lease, at each party's own cost and expense, respectively, the following
insurance: (i) "All Risk" property insurance which insures Airadigm's property
and the Tower respectively for eighty percent (80%) of such property's full
replacement cost; and (ii) comprehensive general liability insurance with a
commercial general liability endorsement having a minimum limit of liability of
$1,000,000, with a combined limit for bodily injury and/or property damage for
any one occurrence, and (iii) excess/umbrella coverage of $2,000,000.
(b) SpectraSite and Airadigm shall each name the other as an additional
insured under each party's own liability policy, respectively, and require each
party's own insurance company, respectively, to endeavor to give at least thirty
(30) days' written notice of termination or cancellation of the policy to the
additional insured. A certificate of such insurance, together with such
endorsement as to prior written notice of termination or cancellation, shall be
delivered to the additional insured within thirty (30) days from the execution
of this Master Lease and before the expiration of any term of such insurance
from an insurance company authorized to do business in the state in which the
Property is located.
19. SUBROGATION.
7
8
(a) In General. All insurance policies required under this Master Lease
shall contain a waiver of subrogation provision under the terms of which the
insurance carrier waives all of such carrier's rights to proceed against the
other party.
(b) Mutual Release. SpectraSite and Airadigm each release the other and
their respective representatives from any claims by them or any one claiming
through or under them by way of subrogation or otherwise for damage to the
Premises and to the fixtures, personal property, improvements and alterations in
or on the Premises that are caused by or result from risks insured against under
any insurance policy carried by them and required by this Master Lease; provided
that such releases shall be effective only if and to the extent that the same do
not diminish or adversely affect the coverage under such insurance policies.
20. CONDEMNATION. If the whole or any substantial part of the Premises
shall be taken by any public authority under the power of eminent domain so as
to interfere with Airadigm's use and occupancy thereof, then the SLA applicable
to that particular Site shall cease on the part so taken on the date of
possession by such authority of that part, and any unearned Rent paid in advance
of such date shall be refunded by SpectraSite to Airadigm within thirty (30)
days of such possession, and Airadigm shall have the right to terminate the
applicable SLA upon written notice to SpectraSite, which notice shall be
delivered by Airadigm within thirty (30) days following the date notice is
received by Airadigm of such taking or possession. If Airadigm chooses not to
terminate the SLA, the Rent shall be reduced or abated in proportion to the
actual reduction or abatement of Airadigm's use of the Premises.
21. DEFAULT BY AIRADIGM. The occurrence of any of the following
instances shall be considered to be a default or a breach of this Master Lease
by Airadigm:
(a) any failure of Airadigm to pay the Rent or any other charge for
which Airadigm has the responsibility of payment under this Master Lease within
thirty (30) days of the date when due;
(b) any failure of Airadigm to perform or observe any term, covenant,
provision or conditions of this Master Lease which failure is not corrected or
cured by Airadigm within thirty (30) days of receipt by Airadigm of written
notice from SpectraSite of the existence of such a default; except such thirty
(30) day cure period shall be extended as reasonably necessary to permit
Airadigm to complete a cure so long as Airadigm commences the cure within such
thirty (30) day cure period and thereafter continuously and diligently pursues
and completes such cure:
(c) Airadigm shall become bankrupt, insolvent or file a voluntary
petition in bankruptcy, have an involuntary petition in bankruptcy filed against
Airadigm which cannot be dismissed by Airadigm within sixty (60) days of the
date of the filing of the involuntary petition, file for reorganization or
arrange for the appointment of a receiver or trustee in bankruptcy or
reorganization of all or a substantial portion of Airadigm's assets, or Airadigm
makes an assignment for such purposes for the benefit of creditors;
(d) a lien by way of attachment is imposed upon this Master Lease or
Airadigm's interest herein or Airadigm's interest in the Premises; or
(e) the imposition of any lien on the Equipment except as may be
expressly authorized by this Master Lease, or an attempt by Airadigm or anyone
claiming through Airadigm to encumber SpectraSite's interest in the Tower or the
Property unless such lien is released or insured over within thirty (30) days of
notice to Airadigm of the existence of such lien.
8
9
22. REMEDIES. In the event of a default by Airadigm under the terms of
paragraph 21 of this Master Lease and after the Airadigm's failure to cure such
default within the time allowed the Airadigm to cure such default, then
SpectraSite may, in addition to all other rights or remedies SpectraSite may
have hereunder at law or in equity, terminate the SLA applicable to the Site on
which the default occurred by giving written notice to the Airadigm stating the
date upon which such termination shall be effective, accelerating and declaring
to be immediately due and payable all Rents which would have otherwise been due
SpectraSite absent a breach of the Master Lease by Airadigm for the balance of
the then existing term which rents shall be discounted to present value at the
rate of __ percent (__%). In addition, SpectraSite may upon obtaining an order
of a court of competent jurisdiction authorizing such action, terminate
electrical power to the Equipment, and remove the Equipment without being deemed
liable for trespass or conversion and store the same at Airadigm's sole cost and
expense. Airadigm and SpectraSite shall both use reasonable efforts to mitigate
the other's damages in the event of a default by the other party under this
Master Lease.
23. ENTIRE AGREEMENT. This Master Lease contains the entire agreement
between the parties hereto and supersedes all previous negotiations leading
thereto. This Master Lease may be modified only by an agreement in writing
executed by SpectraSite and Airadigm.
24. SUCCESSORS AND ASSIGNS. This Master Lease shall be binding upon and
inure to the benefit of the legal representatives, heirs, successors, and
assigns of SpectraSite and Airadigm.
25. SUBORDINATION. This Agreement and any option or right of first
refusal granted hereunder, at SpectraSite's option, shall be subordinate to any
ground lease, mortgage, deed of trust or other encumbrance now or hereafter
placed upon the Premises and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof. If any ground lessor, mortgagee, beneficiary or other
lienholder shall elect to have this Agreement and any such option or right of
first refusal prior to the lien of the ground lease, mortgage, deed of trust or
other encumbrance, and shall give written notice thereof to Airadigm, this lease
and such option or right of first refusal shall be deemed to be prior to such
ground lease, mortgage, deed of trust or other encumbrance, whether this
Agreement or such option or right of first refusal is dated prior or subsequent
to the date of such ground Agreement, mortgage, deed of trust or other
encumbrance or the date of the recording thereof. Airadigm agrees to execute any
documents required to effect an attornment or subordination or to make this
Agreement and such option or right of first refusal prior to the lien of any
ground Agreement, mortgage, deed of trust or other encumbrance. Airadigm's
failure to execute any such documents within ten (10) days after written demand
shall constitute a material default by Airadigm hereunder, or, at SpectraSite's
option, SpectraSite shall execute any such documents on behalf of Airadigm as
Airadigm's attorney-in-fact. Airadigm hereby makes, constitutes and irrevocably
appoints SpectraSite as Airadigm's attorney-in-fact to execute any such
documents in Airadigm's name, place and stead. SpectraSite shall use reasonable
efforts to obtain a non-disturbance and attornment agreement from the holder of
any such instrument which shall provide in pertinent part that said entity shall
agree to be bound by the terms of this Master Lease and Airadigm's use and
occupancy of the Premises shall not be disturbed unless Airadigm is then in
default under the terms, covenants and conditions of this Master Lease beyond
any applicable cure period.
26. ASSIGNMENTS AND SUBLEASES. Airadigm shall not voluntarily,
involuntarily or by operation of law assign, mortgage, sublet or otherwise
transfer or encumber all
9
10
or any part of Airadigm's interest in this Agreement, any SLA, or in the
Premises without SpectraSite's prior written consent which amount may be
withheld in the sole and absolute discretion of SpectraSite. Any attempted
assignment, mortgage, subletting or other transfer or encumbrance without the
consent of SpectraSite shall be void and shall, at SpectraSite's election,
constitute a breach of this Agreement without any need for notice thereof to
Airadigm. If Airadigm desires at any time to assign or otherwise transfer this
Agreement or to sublet the Premises or any portion thereof, it shall first
notify SpectraSite of its desire to do so and shall submit in writing to
SpectraSite (i) the name of the proposed sublessees or assignee; (ii) the, terms
and provisions of the proposed sublease or assignment; and (iii) such financial
and other information as SpectraSite may reasonably request concerning the
proposed sublessees or assignee. At any time within fifteen (15) days after
SpectraSite's receipt of the information specified, SpectraSite may by written
notice to Airadigm and SpectraSite's reasonable discretion (A) consent to the
subletting or assignment upon the terms and to the sublessees or assignee
proposed; (B) refuse to give its consent. Airadigm agrees that SpectraSite may
refuse to consent to any proposed assignment or subletting for any reason or
reasons deemed sufficient by SpectraSite without regard to any objective
standard of reasonableness and may consent to a proposed subletting or
assignment subject to such conditions as SpectraSite, in its sole discretion,
deems appropriate including, without limitation, the condition that the rent
under this Agreement be increased. If SpectraSite consents to such assignment or
subletting, Airadigm may, within ninety (90) days after the date of
SpectraSite's consent, enter into a valid assignment or sublease of the Premises
or portion thereof upon the terms and conditions described in the information
required above to be furnished by Airadigm to SpectraSite, or upon other terms
not more favorable to Airadigm; provided, however, that any material change in
such terms shall be subject to SpectraSite's consent. Notwithstanding the
foregoing, SpectraSite acknowledges and agrees that (i) Airadigm may grant a
conditional assignment of its interest in and to this Master Lease to Ericsson
Inc. as security for an existing financing relationship between Airadigm and
Ericsson Inc., (ii) Airadigm may sublease or assign this Master Lease to an
affiliate of Airadigm, and (iii) may assign this Master Lease to a purchaser of
substantially all of the assets of Airadigm provided that in each instance the
assignee or sublessee shall execute an instrument in a form which is reasonably
acceptable to SpectraSite in which the assignee ratifies and agrees to be bound
by the terms of this Master Lease and any other applicable agreement between the
parties. In no event shall any such assignment or sublease release Airadigm from
any liability under this Master Lease.
27. NOTICES. All notices or demands by or from SpectraSite to Airadigm,
or Airadigm to SpectraSite, shall be in writing. Such notices or demands shall
be mailed to the other party at the following address:
SpectraSite: SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxx Xxxxx
With a copy to: Xxxxxxxx & Xxxxxxx, PLC
Plaza West Building
000 Xxxxx XxXxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention.: Xxxx X. Xxxxxxxx
Airadigm: Airadigm Communications, Inc.
10
11
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Vice President Finance
With a copy to: Airadigm Communications, Inc.
0000 Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Central Administration
28. SALE OF TOWER FACILITIES BY SPECTRASITE. SpectraSite may sell,
transfer or assign its interest in this Agreement or all or part of the Tower
Facilities governed by this Agreement upon notice to Airadigm provided that such
sale, transfer or assignment shall be subject to the terms, covenants and
conditions of this Agreement.
IN WITNESS WHEREOF, the SpectraSite and Airadigm have executed this Tower
Attachment Master Lease Agreement as of the date and year first above written.
SPECTRASITE:
SPECTRASITE COMMUNICATIONS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
(CORPORATE SEAL)
AIRADIGM:
AIRADIGM COMMUNICATIONS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
(CORPORATE SEAL)
11
12
EXHIBIT "A"
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("SLA") is executed this _____ day of
____________, 1998, by and between SPECTRASITE COMMUNICATIONS, INC.
("SpectraSite") and AIRADIGM COMMUNICATIONS, INC. ("Airadigm").
WHEREAS, on the ____ day of ________________, 19__, SpectraSite and
Airadigm entered into that certain Master Tower Attachment Master Lease
Agreement ("Master Lease") which provides for the execution of individual SLAs
for each Site, as that term is defined in the Master Lease, owned by SpectraSite
upon which Airadigm desires to mount certain antenna, structures and other
equipment.
1. SITE. Subject to the terms of the Master Lease, SpectraSite hereby
leases unto grants to Carrier a License to install, maintain, operate, upgrade
and remove Carrier's wireless communications equipment and appurtenances on a
tower owned by SpectraSite ("Tower"), including antennas between the heights of
_________________________________ above ground level on the Tower, which is
located on certain real property leased by SpectraSite more particularly
described in Exhibit "A" attached hereto ("Property"); and to install, maintain,
operate and remove Carrier's equipment cabinet or compound and related devices
owned by Carrier on a _________________________portion of the Property at a
location to be agreed upon in writing between SpectraSite and Carrier (the space
occupied by Carrier on the Property and the Tower hereinafter shall be referred
to collectively as the "Premises"). Subject to the terms of the Master Lease
SpectraSite has leased to Airadigm the use of a tower or other structure owned
by SpectraSite and space on certain real property in the vicinity of the Tower
which real property is described in Exhibit "A" attached hereto ("Property").
SpectraSite has granted unto Airadigm for the Initial Term and any Renewal Term
an easement for ingress, egress and utilities during the term of the Master
Lease over the property described in Exhibit "B" attached hereto ("Easement").
(The Tower, Property and easement shall constitute and hereinafter be referred
to and known as the "Site"). The Site is more commonly known to SpectraSite as
the ____________ Site.
2. EQUIPMENT. A description of the equipment, antennae, mounting
height of the antenna and other personal property of Airadigm which Airadigm
intends to locate on the Site ("Equipment") is described in Exhibit "C" attached
hereto.
3. PRIME LEASE. A copy of the Prime Lease for this Site is attached
hereto as Exhibit "D" and is incorporated by reference herein. This SLA shall be
subject to the terms, covenants and conditions of the Prime Lease.
4 . EFFECT OF AGREEMENT. SpectraSite and Airadigm acknowledge that the
Master Lease is the controlling agreement between the parties with regard to
Airadigm's lease of the Site. This SLA is intended to supplement the Master
Lease and fulfill the requirements of paragraph 1 of the Master Lease.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
LESSOR:
12
13
SPECTRASITE COMMUNICATIONS, INC.
By:
---------------------------
Title:
-----------------------
LESSEE:
AIRADIGM COMMUNICATIONS, INC.
By:
---------------------------
Title:
-----------------------
13
14
ACKNOWLEDGMENTS
14
15
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
15
16
EXHIBIT "B"
LEGAL DESCRIPTION OF EASEMENTS
16
17
EXHIBIT "C"
EQUIPMENT LIST
17
18
EXHIBIT "D"
PRIME LEASE
18
