1
Exhibit 10.9
ANTENNA SITE LICENSE AGREEMENT
This License Agreement (the "Agreement") is made as of this 12th day of August,
1997, between Xxxxxx Runstad & Company , a Washington corporation, with its
principal office at 0000 Xxxxx Xxxxxx, Xxxxx #0000, Xxxxxxx, Xxxxxxxxxx 00000
("Licensor"), and Progressive Networks, a Washington corporation, with its
principle office at 0000 Xxxxx Xxxxxx, Xxxxx
0000, ("Licensee").
RECITALS
A. Licensor is the owner of the building commonly known as 0000 Xxxxx
Xxxxxx Building, located at the address of 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, and more particularly described as Xxxx 0,0, 0 xxx 0: Xxxxx 00, X.X.
Xxxxx'x Addition, City of Seattle, King County, State of Washington in the
records of King County, State of Washington. (the "Building").
B. Licensee represents and warrants to Licensor that Licensee is
authorized to operate a rooftop antenna and associated equipment for
telecommunications purposes from the Building under the conditions described
herein.
C. Licensee desires access to, and limited use of, specified portions of
the roof and interior spaces of the Building for the purpose of installing,
maintaining, and operating the roof-mounted antenna system that is specified
below and that can be briefly described as, and is further detailed in Exhibit
G, attached hereto and incorporated by reference:
C-band satellite receiving system to provide reception of video and audio
signals for the purpose of enabling live re-transmission of those signals over
the internet.
This system shall consist solely of:
i) antenna equipment and related cabling elements with the size,
engineering structure, broadcast frequencies, and operating characteristics
specified in Exhibit A ("Antenna Characteristics") and with the physical space
and access requirements specified in Exhibit B ("Rooftop Plan"),
1
2
ii) related cabling systems with the physical, bandwidth, and signal
transfer characteristics specified in Exhibit C ("Pathway Needs"), and
D. Licensor is the Landlord and Licensee is the Tenant pursuant to that
Lease Agreement (the "Lease") dated March 4, 1996 for certain premises located
in the Building.
This system is collectively referred to herein as the "Antenna Facilities" and
shall consist solely of those elements specified in Exhibits A, B, C, and D,
attached hereto and made a part hereof.
NOW THEREFORE, in consideration of the mutual covenants herein expressed and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Licensee and Licensor agree as follows:
1. Grant
(a) Licensor hereby grants permission (the "License") to Licensee
to install, maintain, operate and remove the Antenna Facilities (at its sole
expense and risk) upon the Rooftop Space, in the Pathway to be designated by
Licensor, and in the Equipment Room.
(b) The License granted herein is not exclusive. Licensor hereby
reserves the right to grant, renew or extend similar licenses to others.
(c) Licensor and Licensee acknowledge and agree that the
relationship between them is solely that of independent contractors, and nothing
herein shall be construed to constitute the parties as employer/employee,
partners, joint ventures, co-owners, or otherwise as participants in a joint or
common undertaking. Neither party, nor its employees, agents, or
representatives, shall have any right, power or authority to act or create any
obligation, express or implied, on behalf of the other. Licensee hereby accepts
and assumes full and exclusive liability for, and shall hold Licensor harmless
from, the Payment of all contributions required under state and federal law
providing for state and federal payroll taxes or contributions for unemployment
insurance or old age pensions, or annuities which are measured by wages,
salaries, or other remuneration paid to Licensee or by Licensee to its employees
for any and all activities in connection with this Agreement.
(d) Licensee's Antenna Equipment is to be installed, maintained,
operated and removed by Licensee, in and from the Rooftop Spaces, the Pathway,
and the Equipment Room, as described in Exhibits A, B, C and D, attached hereto.
Licensor shall not be liable for damage to Licensee's Antenna Equipment or for
theft, misappropriation or loss thereof, unless due to the negligence or willful
misconduct of Licensor, its employees or agents.
(e) Licensor shall have the absolute right to limit the type,
size and location of Licensee's future Antenna Equipment located in or on the
Building, and may, at Licensor's
2
3
expense, relocate Licensee's Antenna Equipment or require Licensee to relocate
Licensee's Antenna Equipment in the Building or upon the rooftop from time to
time during the term of this Agreement in its sole, reasonable discretion.
Should such a request be made, Licensor agrees to allow Licensee reasonable
time, not to exceed ninety (90) days for such relocation, or one hundred twenty
(120) days if begun within ninety (90) days but not yet completed within ninety
(90) days. Licensor shall allow Licensee to perform a standard cut-over
procedure, if required by said relocation, which will insure that the relocated
equipment is operational for service prior to discontinuing service from old
service location.
(f) Licensor shall provide approximately 515.5 square feet of
floor space upon the rooftop in the location designated on Appendix B (Rooftop
Plan) and shall provide physical access to that space to the degree specified as
necessary on Appendix B.
(g) Licensor shall provide Licensee with access to, and use of,
riser shafts, and conduits (the "Pathway") to the degree necessary to install
and maintain the cabling systems designated in Exhibit C (Pathway Needs).
(h) Licensee is expressly forbidden to use its equipment located
within the Building to program or control the operations of any other antenna
located upon other properties without the express written permission of the
Licensor. Additional fees may be required, as agreed to between the parties, for
using Licensee's Antenna Facilities as a control point for other properties
outside the Building.
(i) Licensor makes no warranty or representation that the
Rooftop, the Pathways within the Building, and the Equipment Room are suitable
for the Licensee's use, it being assumed that Licensee has satisfied itself
thereof. Licensee has inspected the Rooftop, the Pathways within the Building
and the Equipment Room and accepts the same "as is" and agrees that Licensor is
under no obligation to perform any work or provide any materials to prepare the
Equipment Room or the Building for Licensee.
2. Fees
Licensee shall pay to Licensor according to the following equipment
schedule:
Equipment: (4) 12-foot diameter dish $840.00 mo. (each)
(1) 10-foot diameter dish $700.00 mo.
(1) 1.2 m dish $400.00 mo.
(a) Base License Fee: Licensee shall pay to Licensor an annual fee of
Fifty Three Thousand Five Hundred Twenty, ($53,520.00), each year of the
agreement, adjusted annually on the commencement date by the percentage increase
in the Consumer Price Index (CPI) over the rate in the prior year, but which
increase shall not be less than 5% nor more than 10% in any given year. The
annual fee shall be payable in advance in twelve (12) monthly payments,
3
4
or part thereof, commencing on the date herein shown as the date of this
Agreement. All payments shall be made to Licensor at the address given in
Section 18 of this Agreement. Licensor and Licensee agree to use their good
faith efforts to refrain from disclosing the financial terms of this agreement.
Either party may disclose the financial terms of this agreement to persons other
than those employees, consultants and advisors when required by law, regulation,
or prior agreement or for purposes of a stock sale or asset sale. No recourse,
action or penalty shall be associated with the good faith effort of
non-disclosure herein embodied.
(b) Modified License Fee: The Base License Fee set out in this section
is based upon the type and quantity of service currently expected to be provided
by the Antenna Facilities described in Exhibits A and C, including the
frequencies, bandwidth, and compression technologies designated in that Exhibits
A and C. Changes in the type and quantity of service provided by the Antenna
Facilities may increase the value of the Antenna Facilities in the future. To
the degree that such changes in type and quantity of service are material,
Licensor and Licensee understand and mutually agree that such an increase in the
expected value of the Antenna Facilities may be reflected in an adjustment to
the Base License Fee. Such an adjustment may be defined at the time at which
Licensor seeks Licensee's approval for modifications to the Antenna Facilities
described in Attachments A or C.
3. Term
The term hereof shall commence as of the day first written above
("Commencement Date"). The term hereof shall be coterminous with the Main Lease
between Progressive Networks, Inc. and Xxxxxx Runstad & Company, beginning on
the Commencement Date, subject to extension or earlier termination in accordance
with the provisions hereof.
The Licensee reserves the right to cancel this Agreement at any
time upon giving ninety (90) days written notice to the Licensor. If Licensee
elects to remove any or all of the Antenna Facilities equipment, the annual fee
will be reduced by the corresponding fee as defined in this agreement.
4. Use
Licensee shall use the Antenna Facilities solely for the purposes
of providing the services detailed in Exhibit A of this Agreement and which it
has received all necessary approvals from either the local public utility
governing body, or the Federal Communications Commission (the "FCC"). For these
sole purposes License, subject to the following two sentences, grants Licensor
the right to install, maintain, operate, replace, and remove equipment including
cabinets, racks, conduits, and/or cables, and antennas.
4
5
5. Electric Utilities
Licensee shall pay the costs associated with installation of a
separate electrical panel and meter for the Antenna Facilities and shall be
responsible for the electrical costs attributable to such Facilities. Licensor
shall use reasonable efforts to notify Licensee in advance of any planned
utility outages which may interfere with Licensee's use. Licensee further agrees
that the Licensor has no obligation or responsibility to provide emergency or
"backup" power to Licensee, and Licensee acknowledges that any such provision of
emergency or "backup" power shall be the sole responsibility of Licensee.
6. Construction
(a) Prior to the commencement of any work, Licensee shall, at its
sole cost and expense, prepare and deliver to Licensor working drawings, plans
and specifications (Exhibits A, B, C, and D) detailing the location and size of
the Licensee's Antenna Facilities and specifically describing the proposed
construction and work. No work shall commence until Licensor has approved, in
writing, Exhibits A, B, C and D. Such approval will not be unreasonable
withheld, conditioned or delayed. Approval or disapproval and required changes
shall be delivered to Licensee within 20 working days after the receipt of such
plans from Licensee.
(b) Licensee will ensure that the installation, maintenance and
operation of Licensee's Antenna Facilities will not penetrate the rooftop and in
no way damage the Building, interfere with the use of the Building or interfere
with the operation of communications devices by Licensor or by other
pre-existing lessees or licensees of the Licensor. In order to avoid such
interference, Licensee shall, at its own expense, prepare and conduct an
evaluation of the potential for such interference before installing and
operating the Antenna Facilities, and shall submit a copy of such findings to
Licensor within ten days. In addition, following the installation of the Antenna
Facilities, Licensee shall, at its own expense, prepare and conduct an
evaluation of the potential for such interference within ninety-six (96) hours
if requested to do so by Licensor, whether upon Licensor's own behalf or as a
result of concerns expressed by any pre-existing lessees or licensees. Licensor
shall have the right to engage outside consultants to resolve interference
issues arising between Licensees operating equipment on the roof, and between
Licensor's Licensees and off premises operators. Licensor shall have the
absolute right to require all its Licensees to implement any such consultant's
recommendations for resolution of interference problems. If such damage or
interference is occurring, Licensee shall correct the same within seventy-two
(72) hours of receipt of written notice thereof. Licensor reserves the right to
disconnect power to any such Licensee's Equipment which Licensee fails to
correct after proper notification and waiting period.
5
6
(c) At the conclusion of the License term, Licensee agrees, at
its sole cost and expense, if requested by Licensor, to refinish any damaged
surface of the Building that may have been be involved in any or all parts of
the installation of the Antenna Facilities proposed hereunder and which have
been damaged by Licensee, or any of its agents, representatives, employees,
contractors, subcontractors, or invitees, excepting damage caused by ordinary
wear and tear or by others.
(d) Licensee warrants that the installation of Licensee's
Equipment shall be in strict compliance with Exhibits A, B, C and D as attached
hereto, or as they may be amended from time to time.
(e) Licensee agrees that installation and construction shall be
performed in a neat, responsible, and workmanlike manner, using generally
accepted construction standards.
(f) Licensee shall obtain, at its sole cost and expense, prior to
construction and work, any necessary federal, state, and municipal permits,
licenses and approvals, copies of which to be delivered to Licensor prior to
commencement of construction and work.
(g) In addition to the commitment not to interfere with
communications equipment set out in sub-section (b) above, Licensee shall not
disrupt, adversely affect or interfere with other providers of services in the
Building or with any occupant's use and enjoyment of it's leased or licensed
premises or the common areas of the Building. Licensee shall correct such
interference within three (3) days after receiving written notice of such
interference and after such interference has been positively identified as being
caused by Licensee's agents or its Antenna Facilities.
(h) Licensee shall have the right to amend Exhibits A, C and D,
from time to time, with the express written consent of Licensor for the purpose
of serving additional occupants of the building. Such consent shall not be
unreasonably withheld, conditioned or delayed by Licensor; however, the parties
recognize that, in the event of changes that will materially increase the value
of the Antenna Facilities, such consent may be withheld pending agreement upon
the terms of modifications to the Base License Fee, as contemplated in Section
2(b) above. Following Licensor's consent to amendment of Exhibits A, C and D,
all terms and conditions of this Construction Section (Section 6) shall apply.
7. Licensee's Covenants
(a) Licensee agrees to maintain Licensee's Antenna Facilities in
proper operating condition and to maintain the same in satisfactory condition as
to safety. Cost of maintenance and repair to Licensor's Equipment Room, and
other portions of the Building shall be borne by Licensor unless damage thereto
is caused by Licensee, in which case Licensor shall repair such damage and
Licensee shall reimburse Licensor of all reasonable costs and expenses incurred
in such repair.
6
7
(b) Licensee agrees to comply with all applicable Rules and
Regulations of the Federal Communications Commission and applicable codes and
regulations of the city, county and state pertaining to the installation and
operation of Licensee's Antenna Facilities. Licensee further agrees to comply
with and all applicable health and safety rules specified for radio frequency
radiation by any of the above mentioned authorities, and shall placard for
safety warnings wherever so applicable.
(c) Licensee understands and agrees that the structural integrity
of the load bearing capability of the roof of the Building, the moisture
resistance of the Building membrane, and the ability of Licensor to use all
parts of the roof of the building are of critical importance to Licensor.
Licensee therefore agrees that the specifications and plans that it will provide
shall be of sufficient specificity to ensure that these concerns are protected,
and Licensee further agrees and commits that the actual installation of
Licensee's Antenna Facilities shall be in accordance with those specifications.
Licensee agrees there shall be no rooftop penetrations, as specified by the
attached plans as approved by Licensor. Installation is subject to approval by
Licensor's structural engineer regarding load bearing capacities and other
structural parameters of the weight and wind load of Licensee's equipment and
facilities.
(d) Licensee, through its designated and approved employees and
contractors, shall be solely responsible for the maintenance and care of the
Antenna Facilities and shall maintain the Antenna Facilities in a clean,
sanitary and safe condition and in good repair and free of any defects at all
times during this Lease. Licensee, at its sole expense and risk, shall ensure
that a physical inspection of the rooftop portion of the Antenna Facilities
occurs at intervals of no more than 12 months and that this inspection includes
a survey of structural integrity and a review and correction of any loose bolts,
fittings or other appurtenances. Licensee shall provide a written certification
of such inspections to Licensor not more than 10 days following each such
inspection. In the absence of such a certification, Licensor shall have the
right (but not the obligation) to conduct or arrange for such an inspection and
corrective action and to charge Licensee for such costs.
(e) Licensee further understands and agrees that the aesthetic
characteristics of the Building are of significant commercial importance to
Licensor and, therefore, commits to ensuring that the installed appearance of
the Antenna Facilities will be consistent with the specifications set forth in
Exhibits A and B. Licensee further agrees that, at no time during the period of
this License, will it use or permit the use of its Antenna Facilities in ways
that are inconsistent with those plans (as they may from time to time be amended
with the consent of Licensor) or for the display of advertising or other visual
displays with significant aesthetic impacts.
7
8
8. Access
(a) Licensor agrees that Licensee's authorized representatives
shall have access to the Antenna Facilities at all times (with prior
notifications as per (b) below), for the purposes of installing, maintaining,
operating and repairing Licensee's Equipment, and Licensor further agrees to
give Licensee ingress and egress to the Building Spaces during the term of this
Agreement, including use of an elevator. It is agreed, however, that only
authorized engineers, employees or properly authorized contractor,
subcontractor, and agents of Licensee, other authorized regulatory inspectors,
or persons under their direct supervision and control will be permitted to enter
the Building Spaces, and only upon conditions set forth herein.
(b) Prior to any entry upon the Building Spaces, Licensee shall
submit a written request to Licensor, substantially in the form attached hereto
as Exhibit C, stating the name and company of the person(s) who will enter the
Building Spaces, the reason for entry, and the expected duration of the visit.
(c) Permission for all entries upon the Building Spaces
(including entries for maintenance and/or installation) must be received from
Licensor in advance, unless such entry is of an emergency nature and permission
cannot be obtained in a timely fashion. Licensor shall not be obligated to
provide elevator service during emergency situations and under emergency
conditions, which emergency situations and conditions shall be reasonably
determined by Licensor.
(d) Licensee agrees to be responsible for any damage caused to
the Building Spaces, Equipment Rooms, Pathways and/or any other property owned
by Licensor or any lessee or licensee of Licensor which may be caused by
Licensee or any of its agents or representatives. Licensee further agrees to
keep to a minimum the number of personnel visiting the Building and the
frequency of the visits.
(e) Licensee agrees to comply with all Building rules (Exhibit
F), as adopted and altered by Licensor from time to time, and will cause its
agents, employees, contractors, invitees and visitors to do so.
(f) Licensor shall have the right to enter Licensee's Rooftop and
Equipment Room during any emergency which requires entry to Licensee's space.
Licensor shall have the right to enter Licensee's Rooftop and Equipment Room at
other such times as Licensor may require, provided however, Licensor will try,
but not be obligated, to provide prior notice upon such non-emergency entrance
into Licensee's Rooftop and Equipment Room.
8
9
9. Insurance: As agreed to in main lease.
(a) Licensee shall maintain in force all required workers'
compensation or other similar insurance pursuant to all applicable state and
local statutes.
10. Indemnification: As agreed to in main lease.
Licensee shall exercise due care to avoid any action that may cause damage to
any part of the Building or Licensor's other tenants.
11. Release and Waiver of Subrogation Rights
To the extent allowable under the laws and regulations governing
the writing of insurance within the state in which the Building is located,
Licensor and Licensee each release the other and their respective agents and
employees from all liability to each other, or anyone claiming through or under
them, by way of subrogation or otherwise, for any loss or damage to property
caused by or resulting from risks insured against under this Agreement, pursuant
to insurance policies carried by the parties which are in force at the time of
the loss or damage. Licensor and Licensee will each request its insurance
carrier to include in policies provided pursuant to this Agreement an
endorsement recognizing this waiver of subrogation. The waiver of subrogation
endorsement need not be obtained if it incurs an additional cost for the
affected policy, unless following written notice, the other party elects to pay
that additional cost to obtain the waiver of subrogation endorsement. The
provision of this Section 11 shall survive termination of this Agreement.
12. Liens
Licensee shall be responsible for the satisfaction or payment of
any liens for any provider of work, labor, material or services claiming by,
through or under Licensee. Licensee shall also indemnify, hold harmless and
defend Licensor against any such liens, including the reasonable fees of
Licensor's attorneys. Such liens shall be discharged by Licensee within thirty
(30) days after notice of filing thereof by bonding, payment or otherwise,
provided that Licensee may contest, in good faith and by appropriate proceedings
any such liens. The provision of this Section 12 shall survive termination of
this Agreement.
13. Renewal Options
Intentionally deleted.
14. Assignment and Subletting: As agreed to in main lease.
9
10
15. Events of Default
The following events shall be deemed to be events of default
under this Agreement:
(a) Licensee shall fail to pay any Fees or other sum or money
due hereunder and such failure shall continue for a period of ten (10) days
after receipt of written notification of such failure to pay.
(b) Licensee shall fail to comply with any other provision of
this Agreement, after proper written notification of such failure and such
failure shall continue for a period of thirty (30) days, in which event,
Licensor may, at its option, terminate this Agreement without affecting its
right to xxx for any other damages to which Licensor may be entitled at law or
in equity. In any suit or legal proceeding arising out of this Agreement or the
underlying transaction the prevailing party shall be indemnified by the
unsuccessful party for all reasonable expenses and costs incurred in such
proceedings, including attorneys' fees.
(c) Interference caused by Licensee to pre-existing
telecommunications equipment by the installation, operation, maintenance, repair
or removal of Licensee's Antenna Facilities, to the extent that such
interference is not insured in accordance with Section 6(b) above.
(d) Revocation of Licensee's permission to operate any element of
the Antenna Facilities by any governing authority that is authorized by law to
regulate Licensee's operation of such facilities.
(e) The filing or execution or occurrence of a petition in
bankruptcy or other insolvency proceeding by or against Licensee; or an
assignment for the benefit of creditors; or a petition or other proceeding by or
against the Licensee for the appointment of a trustee, receiver or liquidator of
Licensee or of any of the Licensee's property or a proceeding by any
governmental authority for the dissolution or liquidation of Licensee.
(f) Licensor or Licensee shall be in default hereunder in the
event Licensor or Licensee has not begun and pursued with reasonable diligence
the cure of any failure of Licensor or Licensee to meet its obligations
hereunder within thirty (30) days of receipt of written notice from the other
party of the alleged failure to perform, except where other cure periods have
been specifically described.
(g) The non-defaulting party shall have all rights available in
equity or at law.
10
11
16. Termination/Remedies
Upon occurrence of an Event of Default the non-defaulting party
shall give written notice to the defaulting party, setting forth the nature of
the Default. With respect to the payment of Fees due hereunder, Licensee shall
have ten (10) days after receipt of written notice to cure the default. With
respect to all other defaults, the defaulting party shall have thirty (30) days
to cure such Default. If the defaulting party shall have failed to commence to
cure the Default within the applicable cure period, the non-defaulting party may
elect to terminate this Agreement, unless the defaulting party is actively and
satisfactorily pursuing such remedy and more time is required, which additional
time shall be granted to the curing party, whereupon the expiration of such time
period Licensee shall forthwith remove its Antenna Facilities from the Building
in a neat and orderly manner; and as of the date of such removal neither party
shall have any claim against the other, except for claims that may have arisen
prior to such termination and except for those provisions which expressly set
forth that they shall survive the termination of this Agreement, this Agreement
shall be deemed terminated and of no force and effect.
17. Notices
Any or all notices or demands by or from Licensor to Licensee, or
Licensee to Licensor, shall be in writing and shall be deemed given upon (a)
personal delivery to the addressee, (b) five (5) days after deposit into United
States mail, postage prepaid, certified mail return receipt requested, or (c)
one day after delivery to United States Postal Service Express Mail or similar
overnight delivery service. Until notified of a different address, as provided
herein, all notices shall be addressed to the parties as follows:
Licensor: Licensee:
Xxxxxx Runstad & Company Progressive Networks
0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
18. No Implied Waiver
The waiver by Licensor of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such terms,
covenant, or condition for any subsequent breach of the same or any other term,
covenant or condition herein contained.
11
12
19. Subordination
Licensee accepts this License subject and subordinate to any
mortgage, deed of trust or other lien presently existing or hereafter arising
upon the land or the Building and to any renewals, modifications, consolidation,
refinancing, and extensions thereof, but Licensee agrees that any such mortgagee
shall have the right at any time to subordinate such mortgage, deed of trust or
other lien to this license on such terms and subject to such conditions as such
mortgagee may deem appropriate in its discretion. This provision is hereby
declared to be self-operative and no further instrument shall be required to
effect such subordination of this Agreement.
20. Attorney's Fees
In the event of any action filed in relation to this Agreement,
the prevailing party shall be entitled to recover from the other reasonable
attorney's fees and other reasonable court costs.
21. Casualty Damage
As agreed to in main lease.
22. Hazardous Materials
(a) Licensee shall not install any hazardous substance or
material into the Building. In the event that Licensee shall discover, uncover,
disturb or otherwise reveal any existing hazardous materials within the
Building, Licensee shall immediately stop any work in progress and report such
findings to Licensor within twenty-four (24) hours. Licensee shall not conduct
any further work in the reported area without Licensor's written approval.
(b) Licensee shall have three options upon discovery of hazardous
material and cessation of work as described above; (1) Xxxxx or remove, at its
sole cost and expense, and in compliance with any applicable Federal, State, or
Local rules and regulations, the hazardous material within the route or area
needed by Licensee to complete its work, and only with the approval of Licensor;
(2) Reroute its planned installation and Pathway designs to avoid such hazardous
material areas; (3) Terminate this agreement according to the procedure set
forth in Section 17 (Termination/Remedies).
(c) Licensee is hereby released and indemnified from any
responsibility for hazardous materials preexisting within the Building and
undisturbed by Licensee, or brought on the Premises, into the Building, on, in
or under the land upon which the Building is located by any other tenant or by
Licensor.
12
13
23. Equipment to Remain Personalty
The Antenna Facilities shall remain personalty ("Personalty") of
the Licensee notwithstanding the fact that it may be affixed or attached to the
Building, and shall, during the term of this agreement, or any extension or
renewal thereof, and upon termination thereof, belong to and be removable by
Licensee.
24. Severability
If any part of any provision of this License or any other
agreement, document or writing given pursuant to or in connection with this
License shall be invalid or unenforceable under applicable law, said part shall
be ineffective to the extent of such invalidity only, and the remaining terms
and conditions shall be interpreted so as to give the greatest effect possible
thereto.
25. Governing Law
The construction, interpretation and performance of this
Agreement shall be in accordance with the laws of the state in which the
Building resides, and exclusive jurisdiction shall lie with the courts of that
state.
26. Survival of Provisions
Any obligation of the parties relating to monies owed, as well as
those provisions relating to limitations on liability and actions, shall survive
termination or expiration of this Agreement.
27. Force Majeure
Whenever a period of time is herein prescribed for the taking of
any action by Licensor or Licensee, Licensor or Licensee shall not be liable or
responsible for, and there shall be excluded from the computation of such period
of time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, governmental laws, regulations or restrictions, or any other
cause whatsoever beyond the control of Licensor or Licensee.
28. Recordation
Licensee agrees not to record this License or any memorandum
thereof unless required to do so by law (in which event Licensee agrees to
execute, upon termination of this License, a recordable instrument evidencing
such termination in form reasonably satisfactory to Licensor).
13
14
29. Entire Agreement
The terms and conditions contained herein supersede all prior
oral or written understandings between the parties and constitute the entire
agreement between them concerning the subject matter of this Agreement. This
Agreement shall not be modified or amended except by writing signed by
authorized representatives of the parties.
30. Headings
The descriptive heading of the several paragraphs of this
Agreement are inserted for convenience and ease of reference only and do not
constitute part of this Agreement.
14
15
IN WITNESS WHEREOF, Licensor and Licensee have executed this License in multiple
original counterparts as of the day and year first above written.
LICENSOR: Xxxxxx Runstad Properties
Limited Partnership, Owner
By: Xxxxxx Runstad & Co.
By: XXXXXXXX XXXXX
--------------------------
Xxxxxxxx Xxxxx
Title: Property Manager
Date: 9-16-97
LICENSEE: Progressive Networks
By: XXXX XXXXXXXXX
--------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
Date: September 16, 1997
15
