EXHIBIT 10.8
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
COMMUNICATIONS SITE LEASE AGREEMENT (GROUND)
This Communications Site Lease Agreement (Ground) ("Agreement') is entered
into 6th day of March 2001, between Nextel West Corp. a Delaware corporation,
d/b/a Nextel Communications, ("Lessee"), and Great Midwest Life Insurance
Company, a Texas corporation, ("Lessor").
For good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Premises. Lessor is the owner of a parcel of land (the "Land") located in
the City of Del City, County of Oklahoma, state of Oklahoma, commonly known as
3021 Xxxxxxx. The Land is more particularly described in Exhibit A annexed
hereto. Lessor hereby leases to Lessee and Lessee leases from Lessor,
approximately one thousand five hundred (1,500) square feet of the Land and all
access and utility easements, if any, (the "Premises") as described in Exhibit B
annexed hereto.
2. Use. The Premises may be used by Lessee for any activity in connection with
the provision of communications services. Lessor agrees to cooperate with
Lessee, at Lessee's expense, in making application for and obtaining all
licenses, permits and any and all oilier necessary approvals that may be
required for Lessee's intended use of the Premises.
3. Tests and Construction. Lessee shall have the right at any time following
the full execution of this Agreement to enter upon the Land for the purpose of:
making appropriate engineering and boundary surveys, inspections, soil test
borings, other reasonably necessary tests and constructing the Lessee Facilities
(as defined in Paragraph 6(a) below).
4. Term. The term of this Agreement shall be five (5) years commencing on the
date Lessee begins construction of' Lessee Facilities or June 1, 2001. whichever
first occurs ("Commencement Date") and terminating on the fifth anniversary of
the Commencement Date (the `Term") unless otherwise terminated as provided in
Paragraph 10. Lessee shall have the right to extend the Term for five (5)
successive Five (5) year periods (the "Renewal Terms") on the same terms and
conditions as set forth herein. This Agreement shall automatically be extended
for each successive Renewal Tern unless Lessee notifies Lessor of its intention
not to renew prior to commencement of the succeeding Renewal Term.
5. Rent -
(a) Within 15 days of the Commencement Date and on the first day of each
month thereafter, Lessee shall pay to Lessor as rent Eight Hundred and 00/100
DOLLARS ($800.00) per month ("Rent"). Rent for any fractional month at the
beginning or at the end of the Term or Renewal Term shall be prorated. Rent
shall be payable to Lessor at 0000 Xxxxxxx, Xxx Xxxx, XX 00000; Attention:
Xxxxxxx X Xxxxx.
(b) On the first day of any Renewal Term of this Agreement, Rent shall be
increased by ten percent (10%) of the Rent for the Term or the immediately
preceding Renewal Term.
6. Facilities; Utilities; Access.
(a) Lessee has the right to erect, maintain and operate on the Premises
radio communications facilities, including without limitation an antenna tower
or pole and foundation, utility lines, transmission lines, air conditioned
equipment shelter(s), electronic equipment, radio transmitting and receiving
antennas, supporting equipment and structures thereto ("Lessee Facilities'). In
connection therewith, Lessee has the right to do all work necessary to prepare,
maintain and alter the Premises for Lessee's business operation; and to install
transmission lines connecting the antennas to the transmitters and receivers.
All of Lessee's construction and installation work shall be performed at
Lessee's sole cost and expense and in a good and workmanlike manner. Title to
the Lessee Facilities shall be held by Lessee. All of Lessee Facilities shall
remain Lessee's personal property and are not fixtures. Lessee has the right to
remove all Lessee Facilities at its sole expense on or before the expiration or
earlier termination of the Agreement; provided, Lessee repairs any damage to the
Premises caused by such removal. Upon termination of this Agreement, Lessee
shall not be required to remove any foundation more than three (3) foot below
grade level.
02/27/01 1
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
(b) Lessee shall pay for the electricity it consumes in its operations at
the rate charged by the servicing utility company Lessee shall have the right to
draw electricity and other utilities from the existing utilities on the Land or
obtain separate utility service from any utility company that will provide
service to the Land (including a standby power generator for Lessee's exclusive
use). Lessor agrees to sign such documents or easements as may be required by
said utility companies to provide such service to the Premises, including the
grant to Lessee or to the servicing utility company at no cost to the Lessee, of
an easement in, over, across or through the Land as required by such servicing
utility company to provide utility services as provided herein. Any easement
necessary for such power or other utilities will be at a location acceptable to
Lessor and the servicing utility company.
(c) Lessee, Lessee's employees, agents. subcontractors, lenders and
invitees shall have access to the Premises without notice to Lessor twenty-four
(24) hours a day, seven (7) days a week, at no charge. Lessor giants to Lessee,
and its agents, employees, contractors, guests and invitees, a non-exclusive
right and easement for pedestrian and vehicular ingress and egress across that
portion of the Land described in Exhibit B.
(d) Lessor grants Lessee permission to construct an access road (the
"Access Road") at least twelve feet wide, from the nearest public roadway,
Xxxxxxx Street, across the Land owned by Lessor, to the Premises, and as more
fully described in Exhibit B. Lessee will maintain the Access Road at its sole
cost and expense except for damages resulting from use of the Access Road by
Lessor, or its agents, employees. contractors, or invitees, the cost of which
shall be Lessor's sole responsibility. Lessor shall maintain all other access
roadways from the nearest public roadway to the Land for Lessee's non-exclusive
use in a manner sufficient to allow pedestrian and vehicular access at all times
under normal weather conditions, Lessor shall maintain the access roadways at
its sole cost and expense except for damages resulting from use of the access
roadways by Lessee or its agents, employees, contractors, or invitees, the cost
of which shall be Lessee's sole responsibility.
7. Interference.
(a) Lessee shall operate the Lessee Facilities in a manner that will not
cause interference to Lessor and other lessees or licensees of the Land,
provided that their installations predate that of the Lessee Facilities. All
operations by Lessee shall be in compliance with all Federal Communications
Commission ("FCC") requirements.
(b) Subsequent to the installation of the Lessee Facilities, Lessor shall
not permit itself~ its lessees or licensees to install new equipment on the Land
or property contiguous thereto owned or controlled by Lessor if such equipment
is likely to cause interference with Lessee's operations. Such interference
shall be deemed a material breach by Lessor. In the event interference occurs,
Lessor agrees to take all reasonable steps necessary to eliminate such
interference, in a reasonable time period.
8. Taxes. If real property or personal property taxes are assessed, Lessee
shall pay any portion of such taxes directly attributable to the Lessee
Facilities. Lessor shall pay all meal property taxes, assessments and deferred
taxes on the Land.
9. Waiver of Lessor's Lien.
(a) Lessor waives any lien tights it may have concerning the Lessee
Facilities which are deemed Lessee's personal property and not fixtures, and
Lessee has the right to remove the same at any time without Lessor's consent.
(b) Lessor acknowledges that Lessee has entered into a financing
arrangement including promissory notes and financial and security agreements for
the financing of the Lessee Facilities (the "Collateral') with a third party
financing entity (and may in the future enter into additional financing
arrangements with other financing entities). In connection therewith, Lessor (i)
consents to the installation of the Collateral; (ii) disclaims any interest in
the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral
shall be exempt from execution, foreclosure, sale; levy, attachment, or distress
for any Rent due or to become due and that such Collateral may be removed at any
time without recourse to legal proceedings.
10. Termination. This Agreement may be terminated without further liability on
thirty (30) days prior written notice as follows: (i) by either party upon a
default of any covenant or term hereof by the other party, which default is not
cured Within sixty (60) days of receipt of written notice of default, provided
that the grace period for any monetary default is ten (10) days from receipt of
notice; or (ii) by Lessee for any reason or for no reason, provided Lessee
delivers written notice of early termination to Lessor no later than thirty (30)
days prior to the Commencement Date; or (iii) by Lessee if it does not obtain or
03/21/01 2
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
maintain any license, permit or other approval necessary for the construction
and operation of Lessee Facilities; or (iv) by Lessee if Lessee is unable to
occupy and utilize the Premises due to an action of the FCC, including without
limitation, a take back of channels or change in frequencies; 01(v) by Lessee if
Lessee determines that the Premises are not appropriate for its operations for
economic or technological reasons, including, without limitation, signal
interference.
11. Destruction or Condemnation. If the Premises or Lessee Facilities are
damaged, destroyed, condemned or transferred in lieu of condemnation, Lessee may
elect to terminate this Agreement as of the date of the damage, destruction,
condemnation or transfer in lieu of condemnation by giving notice to Lessor no
more than forty-five (45) days following the date of such damage, destruction,
condemnation or transfer in lieu of condemnation. If Lessee chooses not to
terminate this Agreement, Rent shall be reduced or abated in proportion to the
actual reduction or abatement of use of the Premises.
12. Insurance. Lessee, at Lessees sole cost and expense, shall procure and
maintain on the Premises and on the Lessee Facilities, bodily injury and
property damage insurance with a combined single limit of at least One Million
and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure,
on an occurrence basis, against all liability of Lessee, its employees and
agents arising out of or in connect on with Lessee's use of the Premises, all as
provided for herein. Lessor, at Lessor's sole cost and expense, shall procure
and maintain on the Land, bodily injury and property damage insurance with a
combined single limit of at least One Million Dollars ($1,000,000) per
occurrence. Such insurance shall insure, on an occurrence basis, against
liability of Lessor, its employees and agents arising out of or in connection
with Lessor's use, occupancy and maintenance of the Land. Each party shall be
named as an additional insured on the other's policy. Each parry shall provide
to the other a certificate of insurance evidencing the coverage required by this
paragraph within thirty (30) days of the Commencement Date.
13. Waiver of Subrogation. Lessor and Lessee release each other and their
respective principals, employees, representatives and agents, from any claims
for damage to any person or to the Premises or to the Lessee Facilities thereon
caused by, or that result from, risks insured against under any insurance
policies carried by the patties and in force at the time of any such damage.
Lessor and Lessee shall cause each insurance policy obtained by them to provide
that the insurance company waives all tight of recovery by way of subrogation
against the other in connection with any damage covered by any policy. Neither
Lessor nor Lessee shall be liable to the other for any damage caused by fire or
any of the risks insured against under any insurance policy required by
Paragraph 12.
14. Assignment and Subletting.
(a) Lessee may assign this Agreement or sublet or license the Premises or
arty portion thereof to an entity upon written notification to Lessor by Lessee,
subject to the assignee assuming all of Lessee's obligations herein. Upon
assignment, subletting or licensing, Lessee shall be relieved of all future
performance, liabilities, and obligations under this Agreement. Lessee shall
have the right to sublet this Agreement without Lessor's consent. Lessor may
assign slits Agreement upon written notice to Lessee, subject to the assignee
assuming all of Lessor's obligations herein, including but not limited to, those
set forth in Paragraph 9 ("Waiver of Lessor's Lien") above. This Agreement shall
run with the property and shall be binding upon and inure to the benefit of the
parties, their respective successors, personal representatives, heirs and
assigns. Notwithstanding anything to the contrary contained in this Agreement,
Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without
notice or consent its interest in this Agreement to any financing entity, or
agent on behalf of any financing entity to whom Lessee (i) has obligations for
borrowed money or in respect of guaranties thereof, (ii) has obligations
evidenced by bonds, debentures, notes or similar instruments, or (iii) has
obligations under or with respect to letters of credit, bankers acceptances and
similar facilities or in respect of guaranties thereof
(b) Upon assignment of this Agreement by Lessee (other than a collateral
assignment to a financing entity, as described in the Waiver of Lessor's Lien
Paragraph), upon such assignment, the Lessee/assignee hereby agrees to supply
Lessor a performance bond in the amount of thirty-thousand ($30,000.00) dollars
(`Performance Bond"), for the sole purpose of assuring Lessee's payment of all
sums that may become due to Lessor under this Agreement (including without
limitation, any and all Rent), as well as the performance of all obligations
under this Agreement In the event that Lessee/assignee fails either to pay
Lessor any sum of money due under this Agreement, Lessor shall provide
Lessee/assignee written notice of such failure, together with sufficient
documentation of the amount that is due or the obligation that needs to be
performed (the "Late Notice"). If Lessee/assignee has not paid the sum within
ten (10) days, or performed the obligation within (60) days, after the date of
the Late Notice, Lessor may access the bond upon thirty (30) days prior written
notice to Lessee/assignee. Once Lessee/assignee is obligated to supply the
Performance Bond to Lessor, Lessee/assignee shall keep the Performance Bond in
place throughout the Term and any renewal Term of this Assignment.
15. Warranty of Title and Quiet Enjoyment. Lessor warrants that: (I) Lessor
owns the Land in fee simple and has rights of access thereto and the Land is
03/21/01 3
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
free and clear of all liens, encumbrances and restrictions; (ii) Lessor has full
right to make and perform this Agreement; and (iii) Lessor covenants and agrees
with Lessee that upon Lessee paying the Rent and observing and performing all
the terms, covenants and conditions on Lessee's part to be observed and
performed, Lessee may peacefully and quietly enjoy the Premises. Lessor agrees
to indemnify, and hold harmless Lessee from any amid all claims on Lessee's
leasehold interest.
16. Repairs. Lessee Shall not be required to make any repairs to the Premises
or Land unless such repairs shall be necessitated by reason of the default or
neglect of Lessee. Except as set forth in Paragraph 6(a) above, upon expiration
or termination hereof, Lessee shall restore the Premises to the condition in
which it existed upon execution hereof, reasonable wear and tear and loss by
casualty or other causes beyond Lessee's control excepted.
17. Hazardous Substances. Lessee agrees that it will not use, generate,
store or dispose of any Hazardous Material on, under, about or within the Land
in violation of any law or regulation. Lessor represents, warrants arid agrees
(1) that neither Lessor nor, to Lessor's knowledge, any third party has used,
generated, stored or disposed of, or permitted the use, generation, storage or
disposal of, any Hazardous Material (defined below) on, under, about or within
the Land in violation of any law or regulation, and (2) that Lessor will not,
and will not permit any third party to use, generate, store or dispose of any
Hazardous Material on, under, about or within the Land in violation of any law
or regulation. Lessor and Lessee each agree to defend, indemnify and hold
harmless the other and the other's partners, affiliates, agents and employees
against any and all losses, liabilities, claims and/or costs (including
reasonable attorney's fees amid Costs) arising from any breach of any
representation, warranty or agreement contained in this paragraph. As used in
this paragraph, "Hazardous Material" shall mean petroleum or any petroleum
product, asbestos, any substance known by the state in which the Land is located
to cause cancer and/or reproductive toxicity, and/or any substance, chemical or
waste that is identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation. This paragraph shall survive the
termination of this Agreement.
18. Liability and Indemnity.
(a) Lessee shall indemnify and hold Lessor harmless from all claims
(including attorneys' fees, costs and expenses of defending against such claims)
arising from the negligence or willful misconduct of Lessee or Lessee's agents
or employees in or about the Land. Lessor shall indemnify and hold Lessee
harmless from all claims (including attorneys' fees, costs and expenses of
defending against such claims) arising or alleged to arise from the acts or
omissions of Lessor or lessors agents, employees, licensees, invitees,
contractors, or other tenants occurring in or about the Land. The duties
described in Paragraph 18 survive termination of this Agreement.
(b) Lessee agrees to indemnify and hold harmless Lessor from and against
any and all claims, actions and liabilities (including attorneys' fees, costs
and expenses of defending against such claims) arising or alleged to arise from
the acts or omissions of Lessee or Lessee's agents, employees, licensees,
invitee, or contractors in any manner relating to or connected with Lessee's
tenancy under this Agreement.
19. Miscellaneous.
(a) This Agreement constitutes the entire agreement and understanding
between the patties, and supersedes all offers, negotiations and other
agreements concerning the subject matter contained herein. Any amendments to
this Agreement must be in writing and executed by both parties.
(b) If any provision of this Agreement is invalid or unenforceable with
respect to any party, the remainder of this Agreement or the application of such
provision to persons other than those as to whom it is held invalid or
unenforceable, shall not be affected and each provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
(c) This Agreement shall be binding on and inure to the benefit of the
successors and permitted assignees of the respective parties.
(d) Any notice or demand required to be given herein shall be made by
certified or registered mail, return receipt requested, or reliable overnight
courier to the address of the respective parties set forth below:
03/21/01 4
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
Lesson Great Midwest Life Insurance Company Lessee: Nextel West Corp
3021 Epper]y 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxx
Xxxx, XX 00000 Suite 200
Attn: Xxxxxxx X. Xxxxx Xxxxxxx, Xxxxx 00000
Attn: Property Manager
With a copy to: Nextel Communications
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Sixth Floor, Mail Stop 6E630
Attn: Site Leasing Services, Contracts Manager
Lessor or Lessee may from time to tune designate any other address for this
purpose by written notice to the other party. All notices hereunder shall be
deemed received upon actual receipt.
(e) This Agreement shall be governed by the laws of the State of Oklahoma.
(f) Lessor acknowledges that a Memorandum of Agreement in the form annexed
hereto as Exhibit C will be recorded by Lessee in the official records of the
County where the Land is located. In the event the Land is encumbered by a
mortgage or deed of trust, Lessor agrees to obtain and furnish to Lessee a
non-disturbance and attornment instrument for each such mortgage or deed of
trust.
(g) Lessee may obtain title insurance on its interest in the Land. Lessor
shall cooperate by executing documentation required by the title insurance
company.
(h) In any case where the approval or consent of one party hereto is
required, requested or otherwise to be given under this Agreement, such party
shall not unreasonably delay or withhold its approval or consent.
(i) All Riders and Exhibits annexed hereto form material parts of this
Agreement.
(j) This Agreement may be executed in duplicate counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LESSOR: LESSEE:
Great Midwest Life Insurance Company, Nextel West Corp, a Delaware corporation, d/b/a
a Texas corporation Nextel Communications
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------ -----------------------------
Xxxxxxx X. Xxxxx Xxxxx Xxxxxxx
Date: 3/2/01 Date: 06 Mar 01
---------------------------- ------------------------
Title: President Title: Regional Vice President
---------------------------- ------------------------
Tax ID# 00-0000000
----------------------------
03/21/01 5
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
AMENDMENT NO. 1 TO
COMMUNICATIONS SITE LEASE AGREEMENT
This Amendment No. 1 to Communications Site Lease Agreement, hereinafter
referred to as the "Amendment", is made this day 27th day of March , 2001 by and
between GREAT MIDWEST LIFE INSURANCE COMPANY, a Texas corporation whose address
is 0000 Xxxxxxx, Xxx Xxxx, XX 00000, (hereinafter referred to as "Lessor") and
NEXTEL WEST CORP, a Delaware corporation, d/b/a Nextcl Communications, whose
address is 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
(hereinafter referred to as "Lessee")
WITNESSETH:
WHEREAS, Lessor and Lessee entered into a Communications Site Lease
Agreement (hereinafter referred to as the "Agreement") on for the placement of
certain telecommunications facilities and other improvements on certain land
owned by March 6, 2001; and
WHEREAS, the parties now desire to modify and amend the Agreement;
NOW, THEREFORE, in consideration of the execution of this Amendment, and
the mutual promises, terms, covenants and conditions contained herein, the
parties hereto do hereby agree as follows;
1. The foregoing recitations are true and correct and are hereby
incorporated by reference.
2. That Paragraph 1. Premises. of the Agreement is hereby deleted in its
entirety and replaced with the following:
1. Premises. Lessor is the owner of a parcel of land (the "Land') located
in the City of Del City, County of Oklahoma, State of Oklahoma, commonly
known as 3021 Epperly. The Land is more particularly described in Exhibit A
annexed hereto. Lessor hereby leases to Lessee and Lessee leases from
Lessor, approximately two thousand four hundred (2,400) square feet of the
Land and all access and utility easements, if any, (the "Premises") as
described in Exhibit B annexed hereto.
3. That Paragraph 5. Rent of the Agreement is hereby deleted in its
entirety and replaced with the following
5. Rent
(a) Within 15 days of the Commencement Date and on the first day of each
month thereafter, Lessee shall pay to Lessor as rent One Thousand Three
Hundred and 00/100 DOLLARS ($1,300.00) per month ("Rent"). Rent for any
fractional month at the beginning or at the end of the Term or Renewal Term
shall be prorated. Rent shall be payable to Lessor at 0000 Xxxxxxx, Xxx
Xxxx, XX 00000; Attention: Xxxxxxx X Xxxxx.
(b) On the first day of any Renewal Term of this Agreement, Rent shall be
increased by ten percent (10%) of the Rent for the Term or the immediately
preceding Renewal Term.
4. That Exhibit "B" Agreement is hereby deleted in its entirety and
replaced with the attached Exhibit "B".
5. Except as set forth in this Amendment, all provisions of the Agreement
and Amendments thereto, remain unchanged and in full forced and effect. It is
the intention of the parties hereto, that in the event of any conflict between
the terms of the Agreement and this Amendment, this Amendment shall prevail and
any conflicting language, terms or provisions in the Agreement shall be
inoperative. Capitalized terms in this Amendment shall have the same meaning as
are given in the Agreement, unless otherwise defined in this Amendment.
03/21/01 1
REGION: Southwest
AREA: Oklahoma
MKT: Oklahoma City
SITE NAME: Twin Hills
SITE#: 0K3215 A
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement on the date and year first above written.
LESSOR
GREAT MIDWEST LIFE INSURANCE COMPANY,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Print Name: Xxxxxxx X. Xxxxx
---------------------------------------
Title: President
-------------------------------------------
LESSEE
NEXTEL WEST CORP, a Delaware corporation, d/b/a
Nextel Communications
By: /s/ Xxxxx Xxxx 3/27/01
-----------------------------------------------
Print Name: Xxxxx Xxxx
--------------------------------------
Title: Vice President - Engineering and Operations
--------------------------------------------
03/21/01 2
