MASTER SITE LICENSE AGREEMENT
This Master Site License Agreement ("Agreement") is entered into as of
the 23rd day of December , 1998, by and between Xxxxxx Tower Company, an
Oklahoma corporation (referred to herein as "Licensor") and Sygnet
Communications, Inc., an Ohio corporation (referred to herein as "Tenant").
R-1. Tenant is licensed by the Federal Communications Commission
("FCC") to construct and operate communications systems throughout the United
States.
R-2. Licensor owns, leases, operates and/or manages real estate,
buildings, towers, tanks and/or other improvements ("Improvements") on real
property (each a "Property") in the United States and wishes to License
portions of a number of the Properties to Tenant for the purpose of locating
and operating communications facilities' and services thereon.
R-3. Tenant desires to license from Licensor portions of such
Properties for such purpose.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. MASTER LICENSE.
(A) This Agreement sets forth the basic terms and conditions upon which
each such Property or portion thereof is licensed by Licensor to Tenant.
Upon the parties' agreement as to the particular terms of any such license,
the parties shall execute and attach hereto a completed site license ("Site
License") for each such site, in the form attached hereto as Exhibit A, which
is incorporated herein by this reference. The terms and conditions of any
Site License shall govern and control in the event of a discrepancy or
inconsistency with the terms and conditions of this Agreement. This
Agreement shall govern Licensor's existing Properties only, and shall not
apply to raw land or new construction of towers on such Properties.
(B) Upon execution hereof, Licensor agrees to provide Tenant with such
information regarding each Property which it operates as may be necessary for
Tenant to evaluate the usefulness of such Property for its purposes as may be
readily available to Licensor. Licensor agrees to use reasonable efforts to
cause each of its subsidiaries and managers at each such Property to
cooperate fully with Tenant and its agents for the purpose of determining
suitability of the Property and installing and constructing the Tenant's
facilities, including providing Tenant and such agents with access to such
Properties and the opportunity to conduct limited testing at any such
Property, subject to reasonable limitations imposed by Licensor and/or any of
such managers.
2. DESCRIPTION OF PROPERTY AND LICENSED PREMISES. Licensor either
owns or leases the Property. If Licensor leases the Property, Licensor shall
provide Tenant with a copy of its lease (the "Prime Lease"), which will be
attached to each affected Site License as Exhibit 6. Upon reasonable request
of Tenant, Licensor shall exercise its best commercially reasonable efforts
to obtain the written consent of the prime landlord to the Site License and
any renewals or extensions thereof. The part of the Property to be licensed
by Licensor to Tenant shall include ground and/or rack space and such other
space for the mounting of antennas for the operation of certain
telecommunications equipment to be located within, atop, adjacent to or on
the Property, and such space across the Property that might be required for
providing Tenant access and necessary utilities. All floor space, rack
space, ground space, tower space and associated real property licensed by
Licensor to Tenant shall collectively be referred to hereinafter as "the
Premises," as more fully described in Exhibit 2 to the Site License. A more
complete description of the equipment to be placed on the Premises by Tenant,
including all transmit and/or receive frequencies, dimensions, and more
specific positions of such equipment as it will be installed on the Premises
shall be attached to each Site License at Exhibit 1. Tenant shall prepare and
present to Licensor an accurate and complete Exhibit 1 prior to execution of
the Site License for the subject Property. If, during the term of the Site
License, Tenant requests to add or remove equipment to or from the Premises,
which additional equipment is not listed on Exhibit 1, Licensor shall use all
reasonable efforts to accommodate Tenant's request, provided that the
Property has sufficient space and capacity to support the requested
additional equipment. In the event of such an agreed upon increase or
decrease in the equipment at the Premises, Licensor and Tenant shall mutually
agree to a reasonable rental adjustment as consideration for such additional
or reduced equipment.
To the extent any rights herein are subject to any existing Prime Lease
or license granted or existing in favor of Licensor from a third party
("third party license"), the rights herein are expressly made subject to such
third party license. In the event any such Prime Lease or other third party
license terminates or expires by its terms prior to the times for termination
or expiration or the Term herein, or the two additional optional renewal
terms herein, within ninety (90) days after execution of this Master Site
License Agreement, Licensor agrees to begin exercising its best commercially
reasonable efforts to obtain such renewals or extensions thereof, and options
for renewal or extensions thereof, as Licensor is reasonably able, and on as
nearly similar terms and rental sums as are now in existence, in order for
Licensor to be able to fulfill the terms of this Agreement, for the entire
duration envisioned herein. In the event Licensor is able to negotiate such
renewals or replacements thereof, but any of the material terms will be
different (including
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but not limited to rental sums), Licensor shall present same to Tenant for
its review and approval, before Licensor executes same.
Licensor shall also be responsible, at its expense, for the cost of
obtaining any approvals which may be required by any local, state or federal
authority, in conjunction with the granting of any License created herein,
its ownership of the Property and Improvements, or the operation of the
License granted herein, except insofar as same is specifically required of
Tenant by law in order for Tenant to carry out its intended use on the
Premises.
3. TERM AND TERMINATION. Each Site License shall become effective
upon installation of Tenant's equipment at the subject Property or 120 days
following the date the Site License for such Property is fully executed,
whichever is sooner ("the Commencement Date"), and shall continue in effect
for a term of five (5) years. Tenant warrants that it shall employ
reasonable efforts to obtain all required local permits for construction and
operation of its facilities installed by or owned by Tenant, and shall inform
Licensor immediately of its receipt of those permits. Tenant shall provide
Licensor with prior notice of the date upon which Tenant shall commence the
installation of Tenant's equipment. It is expressly understood that all
rights granted to Licensee for each Property hereunder are irrevocable until
the Site License for such Property expires or sooner terminates in accordance
with the terms and conditions herein set forth.
If, at any time during the Term hereof, (including any renewal or
extension of the Term herein), Tenant shall lose its F.C.C. license needed
for it to use the Premises for the intended use under the License granted
herein (as distinguished from any transfer, sale or assignment of such F.C.C.
license), this lease shall immediately terminate upon the termination of
Tenant's F.C.C. license, and at that point, no further obligation shall be
owed by either party hereto to the other under this Agreement, except as to
obligations which had already accrued prior to the time of the loss of such
Tenant F.C.C. license.
(A) Following an uncured material breach by a party, the non-breaching
party may terminate the applicable Site License, provided, however, the
non-breaching party must first provide to the breaching party all reasonable
opportunity provided hereunder to cure any such breach, including providing
to the breaching party at least thirty (30) days prior written notice of the
non-breaching party's intent to terminate the Site License. Upon termination
or expiration of a Site License, Tenant shall immediately remove its
equipment from Licensor's Premises. Tenant's failure to remove its equipment
within thirty (30) days following the expiration or termination of the Site
License shall entitle Licensor to receive from Tenant storage fees in an
amount equal to one hundred dollars ($100) per day beyond such thirty (30)
day period. Licensor hereby
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waives any and all landlord liens or similar claims to Tenant's equipment,
which equipment may be removed by Tenant at any time, provided, however, such
removal shall not create any termination of the applicable Site License or
reduction in any amount due Licensor.
(B) Any of Tenant's equipment which is deemed stored by Licensor in
accord with the terms herein shall not be entitled to receive electrical
power during such period of storage and Licensor shall have the right to
discontinue power to all stored equipment. Such equipment may also be
removed from the Premises by Licensor and stored at Licensor's main
facilities, but at all times remain the property of Tenant.
(C) In the event that the Premises are damaged or destroyed such that
Tenant is unable to operate its equipment thereon, Licensor shall make an
election within ten (10) days following such event as to whether Licensor
shall make repairs or reconstruct the damaged portion of the Premises to
enable Tenant to operate upon the Premises in substantially the same manner
as Tenant enjoyed prior to the event of destruction. Such election shall
only be effective if Licensor is willing and able to make such repair or
reconstruction within ninety (90) days following the making of the election.
If Licensor elects not to repair or reconstruct the Premises within the
aforementioned ten (10) day period; or if Licensor is unable to make such
repairs or reconstruct the Premises during that ninety (90) day period, then
Tenant shall have the option to: 1) terminate the Site License, without
further liability to either party, or 2) require Licensor to immediately pay
over, or assign its right to payment of all insurance proceeds payable to
Licensor arising from the loss or damage to the Premises, and Tenant may use
such proceeds to make such repairs or reconstruction. If Licensor elects to
repair or reconstruct the Premises within the aforementioned ninety (90) day
period, or if Tenant elects to use the insurance proceeds to repair or
restore said damage, the Site License shall continue to bind the parties,
providing, however, Licensor shall not be entitled to receive rents during
the period commencing on the date of destruction and extending to the date of
completion of the repairs or reconstruction. In the event that Tenant
terminates the applicable Site License under this Paragraph 3(C), Licensor
shall return to Tenant all prepaid rents collected by Licensor which
represents that period commencing upon the date of destruction of the
Premises and continues to the date of termination. Licensor's failure to
make an election during the ten (10) day period following damage or
destruction of the Premises shall be deemed an election by Licensor not to
repair or reconstruct the Premises. Nothing contained herein shall be deemed
an election by Licensor not to repair or reconstruct the Premises. Nothing
contained herein shall be deemed a guarantee by Licensor to repair or
reconstruct the Premises following destruction.
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4. MAINTENANCE OF EQUIPMENT. Tenant shall, at its own expense,
maintain its equipment on or attached to the Premises in a safe condition and
in good repair, and in a manner reasonably suitable to Licensor so as not to
conflict with the use of the Property by Licensor or by any other tenant
lawfully using the Property, subject to Paragraph 19 below. All repair and
maintenance of Tenant's equipment shall be performed by qualified
technicians, authorized to enter the Premises as Tenant's agents, contractors
or employees.
To the extent any of the Improvements or the Premises are required to be
repaired or maintained under any laws or regulations of the F.C.C., or the
F.A.A. (including but not limited to tower signage, painting and lighting
requirements), such maintenance and repairs shall be promptly addressed by
Licensor at its sole expense, and in accordance with any such legal
requirements.
(A) Any and all machinery, equipment and trade fixtures, except the
electrical service, installed by Tenant, shall remain Tenant's
notwithstanding the fact that it may be affixed or attached to the realty or
the Premises, and shall, during the term of the Site License or any extension
or renewal thereof, and upon termination thereof, belong to and be removable
by Tenant. Tenant agrees that the Premises and associated realty shall not
be damaged by Tenant's occupancy and that Tenant shall, upon termination of
occupancy, make any repairs necessitated by Tenant's occupancy or removal of
Tenant's equipment, less ordinary wear and tear and loss by casualty or other
causes beyond Tenant's control.
(B) All transmitters operated by Tenant upon the Premises shall include
the use of, for example, a single stage isolator or a single bandpass cavity
or such other devices which may reasonably prevent or deter the creation of
harmful electrical interference. Licensor may determine, from time to time
and as is reasonable and necessary, other similar requirements for safe,
interference free operation of Tenant's equipment upon the Premises and
Tenant shall comply with all such requests.
5. ACCESS. Licensor agrees to give Tenant free and unrestricted
ingress and egress to the Premises during the term of the Site License and
any extension or renewals thereof for the purpose of installing, maintaining,
operating, replacing, upgrading and removing Tenant's equipment. Licensor's
promise does not extend to real property which is not under Licensor's
authority or control. Licensor's promise will not be interpreted as a
guarantee of Tenant's ability to enter or exit the Premises when weather
conditions, road conditions and other elements outside of Licensor's control
might affect Tenant's ability to enter the
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Premises.
6. MAINTENANCE AND OPERATION OF PREMISES. Licensor reserves to itself
and its successors, and assigns, the right to maintain the Property and to
operate telecommunications facilities thereon in such manner as will best
enable each to fulfill its own requirements, but in accord with the covenants
contained herein, including Licensor's promise to maintain the Property in
merchantable condition. In such event, Licensor shall not act, or permit
others to act, under such reserved rights in such a manner as to cause any
interruption of or interference with Tenant's operation of Tenant's
equipment, or the rights granted under this Agreement, or Tenant's service,
including but not limited to electrical interference and interference created
by intermodulation. Under no circumstances shall Licensor be liable for
consequential damages to any party, including but not limited to third
parties, arising out of interruption of Tenant's service, except as a result
of acts or omissions by Licensor, or those acting under authorization from
Licensor.
(A) Licensor shall be solely responsible at its expense for compliance
with ally local, state and federal laws, regulations and rules, involving
painting, signage and lighting requirements arising out of owning,
maintaining, or operating of the Improvements or the Property, in accord with
the existing laws, rules and regulations adopted, or which might be adopted,
including those by the Federal Aviation Administration or the Federal
Communications Commission; and shall indemnify Tenant for all fines levied
against Tenant for Licensor's failure to comply with such laws, rules and
regulations.
(B) Tenant promises to cooperate fully in Licensor's efforts to
maintain the peaceful occupation of the structure of which the Premises are a
portion, including, without limitation, Tenant's agreement to cooperate in
maintaining the cleanliness of the Premises; in constructing its equipment in
a safe, reasonably quiet, and non-disruptive manner; in assisting in
maintaining the security of the Premises by reasonably limiting the number of
persons with access to the Premises; and in directing its employees to treat
all other tenants with civility and courtesy.
(C) In the event that Licensor deems it reasonable and necessary,
Licensor may, at Licensor's expense, require that an intermodulation study be
performed by Tenant, to determine the effect of Tenant's use of the Premises
as it might effect existing users of the Property; provided that Licensor may
only require Tenant to do such study one (1) time during the term of a Site
License. Licensor may require that Tenant present to Licensor such study as a
condition to Tenant's occupation.
(D) Licensor hereby warrants that the Premises have been
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constructed and will be operated and maintained in accord with all laws,
rules, statutes, and regulations adopted or to be adopted by all applicable
and relevant fora or governmental bodies. Subject to the terms and
conditions contained herein, Licensor hereby agrees to indemnify and hold
Tenant harmless for all violations of any law, rule, statute, or regulation
for which Licensor is responsible, including the payment of all fines,
forfeitures, or similar penalties levied against Tenant for Licensor's
violation of its duties hereunder, provided, however, Licensor's obligation
to indemnify and hold Tenant harmless in accord with this Paragraph 6(D)
shall be limited by those expressed conditions and limitations contained
herein, including, without limitation, Tenant's compliance with all of its
duties created hereunder.
7. RENTAL OF PREMISES. Tenant shall pay Licensor monthly rent in the
amount set forth in the Site License for the subject Property (plus
applicable taxes), payable in advance commencing on the Commencement Date of
the License as provided for in Paragraph 3 and on the first day of each month
thereafter during the term of the Site License or any renewal period. All
rental payments will be made to Licensor, at the following address:
Xxxxxx Tower Company
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Tenant agrees to pay a late fee for all rent payments not timely made (ten
(10) days past due) in an amount equal to five percent (5%) of the overdue
amount.
(A) If, following ten (10) days prior written notification to Tenant by
Licensor of Tenant's failure to make current its account, Tenant fails to
make timely rent payments such that the account is greater than sixty (60)
days past due, Tenant shall be deemed to have materially breached this
agreement. Notwithstanding all other remedies available at law or equity or
contained herein, Tenant's breach under this Paragraph 7(A) shall entitle
Licensor to demand and collect from Tenant a penalty amount in the amount set
forth in the Site License, in addition to all amounts due hereunder.
(B) Upon each anniversary date of the Commencement Date as defined by
Paragraph 3 herein, the annual charge for rental of the Premises shall be
automatically increased by an amount equal to four percent (4%) of the
previous annual rate. Such increases shall be automatic and will not require
Tenant's prior approval and by its execution of this agreement, Tenant agrees
to pay each such increase as a portion of its rent. Such increases shall
apply to the entire term of this agreement and any extension or renewal
period.
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(C) All rental payments made to Licensor shall be deemed the sole and
exclusive property of Licensor and shall not be subject to delay, offset,
refund or placement in escrow for any reason or purpose, except such refunds
as are expressed herein.
8. INDEMNIFICATION AND INSURANCE. Tenant shall indemnify Licensor
against any and all claims and demands for damages to property and injury or
death to persons, arising out of or caused by the installation, maintenance,
presence, use or removal of Tenant's equipment on the Premises, unless such
damage or injury shall be due to the willful acts or negligence of Licensor,
its employees, agents or invitees. Licensor shall indemnify Tenant against
any and all claims and demands for damages to property and injury or death to
persons, arising out of or caused by the acts or omissions of Licensor or
Licensor's employees, agents, or invitees, or the installation, maintenance,
presence, use or removal of third party's equipment on the Property, unless
such damage or injury shall be due to the negligence of Tenant, its
employees, agents or invitees. Licensor and Tenant shall each obtain and
maintain public liability insurance in an amount equal to Two Million Dollars
($2,000,000) during the term of the Site License and any renewal period,
respectively covering Licensor's and Tenant's use and ownership of rights in
the Premises. Tenant shall cause Licensor to be named as an additionally
insured person on its casualty and public liability policy(ies), and Licensor
shall cause Tenant, and any Tenant lender or lenders, to each be named as
additionally insured persons on Licensor's casualty and public liability
policy(ies). Tenant shall also carry worker's compensation insurance
covering all of Tenant's employees and automobile insurance covering all of
Tenant's vehicles in such amounts as are required by law. Certificates of
required insurance shall be periodically furnished to Licensor by Tenant, and
to Tenant by Licensor upon reasonable demand by the requesting party.
(A) Tenant and Licensor shall each be responsible for maintaining any
insurance covering their own equipment on the Property, in commercially
reasonable amounts sufficient to assure the ability to repair, reconstruct or
replace same if destroyed; the lives and health of their respective agents,
employees and invitees; damage or injury to other persons or other persons'
property caused by the acts or omissions of their own agents, employees, or
invitees; and any other business or liability insurance which each may deem
necessary to protect their own interests.
While not required to do so under this Agreement, in the event Tenant
obtains business interruption insurance, Licensor shall have no claim of
right, title or interest in or to any benefits paid under such coverage for
any reason.
(B) Licensor and Tenant each hereby waive any and all rights
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of recovery, claim, action, or causes of action, against the other, its
agents, officers or employees, for any loss or damage that may occur to the
Premises, or any improvements thereto, or any personal property of such party
therein, or to any person by reason of fire, the elements or any other cause
which could be insured against under the terms of standard property,
liability, fire and extended coverage insurance policies, regardless of cause
or origin, including negligence of other party hereto, its agents, officers
or employees and each party covenants that no insurer shall hold any right of
subrogation against such other party.
(C) Hold Harmless: Tenant hereby agrees to hold harmless the owner of
the real property and associated structures and all persons from whom
Licensor has taken authority for the purposes of Licensor's entrance into and
performance hereunder (if such person(s) are third parties), for any and all
injury or damages arising out of Tenant's occupation, use or employment for
commercial purposes of the Premises, including, without limitation, all
injury, loss or damages to Tenant and its agents, assigns, successors,
employees, invitees, and Tenant agrees that Licensor is the only other party
to this agreement and that no other party shall be deemed to have any
liability, duty or obligation to Tenant arising hereunder.
9. RENEWAL OPTIONS. Tenant shall have the option to renew and extend
the term of any Site License upon the same terms and conditions as set forth
herein for two (2) successive period(s) of five (5) years each (the "Renewal
Periods"). Tenant shall be deemed to have exercised its option to renew a
Site License and such Site License shall automatically renew on each fifth
year anniversary following commencement unless written notification of intent
to terminate the Site License is received by Licensor from Tenant on a date
which is at least ninety (90) days, but less than one hundred eighty (180)
days prior to the date of expiration. The word "term" as used in this
Agreement shall include the above-mentioned Renewal Period(s) as might be
exercised by Tenant.
10. DEFAULT. Neither party shall be deemed in default under a Site
License until the other party has given the defaulting party at least thirty
(30) days written notice of any default hereunder and the defaulting party
has failed to cure the same within thirty (30) days after receipt of such
notice; provided, however, that where such default cannot reasonably be cured
in such thirty (30) day period and if the defaulting party shall proceed
promptly to cure the same and prosecute such curing with due diligence, the
time for curing such default shall be extended for such period of time as may
be deemed necessary by the other party in its reasonable discretion to
complete such curing. Tenant's right to cure a default provided in this
Paragraph 10 shall not apply to the timely payment of rents.
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(A) Licensor will not, except in an emergency as shall be interpreted
in Licensor's sole discretion, cure any alleged default by Tenant until after
the expiration of thirty (30) days following Tenant's receipt of notice
provided for herein and then only if Tenant has failed, during such period,
to cure such default or perform such act.
(B) Licensor reserves the right to disconnect the electrical power to
Tenant's equipment if, following notification by another user of the
Property, or Tenant's agents or employees, or by notification by officials of
the Federal Government, it is determined that operation of Tenant's equipment
is causing injury or damage to other persons or users, subject to Paragraph
19 below, or is in violation of law. Such disconnection by Licensor shall
not be performed without informing Tenant prior to Licensor's taking such
action and without providing Tenant with an opportunity within seventy-two
(72) hours following such notification (which notification shall be by
telephone and followed immediately by written notice pursuant to the
Paragraph 13 herein below), to cure immediately such problems or answer such
allegations. If, following notification to Tenant by Licensor, Tenant does
not repair or disconnect Tenant's equipment within the aforementioned
seventy-two (72) hour period, to discontinue continuing injury and/or damage
to other persons or tenants, and Licensor reasonably deems such repair or
disconnection necessary to protect Licensor or other persons, Licensor may
disconnect the electrical power to Tenant's equipment, which act shall be
without liability to Licensor and Licensor shall not be liable for any
damages, loss of revenue, claims, or injuries caused by Licensor arising out
of disconnection of Tenant's equipment, except such injury or damages caused
by Licensor's negligence or willful actions, and only to the extent provided
for herein. Licensor warrants that the terms contained within this Paragraph
10(B) are substantially similar and reflected within all other licenses
entered into by Licensor for third parties' occupation and use of all or any
part of the Property and shall be included in substantially similar form
within future licenses entered into by Licensor for future tenants' use of
all or any part of the Property.
(C) Tenant shall be deemed to be in default if Tenant causes to be
placed upon its equipment or the Premises any unbonded mechanics' or
materialmen's lien or encumbrance, which placement delays, prevents or
impedes Licensor's or third parties' use of the Premises. Notwithstanding
the foregoing, Licensor acknowledges that Tenant has entered into a financing
arrangement, including promissory notes and financial and security
agreements, for the financing of Tenant's telecommunications facilities and
the operation thereof. Accordingly, Licensor hereby consents to Tenant's
installation and operation of Tenant's equipment, which is deemed collateral
under the aforementioned financing agreement(s), and Licensor agrees that (i)
it disclaims any interest in the
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collateral, as fixtures or otherwise; and (ii) it shall hold as exempt such
collateral from execution, foreclosure, sale, levy, attachment, or distress
for any rent due or to become due and that such collateral may be removed by
Tenant or pursuant to the terms of such financial arrangement(s) at any time
without recourse to legal proceedings. Licensor's consent provided under
this Paragraph 10(C) shall not be employed for the purpose of reducing any
obligation of Tenant's created hereunder for the timely payment of rents.
11. ASSIGNMENT OF LICENSE. Tenant shall not assign or sub-license this
Agreement or any Site License without the prior written consent of Licensor,
EXCEPT that no prior written consent shall be required from Licensor for any
such assignment or sub-license to (i) party who owns or acquires a
controlling ownership interest in Tenant (whether by purchase of fifty-one
percent (51%) or greater of the voting stock of Tenant, or substantially all
of the assets of Tenant, or otherwise); (ii) Tenant's parent corporation or
an affiliate of Tenant (For purposes of this paragraph, an affiliate is an
entity in which there is a common owner owning at least a ten percent (10 %)
ownership interest in both Tenant and the other affiliated entity, and shall
include but not be limited to parent and subsidiary entities to Tenant, as
well as partnerships in which Xxxxxx Communications Corporation, or any of
its subsidiary entities, is a general partner.); or (iii) a successor to
Tenant's FCC license to operate Tenant's equipment. In the event of a
permitted assignment or sub-license which does not require Licensor's prior
consent, Tenant shall provide Licensor written notice of the assignment or
sub-license, and the name and address of the assignee or sub-licensee before
same shall be binding on Licensor. With regard to any assignment or
sub-license which does require prior consent from Licensor, Licensor
covenants and agrees that it will not unreasonably withhold, delay or
condition its consent to any such assignment or sub-license. Under no
circumstances shall a Site License be assigned by Tenant to any party which
does not agree to be bound by all terms and conditions contained herein.
Licensor may assign its rights under this Agreement only upon sale of
the underlying Property or Premises, and Licensor's Improvements, without
prior approval from Tenant, PROVIDED that before the assignment may be made
binding on Licensor or Tenant, Licensor's transferee shall furnish Tenant
with the written adoption of this Agreement, and assumption of Licensor's
obligations under this agreement. Otherwise, no such assignment of the
Licensor's rights under this Agreement shall be made without Tenant's prior
written approval, which shall not be unreasonably withheld.
(A) As a condition precedent to Tenant's and Licensor's right to assign or
sub-license this Agreement and/or any Site
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License to any third party, Tenant and Licensor each covenant that they will
notify the other in writing of their intent to make such assignment or
sub-license and, in the event that Licensor's or Tenant's consent is not
required or is deemed given hereunder, the transferring party shall provide
to the other all documents reasonably required by the non-transferring party
to assure that the assignee or sub-licensee agrees to be bound by all terms
and conditions contained herein which bind the transferring party.
(B) Notwithstanding anything in this agreement to the contrary,
Licensor hereby agrees to Tenant's assignment of this Agreement and any Site
License to any financing entity, or agent on behalf of any financing entity,
to whom Tenant (i) has obligations for borrowing money or in respect to
guarantee 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 guarantees thereof. Further, Licensor agrees to execute such estoppel
affidavits and other documents relating to this Agreement and the Site
Licenses as may be reasonably requested by Tenant or Tenant's lender(s).
12. ATTORNEYS FEES. In the event that either party brings a law suit
to compel the performance of the other party hereunder, the substantially
prevailing party in such suit shall be entitled, in addition to all other
remedies at law or equity, to reimbursement for all reasonable attorney's
fees and costs paid to bring or defend such suit.
13. MANNER OF GIVING NOTICE. Any written notice to be given under this
Agreement or any Site License shall be mailed to each party at the address
shown below. All notice shall be sent by registered or certified mail,
postage prepaid, return receipt requested, or by a reputable express carrier
which provides overnight delivery service following receipt of a signature
from the receiver, and shall be deemed given when so mailed or sent.
Licensor: Xxxxxx Tower Company
Attn: President
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Tenant: [As designated in each Site License]
Sygnet Communications, Inc.
Attn: President
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
With copy to: Xxxxxx Communications Corporation
Attn: Xx. Xxxxxx X. Xxxxxx
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Vice President and Senior General Counsel
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
14. QUIET ENJOYMENT. Licensor covenants and agrees that upon Tenant's
paying the rent and other applicable charges and performing in accord with
the terms and conditions stated herein, Tenant may peacefully and quietly
enjoy the Premises, subject to the terms and conditions of this Agreement and
the Site License.
15. COMPLIANCE WITH STATUTES AND REGULATIONS. Antennas, wires and
appliances of Tenant shall be erected and maintained in accord with the
requirements and specifications of the safety codes of the State where the
Premises are located or any applicable jurisdiction or any amendments or
revisions thereof, and in compliance with any rules or orders now in effect,
or that hereafter may be issued by the Federal Communications Commission.
16. AUTOMATIC TERMINATION. Licensor may terminate this Agreement
immediately and the parties shall deem Tenant to be in default if any of the
following occurs: (i) Tenant is declared bankrupt or files for bankruptcy
protection; (ii) Tenant is adjudged insolvent, and such judgment is not
reversed within thirty (30) days of entry; (iii) a receiver is appointed to
manage Tenant and/or its assets, and such appointment is not overturned
within thirty (30) days; or, (iv) Tenant is found by a court of competent
jurisdiction to have engaged in felonious activity in the operation of
equipment at the Premises. Termination by Licensor for the causes listed
above shall not create a reduction, offset, or relief from liability of all
charges due and owing Licensor which have accrued up to the time when
termination is elected.
17. PASS THROUGHS. In addition to the annual rental payments to be
made by Tenant, Tenant agrees to pay its reasonable pro rata or
representative portion of any increase in taxes, excluding income taxes; any
road assessments levied for the provision of ingress and egress to the
Premises; or increase in per unit rate of necessary utilities which occur
following the commencement of the site License and which are billed to either
party for operation of the Premises. Charges for increased utility rates
will not be passed through to tenants which are billed separately by the
utility company for power and/or telephone service and Tenant agrees to
separate metering of its electrical power at Tenant's sole expense. Charges
to Tenant for such increases may be commenced immediately following
Licensor's receipt of a demand for higher costs from the applicable
government agency, supplier, utility company or road maintenance company,
without prior notification to or approval from tenant, however, Licensor
shall provide to Tenant all documentation necessary to demonstrate the source
and amount of any increase directly attributable to Tenant's equipment on the
Premises. Under no circumstances shall
13
Licensor charge Tenant for such increases in a manner that might result in a
profit to Licensor. Tenant's failure to pay any such charges upon demand by
Licensor shall be deemed to be a failure to pay rents as required herein.
18. COMPLIANCE WITH LAW REGARDING AUTHORITY TO OPERATE. Except as
specifically provided herein, the parties shall be responsible for compliance
with all laws, statutes and regulations for which their authority to operate
radio equipment, or operate the Premises or Property as the case may be, is
dependent. No party shall indemnify the other or be made liable in any way
for any other party's failure to act in compliance with any rule or law,
including violations which result in criminal prosecution or punitive action
against a party, no matter what the source or cause of the violation of law
might be except as provided for in Paragraph 6(D) above. Accordingly, each
party shall be solely responsible for its actions and its defense of such
actions before any official agency or relevant court, with the sole
responsibility party(ies) being those named in such action.
19. INTERFERENCE. Tenant shall have full and complete responsibility
to correct, within seventy-two (72) hours, any electrical interference caused
to other communications equipment at the Property by operation of Tenant's
equipment, which cause is a result of a defect in Tenant's equipment. The
term "defect" shall include any operating of Tenant's equipment which is not
in accord with the technical parameters of any license issued by the Federal
Communications Commission for operation of Tenant's facilities; any operation
in variance with any equipment authorization granted by the Federal
Communications Commission for operation of Tenant's facilities; any operation
in variance with any equipment authorization granted by the Federal
Communications Commission for sale, marketing and use of Tenant's equipment;
any circumstance or condition which causes Tenant's equipment to operate in
variance with any Exhibit attached to the subject Site License hereto; and
any operation of tenant's equipment which does not conform with generally
accepted practices of telecommunications engineering, including, but not
limited to, applicable ANSI standards which exist or come to exist. Licensor
warrants that the terms contained within this Paragraph 19 are substantially
similar to and reflected within all other licenses entered into by Licensor
for third parties' occupation and use of all or part of the Property and
shall be included in substantially similar form within future licenses
entered into by Licensor for future tenants' use of all or part of the
Property.
(A) Licensor hereby agrees to cooperate reasonably with Tenant in
relieving any harmful electrical interference to Tenant's equipment caused by
the operation of other telecommunications facilities on the Premises,
including directing the interfering operator to discontinue the creation of
such harmful interference
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or exercising Licensor's right to disconnect the operation of offending
facilities until such time as the harmful interference can be resolved. In
the event that the parties' cooperation cannot relieve the receipt of harmful
electrical interference to Tenant's equipment within thirty (30) days
following Tenant's providing to Licensor notification of the existence of the
harmful interference, and said interference is not caused by any defect or
unreasonable condition in Tenant's equipment or operation, Tenant may
terminate this License and/or seek any other remedies available to Tenant at
law or in equity, including an injunction against the interfering party;
providing, however, such termination or remedies shall be without liability
to Licensor, except for acts or omissions of Licensor in violation of this
Agreement.
20. SUITABILITY. Tenant warrants that prior to the Commencement Date,
it will examine the Premises to its satisfaction and that if Tenant does not
send Licensor written notification to the contrary, Tenant's election not to
notify Licensor otherwise shall be deemed to be Tenant's acceptance of the
Premises as suitable for occupation by Tenant for the purposes described
herein. In the event that Tenant determines that the Premises are unsuitable
for Tenant's occupation and use, Tenant may terminate the Site License for
said Premises without further liability to either party. Tenant further
acknowledges that Licensor does not warrant, in any way, the quality, range,
or propagation characteristics of any radio signal to be transmitted by
operation of Tenant's equipment.
21. ENVIRONMENTAL LAWS. Tenant represents, warrants and agrees that it
will conduct its activities on the Premises in compliance with all applicable
Environmental Laws. Licensor represents, warrants and agrees that it has in
the past and will in the future, conduct its activities on the Property in
compliance with all applicable Environmental Laws and that the Property is
free of hazardous substances as of the date of this License.
Licensor shall be responsible for, and promptly cause to be performed,
any investigation and remediation as required by any environmental laws or
common law, of all spills or other release of hazardous substances, not
caused solely by Tenant, that have occurred or which may occur on the
Property.
Tenant agrees to defend, indemnify and hold Licensor harmless from and
against any and all claims, causes of action, demands, and liability
including, but not limited to, damages, costs, expenses, assessments,
penalties, fines, losses, judgments and attorney's fees that Licensor may
suffer due to the existence or discovery of any hazardous substance on the
Premises or the migration of any hazardous substance to other properties or
release into the environment, arising solely from Tenant's activities on the
Premises.
15
Licensor agrees to defend, indemnify and hold Tenant harmless from and
against any and all claims, causes of action, demands and liability
including, but not limited to, damages, costs, expenses, assessments,
penalties, fines, losses, judgments and attorney's fees that Tenant may
suffer due to the existence or discovery of any hazardous substance, except
radio frequency emissions on the Property, or the migration of any hazardous
substance to other properties or released into the environment, that relate
to or arise from Licensor's activities during the term of this License (or
the activities of third parties acting under the authority of Licensor) and
from all conditions and activities on the Property prior to the commencement
of this License.
The indemnification in this Paragraph specifically includes costs
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any governmental
authority.
Notwithstanding the foregoing, Tenant agrees to cooperate with Licensor
and other users of the Property to resolve any violations of RF emission
standards created by the operation, collocation, and use of the Property by
Tenant and all other users, which standards are promulgated by the FCC,
including, if necessary, the provision of shielding devices or hardware or
other such remedies which are reasonably required to assure compliance with
all such regulations. Licensor agrees to cooperate with Tenant to assist in
assuring compliance with all FCC promulgated RF exposure limitations,
including providing to Tenant upon request, all relevant information which
Licensor has in its possession regarding the equipment employed by collocated
systems operating upon the Property.
Each party warrants that they shall provide immediate notification to
the other party of any investigation or lawsuit commenced by any agency,
governmental body, person, or forum regarding any alleged violation of any
environmental protection law. A party's failure to provide such notification
will not, however, be deemed a waiver of a party's obligation to provide
indemnification required hereunder.
This Paragraph 21 shall survive the expiration or earlier termination of
this Agreement or the Site License.
22. CONDEMNATION. In the event that the Premises or any portion
thereof are taken pursuant to a condemnation proceeding or by eminent domain,
such that Tenant can no longer operate its telecommunications equipment on
the premises, the Site License shall terminate without liability to either
party and Tenant shall not only be entitled to any portion of any award
arising out of such proceedings which are attributable to any of Tenant's
16
property, improvements or property rights under this Agreement or any of the
Site Licenses.
23. ENTIRE AGREEMENT SEVERABILITY. This Agreement, together with each
Site License, entered into pursuant to the terms hereof constitutes the
entire agreement and understanding between the parties, and supersedes all
offers, negotiations and other agreements concerning the subject matter
contained herein. Neither this Agreement nor any Site License may be
modified or terminated except as provided herein or by other written
agreements between the parties. If any provision of this Agreement or any
Site License is held by a court of competent jurisdiction to be invalid, it
shall be considered deleted from this Agreement or the Site License, however,
the remainder of this Agreement or the Site License shall survive and be
deemed enforceable.
24. PARTIES BOUND BY AGREEMENT. Subject to the provisions hereof, this
Agreement and each Site License shall extend to and bind the parties and
their heirs, executors, administrators, successors and assigns.
25. GOVERNING LAW. Each Site License and this Agreement as applied to
that Site License shall be construed in accordance with the laws of the of
Ohio.
26. HEADINGS. The headings included herein are merely a matter of
convenience and shall not be employed for the purpose of interpretation of
the language contained herein.
27. WARRANTY OF SIGNATORIES. The persons signing below and the persons
signing each Site License executed hereunder warrant that they possess all
actual and apparent authority to bind legally the party which they claim to
represent, for all purposes related to performance in accord with the terms
contained herein. The signing persons agree that they possess all authority,
both actual and implied, to cause the party they represent to enter into and
perform under this agreement for all purposes.
28. COUNTERPARTS. This Agreement and any Site License may be executed
in counterpart originals and each shall be deemed fully binding on the
parties in all respects.
29. ABILITY TO PERFORM. Licensor warrants that: (i) that it owns the
tower or other Improvements at the Property, on which part of the Premises is
located; (ii) it has good title to or a valid leasehold interest in the
Property pursuant to a valid lease with the owner of the land (on which the
Property is located); (iii) it is a corporation in good standing, authorized
to do business within the state where the Premises are located; (iv) it has
authority to enter into this Agreement and each Site License pursuant to its
interest in the property; and (v) it knows of no reason why it
17
cannot enter into this Agreement and each Site License and perform hereunder,
including reasons arising under any statute, law, rule, regulation,
contractual obligation, decision of any applicable government agency or
forum, articles of incorporation, by-law, or pending or threatened litigation.
30. RECORDING. Licensor acknowledges that a Memorandum of Agreement,
in the form annexed hereto as Exhibit C, will be recorded by Tenant in the
official records of the County where the Property is located, and Licensor
agrees to cooperate reasonably with Tenant's effort to record such Memorandum
of Agreement. In the event the Property is encumbered by a mortgage or deed
of trust, Licensor agrees to employ reasonable efforts to obtain and furnish
to Tenant a non-disturbance and attornment instrument for each such mortgage
or deed of trust.
WHEREFORE, the parties have executed this agreement on the day and year
first above written, intending to be legally bound to the terms and
conditions contained herein.
Licensor: Tenant:
Xxxxxx Tower Company, Sygnet Communications, Inc.
an Oklahoma corporation an Ohio corporation
By: /s/ G. Xxxxxx Xxxxx By: /s/ G. Xxxxxx Xxxxx
-------------------------------- --------------------------------
Its: President Its: President
-------------------------------- --------------------------------
Date: 12-23-98 Date: 12-23-98
-------------------------------- --------------------------------
18
License No._____________
Structure No.___________
EXHIBIT A
Site License
to the Master Site License Agreement between Sygnet Communications,
Inc., an Ohio corporation, together with its communications affiliates
collectively ("Tenant"), and Xxxxxx Tower Company ("Licensor").
1. Site No./Name:
2. Name of Licensor:
3. Name of Tenant:
4. Site Address: (street address and legal description - attach)
5. Site Latitude and Longitude:
6. Commencement Date:
7. Monthly Rent: Penalty Amount:
8. Term: See paragraphs 3 and 9 of the Master Site License
Agreement
9. Site Licensor-Owned:_____________ or Licensor-Licensed:_____________
If Licensed, Term of Underlying License:
10. Special Access Requirements:
11. Existing Mortgages, etc.:
12. Licensor Contact for Access for Emergency:
13. Tenant Contact for Emergency:
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14. Tenant's Address for Notice Purposes:
LICENSOR:
By:
-------------------------------------
Title:
-------------------------------------
TENANT:
By:
-------------------------------------
Title:
-------------------------------------
Date:
--------------------------------
Attachments: Exhibit 1: Description of Tenant's Equipment
Exhibit 2: Description or Depiction of Premises (Field
Drawing of Equipment Shelter/Room/Cabinet
Location(s) and right-of-way to the Premises)
Exhibit 3: Engineering/Architectural Plans and Specifications
Exhibit 4: Existing Liens, Rights of Way and Easements
Exhibit 5: Current Wireless Communications Uses of Site
(including frequencies and radiated power
densities)
Exhibit 6: Prime License (if applicable)
20
EXHIBIT 1
DESCRIPTION OF TENANT'S EQUIPMENT
The equipment Tenant shall place on the Premises is as follows:
INITIAL INSTALLATION:
One (1) Equipment shelter (10'x 12') to house Tenant's communications
equipment, constructed on a concrete pad.
Six (6) Panel antennas, approximately 1'x 4' in size.
Six (6) Coaxial runs, 7/8" in diameter.
Grounding equipment necessary to tie into Licensor's grounding ring, as
applicable.
Waveguide bridge, associated supports and connectors, utility lines and
transmission lines
Sectors:
-------------------------------------
Azimuths:
-------------------------------------
Frequencies:
-------------------------------------
Positions: (See Exhibit B)
FUTURE INSTALLATION
Three (3) Panel antennas, approximately 1'x 4' in size
Three (3) Coaxial runs, 7/8" in diameter.
Grounding equipment necessary to tie into Licensor's grounding ring, as
applicable.
Waveguide bridge; associated supports and connectors, utility lines and
transmission lines
Sectors:
-------------------------------------
Azimuths:
-------------------------------------
Frequencies:
-------------------------------------
Positions: (See Exhibit B)
EXHIBIT B
DESCRIPTION OF PREMISES
The Premises are described and/or depicted as follows:
EXHIBIT C
WHEN RECORDED SEND TO:
______________________________________
______________________________________
______________________________________
______________________________________
MEMORANDUM OF AGREEMENT
This Memorandum of License is entered into on this __________________
day of ___________________, 199 ____, by and between __________________________
___________________, a ___________________ corporation, with an office at
______________________________________, (hereinafter referred to as "Licensor")
and ______________________________________, a ___________________ corporation,
with an office at ______________________________________, (hereinafter referred
to as "Tenant").
1. Licensor and Tenant entered into a Site License ("Agreement') on
___________________, 199____, for the purpose of installing, operating
and maintaining a radio communications facility and other
improvements. All of the foregoing are set forth in the Agreement.
2. The term of the Agreement is for five (5) years, commencing on
___________________, 199____, ("Commencement Date") and terminating on
the fifth (5th) anniversary of the Commencement Date, with two (2)
successive five (5) year options to renew.
3. The Land which is the subject of the Agreement is described in Exhibit
A annexed hereto. The portion of the Land being licensed to Tenant
(the "Premises") is described in Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of
Agreement as of the day and year first written above.
LICENSOR: TENANT:
By:________________________________ By:_____________________________________
Title:_____________________________ Title:__________________________________
Date:______________________________ Date:___________________________________
STATE OF___________________________
COUNTY OF__________________________
On ___________________, before me, _____________________________________, Notary
Public, personally appeared ______________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature
on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
______________________________________ [SEAL]
Notary Public
My commission expires:___________________
