ANTENNA SITE LICENSE AGREEMENT Between

12/2006
ANTENNA SITE
LICENSE AGREEMENT
Between
CELL TOWER LEASE ACQUISITION LLC
(LICENSOR)
and
____________________________________
(LICENSEE)
LICENSE AGREEMENT
1. Parties: This License Agreement (this "Agreement") is made on the ___ day of _________, 200_, by
and between Cell Tower Lease Acquisition LLC, a limited liability company with an address at 92
Thomas Johnson Drive, Suite #130, Frederick, Maryland 21702, and ___________________, a
__________ with an address of __________________________________________________.
2. License Summary and Definitions
2.1. Licensor: Cell Tower Lease Acquisition LLC
2.2. Licensor's Address: 92 Thomas Johnson Drive, Frederick, Maryland 21702
2.3. Licensee: _______________________
2.4. Licensee's Address: ___________________________________________________
2.5. Term Commencement Date: The earlier of (i) the date of the commencement of the installation
of Licensee's Equipment at the Licensed Premises, or (ii) ___________, 200_ or issuance of a
building permit.
2.6. Term Expiration Date: Ten (10) years next following the Term Commencement Date unless
the Term is extended pursuant to the terms of this Agreement
2.7. Term: 10 years
2.8. Extension Terms: Two (2) extension options of ten (10) years each
2.9. Fee Commencement Date: The Term Commencement Date
2.10.
License Fees: License Fees shall also include all other fees, charges and sums payable by
Licensee to Licensor under this Agreement.
2.11.
Capital Contribution Fee: Licensee shall pay to Licensor on or before the Term
Commencement Date a capital contribution towards the costs associated with the Site and Tower
of $_____________.
Comment [MSOffice1]: To be
used as appropriate
2.12.
License Processing Fee: To compensate Licensor for its time and expense in processing
Licensee's application, providing studies and reports, negotiating and processing this Agreement,
notifying other licensees and other license set up activities, Licensee shall pay to Licensor on or
before the Term Commencement Date a fee of $_____________ (up to $2,500.00).
2.13.
Site: The Site consists of all of Licensor's right, title and interest in and to the ground
lease, easement, prime license, or fee simple interest in that certain parcel of real property
depicted on Exhibit A and legally described on Exhibit D, together with any easements
appurtenant thereto.
2.14.
Tower: A communications tower at approximately the following latitude and longitude:
Latitude:
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 1 of 22
Comment [MSOffice2]: To be
used as appropriate
Longitude:
2.15.
Tower Premises: The space on the Tower reserved for the installation of Licensee's
antennae. Licensee's antennae and appurtenant equipment will be installed within the boundaries
of the Tower Premises. Licensee's Tower Premises is depicted on Exhibit B and is described as
follows:
Comment [MSOffice3]: To be
used as appropriate
Vertical space licensed: ______________________ (___) feet
Bottom limit: ______________________________(___) feet AGL
Upper limit: ______________________________(___) feet AGL
2.16.
Ground Premises: Ground space comprising a portion of the Site for placement of
Licensee's Equipment as depicted on Exhibit A and described as follows:
Ground space: approximately _____________________ (___) square feet
2.17.
Licensed Premises: The Ground Premises, the Tower Premises and non-exclusive use of
space to connect Licensee's Equipment in the Tower Premises with Licensee's Equipment on the
Ground Premises, together with non-exclusive easements for access and utilities to Licensee's
Equipment
Comment [MSOffice4]: If Tower
Premises are not included,
delete this phrase up to
“together with …”
2.18.
Licensee's Equipment: The equipment listed on Exhibit C attached hereto, as the same
may be modified, changed or substituted from time to time, but only with the prior written
approval of Licensor.
2.19.
Transmitting Frequencies:
Frequencies: ___ Watts (Max.) per channel
Tx: ___ to ___ MHz
Comment [MSOffice5]: Primaril
y for rooftop and specific
easements
2.20.
Receiving Frequencies:
Frequencies:
Rx: ___ to ___ MHz
Comment [MSOffice6]: Primaril
y for rooftop and specific
easements
3. Grant of License
3.1. Licensor grants Licensee a license to use the Licensed Premises for the purpose of installing,
maintaining and operating, at Licensee's own expense, Licensee's Equipment and for no other
purpose. This Agreement does not confer any rights or benefits greater than those rights and
benefits of Licensor derived from the ground lease, easement, prime license or deed set forth in
Exhibit D. This Agreement does not confer upon Licensee any real or personal property rights
in the Site, the Tower or the structures or equipment now or hereafter situated thereon.
3.2. Licensor grants Licensee a license to install and operate only the Licensee’s Equipment specified
on Exhibit C. Any other equipment must be approved by Licensor in advance in writing (said
approval not to be unreasonably withheld) and may result in an increase in the License Fees.
Said increase in License Fees shall be agreed upon by Licensor and Licensee only after
Licensor’s approval of any change in Licensee’s Equipment and prior to the commencement of
any Work related thereto.
3.3. Licensor agrees that the Term of this License shall be non-revocable, but the foregoing shall not
be deemed or construed as preventing the termination of this Agreement pursuant to its terms or
CTLA Site #:
Licensee Site #:
Site Name/Address:
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Comment [MSOffice7]: To be
deleted as appropriate
pursuant to Licensor's exercise of any remedies available to it at law or in equity in the event of a
breach of the obligations contained herein to be kept or performed by Licensee.
3.4. Subject to the provisions of this Agreement, and except to the extent necessary to access,
maintain, repair, construct and service improvements now or hereafter situated on the Site
including, without limitation, the Tower, as necessary to inspect the Site and to show it to
prospective users, lenders and purchasers and as necessary to construct, install, repair, maintain,
operate and replace equipment and improvements situated outside of the Ground Premises and
the Tower Premises, the license granted to Licensee hereunder to use the Licensed Premises shall
be exclusive to Licensee and the same shall not be rented or licensed to others.
4. Electricity: Licensee shall be responsible at its sole cost for providing electricity and other utilities to
service Licensee's Equipment. Under the direction of Licensor, Licensee may, at Licensee’s cost and
expense, tie the Licensed Premises into the electric system serving the Site, if available, and will
install a separate meter for the measurement of electricity used or consumed by Licensee. Licensee
shall directly contract with the electric utility company serving the Site for Licensee's electricity
needs and shall promptly pay all of its electric bills when due and payable. Licensor shall not be
responsible, nor held liable, for any failures or disruptions of electrical service, whether or not caused
by the fault of Licensor.
5. Emergency Generator: Licensee shall have the right, at its sole cost and expense, to use a temporary
emergency generator at the Site to service Licensee's Equipment. The emergency generator will be
situated at a location designated by Licensor. Licensee shall use a generator of a type that is designed
to minimize noise and install any other equipment necessary to suppress noise during operation.
Licensee shall be responsible for all required permitting whether necessitated by the generator or the
generator's incremental effect at the Site. If Licensee desires to install a permanent emergency
generator at the Site to service Licensee's Equipment, such installation will be subject to the prior
written approval of Licensor, not to be unreasonably withheld, and shall be subject to payment of an
additional License Fee of not less than $600.00 per month.
6. Term; Equipment Removal; Condition of the Site at Termination
6.1. Term. This Agreement shall commence on the Term Commencement Date and shall expire on
the Term Expiration Date, unless sooner terminated or extended pursuant to Section 6.2.
6.2. Extension Terms: The Term of this Agreement shall automatically be extended for two (2)
periods of ten (10) years (each, an "Extension Term"), unless Licensee provides written notice of
its election not to extend to Licensor not less than six (6) months prior to the expiration of the
then current Term, provided however, that as of the date of the commencement of the Extension
Term, this Agreement shall be in full force and effect, and Licensee shall not be in default of its
obligations hereunder to be kept or performed. Each Extension Term shall commence
immediately upon the expiration of the original Term or the then current Extension Term, as the
case may be, and in each case upon all of the covenants, agreements and conditions herein set
forth.
6.3. Equipment Removal. Promptly upon expiration or earlier termination of this Agreement, but in
no event later than thirty (30) days thereafter (the "Removal Period"), Licensee shall remove
from the Site Licensee’s Equipment, including antenna(s), feed lines, footings and any other
property it has installed or owns. License Fees shall continue to be due and payable by
Licensee following the expiration or earlier termination of this Agreement until the earlier of the
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 3 of 22
Comment [MSOffice8]: To be
deleted as appropriate
Comment [MSOffice9]: To be
deleted as appropriate
date (a) all such Licensee’s Equipment is removed from the Site by Licensee, (b) Licensee’s
Equipment is released from storage as hereinafter provided, or (c) Licensee’s Equipment is
declared abandoned as hereinafter provided. Following the expiration or earlier termination of
this Agreement, License Fees shall be payable by Licensee for the first twelve month period
following such expiration or termination at a monthly and annual amount which is 150% of that
payable with respect to the most recent License Year, which amount shall increase by 25% with
respect to each twelve month period thereafter.
6.3.a. At any time following the expiration of the Removal Period, Licensor shall have the right,
but not the obligation, to remove any or all of Licensee’s Equipment and store the same at
Licensee's cost and expense and shall have no obligation to release the same from storage
until all past due License Fees and all storage charges are paid or reimbursed to Licensor in
full. On the later of (i) five (5) days notice from Licensor, or (ii) sixty (60) days notice to
Licensee's finance companies which Licensee has theretofore notified Licensor hold a lien
on Licensee’s Equipment (together with the appropriate address for notice to same),
Licensor shall have the right, but not the obligation, to remove Licensee’s Equipment from
the Site or from storage at Licensee’s cost and expense, and may retain or dispose of the
same without liability of any kind to Licensee or any other party, whether for damages
attributable to interruption of service, the lost value of Licensee’s Equipment or for any
other reason whatsoever. No such removal or disposal of Licensee's Equipment shall
relieve Licensee of any liability for damages, nor the performance of its obligations under
this Agreement, including, without limitation, the payment of any sum, which may become
due and payable under this Agreement.
6.3.b. The provisions of this Section shall survive the expiration or earlier termination of this
Agreement.
6.4. Condition of the Site at Termination. Upon removal of Licensee’s Equipment, Licensee shall
restore the Licensed Premises and any other portion of the Site and improvements affected by
Licensee's occupation to the condition the Licensed Premises were in when turned over to
Licensee, reasonable wear and tear excepted. The provisions of this Section shall survive the
expiration or earlier termination of this Agreement.
7. Coverage and Interference, Warranties
7.1. No Guarantees or Warrantees. Licensor makes no guarantees as to communications
performance or coverage for systems operating from the Site. Licensee acknowledges that it has
examined and tested the Site and Tower for condition, engineering, workmanship and suitability
for Licensee's purposes, and accepts the Licensed Premises in its “As Is” condition. Licensor
makes no warranty as to any of these matters. Any surveys which may have been provided to
Licensee are to indicate general parameters of expected coverage and have been provided
without representation or warranty as to coverage or any other matter. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
7.2. Interference. Licensee shall not use any equipment that causes, or may cause, interference with
any other antenna(s) or equipment at the Site as of the Term Commencement Date. Licensee
agrees that if any of Licensee’s Equipment causes interference in violation of the above,
Licensee shall immediately cease such interference and make such changes in antenna(s) and
equipment as needed to correct the interference. If necessary, Licensee shall cease using, or
relocate, Licensee’s Equipment at its own expense. Should Licensee be unable to correct an
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 4 of 22
Comment [MSOffice10]: To be
deleted as appropriate
interference problem occasioned by the use of its antenna(s) or equipment, it shall remove the
antenna(s) or equipment from the Site. Following the Term Commencement Date, Licensor will
not permit subsequent tenants, licensees or users who are granted permission to use the
Tower/Site to install equipment which causes measurable interference with radio equipment then
installed by Licensee, and upon its receipt of written notice of such interference, it shall take
reasonable measures, and in good faith work with Licensee in a cooperative effort, to cause the
Tower user causing such interference to remedy the same, but Licensor shall not be liable to
Licensee for any costs or damages sustained by Licensee by reason of such user's interference, as
aforesaid, or failure to respond to Licensor's demands that it remedy the same. Licensor further
agrees that agreements with subsequent users of the Tower shall contain provisions imposing
similar obligations upon such subsequent users. The provisions of this Section shall survive the
expiration or earlier termination of this Agreement.
Comment [MSOffice11]: Delete
as appropriate
8. License Fee; Late Charge & Interest; Government Taxes or Fees
8.1. License Fees. License Fees are due and payable in advance, without setoff or deductions of any
kind, on the Fee Commencement Date and thereafter on the first (1st) day of each month. Partial
months shall be prorated.
8.2. Late Charges & Interest. Any License Fee or other amounts due and payable by Licensee to
Licensor and not paid by Licensee within ten (10) days after notice that it is due with respect to
the first delinquency by Licensee in any twelve (12) month period, or within ten (10) days after it
was due, without notice from Licensor, with respect to any subsequent delinquencies in any
given twelve (12) month period, shall thereafter be payable with (i) a late charge equal to 11% of
the unpaid amount, (ii) interest at the rate of 3% per annum in excess of the prime or base rate of
Chase Manhattan Bank, N.A. (or its successor), in effect from time to time, from the due date to
the date of full payment, but nothing contained herein shall either prevent nor obligate Licensor
from giving Licensee notice of any delinquency. The provisions of this Section shall survive the
expiration or earlier termination of this Agreement.
8.3. Government Taxes or Fees. Should any federal, state or local authority impose a tax (such as,
but not limited to, a sales tax or use tax) on this Agreement, any sum payable by Licensee
hereunder or any service provided by Licensor to Licensee, the amount due and payable to
Licensor shall increase by the new or additional amount. Licensee shall reimburse Licensor for
(i) any increases in real property taxes due to Licensee’s use of the property or presence on the
property, and (ii) roll back taxes in connection with Licensor's agricultural use exemption (up to
a one-time maximum of $5000.00), provided that such tax increase or roll back taxes are
assessed as a direct result of Licensee's improvements to the Site. Licensor shall provide to
Licensee reasonable documentation from the taxing authority indicating the increase or
assessment is due to Licensee's improvements. Licensee shall also pay any personal property
taxes assessed with respect to any of Licensee's Equipment installed pursuant to this Agreement.
Licensee shall pay within thirty (30) days of receipt. The provisions of this Section shall survive
the expiration or earlier termination of this Agreement.
9. Use of Site is Non-exclusive; Access to Tower & Cooperation
9.1. Use of Site by Other Parties. Subject to the provisions of Section 3.4, Licensee's use of the Site
is non-exclusive. Nothing contained in this Agreement shall prohibit or restrict Licensor from
entering into agreements with other parties for the use of the Site, Tower and other
improvements, now or hereafter situated thereon. Licensee understands and accepts that parties
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 5 of 22
Comment [MSOffice12]: Delete
as appropriate
other than Licensor and Licensee will have access to the Site, and that no guarantees as to the
behavior of such parties have been made, nor can they be made. Licensee shall be responsible
for securing Licensee’s Equipment from access or entry by unauthorized persons. Licensor shall
not be liable for any loss or damage to persons or property arising out of, or in any way related
to, the acts or omissions of others unless the same are the result of the gross negligent acts or
omissions of Licensor.
9.2. Access to Tower/Site. Only personnel approved in writing in advance by Licensor may be
permitted to climb on the Tower or work at the Site, which approval shall not be unreasonably
withheld, conditioned, or delayed. Any contractors or subcontractors approved by Licensor must
have and provide to Licensor evidence of insurance coverage with reputable carriers licensed to
do business in the state where the Site is located, providing worker's compensation coverage in
accordance with statutory requirements, employer's liability coverage, general commercial
liability coverage utilizing a commercial occurrence form with at least $1,000,000 per
occurrence and $2,000,000 general aggregate per location, automobile and property damage
coverage with a combined single limit of at least $1,000,000 and professional liability coverage,
to the extent design or engineering services are provided by the contractor or subcontractor. All
work performed by or on behalf of Licensee shall be in strict compliance with all applicable laws
and any requirements or conditions imposed by Licensor. If approval or denial shall not be
forthcoming within fifteen (15) days next following the written request of Licensee, such
approval shall be deemed to have been given. Any installation or other work undertaken or any
access granted other than in strict compliance with this Section 9.2 shall be an immediate and
material breach of this Agreement.
9.3. Duty to Cooperate. As this is a multi-user Site, Licensee agrees to cooperate in a commercially
reasonable manner with Licensor and all other present and future occupants of the Site and the
Tower in addressing interference problems and in other matters, and in doing so, agrees to take
reasonable measures and make reasonable modifications of its installation and its equipment to
accommodate such other parties' materials and equipment.
10. Authorizations, Licenses and Permits
10.1.
Licensee represents that it will not commence operating at the Site and will promptly
cease operating should it fail to obtain and thereafter maintain, all authorizations, licenses and
permits necessary for the operation of Licensee’s Equipment, but its inability to commence
operations or such cessation of operations, as aforesaid, shall not relieve Licensee from any of its
obligations under this Agreement, including, but not limited to, the payment of License Fees and
any other sum required to be paid by Licensee hereunder. Licensee shall abide by all statutes,
laws, ordinances, rules and regulations (including, but not limited to, those of the Federal
Communications Commission (“FCC”) and so-called "environmental" laws) relating to its use
and occupancy of the Licensed Premises and the operation and maintenance of Licensee’s
Equipment.
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 6 of 22
Comment [MSOffice13]: Tie to
access to Site if Site only
10.2.
Licensee shall proceed with dispatch, at its sole cost and expense, to secure any and all
authorizations, licenses, permits, or approvals necessary for the initial installation of Licensee's
Equipment at the Licensed Premises. In the event any application for such approval shall be
finally rejected despite the diligent good faith efforts of Licensee, Licensee may terminate this
License within thirty (30) days next following such final rejection by written notice to Licensor,
together with verification of Licensee’s efforts and of such final rejection, and failing to do so
within said time period, said right to terminate shall be deemed waived.
10.3.
Licensee shall coordinate all filings with the Federal Aviation Administration ("FAA")
and/or the FCC related to Tower height, location or NEPA with Licensor. Any amended filings
with the FAA or FCC needed to accommodate Licensee's Equipment or operations shall be
handled by Licensor at Licensee's sole cost and expense.
10.4.
In the event that Licensee is unable to use and occupy the Licensed Premises, and such
inability (i) is the direct result of an action of the FCC, including without limitation, a take back
of channels or change in frequencies, (ii) is not the result of the acts or omissions of Licensee,
and (iii) cannot be remedied by the acts or payment of money by Licensee, then upon thirty (30)
days prior written notice to Licensor and the payment of the Termination Fee hereafter set forth
and all other sums then due and payable under this Agreement, Licensee may terminate this
Agreement. The Termination Fee shall be equal to the Licensee Fees which, but for such
termination, would have been payable by Licensee under this Agreement for the next twelve (12)
full calendar months next following the effective date of said termination. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
11. Construction and Installation by Licensee
11.1.
Approval in Advance; Good and Workmanlike Manner. Subject to 11.5 below, the
initial installation of Licensee's Equipment and all subsequent approved substitutions to
Licensee’s Equipment (collectively, the “Work”) shall (i) be made in a good and workmanlike
manner using prime quality materials, (ii) comply with all applicable federal, state and local
laws, regulations and standards, including those of the FCC, (iii) be performed by licensed and
reputable contractors or mechanics approved, in writing, by Licensor, such approval not to be
unreasonably withheld, conditioned or delayed (iv) be made in accordance with detailed plans
and specifications approved, in writing, by Licensor, such approval not to be unreasonably
withheld, conditioned or delayed; and (v) incorporate any reasonable modifications, terms and
conditions imposed by Licensor. Licensee shall commence the Work only after it has obtained
all required permits and delivered copies to Licensor. In addition, prior to commencement of the
Work, Licensee shall submit to Licensor full lien waivers from all contractors and mechanics
that will be performing the Work. Licensor agrees to review plans and specifications submitted
by Licensee within fifteen (15) days next following its receipt of same.
11.2.
Inspections Permitted. Licensor may inspect the Work or any portion of Licensee's
Equipment, including cables and antenna(s), at any time during construction and installation and
upon reasonable advance notice to Licensee at all other times. In the event Licensor determines
that a change in the Work or Licensee's installations is required to protect persons or property
from danger of injury, Licensee shall promptly effect such changes at its cost and expense, and
failing to do so within thirty (30) days next following such notice, Licensor has the right, at
Licensee's expense, to make such changes; it being agreed, however, that in the event that
Licensor shall determine that an emergency exists, it may effect such changes at Licensee's cost
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 7 of 22
Comment [MSOffice14]: Delete
as appropriate
without prior notice to Licensee and without affording Licensee an opportunity to do the Work.
Licensor shall be under no obligation to make such inspection(s) or change(s). At Licensor's
request, Licensee shall supply Licensor with periodic updates and reports concerning the status
of the Work.
11.3.
Certification by Licensee. Following completion of any Work and prior to Licensee's
use and operation of any of Licensee’s Equipment, Licensee shall have a licensed engineer
certify to Licensor that the Work complies with all applicable federal, state and local laws,
regulations and standards, including those of the FCC. Prior to the commencement of any Work
and after the completion of all Work, Licensee shall conduct at its sole cost and expense, a
structural and loading study evaluating the loading capacity of the Tower at the Site both prior to
and after completion of Licensee’s Work. Said loading study shall be completed by a reputable
and professional licensed engineering firm which shall be approved by Licensor in advance.
Licensee’s engagement of the engineering firm outlined above shall require all of the loading
studies to be delivered simultaneously via overnight courier or electronic mail to both Licensor
and Licensee at their respective addresses for notices specified herein.
11.4.
Licensor's Review; Payment by Licensee. Licensee shall pay Licensor for Licensor's
internal and external costs in (i) reviewing any and all of Licensee's installation and construction
plans; (ii) the supervision and inspection of Licensee's Work, it being understood that Licensor
may employ the services of outside engineers or consultants to perform such review, supervision
and inspection. In connection with Licensee's initial construction and installation of
improvements and equipment, said reimbursement shall be the sum of $2,000.
11.5.
Responsibility for Work, Maintenance of Equipment. Licensee shall, at its sole cost
and expense, maintain the Licensed Premises, Licensee's Equipment and the utilities directly
serving the Licensed Premises in good condition and repair. Licensee shall, at its sole cost and
expense, repair and replace any property of Licensor, or any property of any other licensee or
tenant of the Site, which is damaged or adversely affected by reason of the installation,
maintenance, use, or removal by Licensee of Licensee's Equipment, excluding, however, any of
same which is damaged or adversely affected by interference, provided, however, that any
repairs to the Tower or to the property of any other licensee or tenant shall, at Licensor’s sole
option, be performed by or on behalf of Licensor at Licensee’s sole expense. Licensee shall
have sole responsibility for the safe and proper design, construction, and installation of the
Work, and Licensor shall have no such responsibility or liability. Licensee agrees that any
review or approval by Licensor of any plans or specifications with respect to Licensee's
Equipment or the Work is solely for Licensor's benefit, and without any representation or
warranty whatsoever with respect to the adequacy, correctness or efficiency thereof or otherwise.
12. Risk of Loss; Eminent Domain: Licensee shall assume all risk of loss or damage to Licensee’s
Equipment, including its feed lines and antenna(s). In no event shall Licensor be liable or responsible
for the maintenance or protection of Licensee's Equipment. In the event of a condemnation materially
affecting the Licensed Premises, this Agreement shall terminate as of the date title to the condemned
property vests in the condemning authority or Licensee is required to cease its operations, whichever is
earlier. In the event of any condemnation, all of the proceeds of any award, judgment or settlement
payable by the condemning authority shall be and remain the sole and exclusive property of Licensor,
and Licensee shall not be entitled to any portion of such award, judgment or settlement. Licensee,
however, may pursue its own claim against the condemning authority for any damage or award
permitted under the laws of the state in which the Site and Tower are located, provided Licensee's
claim will not reduce the award, judgment or settlement receivable by Licensor.
CTLA Site #:
Licensee Site #:
Site Name/Address:
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Comment [MSOffice15]: Delete
as appropriate
Comment [MSOffice16]: Delete
application to Tower as
appropriate
Comment [MSOffice17]: Delete
as appropriate
13. Assignment/Transfer, Sublicense
13.1.
Licensee may not assign or otherwise transfer all or any part of its interest in or rights
under this Agreement without the prior written consent of Licensor in each instance, provided
that Licensee may assign its interest in this Agreement to Licensee's parent company, to a
subsidiary or affiliate of Licensee or its parent company, or to a successor in interest or equity to
such party acquiring fifty-one percent (51%) or more of the stock, ownership interest or total
assets of such party, provided, however, that in each such instance the acquiring or surviving
entity is licensed by the FCC to operate a wireless communications business. All other
assignments of Licensee's interest under this Agreement shall be to an entity that has a minimum
net worth of $100,000,000 and shall require, in each instance, the prior written consent of
Licensor, which consent shall not be unreasonably withheld, conditioned or delayed. In
considering whether to grant or deny such consent, Licensor may consider, among other things,
the experience and reputation of the proposed assignee. Licensee may not partially assign or
otherwise transfer or sublicense this Agreement or Licensee's rights hereunder in part. No
assignment shall be deemed valid unless and until Licensee has furnished Licensor with a written
copy of the instrument assigning Licensee's interest in form and substance reasonably acceptable
to Licensor. Any assignment by Licensee in contravention of the provisions contained herein
shall, at the option of Licensor, be deemed null and void. Licensor's acceptance of payments of
any sums becoming due and payable hereunder by any party is permitted and shall not be
deemed or construed as an acceptance of a proposed assignment. In the event of any assignment
by Licensee, (a) Licensee shall remain primarily liable for the performance of all obligations to
be kept or performed by the licensee hereunder, and (b) any consideration paid to Licensee in
connection with, and attributable to, this Agreement which is in excess of the License Fees or
any other sum to be paid by Licensee to Licensor hereunder shall be paid to Licensor. Licensee
may not sublicense its rights under this Agreement. Subject to the provisions of this Article, this
Agreement shall be binding upon the parties hereto and their respective successors and assigns.
Comment [MSOffice18]: Delete/
modify as appropriate –
especially with TowerCos
13.2.
Notwithstanding the foregoing, without the consent of Licensor, Licensee may
collaterally assign or pledge its interest in this Agreement to any financing entity or agent on
behalf of any financing entity to whom Licensee (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, banker's
acceptances and similar facilities or in respect of guaranties thereof.
14. Option to Terminate When Site Unusable: If the Site or the Tower shall be damaged or destroyed
by casualty or other cause (collectively, a "Casualty"), and by reason thereof, Licensee is unable to
transmit and receive radio signals from the Tower Premises or the Ground Premises, either party may
elect to terminate this Agreement by written notice to the other, unless within one hundred eighty
(180) days next following such Casualty, Licensor advises Licensee of its intention to effect repairs to
the Site or Tower. If Licensor elects to effect such repairs, this Agreement shall remain in full force
and effect and Licensor shall proceed in a reasonable manner to complete the same. In no event will
Licensor be required to repair, replace or re-install Licensee's Equipment. If available, Licensee may
install temporary facilities or during the pendency of such repairs by Licensor, the License Fees
payable by Licensee hereunder shall be abated.
15. Default.
CTLA Site #:
Licensee Site #:
Site Name/Address:
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Comment [MSOffice19]: Delete
as appropriate
15.1.Acts of Default. Licensee shall be in default upon the occurrence of any of the following: (i)
the cessation of Licensee’s day to day operations at the Site, or the vacating or abandonment of the
Licensed Premises by Licensee; (ii) the failure of Licensee to maintain the insurance coverages
required by Section 18 or the failure of Licensee to comply with its obligations under Section 13;
(iii) Licensee's recording of this Agreement, (iv) the failure by Licensee to make any payments due
hereunder, including payments of License Fees, as and when due, where such failure shall continue
for a period of ten (10) days after notice thereof by Licensor to Licensee; (v) the failure by
Licensee to observe or perform any of the other covenants, conditions or provisions of this
Agreement to be observed or performed by Licensee, where such failure shall continue for a period
of thirty (30) days after written notice thereof by Licensor to Licensee, provided, however, that if
the nature of Licensee's default is such that more than thirty (30) days are required for its cure, then
Licensee shall not be deemed to be in default if Licensee commences such cure within said (30) day
period and thereafter diligently prosecutes such cure to completion; (vi) the failure by Licensee to
make any payments of License Fees, as and when due, on more than two (2) occasions during any
consecutive period of twelve (12) months during the term of the Agreement; and (vii) the making
by Licensee of any general assignment or general arrangement for the benefit of creditors (which
shall not be deemed or construed to include collateral assignments or pledges to lenders made
pursuant to the provisions of Section 13); or the filing by or against Licensee of a petition to have
Licensee adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating
to bankruptcy (unless, in the case of a petition filed against Licensee, the same is dismissed within
sixty (60) days); or the appointment of a trustee or a receiver to take possession of substantially all
of Licensee's assets located at the Licensed Premises or of Licensee’s interest in this Agreement,
where possession is not restored to Licensee within thirty (30) days; or the attachment, execution or
other judicial seizure of substantially all of Licensee's assets located at the Licensed Premises or of
Licensee's interest in this Agreement, where such seizure is not discharged within thirty (30) days.
15.2.
Remedies. If Licensee is in default hereunder, without limiting any other rights Licensor
may have against Licensee by reason of such default, Licensor may terminate Licensee's rights
under this Agreement by written notice. Upon termination by Licensor under this section, all
amounts which are then due and payable, and all amounts which would have become due and
payable by Licensee to Licensor for the balance of the Term of this Agreement had it not been so
terminated, shall immediately become due and payable to Licensor.
15.3.
Default by Licensor. If Licensor shall be in default of the terms, covenants or conditions
on the part of the Licensor to be kept or performed hereunder, Licensee shall first provide written
notice to Licensor of such default and afford Licensor a period of sixty (60) days from receipt of
such notice, provided, however, that if the nature of such default requires additional time
Licensor shall not be in default so long as Licensor diligently pursues such cure to completion.
If Licensor fails to cure such default, Licensee may avail itself of any and all remedies available
to it at law or in equity, but in no event will Licensor be liable for punitive or consequential
damages, including, but not limited to damages for lost profits.
16. Indemnification: Licensee shall indemnify, hold harmless, and defend Licensor to the fullest extent
of the law and with counsel acceptable to Licensor, from and against all loss, damage, claims,
mechanic's and other liens, liabilities and other actions, costs, charges, judgments, and/or expenses,
including reasonable attorney's fees, which may be imposed upon, incurred by or asserted against
Licensor by reason of any acts or omissions to act, faults or negligence of Licensee or any of its
agents, employees, or contractors (including any of their sub-contractors), or anyone authorized to act
for or on behalf of Licensee on or about the Site, including, but not limited to, the maintenance,
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 10 of 22
presence, use or removal of any equipment owned or provided by Licensee unless the same directly
arises out of the grossly negligent acts or omissions of Licensor.
17. Environmental Provisions.
17.1.Hazardous Substances. The term "Hazardous Material" shall mean any hazardous, toxic or
dangerous waste, substance, pollutant, emission or matter (including petroleum products, whether
so defined or not) defined as such in the Comprehensive Environmental Response, Compensation
and Liability Act, the Resource, Conservation and Recovery Act, the Clean Water Act (whether or
not discharged into water), any so-called "Superfund," or "Super-Lien" law, or any other federal,
state or local statute, law, ordinance, code, rule, regulation, order or decree, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance,
pollutant, emission or matter, now or at any time hereafter in effect (collectively the
"Environmental Laws").
17.2.Indemnity by Licensee. Licensee shall defend, indemnify and hold Licensor harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every
kind and nature, including reasonable attorneys' fees, paid, incurred or suffered by, or asserted
against, Licensor for, with respect to, or as a direct or indirect result of any of the following (i)
caused by or claimed to be caused by Licensee, its employees, contractors, agents or invitees, or (ii)
arising out of the presence or use of Licensee’s Equipment at the Site:
17.2.a. The presence on or under, or the escape, seepage, leakage, spillage, discharge, emission,
discharging or release from, the Licensed Premises or the Site or any portion thereof of any
Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any of the Environmental Laws);
17.2.b. The failure of Licensee to comply with any Environmental Laws relating to its use and
occupancy of the Licensed Premises; or
17.2.c. Any lien against the Licensed Premises, Site or any portion thereof or any interest or estate
therein, created, permitted or imposed by Environmental Laws, or for any actual or asserted
liability or obligation of Licensee under the Environmental Laws.
17.3.Current Conditions. Licensee acknowledges that it has made such environmental inspections of
the Site as it deems appropriate. Licensee accepts the Licensed Premises in its current "As Is"
condition without representations or warranties other than may be set forth in this Agreement. A
copy of any and all environmental investigations obtained by Licensee shall be promptly delivered
to Licensor at no cost.
17.4.Indemnity by Licensor. Licensor shall defend, indemnify and hold Licensee harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every
kind and nature, including reasonable attorneys' fees, paid, incurred or suffered by, or asserted
against, Licensee (but excluding any consequential damages, including, but not limited to damages
for the loss of air time) for, with respect to, or as a direct or indirect result of the presence on or
under, or the escape, seepage, leakage, spillage, discharge, emission, discharging or release from
the Site, or any portion thereof, of any Hazardous Material, including, without limitation, any
losses, liabilities, damages, injuries, costs, expenses or claims related to the same and asserted or
arising under any of the Environmental Laws, provided that all of the same are hereafter occurring
CTLA Site #:
Licensee Site #:
Site Name/Address:
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and are directly caused by the acts or omissions of Licensor, its employees, contractors, agents or
invitees.
17.5.Survival. The provisions of this Article shall survive the expiration or earlier termination of this
Agreement.
18. Insurance
18.1.
Licensee's Liability Insurance. Licensee shall obtain and maintain in effect during the
term of this Agreement, (i) a policy or policies of comprehensive general liability insurance with
single limit base coverage of at least $1,000,000 and umbrella coverage of $5,000,000 (ii)
contractual indemnity insurance covering Licensee's obligations hereunder in the same amount
as the general liability insurance required above, and (iii) any other insurance coverage required
by the appropriate governmental authorities pertaining to Licensee's use. All such policies shall
be from responsible, solvent insurance companies and shall name Licensor and its mortgagee as
additional insureds. Licensee shall promptly furnish to Licensor certificate(s) of insurance
issued in favor of Licensor evidencing such insurance coverage. Licensee shall promptly notify
Licensor of any changes in the coverage or carrier, and shall provide to Licensor a certificate
indicating the renewal of such policy not later than thirty (30) days prior to the expiration of the
then current policy.
18.2.
Licensee's Property Insurance. Licensee shall obtain and maintain property and
casualty insurance, from a responsible, solvent insurance company, upon Licensee’s Equipment
and any and all other property of Licensee or of any party which may from time to time be stored
or maintained in, on or around the Site by or at the direction of Licensee. Such insurance shall
be maintained in such amounts as shall be necessary to cover replacement costs. Licensee shall
promptly furnish to Licensor a certificate of insurance issued in favor of Licensor evidencing
such insurance coverage. Licensee shall promptly notify Licensor of any changes in the
coverage or carrier. Licensee shall provide to Licensor a certificate indicating the renewal of
such policy not later than thirty (30) days prior to the expiration of the then current policy.
18.2.a. All property and casualty insurance policies required by this Agreement shall include a
waiver of subrogation of any and all claims against Licensor. Licensee agrees that it will
look solely to its insurance policies for recovery of any loss or damage to its property and
further confirms and agrees that in no event will it make any claim against Licensor for any
loss or damage to such property, and that it will indemnify and hold Licensor harmless from
and against any claim arising out of its failure to maintain such insurance.
18.2.b. All insurance policies to be maintained by Licensee hereunder shall contain an
endorsement stating that such insurance may not be canceled or materially changed except
upon thirty (30) days prior written notice to Licensor.
18.3.
Licensor's Insurance. Licensor agrees that it will obtain and maintain throughout the
term of this Agreement a policy or policies of comprehensive general liability insurance in an
amount of not less than $3,000,000.
18.4.
Survival. The provisions of this Article shall survive the expiration or earlier termination
of this Agreement.
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 12 of 22
19. Miscellaneous
19.1.
Entire Agreement; No Verbal Agreements. This Agreement contains all agreements,
promises and understandings of the parties. Any addition, variation or modification to this
Agreement shall be void and ineffective unless made in writing and signed by the parties.
19.2.
Applicable Law. The laws of the State in which the property is located, without regard
to its conflict of laws principles, shall govern the construction, performance and enforcement of
this Agreement and any judicial action or proceeding shall be brought in that State. The
provisions of this Section shall survive the expiration or earlier termination of this Agreement.
19.3.
Arbitration. Any controversy or claim, arising out of or relating to this Agreement, shall
be settled in New York by binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court of competent jurisdiction. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
19.4.
Assignment as Security for Loans. Licensor shall have the right to assign its rights
under this Agreement to a lender as security for any obligations of Licensor to such lender. In
connection therewith, Licensee agrees (i) that upon the written request of any such lender it shall
pay to such lender all sums which become due and payable hereunder, (ii) that it shall attorn to
such lender or its assignee in the event such lender or assignee shall succeed to Licensor's
interest hereunder, and (iii) that it shall make all reasonable changes to this Agreement as shall
be requested by such a lender or prospective lender provided that the same (a) do not materially
affect the basic business terms of this Agreement, (b) do not materially affect Licensee's ability
to transmit and receive radio signals from the Licensed Premises, and (c) do not cause a material
increase in Licensee's cost of operating its equipment at the Licensed Premises, unless it shall be
reimbursed for such additional material costs. Licensee agrees to promptly execute such further
documents as Licensor or any such lender shall reasonably request from time to time in order to
give effect to the provisions of this section.
19.5.
Notice to Parties; Address for Payments. Any notice required or permitted hereunder
shall be deemed to have been received either (a) when delivered by hand and the party giving
such notice has received a signed receipt thereof, (b) one (1) day following the date deposited
with a nationally recognized overnight courier service (e.g., Federal Express), or (c) the date sent
if sent by facsimile with (i) a confirmation report verifying transmission by facsimile and (ii) a
copy sent by first class, certified, return receipt requested, United States mail, postage prepaid,
addressed as follows (or addressed in such other manner as the party being notified shall have
requested by notice to the other party):
TO LICENSEE:
______________________
______________________
______________________
Attention: Lease Administrator
Phone:____________
Fax: ____________
With a copy to:
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 13 of 22
_____________________
_____________________
_____________________
Attention: _____________________
Phone: _____________
Fax: ______________
TO LICENSOR:
Cell Tower Lease Acquisition LLC
92 Thomas Johnson Drive
Frederick, Maryland 291703
Attention: Property Management
Phone: 646-452-5455
Fax:
646 With a copy to:
Cell Tower Lease Acquisition LLC
330 Madison Avenue
15th Floor
New York, New York 10017
Attention: COO
Phone: 212-909-2500
Fax: 212-755-4080
Address for payments:
19.6.Costs in Enforcing Agreement. If either party shall bring any suit or other action or proceeding
to enforce the provisions of this Agreement to be kept or performed by the other, the non-prevailing
party shall pay all of the costs and expenses incurred by the prevailing party in connection
therewith, including, without limitation, reasonable attorneys' fees. The provisions of this Section
shall survive the expiration or earlier termination of this Agreement.
19.7.Subordination. This Agreement is subject and subordinate to all ground and underlying leases and
easements affecting the Licensed Premises or the Site as well as to all mortgages, easements and
encumbrances which may now or hereafter affect the Licensed Premises or the Site and to all
renewals, modifications, consolidations, replacements and extensions thereof, and Licensee agrees
to execute any certificate requested from Licensor evidencing same within ten (10) days of
Licensor's request. This subordination shall be self-operative with no requirement for further
documentation to evidence its effectiveness. The provisions of this section shall not be deemed or
construed as conferring any real property rights upon Licensee.
19.8.
Assurances and Estoppels. Upon the request of either Licensee or Licensor (who, if
making the request, is referred to herein as the "requesting party"), the non-requesting party
(referred to herein as the "responding party") shall furnish to the requesting party, and/or, in the
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 14 of 22
case of a request by Licensor, to the holder of any mortgage or ground lease from time to time
encumbering the Site, a statement of the status of any matter pertaining to this Agreement,
including, without limitation, acknowledgment that (or the extent to which) the Agreement is in
full force and effect, that the requesting party is in compliance with its obligations under the
Agreement, and that the responding party has no offsets or claims against the other, provided that
these representations are accurate at the time that the responding party is requested to furnish
them. The parties agree to execute and deliver within ten (10) days after receipt of request by
either, an instrument of estoppel, setting forth the above acknowledgments and waiving any
claims that are not presented in that instrument.
19.9.
Force Majeure. In the event that either party shall be delayed, hindered in, or prevented
from the performance of any act required by this Agreement (other than payment of License Fees
or other sums due hereunder) by reason of acts of God, strikes, lockouts, labor troubles, inability
to procure materials, failure of power, restrictive governmental laws or regulation, riots,
insurrection, war, terrorist acts, or other reasons of a like nature (generally known as force
majeure) not the fault of the party delayed in performance as required under the terms of this
Agreement, then performance of any such act shall be excused, without liability, for the period
of such delay.
19.10.
Presumed Validity. If any provision or portion of a provision is capable of more than
one construction, one or more of which would render the provision or portion of a provision void
and another of which would render it valid, then the provision or portion of a provision shall
have the meaning that renders it valid.
19.11.
Severability. If any provision or portion of a provision of this Agreement shall be
determined to be void or unenforceable by any court of competent jurisdiction, then such
determination shall not affect any other provision or portion of this Agreement, all of which
other provisions or portions shall remain in full force and effect.
19.12.
Titles. The titles of the sections in this Agreement are for convenience only and shall not
in any way affect its interpretation.
19.13.
Requisite Authority. Each party executing this Agreement warrants and represents that
it, she or he, has the requisite authority to execute this Agreement. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
19.14.
No Waiver. The waiver by either party of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other term, covenant or condition herein contained. The
subsequent acceptance of payments hereunder by Licensor shall not be deemed to be a waiver of
any preceding breach by Licensee of any term, covenant or condition of this Agreement, other than
the failure of Licensee to make the particular payment so accepted, regardless of Licensor's
knowledge of such preceding breach at the time of acceptance of such payment. No covenant, term
or condition of this Agreement shall be deemed to have been waived by a party unless the waiver is
in writing.
19.15.
No Accord and Satisfaction. No payment by Licensee or receipt by Licensor of a lesser
amount than the monthly License Fees herein stipulated shall be deemed to be other than on
account of the earliest stipulated License Fees, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as License Fees be deemed an accord and
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 15 of 22
satisfaction, and Licensor may accept such check or payment without prejudice to Licensor's right
to recover the balance of such License Fees or pursue any other remedy available to Licensor.
19.16.
No Liability. Licensee hereby assumes the risk of, and agrees that Licensor shall have no
liability for damages resulting from, any loss of broadcasting time by Licensee in the event a
transmission or reception is delayed, defective, or interrupted for any reason whatsoever. Licensee
hereby waives all rights to claim damages from Licensor, its employees, contractors, and agents by
reason of a loss or interruption of its broadcasting time, as aforesaid. Any recourse against Licensor
under this Agreement shall be limited to Licensor's interest in the Site and Tower and any proceeds
from sale of the Site and Tower and shall in no event extend to any members, officers, directors,
principals, partners, or agents of Licensor. The provisions of this Section shall survive the
expiration or earlier termination of this Agreement.
19.17.
No Recording. Licensee may not record this Agreement, or a memorandum thereof, in any
public records.
19.18.
Time of Essence. Time shall be of the essence with respect to the performance of
Licensee's obligations hereunder.
19.19.
Transfer by Licensor. Licensor agrees that any transfer of the Site by Licensor shall be
made subject to this Agreement.
19.20.
Brokers.
If Licensor is represented by any broker or any other agent (collectively
“Licensor Broker”), Licensor shall be responsible for all commission fee or other payment to the
Licensor Broker and agrees to indemnify and hold Licensee harmless from all claims by the
Licensor Broker or anyone claiming through the Licensor Broker. If Licensee is represented by
any broker or any other agent (collectively “Licensee Broker”), Licensee shall be responsible for all
commission fee or other payment to the Licensee Broker and agrees to indemnify and hold
Licensee harmless from all claims by the Licensee Broker or anyone claiming through the Licensee
Broker.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
LICENSOR:
Cell Tower Lease Acquisition LLC
By:
Its _________________
Date:
LICENSEE:
_____________________________
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 16 of 22
By:
Its _______________
Duly Authorized
Date:
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 17 of 22
EXHIBIT A
PLAN OF SITE, ACCESS DRIVE AND LICENSED PREMISES
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 18 of 22
EXHIBIT B
SKETCH OF TOWER AND TOWER SPACE
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 19 of 22
EXHIBIT C
LICENSEE'S EQUIPMENT
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 20 of 22
EXHIBIT D
DEED, GROUND LEASE, EASEMENT OR PRIME LICENSE
CTLA Site #:
Licensee Site #:
Site Name/Address:
Page 21 of 22