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EXHIBIT 10.58
LICENSE AGREEMENT
Between
PageMart, Inc.
and
MWR Telecom, Inc.
(d/b/a MWR Towers)
April 12, 1996
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Master Tower Site License Agreement
Table of Contents
1. Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 1
2. Master License Term and Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2
3. Site Supplement Term and Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2
4. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3
5. Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3
6. Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 4
7. Relocation of Licensed Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 5
8. Improvements; Utilities; Access; Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 5
9. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7
10. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8
11. Limited Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9
12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9
13. Notification of Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 10
14. Environmental Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 11
15. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 11
16. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 12
17. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 12
18. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 12
19. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 12
20. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 13
21. Interruptions or Delays in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 13
22. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 13
23. Covenants and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 13
24. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 14
25. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 14
26. Execution of Other Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 14
27. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 14
INTERFERENCE, FAA/FCC, ASSIGNMENT and TERMINATION RIDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . page 16
EXHIBIT A: SITE SUPPLEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 17
EXHIBIT B: DESCRIPTION OF LICENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 20
EXHIBIT C: FEES AND CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 22
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MASTER TOWER SITE LICENSE AGREEMENT
This Master Tower Site License Agreement ("Master License") is entered
into this 5th day of April, 1996 ("Commencement Date"), by and between MWR
Telecom, Inc. d/b/a MWR Towers , a Delaware corporation , with offices in Cedar
Rapids, Iowa ("Licensor") and, PageMart, Inc., a Delaware corporation , with
offices in Dallas, Texas ("Licensee").
RECITALS
A. Licensor has entered into various agreements with utility
companies ("Company") wherein it has obtained access to certain microwave
communication towers ("Towers") and adjacent land for the purpose of
installing, maintaining and removing communications equipment to provide
communications services and including the sublicensing of such rights ("Company
Tower Agreements").
B. Licensee wishes to sublicense from Licensor on a non-exclusive
basis certain portions of such Towers and adjacent land for the purpose of
locating unmanned radio communications equipment. Each licensed location will
be referred to individually as a "Site" and collectively as "Sites".
In consideration of the above recitals, the mutual covenants and premises in
this Master Lease, the parties agree as follows:
1. PREMISES
1.1 Subject to the following terms and conditions, Licensor grants
Licensee the right to access and use certain space on one or more Towers
together with sufficient space in the adjacent equipment building, equipment
module or land ("Site") as specified on individual Site Supplements.
1.2 Licensor warrants, with respect to each Site Supplement, that
it has a good and marketable leasehold interest or a valid license for access
and use of such Site.
1.3 Each Site location is described in the Site Supplements
attached as Exhibit A, with each Tower location identified separately on
individual pages of Exhibit A. Licensee's use of the Site shall be limited to
the described Site together with Licenses for access described and depicted in
attached Exhibit B, with its separate pages identifying Licenses for access
corresponding to the Sites identified in Exhibit A. Upon receipt of written
communication by Licensee of the desire to add Tower Sites to this Master
License, Licensor shall provide Licensee with the Tower Site Description
(Exhibit A, page 1) to be completed by Licensee. Upon receipt of the completed
document, Licensor shall evaluate the feasibility of utilization of the Site.
Licensor may decline an additional Site Supplement based on its own business
purposes, if there is not adequate space to accommodate Licensee's equipment,
antennas and appurtenances, or pursuant to paragraph 3 of this License. A Site
Supplement shall become effective either upon the date of installation or 30
days after Licensor's written approval for the use of the Site, whichever
occurs first. ("Effective Date").
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2. MASTER LICENSE TERM AND RENEWAL
The initial term of this Master License is five (5) years, from the
Commencement Date and terminating at Midnight on the last day of the month in
which the fifth annual anniversary of the Commencement Date shall have occurred
("Term"). The Term of this Master License shall automatically be renewed for
three (3) successive five (5) year periods, unless written notice of
non-renewal is delivered at least ninety (90) days prior to the expiration of
the initial Term or any renewal Term.
3. SITE SUPPLEMENT TERM AND RENEWAL
3.1 The Licensor and Licensee's obligations under any Site
Supplement issued pursuant to this Master License are expressly conditioned
upon and subject to the following:
(a) Unless otherwise specified by Licensor, Licensee
shall obtain, at Licensee's expense, all applicable licenses, permits
or other approvals from all local, state of federal government and/or
regulatory entities ("Government Approvals").
(b) Licensee's technical reports must establish to
Licensor's and Company's satisfaction that the Site is capable of
being suitably engineered to accomplish Licensee's intended use of the
Site in compliance with the Authorization Procedures established by
Licensor and Company.
(c) Licensee shall comply with the Operational Procedures
established by Licensor and Company.
3.2 Licensee acknowledges that the access rights granted by any
Site Supplement are subject to any limitations or restrictions on access
imposed upon Licensor (and therefore upon Licensee) by the underlying Company
Tower Agreement relating to a particular Site. Licensee agrees to abide by
such limitations or restrictions.
3.3 Licensee acknowledges that the underlying Company Tower
Agreement or a project segment authorized under such Agreement grants the
Company the right to terminate such underlying Company Tower Agreement under
the following conditions:
(a) if the use of such portion of the Company Utility
Network (as defined in the Company Tower Agreement) is forbidden by
governmental authorities or by property owners pursuant to contract;
(b) The site use interferes or compromises the integrity
of the Company Utility Network, Company Communication Network (as
defined in the Company Tower Agreement) or the operation of the
Company Utility Network;
(c) due to engineering or insurance concerns including
but not limited to electrical interference or maintenance of the
physical/structural integrity of the Towers; or
(d) failure to cure a material breach of the Company
Tower Agreement.
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In the event of such termination, the relevant Site Supplements shall
terminate concurrently therewith.
3.4 Initial Site Supplements may be requested by Licensee for an
initial period of five (5) years, and for one (1) additional five (5) year
period if the Master License is then in effect. No new Site Supplements shall
issue after the expiration of ten (10) years from the Effective Date of this
Master Lease, unless the term of such Site Supplement does not extend beyond
the Term or renewal Term of the Master License.
3.5 The initial term of each Site Supplement is five (5) years.
Licensee may request renewal of any Site Supplement coterminous with the Term
of the Master License. Licensee may request an extension of the Site Supplement
for an additional period by giving notice of the renewal request in writing at
least six (6) months prior to the expiration of the current Term.
3.6 The renewal of the Master License and related Site Supplements
shall be on the same terms and conditions as set forth in this Master Lease,
except that the rent shall be the greater of the fair market rent for leases of
towers of comparable quality in the area or the current Rent plus a percentage
equal to the percentage increase in the latest published Consumer Price Index
compared to the same index as shown for the historical month of March, 1996.
"Consumer Price Index" shall mean the Consumer Price Index for all Urban
Consumers ("CPI-U"). If the said index ceases to be published, then a
reasonably comparable index shall be used.
4. RENT
4.1 Licensee shall pay Licensor, as rent, at the rates set forth
in Exhibit C ("Rent"), payable in accordance with the terms of the applicable
Site Supplement. Rent shall be due monthly in advance, payable to MWR Towers,
at Licensor's address specified on the invoice. Rent shall be adjusted as
described in Paragraph 3.6 of this Master License.
4.2 Within 30 days of the receipt of the invoice, Licensee agrees
to make payment in full, without deduction or setoff. Payment shall refer to
the invoice number. Licensee agrees that any restrictive endorsements,
releases, or other statements on or accompanying payments accepted by Licensor
shall not be effective. Delinquent payments shall bear interest at the rate of
one and one-half percent (1 1/2%) per month, or portion thereof, but not to
exceed the maximum lawful rate.
4.3 Charges under this Master Lease, including all subsequently
executed Site Supplements, do not include taxes. Licensee agrees to pay any
sales, use, or other taxes (exclusive of taxes on Licensor's net income) that
may be levied on Licensor in connection with the Licensee's attachments on the
Tower and use of the Site, unless Licensee has provided Licensor with a valid
tax exemption certificate.
5. PERMITTED USE
5.1 The Site may be used by Licensee only for installation,
operation, construction, maintenance, repair or replacement of antennas and
other Licensor-approved equipment and facilities used in connection with the
permitted uses of the transmission and reception of radio
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communications signals ("Communications Facilities or Communications System").
Licensee may (prior to or after the Effective Date) obtain a title report,
perform surveys, soils tests, and other engineering analysis and studies on,
under and over the Site, necessary to determine that Licensee's use of the Site
will be compatible with Licensee's engineering specifications, system design,
operations, Government Approvals and Operational Procedures. All on-site
activities performed prior to Effective Date, such as feasibility testing and
Site suitability assurance, may occur only with the prior written approval of
Licensor, unless otherwise specified in writing by the Licensor. Licensee must
provide a certificate of insurance consistent with the requirements in
Paragraph 11, prior to conducting any on-site activities, such as feasibility
testing and Site suitability assurance.
5.2 Prior to execution of a Site Supplement, Licensee will examine
the Site. Licensee will conduct a feasibility study at Licensee's expense and
assure its review and approval by Licensor. Licensee will determine that the
Site is suitable for Licensee's facilities and intended use. Licensor shall
determine whether a structural analysis will be required in addition to the
feasibility study. Licensor shall also determine to what extent the Tower will
require modification to withstand the additional load brought about by
installation of Licensee's Communications Facilities. The cost of the
structural analysis and the required modifications shall occur at Licensee's
expense. Licensor makes no representations that the Site is suitable for
Licensee's facilities and intended use. Taking possession of the Site by
Licensee is conclusive evidence that Licensee accepts Site AS IS with all
faults.
5.3 Prior to execution of or during the Term of the Master
License, Licensee shall, if requested by Licensor, execute a Non-Disclosure
Agreement which will then be attached to this Master License as Exhibit D.
6. INTERFERENCE
6.1 Licensee shall not use the Site in any way which interferes
with the Licensor's use of the Towers, provision of services to Company's or
Licensor's customers, or tenants or licensees of Company or Licensor. Such
interference shall be deemed a material breach by the interfering party who
shall, upon written notice from Company or Licensor, be responsible for
terminating said interference. In the event any such interference does not
cease promptly, the parties acknowledge that continuing interference may cause
irreparable injury and therefore, the injured party shall have the right, in
addition to any other rights that it may have at law or in equity, to bring an
action to enjoin such interference or to terminate the Site Supplement for the
affected location immediately upon written notice.
6.2 Licensee and Licensor agree that due to the nature of
Licensor's business some electromagnetic interference may be generated by
Licensee's equipment or within the building housing Licensee's equipment. In
the event this electromagnetic interference causes other Licensee's equipment
to malfunction, Licensor shall immediately notify Licensee in writing at which
time Licensee shall make an effort to eliminate, reduce or filter out the
interference. In the event Licensor is unable to eliminate the interference,
or reduce it to a level acceptable to Licensor, within a period of thirty (30)
days then Licensor may cancel the applicable Site Supplement. If the Licensee
causes interference that cannot be eliminated, the Licensee shall be
responsible for one year's annual, rent.
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7. RELOCATION OF LICENSED SPACE
Licensor reserves the right to change the location of Licensee's
antennas or other equipment upon thirty (30) days written notice to Licensee.
Upon determination by Licensor that Licensee's Communications Facilities must
be relocated, Licensee will, in good faith, relocate Licensee's Communications
Facilities to space mutually acceptable to Licensor and Licensee. If agreement
cannot be reached, Licensor shall determine the relocated space to be used.
Licensor, at its own expense, will relocate to the extent necessary, the
antenna, cabling and any equipment that was installed by or on behalf of
Licensee; however, such relocation will not adversely affect the effectiveness
of Licensee's Communication Facilities at the Site.
8. IMPROVEMENTS; UTILITIES; ACCESS; INSPECTION
8.1 Upon written approval of a Site Supplement by Licensor,
Licensee shall have the right, at its expense, to construct, maintain, install,
relocate and remove improvements, personal property and facilities subject to
the terms and conditions of this Master License. Licensor's written approval to
the Site plans, specifications for such construction and other improvements,
and the contractor performing such work shall be required prior to commencement
of such work.
a. Licensee shall provide in writing the names, addresses and
telephone numbers of all persons who will perform work on behalf of
Licensee at the Site. Licensor shall have the right to inspect
identification of any of Licensee's personnel at any time. Licensor
shall have the right to refuse access to any person who refuses to
provide identification upon request or whose name does not appear on
the personnel list provided by Licensee. Licensor reserves the right
to refuse admittance to any of Licensee's personnel. Where permitted
by the underlying Company Tower Agreement (Paragraph A), keys to the
Site shall be issued to the Licensee for Site access.
b. Licensee shall use for construction, maintenance,
installation, relocation and removal only those contractors for which
Licensor has given written approval. Upon written approval of
Licensor, Licensee shall have the right to replace or upgrade antennas
or equipment at any time during the term of a Site Supplement.
8.2 The antennas, cabling and tenant-installed equipment shall
remain the exclusive personal property of Licensee and will never be considered
fixtures to the real estate. Upon written approval of Licensor, Licensee shall
have the right to remove the antennas, cabling and equipment upon termination
of a Site Supplement. All removal work shall be performed at Licensee's
expense, and shall be completed within 90 days of termination of a Site
Supplement. If removal is not completed within said 90 days, such removal may
be undertaken by Licensor at Licensee's expense, or upon Licensor's election,
such property shall be deemed abandoned, the title to such property shall be
deemed to be in Licensor, and Licensee agrees to execute an appropriate bill of
sale.
8.3 Licensee, at its expense, may use any and all reasonably
appropriate means of restricting access to Licensee's equipment and/or module,
upon written approval of Licensor.
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8.4 Each antenna must be identified by a metal tag fastened
securely to its bracket on the Tower and each transmission line shall be tagged
at the point of entry into the equipment shelter. Each tag must clearly
identify the name of the Licensee.
8.5 Licensee must, at its sole expense, comply with all laws,
orders, ordinances, regulations and directives of applicable federal, state,
county and municipal authorities or regulatory agencies, including without
limitation, the Federal Communications Commission (FCC).
8.6 Unless otherwise specified by the Licensor, Licensee shall, at
Licensee's expense, keep and maintain the Site and all building(s) and
improvements utilized by Licensee now or hereafter located thereon in a
structurally safe and sound condition and in good repair during the term of a
Site Supplement. If Licensee does not make such repairs within 30 days after
receipt of notice from Licensor requesting such repair and such repairs are
required, then Licensor may, at its option, make the repairs. Licensee shall
pay Licensor on demand Licensor's actual costs in making the repair plus
Licensor's overhead. If emergency repairs are needed to protect persons,
property, or to allow the use of the Towers, Licensee must immediately correct
the safety or use problem, even if a full repair cannot be made at that time or
Licensor may make such repairs at Licensee's expense. Upon termination of the
Site Supplement, the Site shall be returned to Licensor in as good or better
condition, normal wear and tear excepted. Licensee shall be responsible for
the actual costs to return Site to good, usable condition.
8.7 Licensor covenants that it will keep the Tower in good repair
as required by federal law, including but not limited to the Telecommunications
Authorization Act of 1992, 102 P.L. 538, 106 Stat. 3533 (1992) and amendments
to Sections 303(g) and 503(b)(5) of the Communications Act of 1934. Licensor
shall also comply with all rules and regulations promulgated by the Federal
Communications Commission (FCC) and the Federal Aviation Agency (FAA) with
regard to the lighting, marking, painting of towers or other requirements, as
well as local, state and other federal laws. In the event that any fines are
imposed due to Licensor's failure to adhere to FCC/FAA requirements, Licensor
shall pay such fines,
8.8 Licensee shall be responsible for all costs of providing
utility services to the Sites.
(a) In order to control the quality of electrical service
provided, Licensor reserves the right of first refusal to provide
emergency power to each Site.
(b) In order to control the quality of telecommunications
transport to and from the Site, Licensor hereby reserves the right of
first refusal to provide interconnection and transport services to
each Communications Facility on the Site, at a cost competitive with
the prevailing fair market value of comparable service.
8.9 Licensee shall cause all construction to occur lien-free. If
any lien is filed against the Site as a result of the acts or omissions of
Licensee, or Licensee's employees, agents, or contractors, Licensee must
discharge the lien in a manner satisfactory to Licensor within 30 days after
Licensee receives written notice from any party that the lien has been filed.
If Licensee falls to discharge any lien within such period, then, in addition
to any other right or
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remedy of Licensor, Licensor may, at its election, discharge the lien by either
paying the amount claimed to be due or obtaining the discharge by deposit with
a court. Licensee must pay on demand any amount paid by Licensor for the
discharge or satisfaction of any lien and all reasonable attorneys' fees and
other legal expenses of Licensor incurred in defending, any such action or in
obtaining, the discharge of such lien, together with all necessary
disbursements in connection therewith.
8.10 As partial consideration for Rent paid under each Site
Supplement, Licensor hereby grants Licensee a license for ingress, egress, and
access (including access described in Paragraph 1) to the Site adequate to
service the Site, antennas and other equipment, for the Term of the applicable
Site Supplement.
8.11 Licensor and its agents may inspect or observe at any time any
work while in progress or after completion to ascertain whether the work is in
accordance with the Operational Procedures and the requirements of this Master
License and the applicable Site Supplement, and applicable laws and
regulations. Licensor may require Licensee to correct any faulty work. Such
inspection and requirement for correction shall not relieve Licensee of full
responsibility for the proper performance of the work.
9. TERMINATION
Except as otherwise provided herein, this Master License or a Site
Supplement may be terminated as follows:
9.1 Upon thirty (30) days' written notice by Licensor if Licensee
fails to cure a default for payment of amounts due under this Master License or
any Site Supplement within that 30-day period;
9.2 Upon thirty (30) days' written notice by either party if the
other party defaults or violates any material term or condition of this Master
License or any Site Supplement and fails to cure such default within that
30-day period, or such longer period as may be required to diligently complete
a cure commenced within that 30-day period;
9.3 If any petition is filed by or against Licensee, under any
section or chapter of the present or any future federal Bankruptcy Code or
under any similar law or statute of the United States or any state thereof, and
such petition is not dismissed within 90 days after the filing thereof, or
Licensee is adjudged bankrupt or insolvent in proceedings filed under any
section or chapter of the present or any future federal Bankruptcy Code or
under any similar law or statue of the United Sates or any state thereof, if a
receiver, custodian, or trustee is appointed for Licensee and such appointment
is not vacated within 60 days of the date of the appointment; or if Licensee
becomes insolvent or makes a transfer in fraud of creditors.
9.4 If Licensee, after the Effective Date, having made a good
faith effort, fails to obtain any license, permit or Governmental Approval
necessary for the construction and/or operation of the antennas and other
equipment of Licensee's business, Licensor shall retain the balance of the
remaining annual rent payment, as specified in Paragraph 4. Licensee shall also
reimburse Licensor for all actual and other preparatory expenses incurred.
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9.5 Upon notice that any previously issued certificate permit,
license or approval is canceled, expires, lapses, or is otherwise withdrawn or
terminated by the authorizing entity.
9.6 Upon twenty-four (24) month's written notice by Licensor;
9.7 Immediately upon written notice if the Site or the antennae or
equipment are destroyed, damaged or rendered inoperative through no fault of
Licensee, so as in Licensee's reasonable judgment, to substantially and
adversely affect the effective use of the Site. In such event, all rights and
obligations of the parties shall cease as of the date of the damage,
destruction or inoperability and Licensee shall be entitled to any Rent prepaid
by Licensee. If Licensee elects to continue the affected Site Supplement, all
Rent shall abate until the Site and/or antennas and other equipment are
restored to working condition.
9.8 Upon lawful condemnation of the Site by an entity having the
power of eminent domain. If there is a condemnation of the Site, including
without limitation a transfer of the Site by consensual deed in lieu of
condemnation, then the Site Supplement for the condemned Site will terminate
upon transfer of title to the condemning authority, without further liability
to either party under this Master Lease. Licensee is entitled to pursue a
separate condemnation award for the Communications Facility from the condemning
authority.
9.9 Licensor has the right to immediately terminate a Site
Supplement and all of Licensee's rights to the Site in accordance with
Paragraph 6 (interference).
10. INSURANCE
10.1 Prior to work commencing, including feasibility testing and
Site suitability assurance described in Paragraph 5(a) and (b) above, Licensee
shall provide proof of insurance, as outlined below, and shall maintain the
coverages specified during the full term of this Master License and any Site
Supplement and for 180 days after its termination for any reason:
(a) Comprehensive General Liability insurance (including
Premises-Operations, Products and Completed Operations, Contractual,
Broad Form Property Damage, Independent Contractors, and Personal
Injury) with the following minimum limits:
(i) Combined Single Limit of $2 million each
occurrence
(ii) Bodily Injury and Property Damage of $2
million general aggregate and $2 million products and
completed operations aggregate.
(b) Workers' Compensation insurance with statutory limits
and Employers Liability insurance with limits of not less than
$500,000.00.
10.2 Licensee shall furnish Licensor with a certificate from an
insurance carrier acceptable to Licensor and Company stating that policies of
insurance have been issued by it to Licensee providing for the insurance
coverage listed above and that such policies are in force. Such certificates
shall state that the insurance carrier will give the Licensor 30 days' prior
written notice of any cancellation or material changes in such policies.
Failure to
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maintain such insurance at any time shall constitute a default of this Master
License but shall not relieve Licensee from any liabilities assumed under this
License. Termination of this Master License for any reasons whatsoever shall
not affect any obligation with respect to work performed prior to such
termination, or the indemnity or insurance provisions contained in this Master
License.
10.3 Lessee will not do or permit to be done in or about the Site,
nor bring or keep or permit to be brought to the Site, anything that:
(a) is prohibited by any insurance policy carried by Licensor
covering the Site, any improvements thereon; or
(b) will increase the existing premiums for any such policy
beyond that contemplated for the addition of the Communications
Facility.
11. LIMITED LIABILITY
11.1 Licensee agrees to release and hold Licensor harmless from any
and all claims arising from the installation, construction, use, maintenance,
repair, relocation or removal of the antennas and other equipment or in any way
related to this Master Lease or any Site Supplement issued under this Master
Lease, except for claims arising from the gross negligence or willful
misconduct of Licensor, its employees, or agents.
11.2 Neither party shall be liable to the other party for the other
party's consequential or indirect damages, including, but not limited to,
exemplary or punitive damages, loss of profits or revenue, whether arising out
of this transaction or breach of this Master License or any Site Supplement
issued under this Master License, out of Tort (including negligence), strict
liability, contract (including warranty) or otherwise.
12. INDEMNIFICATION
12.1 Licensee, on behalf of itself and for its subsidiaries,
successors, assigns, licensees, sub-licensees, contractors and subcontractors,
hereby releases Licensor and Company, their subsidiaries, successors and
assigns, and agrees to defend, indemnify and save harmless same from any and
all claims, demands or causes of action for bodily injuries, property damage,
or loss of life or property, including claims of third parties and all
reasonable costs and expenses, (including reasonable attorneys' and experts'
fees), incurred in connection with actions arising out of or in any way
connected with its activities, including, but not limited to, the design,
engineering, installation, construction, use, operation, maintenance, repair,
relocation, removal of its materials or Communications Facilities, defect or
failure of the licensed Sites or which occur by virtue of the above activities
or access to the licensed Sites, any defect failure, or malfunction of any
facilities or materials whether furnished by Licensee or Licensor, or presence
on the Site, except those claims, demands or causes of action for bodily
injuries, property damage or loss of life or property caused or occasioned
solely by the gross negligence or willful misconduct of Licensor, Company, or
their agents, officers, employees, subsidiaries, successors and assigns.
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12.2 Without limiting the foregoing, Licensee assumes all risk of
and agrees to relieve Licensor of any and all liability for loss or damage (and
the consequences of loss or damage) to any property installed by Licensee on
the Site and any other financial loss sustained by Licensee, whether caused by
fire, water or other perils.
12.3 Without limiting the foregoing, Licensee will indemnify,
defend, and hold harmless Licensor and Licensor's agents, offices and
employees, from any and all claims asserted by customers of Licensee in any way
arising out of or in connection with this Master License or any Site Supplement
or Licensee's Communications System, except that arising out of the gross
negligence or willful misconduct of Licensor or Licensor's agents, officers or
employees.
12.4 To the extent not prohibited by law, Licensee will release,
indemnify, defend, and hold Licensor (and its affiliates and personnel)
harmless against all losses, costs (including reasonable attorneys' fees),
damages, expenses, claims, demands, or liabilities arising out of or caused by,
or alleged to have arisen out of or been caused by any failure by Licensee to
satisfy all claims for labor, equipment, materials and other obligation
relating to the performance of the work under this Master License or any Site
Supplement. 12.5 Licensee will indemnify Licensor for any taxes levied upon
Licensor resulting from Licensee's use of the Site or due to Licensee's
equipment or facilities on the Site.
12.5 Licensee will indemnify Licensor for any taxes levied upon
Licensor resulting from Licensee's use of the Site or due to Licensee's
equipment or facilities on the Site.
12.6 Licensee shall give Licensor prompt notice of any asserted
claims or actions indemnified against, shall cooperate with Licensor in the
defense of any such claims or actions and shall not settle any claims or
actions without the prior consent of Licensor, which consent shall not be
unreasonably withheld or delayed.
12.7 Neither party shall settle separately any claim, demand, suit
or action arising out of this transaction or in connection with the rights and
responsibilities which are the subject of this Master License any Site
Supplement issued under this Master License with a third party without giving
notice and consulting with the other party.
12.8 The obligations of the respective parties under this Article
herein shall survive the termination of this Agreement, including any
extensions thereto, with respect to any occurrences arising out of activities
undertaken within the term of this Master License or any Site Supplement issued
under this Master License.
13. NOTIFICATION OF DAMAGES
Licensee shall immediately notify Licensor of any damages caused by
Licensee, its subsidiaries, successors, assigns, contractor(s) or
subcontractor(s) to the Licensor or Company facilities or any claims against
Licensee for property damage, bodily injury or death arising directly or
indirectly out of the Licensee's use of the licensed Site, or facilities of
third party.
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14. ENVIRONMENTAL HAZARDS
14.1 Licensee will not bring to, transport across, or dispose of
any Environmental Hazards on any particular Site without Licensor's prior
written approval, which approval shall not unduly be withheld except Licensee
may keep on the licensed Sites substances used in back up power units (such as
batteries and diesel generators) commonly used in the wireless
telecommunications industry. Licensee's use of any approved substances
constituting Environmental Hazards, must comply with all applicable laws,
ordinances, and regulations governing said use.
14.2 The term "Environmental Hazards" means hazardous substances,
hazardous wastes, pollutants, asbestos, polychlorinated biphenyl (PCB),
petroleum or other fuels (including crude oil or any fraction action or
derivative thereof) and underground storage tanks. The term "hazardous
substances" shall be as defined in the Comprehensive Environmental Response,
Compensation, and Liability Act, and any regulations promulgated pursuant
thereto. The term "pollutants" shall be as defined in the Clean Water Act, and
any regulation promulgated pursuant thereto. This Article provision shall
survive termination of the Master License and any particular Site Supplement.
15. ASSIGNMENT
15.1 Licensor agrees that Licensee may assign, sublet or otherwise
transfer any of its rights, benefits, liabilities and obligations under this
Master License and all Site Supplements, only with the prior, written consent
of the Licensor and only to any person or business entity which is licensed by
the FCC to operate a wireless communications business., Licensee shall provide
written notification of its intent to assign at least one hundred and twenty
(120) days in advance. Upon written notification of Licensee to Licensor of
any such action and the assignee's written assumption of all terms and
conditions of this Master License and all Site Supplements, Licensee shall be
relieved of all future performance, liabilities and obligations under this
Master License and all Site Supplement as of the effective date of the
assignment.
15.2 Licensor may assign, sublet or otherwise transfer any of its
rights, benefits, liabilities and obligations under this Master License and any
Site Supplement, only with the prior, written consent of the Licensee, except
Licensor shall have the right by written notification to Licensee to assign,
convey or otherwise transfer its rights, title, interest and obligations under
this Master License and all Site Supplements to any entity controlled by
Licensor, controlling or under common control or any entity into which Licensor
may be merged, consolidated or which purchases all or substantially all of the
assets of Licensor. Upon written notification of Licensor to Licensee of any
such action and the assignee's written assumption of all terms and conditions
of this Master License and all Site Supplements, Licensor shall be relieved of
all future performance, liabilities and obligations under this Master License
and any Site Supplement as of the effective date of the assignment.
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16. TAXES
Licensee shall pay any personal property taxes assessed on, or any
portion of such taxes attributable to the Communications Facilities or
Communications System. Licensor shall pay when due all real property taxes and
all other fees and assessments attributable to the Site. However, Licensee
shall pay, as additional rent, any increase in real property taxes levied
against the Site (excluding any additional taxes that relate to the period
prior to the Effective Date,) which is directly attributable to Licensee's use
of the Site, and Licensor agrees to furnish proof of such increase to Licensee,
upon Licensee's request.
17. CONFIDENTIALITY
The parties shall keep confidential the terms and conditions of this
Master License and any Site Supplement, except as reasonably necessary for
performance thereunder and except to the extent disclosure may be required by
applicable laws or regulations, in which latter case, the party required to
make such disclosure shall promptly inform the other party prior to such
disclosure to enable that party to make known any objections it may have to
such disclosure.
18. DISPUTE RESOLUTION
In the event any dispute or controversy arising out of or relating to
this Master Lease or any Site Supplement, the parties agree to exercise their
best efforts to resolve the dispute as soon as possible. The parties shall
without delay continue to perform their respective obligations under this
Master License which are not affected by the dispute. To invoke the dispute
resolution process set forth in this paragraph, the invoking party shall give
to the other party written notice of its decision to do so, including a
description of the issues subject to the dispute and a proposed resolution
thereof. Designated representatives of both parties shall attempt to resolve the
dispute within five (5) working days after such notice. If those designated
representatives cannot resolve the dispute, the parties shall meet at Company's
office and describe the dispute and their respective proposals for resolution
to the Chief Executive Officer of Licensor and the Chief Executive Officer of
Licensee, who shall act in good faith to resolve the dispute. If the dispute
is not resolved within ten (10) calendar days after such meeting, the dispute
shall be settled by arbitration in accordance with paragraph 19 of this Master
License.
19. ARBITRATION
If a dispute is not resolved pursuant to Paragraph 18 of this Master
Lease, the dispute shall be resolved by binding arbitration in accordance with
the then current Commercial Arbitration Rules of the American Arbitration
Association. The parties shall endeavor to select a mutually acceptable
arbitrator knowledgeable about issues relating to the subject matter of this
Master License. In the event the parties are unable to agree to such a
selection, each party will select an arbitrator and the arbitrators in turn
shall select a third arbitrator.
The arbitrator(s) shall not have the authority, power or right to
alter, change, amend, modify, add or subtract from any provision of this
Agreement or to award punitive damages. The
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arbitrator shall have the power to issue mandatory orders and restraining
orders in connection with the arbitration. The award rendered by the
arbitrator shall be final and binding on the parties and judgment may be
entered thereon in any court having jurisdiction. The agreement to arbitration
shall be specifically enforceable under the prevailing arbitration law. During
the continuance of any arbitration proceeding, the party shall continue to
perform their respective obligations under this Agreement.
20. GOVERNING LAW
This Master License or any Site Supplement and the performance thereof
shall be governed, interpreted, construed and regulated by the laws of the
State of Iowa.
21. INTERRUPTIONS OR DELAYS IN SERVICE
If either party is wholly or partially prevented from meeting its
obligations under this Master License reason of or through strikes, stoppage of
labor, riots, fire, flood, invasion, insurrection, accident, the order of any
court, judge, or civil authority, act of God, or any cause reasonably beyond
its control and not attributable to its neglect ("Force Majeure"), then such
party's obligations shall be temporarily suspended. However, such party shall
act in good faith and as promptly as possible in removing such interruption or
suspension, or to find a reasonable alternative to meet its obligations under
this Master Lease.
22. NO WAIVER
No delay or omission by either party in the exercise of any right
under this Master License shall be construed as a waiver of such right, unless
such waiver appears expressly in a writing executed by the party to be charged
with such waiver. An indulgence by either party of one or more defaults under
this Master License by the other party shall not be construed as a willingness
to indulge any other default, unless such willingness appears expressly in a
writing executed by the party to be charged with having indicated such
willingness. Absent a writing as required under this provision, neither party
shall be estopped from enforcing this Master Lease precisely as written.
23. COVENANTS AND WARRANTIES
23.1 Each party, represents and warrants to the other party that:
(a) it has full right, power and authority to make this
Master License and to enter into the Site Supplements;
(b) the making of this Master License and the performance
thereof will not violate any laws, ordinance, restrictive covenants,
or other agreements under which said party is bound;
(c) that said party is a duly organized and existing
legal entity recognized by the State of Iowa;
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(d) the party, is qualified to do business in any state
in which the Sites are located; and
(e) all persons signing or behalf of such party were
authorized to do so by appropriate corporate, partnership or other
applicable action.
24. NOTICES
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed given if personally delivered or mailed
via certified mail-return receipt requested, or sent by overnight carrier to
the following addresses:
If to Licensor, to; If to Licensee, to:
MWR Towers PageMart, Inc.
General Manager Property Manager
Town Centre, Suite 500 6688 N. Central Expressway
221 Third Avenue S.E. Suite 800
Cedar Rapids, IA 52401 Dallas, TX 75206
25. ENTIRE AGREEMENT
25.1 The Exhibits referred to in this Master License are
incorporated into and made a part of this Master License by this reference.
25.2 The terms and conditions contained in this Master License
supersede all prior oral or written understandings between the parties and
constitute the entire agreement between them concerning the subject matter of
this Master License or any Site Supplement.
25.3 There are no understandings or representations, express or
implied, not expressly set forth in this Master License or any Site Supplement.
25.4 This Master License or any Site Supplement shall not be
modified or amended except by a writing signed by the authorized
representatives of the parties.
26. EXECUTION OF OTHER INSTRUMENTS
The parties agree to execute, acknowledge and deliver to the other
such instruments Licensor's lender or Licensee's lender may reasonably request
from time to time.
27. MISCELLANEOUS
27.1 Each party agrees to cooperate with the other in executing any
documents (including a Memorandum of Lease) necessary to protect its rights or
use of the Site. The Memorandum of License which may be recorded, in place of
this Master License, by either party. Upon termination of this Master License
for any reason, Licensee will record a notice of termination of the Master
License if a Memorandum of License was previously recorded.
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27.2 If any provision of this Master License is found by any
arbitrator or court of competent Jurisdiction to be invalid or unenforceable,
then the parties hereby waive such provision to the extent that it is found to
be invalid or unenforceable and to the extent that to do so would not deprive
one of the parties of the substantial benefit of its bargain. Such provision,
to the extent allowable by law and the preceding sentence, shall not be voided
or canceled, but instead will be modified by such arbitrator or court so that
it becomes enforceable with all of the other terms of this Master License
continuing in full force and effect.
MWR TELECOM, INC.
doing business as
MWR TOWERS PAGEMART, INC.
By: /s/ KIRK KAALBERG By: /s/ HOMER L. HADDLESTON
--------------------------- ---------------------------
Printed Name: Kirk Kaalberg Printed Name:
-----------------
Its: Executive Vice President Its:
--------------------------
Date: 4/24/96 Date:
------------------------- -------------------------
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EXHIBIT C:
FEES AND CHARGES
SITE NUMBER: IA-S1-57 SITE NAME: Mount Pleasant, IA.
------------------- ---------------------------------------
LICENSEE: PageMart, Inc.
-----------------------------------------------------------------------
ANTENNA FEE:
- ------------
* Whip: ($1.00/mo.) x (height on Tower in feet)
$1.00 x 300 feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $300.00/mo.
* Dish: ($1.00/mo.) x (diameter in feet) x (height on Tower in feet)
$1.00 x 3.28 feet diameter x 8 feet up on tower . . . . . . . . . . . . . . . . . . . $26.00/mo.
* Other: ($1.00/mo.) x (height on Tower in feet) . . . . . . . . . . . . . . . . . . . . . . . . $0.00/mo.
FLOOR SPACE RENTAL:
- -------------------
* Shelter space: ($3.00/mo.) x (total square feet)
$3.00 x 4 square feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12.00/mo.
LAND LEASE:
- -----------
* Parcel lease: ($1.00/mo.) x (total square feet) . . . . . . . . . . . . . . . . . . . . . . . $0.00/mo.
TOTAL MONTHLY RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $338.00/MO.
- ------------------
OTHER PROVISIONS:
MINIMUM ANNUAL FEE:
* Minimum rental fee = $3,600.00 per year
POWER FEE:
* AC: $0.16 per kwh; DC: $0.48 per kwh.
An AC power charge will only be applied if a separate meter cannot
be supplied
ESCORT SERVICE:
* Normal work hours (8:00 A.M. through 5:00 P.M.) = $65.00 per hour.
* After work hours = $100.00 per hour.
An Escort Service charge will only be applied if separate access
cannot be provided
ESCALATION SCHEDULE:
* A 4.5% increase (inflation) will be applied yearly starting from
the second year throughout the term of the contract.
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EXHIBIT C:
FEES AND CHARGES
SITE NUMBER: IA-S2-33 SITE NAME: Fort Madison, IA.
------------------- ---------------------------------------
LICENSEE: PageMart, Inc.
-----------------------------------------------------------------------
ANTENNA FEE:
- ------------
* Whip: ($1.00/mo.) x (height on Tower in feet)
$1.00 x 299 feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $299.00/mo.
* Dish: ($1.00/mo.) x (diameter in feet) x (height on Tower in feet)
$1.00 x 3.28 feet diameter x 8 feet up on tower . . . . . . . . . . . . . . . . . . . . . . $26.00/mo.
* Other: ($1.00/mo.) x (height on Tower in feet) . . . . . . . . . . . . . . . . . . . . . . . . . . . $0.00/mo.
FLOOR SPACE RENTAL:
- -------------------
* Shelter space: ($3.00/mo.) x (total square feet)
$3.00 x 4 square feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12.00/mo.
LAND LEASE:
- -----------
* Parcel lease: ($1.00/mo.) x (total square feet) . . . . . . . . . . . . . . . . . . . . . . . . . . $0.00/mo.
TOTAL MONTHLY RENT: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $337.00/MO.
- -------------------
OTHER PROVISIONS:
MINIMUM ANNUAL FEE:
* Minimum rental fee = $3,600.00 per year
POWER FEE:
* AC: $0.16 per kwh; DC: $0.48 per kwh.
An AC power charge will only be applied if a separate meter cannot
be supplied
ESCORT SERVICE:
* Normal work hours (8:00 A.M. through 5:00 P.M.) = $65.00 per hour.
* After work hours = $100.00 per hour.
An Escort Service charge will only be applied if separate access
cannot be provided
ESCALATION SCHEDULE:
* A 4.5% increase (inflation) will be applied yearly starting from
the second year throughout the term of the contract.
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The nonrecurring charge estimate, the first year's annual fee, and the final
payment for the nonrecurring charge shall be sent to:
MWR Towers
Attn: Accounts Receivable
Town Centre, Suite 500
221 Third Avenue S.E.
Cedar Rapids, IA 52401
All other payments shall be made to MWR Towers, and shall be sent to the
address indicated on the bill, or if an address is not indicated on a bill,
payment shall be sent to the address indicated above or such other addresses as
may be designated from time to time by MWR Towers
MWR TELECOM, INC.
doing business as
MWR TOWERS PAGEMART, INC.
By: /s/ KIRK KAALBERG By: /s/ HOMER L. HUDDLESTON
------------------------------- -------------------------------
Printed Name: Kirk Kaalberg Printed Name:
---------------------
Its: Executive Vice President Its:
------------------------------
Date: 4/24/96 Date:
----------------------------- -----------------------------
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