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HomeMy WebLinkAboutRESOLUTION - 46-08 - 9/23/2008 - GROUND LEASE AGREEMENT/DENALI/CRICKET COMMUNICATIONSRESOLUTION NO. 46-08 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A GROUND LEASE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND DENALI SPECTRUM OPERATIONS, LLC (CRICKET COMMUNICATIONS, INC.) NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of.Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois, as follows: Section 1: That the Mayor be and is hereby authorized to sign the attached documents marked: GROUND LEASE AGREEMENT a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said documents upon the signature of the Mayor. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 23rd day of September 2008 APPROVED this 23rd day of September 2008 APPROVED: Mayor Craig B. Johnson Village of Elk Grove Village ATTEST: Ann I. Walsh, Village Clerk GroundLeaseAgwDenaliCricket 1.9 GROUND LEASE AGREEMENT 1: Definitions of Terms Used in this Document: Landlord's Contact Person Village Manager Village of Elk Grove Village 901 Wellington Elk Grove Village, IL 60007 (847) 357-4010 Landlord Village of Elk Grove Village 901 Wellington Ave. Elk Grove Village, IL 60007 Name and Address for Pavment of Rent Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, IL 60007 Attn: Finance Dept. Taxpayer ID E9998-1017-02 Property Identification Number Commencement Date Beginning of Construction or [date] Term Five (5) years Initial Rent annually S25,500.00 or monthly S 2,125.00 Renewal Terms Four (4) Five (5) year terms as described in section 2.2. 1.10 Pro e Landlord is the owner of certain real property (the "Land") with the common address of 676 Meacham Rd., Elk Grove Village Illinois, 60007. The Land is legally described in Exhibit A. 1.11 Premises Landlord hereby leases to and Tenant leases from Landlord, approximately 355 square feet of Land and all access and utility easements, (the "Premises") as described in Exhibit B to this Agreement. 1.12 Lease This Ground Lease Agreement including Exhibits A and B. 1.13 Tenant Denali Spectrum Operations, LLC 1.14 Tenant's Contact Person 1.15 Tenant's Address 10307 Pacific Center Court San Diego, CA 92121 With a copy to: c/o Cricket Communications, Inc. 10307 Pacific Center Court San Diego, CA 92121 Attn: Legal Department 2: Term and Options to Extend 2.1 Initially. The term of this Lease shall be for five (5) years and terminating on the fifth anniversary of the Commencement Date (the "Term"), unless otherwise terminated as provided in Paragraph 18. 2.2 Option to Extend. The term of this Lease shall be automatically renewable for a total of four (4) five (5) year terms ("Renewal Terms") each following the original term or any renewable term at the annual rental stated below and otherwise upon the same terms and conditions stated in this Lease. If Tenant desires not to extend any subsequent term of the Lease, it shall give Landlord written notice of its intention not to extend the term at least sixty (60) days prior to the expiration of the then current term whereupon the Lease shall be deemed canceled upon the expiration of the then current term. 2.3 Rent During Extension Terms. (A) Rent shall be increased on each anniversary of the Commencement Date by an amount equal to four percent (4%) of the rent for the previous year. (B) On or before the .Commencement Date, Tenant shall deposit with Landlord the sum of $5,000.00 (the "Security Deposit"). Said Security deposit shall be held by Landlord as security for the faithful performance by Tenant of the terms, covenants and conditions of this Lease. The Security Deposit will be segregated by the Landlord in an interest bearing account identified for this Lease. If Tenant defaults under this Lease, which default is not cured by Tenant as provided in Paragraph 13, Landlord may use, apply or retain all or a part of this Security Deposit to compensate Landlord for any actual loss, damage or expense incurred or suffered by Landlord by reason of Tenant's incurred default. Prior to Landlord invading the Security Deposit, it shall first give Tenant written notice of its intention to do so and with that notice shall provide to Tenant written documentation of the loss damage or expense for which Landlord seeks compensation from the Security Deposit. Such notice and documentation shall be provided by Landlord to Tenant within thirty (30) days after the date of the occurrence which gives rise to Landlord's claimed loss, damage or expense. Failure to provide such notice and documentation within such time shall result in a waiver by Landlord of the right to invade the Security deposit. If the Security Deposit is invaded by Landlord in accordance with this paragraph, Tenant shall restore the Security Deposit within forty- five (45) days after the notice and demand from Landlord. Landlord shall return the Security Deposit along with any interest accrued thereon to Tenant or Tenant's assignee within forty-five (45) days after the date of expiration or termination of this Lease. (C) The rent and the annual incremental increases thereof, shall be subject to renegotiating by the parties on the tenth (10th) and twentieth (20) anniversary of the Commencement Date, provided the Lease is so extended. In the event the parties are unable to agree upon new terms within thirty (30) days after the tenth (10th) or twentieth (20) anniversary, then this Lease shall terminate one hundred twenty (120) days thereafter. In no event shall any new rent be less than the then current rental. (D) As additional consideration, Tenant shall provide to Landlord at the time it commences commercial service, a one-time contribution of $10,000.00. 2.4 Construction of Tenant's Building: 2.4.1 Construction of Building Tenant has proposed the construction of an equipment enclosure with external dimensions of approximately 10' x 17' and located on a leased parcel of land measuring 10' X 35.5' to be located as specified on Exhibit B. Tenant undertakes full and complete responsibility at all times hereafter for the expenses of, and quality of, construction and compliance with all code requirements and regulations of governmental authorities having jurisdiction over the construction, including but not limited to compliance with acts effecting construction of public buildings and service areas used by public employees, and Tenant agrees to remedy or correct any deficiencies with such compliance. The construction shall be processed pursuant to permit and conducted by authorized and licensed personnel and shall be performed in compliance with local and State requirements for construction activities upon public property. The construction work shall proceed without interference or disruption, or minimalization of same, to the current operations of the Fire Department and Public Works operations. STANDARD PROVISIONS 3: Additional Yearly Terms. Intentionally deleted 4: Methods of Payment. 4.1 First Rent Payment. Not later than Fourteen (14) days after the Commencement Date, Tenant shall pay Landlord.rent for the first two (2) full calendar months of the Term. 4.2 Subsequent Monthly Rent Payments. Effective with the first (1st) day of the third (3rd) calendar month of the Term rent shall be payable monthly in advance on the fifth (5t') day of each calendar month. Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated. 4.3 Location for Payment. All rent shall be paid to Landlord at the Address for Payment of Rent or to another person, firm or place which the Landlord may from time to time designate in writing at least forty-five (45) days in advance of a rent payment date. 5: Use of Property. Tenant may use the Property for lawful telecommunications purposes and related site preparation, improvements and maintenance purposes in accordance with applicable local rules and governmental regulations, and such use shall not interfere with Landlord's use of the Property (i.e., if Tenant is making improvements to the Property, Tenant cannot place equipment or materials in such a manner as to block Landlord's access). Landlord agrees to cooperate with Tenant, at Tenant's expense, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Tenant's intended use of the Premises. Tenant's use of 10' x 35.5' lease parcel of land and equipment shelter shall be exclusive. Tenant's use of the monopole structure shall be nonexclusive and will not prohibit use by other telecommunications companies or agencies so long as such other telecommunications equipment do not unreasonably interfere with the use of Tenant's facilities as determined by the Elk Grove Village Department of Engineering & Community Development, it being understood that it is the Village's desire to have co -located facilities. 6: Tenant's Installation. 6.1 Improvements. Tenant has the right to erect, maintain and operate on the Premises radio communications facilities, including without limitation an antenna structure, antennae, electronic equipment, air conditioned equipment shelter, other personal property, fixtures, cables, transmission lines, utilities lines and make any other improvements ("Tenant's Facilities"), given Tenant has obtained a building permit from Village of Elk Grove Village. Tenant may from time to time replace any of these items with new or different items with the same or different specifications so long as their installation is otherwise in compliance with this Lease and applicable laws, ordinances and codes. A building permit shall be obtained for such items, provided a building permit is required by applicable law, ordinance or code. Tenant's installation shall not interfere with Landlord's use of the Property. 6.2 Workmanlike Construction. Tenant agrees that the installation shall be completed in a neat, workmanlike manner consistent with good engineering practices. All costs of the installation, including, but not limited to, the cost of extending Landlord's electrical service to Tenant's equipment, will be paid by the Tenant. 6.3 Title to Various Items. Landlord shall, at all times, be the sole and exclusive owner of the Property. The Tenant shall at all times be the sole and exclusive owner of Tenant's Facilities. All of Tenant's Facilities shall remain Tenant's personal property and are not fixtures. 6.4 Utilities. Tenant shall pay for the electricity it consumes in its operations at a rate charged by the servicing utility company. Tenant shall have the right to draw electricity and other utilities from the existing utilities on the Property or obtain separate utility service from any utility company that will provide service to the Property (including a standby power generator for Tenant's exclusive use). Landlord agrees to sign such documents or easements as may be required by said utility company to provide such service to the Premises, including the grant to Tenant or to the servicing utility company at no cost to the Tenant, of an easement in, over across or though the Land as required by such servicing utility company to provide utility services as provided herein. 6.5 Access. Tenant and its employees, agents, and subcontractors shall have 24 -hours -a -day, 7 -days -a week pedestrian and vehicular access to the Premises at all times during the Term of this Lease for the installation, maintenance and operation of Tenant's Facilities and any utilities serving the Premises. Landlord grants to Tenant an easement for such access and Landlord agrees to provide Tenant such codes, keys and other instruments necessary for such access at no additional cost to Tenant. 7: Taxes. 7.1 Tenant shall be solely responsible for and shall timely pay all personal property taxes levied and assessed against it or its personal property. Tenant shall not be responsible for any real estate, special assessments or similar taxes relating to the Property except to the extent permitted by statute for the value of Tenant's leasehold estate. 7.2 Tenant hereby acknowledges, and agrees to abide by, the terms of the Village of Elk Grove Village's 5% Simplified Municipal Telecommunications Tax (Village Ordinance Number 2960), generally applicable to all providers of telecommunications services in Elk Grove Village. 8: Indemnification. Landlord and Tenant hereby agree to indemnify, defend and hold each other harmless from and against any claim of liability or loss from personal injury or property damage in connection with the Property or resulting from or arising out of the use and occupancy of the Property by the indemnifying party or its agents, excepting, however, such claims or damages as may be due to or caused by the acts of the indemnified party or its agents. Neither party shall have any obligations under this Paragraph unless notified in writing of any such claim or loss within thirty (30) business days of receipt by the other party of notice of such claim or loss. 9. Insurance. During the Term and Renewal Term of this Lease, Tenant shall carry and maintain commercial general liability insurance, naming the Landlord as an additional named insured, insuring against liability for injury to persons or property occurring in or about the property or arising out of the ownership, maintenance, use or occupancy thereof. Coverage under such policy shall not be less than $1,000,000.00 per occurrence for personal injuries and not less than $50,000.00 per occurrence for property damage. In addition, Tenant shall carry and maintain worker's compensation insurance in the statutory amount throughout the term of this Lease. Tenant shall provide Landlord with a certificate of insurance evidencing such coverage required by this paragraph within fifteen (15) days of the Commencement Date. 10. Landlord's Representations. In order to induce Tenant to enter into this Lease, Landlord covenants, represents and warrants, as of the date of this Lease and throughout its Term, as follows: 10.1 Authority. Landlord -is solvent and the owner of the Property in fee simple. Landlord has full authority to execute, deliver, and perform this Lease and is not in default of any mortgage affecting this Property. 10.2 No Condemnation. Landlord has received no actual or constructive notice of any condemnation or eminent domain proceedings or negotiations for the purchase of the Property, or any part, instead of condemnation. 10.3 No Unrecorded Liens. Landlord has not performed and has not caused to be performed any work on the Property during the six months preceding the date of this Lease which could give rise to any mechanic's or materialmen's liens. There are no unrecorded easements or agreements affecting the Property. 11: Easements. 11.1 Granted. For the Term and Renewal Terms of this Lease, Landlord grants to Tenant, and its agents, employees, contractors, guests and invitees, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across that portion of the Land described in Exhibit B. Tenant and its authorized representatives shall have the right of ingress and egress to and from the Property twenty-four (24) hours a day, seven (7) days a week, at no charge. 11.2 Modifications. If subsequent to the date of this Lease it is reasonably determined by Tenant that any access or utility easement obtained does not or no longer adequately serves the Property and Tenant's use thereof, Landlord agrees to cooperate with Tenant to relocate such Easements where practical. In the event the Landlord is unable to relocate any of the necessary Easements, then at Tenant's option this Lease may be terminated upon thirty (30) days' prior written notice to Landlord. 12: Assignment. Tenant may not assign, or otherwise transfer all or any part of its interest in the Lease or in the Property without the prior written consent of Landlord: provided, however, that Tenant may assign or sublet its interest without consent to its parent company, any subsidiary or affiliate of it or its parent company or to any successor -in - interest or an affiliated entity controlled, subject to any financing entity's interest, if any, in this Agreement as set forth in Section 27 below. Landlord may assign this Lease upon written notice to Tenant, subject to the assignee assuming all of Landlord's obligations herein, including but not limited to, those set forth in Section 27 below. Notwithstanding anything to the contrary contained in this Lease, Tenant may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Tenant (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) Has obligations evidenced by bonds, debentures, notes, or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 13: Defaults. 13.1 By Tenant. In the event of default under this Lease by Tenant, Landlord shall be entitled to remedies as shall then be provided by law except that Landlord shall not be entitled to remove any personal property (including fixtures) on the Property; and provided that prior to, and as a condition precedent to, the exercise of any remedy, Landlord shall give to Tenant written notice of default to Tenant and the nature of the default and Tenant shall have thirty (30) days (or, such additional time as granted by the landlord at tenants request), after receipt of the notice within which to cure the default, during which period no remedy shall be pursued. If Tenant fails to cure a default, in addition to any other remedies available to Landlord, the Landlord may elect to commence eviction proceedings provided, however, Tenant shall be permitted a six-month stay from receipt of a notice of eviction at 200% of the then current monthly rent to find an alternative site. 13.2 By Landlord. If Landlord defaults in any of its obligations under this Lease, in addition to any remedies available at law or equity, Tenant may perform Landlord's obligation and may offset from the rent or any other amounts next payable Tenant's costs and expenses of doing so. Notwithstanding anything else in this Lease, Tenant may defer payment of Rent including the first rent payment, during any period in which Landlord is in default in any of its obligations under this Lease; has failed to provide or execute or cause to be provided or executed (a) any document reasonably necessary for Tenant's use of the Property in the manner contemplated, (b) any license, or (c) any document reasonably necessary to obtain any title insurance or other necessary or desirable insurance or consent. Notwithstanding the foregoing, in the event of a default under this Lease, Tenant shall give to Landlord written notice of the default specifying the nature of the default and Landlord shall have thirty (30) days (or, if the default cannot be cured within thirty (30) days, a longer period as shall be necessary to cure the default and as agreed to by Tenant, acting with due diligence), after the receipt of the notice within which to cure the default. If Landlord fails to cure a default, in addition to any other remedies available to Tenant, the Tenant may elect to cancel this Lease. 14: Condemnation. In the event of condemnation, Tenant's share of any condemnation award or proceeds from sale in lieu of condemnation shall be limited to compensation for Tenant's leasehold interest, antennae, improvements, transmission lines, loss of business and equipment, and Tenant's costs of relocation. Tenant shall not receive any part or portion of condemnation award or sales proceeds relating to compensation for Property owned by the Landlord. 15: Casualty. In the event the Property is destroyed or damaged in whole or in part by casualty during the Term or Renewal Terms of this Lease then, at Tenant's option (exercised by notice to Landlord), this Lease may be terminated as of the date of the event or at any time within 90 days thereafter and no further rent shall be due under the termination section or any other section of this Lease. 16: Quiet Enjoyment. Landlord covenants and agrees that upon payment by the Tenant of the rental under this Lease and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Property, the rights, and privileges granted for the term demised without hindrance or interference by Landlord or any other person and Landlord shall perform all of its obligations under this Lease. 17: Subordination, Non -Disturbance and Attornment. 17.1 Existing Encumbrances. Within thirty (30) days after the execution of this Lease, Landlord shall deliver to Tenant executed original of non -disturbance and attornment agreements with Tenant in form satisfactory to Tenant, in Tenant's sole discretion, from any existing mortgage holder or other party holding an interest in the Property which may take precedence over Tenant's interest in the Property. Failure by the Landlord to deliver any required non- disturbance and attornment agreement shall entitle Tenant, at Tenant's option, to terminate this Lease at any time thereafter and to obtain a refund of all rent and any other amounts paid to Landlord, and, in any case, Tenant shall have no obligation to pay rent or other amounts under this Lease until Landlord delivers the executed non -disturbance and attornment agreement. 17.2 Subsequent Financing. Tenant shall enter into recordable subordination, non -disturbance and attornment agreements with the holders of any mortgage, trust deed, installment sale contract or other financing instrument dated after the date of this Lease, if the agreements are in form satisfactory to Tenant. 18: Termination. 18.1 By Tenant. In addition to termination as a result of action or inaction pursuant to other parts of this Lease, Tenant may terminate this Lease: (a) at any time for any reason upon thirty (30) days written notice to Landlord and payment of nine (9) months rental, or (b) immediately, without payment of any rent not yet due following written notice to Landlord of either (i) Tenant's inability to secure necessary zoning and/or Tenant has lost, been denied or failed to satisfy any necessary authorization or radio engineering criteria to use the Property as contemplated in this Lease, or (ii) Tenant's having obtained a soil test which shows contamination or building conditions which in Tenant's judgment are unsuitable for Tenant's purposes, or (iii) by Tenant if Tenant is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies. 18.2 By Landlord. Landlord may terminate this Lease following a determination by a qualified engineer (using appropriate instruments which are properly calibrated) that the power density levels emitted from Tenant's equipment located on the Property exceed the American National Standards Institute's ("'ANSI") "Safety Levels with Respect to Human Exposure to Radio Frequency Electronic Fields", as set forth in ANSI Standard C95.1-1982 (or any ANSI Standards which supersede this standard), at points accessible to and intended for the general public and the inability of Tenant to bring its equipment into compliance with such standard within sixty (60) days after receipt of a written copy of Landlord's engineering findings. 18.3 Removal of Equipment. Upon the expiration of this Lease, or its earlier termination or cancellation for any reason, Tenant shall at its sole expense remove from the Property all of its antennae, antenna structures, equipment enclosures, transmitting and receiving equipment, transmitting lines, underground wiring, fencing, sidewalks and foundations, other personal property, fixtures and other improvements. Tenant shall be required to remove its access road beyond Landlord's access unless another tenant of Landlord is utilizing said road, in which case Tenant shall not be required to remove any portion of the access road. Tenant shall have up to ninety (90) days after the effective date of the expiration, termination, cancellation to complete removal of all items. If Tenant requires any of the ninety (90) day period after the effective date for the removal, Tenant shall pay Landlord the then current monthly rent (or in the case of annual rental one -twelfth of the annual rental) in advance for each thirty (30) day period or portion thereof Tenant requires to complete the removal. - 19: Cooperation. Landlord agrees to cooperate with Tenant in any efforts by Tenant to secure any governmental permits necessary to use the Property as contemplated in this Lease, and to join in any application or other document reasonably requested by Tenant within ten (10) days of Tenant's written request. During the Term or Renewal Term of this Lease Landlord shall take no action which adversely affects the uses permitted on the Property. At any time after the date of this Lease or the Commencement Date, either party shall execute or cause to be executed any documents, or take or cause to be taken any actions; reasonably necessary to carry out the intent of this Lease. 20: Lease Construction. This Lease shall be construed in accordance with the laws of the State of where the Property is located. In the event that any provisions of this Lease are legally unenforceable, the other provisions shall remain in effect. 21: Entire Binding Understanding; No Oral Modification. All prior understandings and agreements between the parties are merged into this Lease, and this Lease may not be modified orally or in any manner other than by an agreement in writing signed by both parties. Presentation of this Lease by Tenant to Landlord shall not constitute an offer unless the Lease has been signed by Tenant, and this Lease shall not be binding until executed by both Landlord and Tenant. 22: Successors. Subject to the provisions regarding assignment, this Lease shall be binding upon, and inure to the benefit of, the successors -in -interest and permitted assigns or subtenants of the parties and any grantee of Landlord. 23: Notices. All notices, requests and other writings required under this Lease (including any notices of renewal, or termination rights) must be in writing and shall be deemed validly given upon the earlier of (i) actual receipt or (ii) the second business day after the date posted if sent by certified mail, return receipt requested, addressed to the other party with copies as set out in the Landlord's Address and Tenant's Address (or any other address within the United States that the party to be notified may have designated to the sender by like notice). 24: Performance. Time is of the essence in this Lease. 25: Broadcast Interference. 25.1 Definition. As used in this Lease, "interference" with a broadcasting activity means: (A) Interference within the meaning of the provisions of the recommended practices of the Electronics Industries Association (EIA) and the rules and regulations of the Federal Communications Commission (FCC) then in.effect, or (B) A material impairment of the quality of either sound or picture signals on a broadcasting activity as may be defined by the FCC at any hour during the period of operation of activity, as compared with that which would be obtained if no other broadcaster were broadcasting from the Property or had any equipment on the Property. 25.2 Interference. (A) Tenant shall operate Tenant Facilities in a manner that shall not cause physical, mechanical, radio frequency or signal interference to Landlord and other tenants or licensees of the Property. All operations by Tenant shall be in compliance with all Federal Communication Commission ("FCC") requirements. (B) Subsequent to the installation of the Tenant Facilities, Landlord shall not permit itself, its tenants or licensees to install new equipment on the Property if such equipment is likely to cause physical, mechanical, radio frequency or signal interference with Tenant's operations. Such interference shall be deemed a material breach by Landlord. In the event interference occurs, Landlord agrees to take all reasonable steps necessary to eliminate such interference in a reasonable time period. Landlord shall have the right to install equipment that is in compliance with all FCC standards and regulations. (C) Should Landlord or citizens thereof claim interference with their existing residential uses due to Tenant Facilities, Tenant shall, at its sole cost and expense, cooperate with Landlord to determine if Tenant Facilities are the source of such claimed interference. Such cooperation shall include but not be limited to intermodulation studies. Should it be determined by such studies that such interference is directly attributable solely to the operations of the Tenant Facilities on the Property, Tenant, at its sole cost and expense, shall use its best efforts in taking measures to modify the Tenant Facilities in order to mitigate such interference to Landlord's reasonable satisfaction. 26: Environmental Matters. 26.1 Definition. For purposes of this Lease: (A) "Applicable Environmental Laws" includes the Comprehensive Environmental Response, Compensation, and Liability Act, any so called "Superfund" or "Superlien" law, or any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect. (B) "Hazardous Material" includes any hazardous, toxic or dangerous waste, substance or material as that term is defined in Applicable Environmental Laws. 26.2 No Hazardous Material. Neither the Landlord nor, to the best knowledge of Landlord, any other person has ever caused or permitted any Hazardous Material to be placed, held, located or disposed of on, under or at the Property or any part thereof nor any part thereof has ever been used by the Landlord, or to the best knowledge of the Landlord, by any other person either as a permanent or temporary dump site or storage site for any Hazardous Material. 26.3 Tenant's Indemnity: Tenant indemnifies the Landlord and agrees to hold the Landlord harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Landlord 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 form the Property or into or upon any land, the atmosphere, or any watercourse, body of water or wetland, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under applicable Environmental Laws) caused by or in the control of Tenant. 26.4 Landlord's Indemnity. In all other cases, Landlord indemnifies the Tenant and agrees to hold the Tenant harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by or asserted against Tenant 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 Property or into or upon any land, the atmosphere, or any watercourse, body of water or wetland, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under Applicable Environmental Laws). 26.5 Survival. The provisions of and undertakings and indemnification set out in this Section shall survive the termination of this Lease. 27. Waiver of Landlord's Lien. (a) Landlord waives any lien rights it may have concerning the Tenant Facilities which are deemed Tenant's personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's consent. (b) Landlord acknowledges that Tenant has entered into a financing arrangement including promissory notes and financial and security agreement for the financing of the Tenant Facilities (the '`Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 28. Miscellaneous (a) The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. (b) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel information about the Lease as the other may reasonably require. (c) This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to the Lease must be in writing and executed by both parties. (d) Each parry agrees to cooperate with the other in executing any documents (including a Memorandum of Agreement) necessary to protect its rights or use of the Premises. The Memorandum of Agreement may be recorded in place of this Lease by either party. (e) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of this Lease, which shall continue in full force and effect. The parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. Any questions of particular interpretation shall not be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. (f) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their individual or representative capacity as indicated. (g) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original, but all of which together shall constitute a single instrument. AGREED as of the later of the two dates below: LANDLORD TENANT Village of E rov Village, DENALI SPECTRUM OPERATIONS, LLC an Illino umc al Corporation a Delaware limited liability company By: By: Denali Spectrum License, LLC Name: Craig B. Johnson Title: Mayor Date: September 23, 2008 Its sole member By: Denali Spectrum, LLC Its sole member By: Denali Spectrum M ` a r, LLC Its manager By: Doyon, Limited Its manager Name: Title: Date: I ". 44 MUM E DESCRIPTION OF LAND Exhibit "A" to the Lease dated September 23, 2008, between the VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation, as Landlord, and Denali Spectrum Operations, LLC, as Tenant. The Land is described and/or depicted as follows: Common address: PIN No EXHIBIT "B" DESCRIPTION OF PREMISES Exhibit "B" to the Lease dated September 23, 2008 between the VI.LLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation as Landlord, and Denali Spectrum Operations, LLC, as Tenant. The Premises are described and/or depicted as attached hereto.