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10148150 - Site Lease
The RitE-Carlton Club, Aspen Highlands AGREEMENT This Agreement (tliis "Agreement") is entered into as of this ^_ day of ptLtY\Ak)tr , 2011 (the "Effective Date"), by and between ASPEN HIGHLANDS CONDOMINIUM ASSOCIATION, INC., a Colorado non-profit corporation ("Licensor'*) and NEW CINGULAR WIRELESS PCS, LLC. a Delaware limited liability company ("Licensee"). WITNESSETH; I. Definitions Licensor and Licensee agree that the following capitalizfed terms as used herein shall, unless the context otherwise requires, have the following respective meanings; (a) "Affiliate," as to a party, means (i) a corporatioij which owns fifty percent (50%) or more ofthe outstanding common stock ofthe party, (ii) a corporation which has fifty percent (50%) or more of its common stock owned by the party, (iii) a partnership which owns fifty percent (50%) or more of the common stock of the party, (iv) a partnership which has fifty percent (50%) or mor^ of its interest in partnership profits owned by the party, (v> an entity which purchases substantially all ofthe assets of, the party, or (vi) an entity which is tlie surviving entity ih a merger pursuant to state corporation or partnership law with the party. (b) "Antenna Site" means and shall be limited to the applicable portions of the roof and interior equipment space of the Resort (hereinafter defined) designated by Licensoi", where the Site Equipment is located, which Antenna Site is more accurately depicted on Exhibit A attached hereto and incorporated herein by this reference. Notwithstanding the foregoing, in no event shall the license granted herein to Licensee be to a specific portion of the Resort or entitle Licensee to use the Antenna Site for ariy purpose^ except as otherwise expressly permitted herein, (c) "Commencement Datie" means the first day of the month that immediately follows the month in which the Effective Date occurs. (d) "Impairments" shall mean any interruptions, suspensions, failures, defects, delays, degradations, deficiencies, impairments or inadequacies. (e) "Lavvs" shall mean all applicable laws, statutes, rules, ordinanceSj codes, orders and t^gulations of all federal, state, local and other government and regulatory authorities (including the Federal Communications Commission, the Federal Aviation Administration and city biiilding and fire codes). (f) "Manager" shall mean The Ritz-Carlton Hotel Company, L.L.C,, a Delaware limited liability company. (g) "Modifications" shail mean expansions, modifications, additions, upgrades, reconfigurations, removals, replacements, relocations or alterations. (h) "Modify" shall mean expand, modily, add, upgrade, reconfigure, remove, replace or alter. (i) "Person" shall mean an individual, partnership, corporation, limited liabilify company, trust, decedent's estate, joint venture, joint stock company, association, unincorporated organization, governmental body or agency, or other entity. (j) "Resort" shall mean those certain buildinp situated at (1075 Prospector Road, Aspen, Colorado 81611, currently known as The Riiz-Garlton Club, Aspen Highlands, as well as all of the real property located at die same address. (k) "Rules and Regulations" shall mean those rules and regulations set forth on Exhibit D. Licensor reserves the right to make reasonable changes to the Rules and Regulations from time to time; provided that such changes do not (i) adversely aflfect Licensee's Permitted Use under this Agreement; (it) unreasonably interfere with Licensee's continuous operations of the Facilities within the Antenna Site; (iii) unreasonably interfere with Licensee's access to the Facilities as set forth in Section 6 herein; (iv) conflict with any terms of this Agreement; or (v) increase Licensee's financial obligations under this Agreement. (I) "Site Eqiiipment" means the communications equipment, including base stations, antenna(s), pales, dishes of masts, cabling or wiring and accessories used therewith, approved by Licensor for installation, operation and maintenance on the Antenna Site, as more fully set forth on Exhibit A attached hereto and incorporated herein by this reference, including up to eighteen (18) radio transmitting and receiving panel antennas which are between approximately five (5) and eight (8) feet tall, eiglit (8) and ten (10) inches wide, and four (4) inches deep^ supporting mounts, associated cable pairs and connectors. Forthe avoidance of doubt, all Modifications to the Site Equipment shall be considered to be part of the Site Equipment once completed, and the Site Equipment shall also be considered to include any other tangible items at the Antenna Site installed or located at the Antenna Site by or for Licensee. (m) "Technical Standards" shall mean those standards set forth on Exhibit C attached hereto, and as they may be modified from time to time by Licensor. (Licensor and Licensee agree that capitalized terms defined elsewhere in this Agreement shall, unless the context otherwise requires, have the meaning there given.) 2. Term (a) The "Initial Term" of this Agreement shall commence on the Effective Daite and shail terminate on the date that is fifteen (15) years after the Commencement Date. This Agreement may be renewed for one (1) additional five-year period ("Additional Term"), provided that for the Additional Terra: (i) no less than ninety (90) days and no more than one hundred and eighty (180) days prictr to the commencement ofthe Additional Term, Licensee provides written notice to Licensor of Licensee's intent to renew ("Renewal Notice"); and (ii) Licensor does not notiiy Licensee within sixty (60) days after receipt of the Renewal Notice that Licensor rejects Licensee's request to renew this Agreement for the Additional Term. The Initial Term and the Additional Term, if any, are Collectively hereinafter referred to as the "Term," and the Additional Term, if any, shall commence immediately following the end ofthe Initial Term. All tenms and conditions of this Agreement shall apply as of the Effective Date, except as otherwise set forth herein. (b) Licensor and Licensee agree to execute a Declarafion, in the form attached hereto as Exhibit B and incorporated herein by this reference, to confirm the Effective Date, the Commencement Date artd the date of the expiration of the initial Term. Failure to execute the Declaration shall not atTect the commencement or expiration of the Term. License; Permitted Use Subject to the terms and conditions of this Agreement, commencing on the Commencement Date, and for the remainder of the Term, Licensor grants to Licensee a non-exclusive license (the "License") to use the Antenna Site for the "Permitted Use" only. The Permitted Use is the (i) the transmission and reception of communication signals in all frequency bands licensed to Licensee pursuant to all Laws, including all rules and regulations of the Federal Communications Commission (the "FCC'), and (ii) the construction, installation, maintenance. repair and Modification of the Site Equipment in connection solely with the personal wireless communications service in the frequencies referenced above. Without limiting the foregoing, in no event shall Licensee use the Antenna Site for any unlawful purpose or in any unlawful manner or which will make voidable any insurance for the Resort. 4. Pa men (b) In addition to the initial License Fee and Monthly License Fee, Licensee shalt pay Licensor, if and when due, any sales, use or other taxes or assessments (exclusive of Licensee's state and Federal income taxes) which are assessed or due by reason of this Agreement or Licensee's use of the Antenna Site hereunder. (c) Licensor directs Licensee to pay the Monthly License Fees to Manager (i.e., Licensee shall make the Monthly License Fees payable to Manager) at the following address: Aspen Highlands Condominium Association, Inc. c/o The Ritz -Carlton Hotel Company, L.L.C. located at 0075 Prospector Road, Aspen, Colorado 81611, Attn: Director of Finance. (d) If any installment of the Monthly License Fee (or any other amount due hereunder) is not paid within ten (10) days after the date such payment is due, then in addition to paying the amount then due, Licensee shall pay to Licensor a late charge equal to ten percent (10%) of the amount then required to be paid, plus interest on the outstanding amount equal to eighteen percent (18%) per annum; provided, however, that nothing contained in this Agreement shall be construed in such a manner as to allow Licensor to receive interest in excess of the maximum legal rate then allowed by law. 5. Installation, Cipsration Maintenance Repair Modification and Relocation of the Site Equipment (a) Licensee shall, at its sole cost and expense, install, maintain, repair, operate and Modify (but such Modifications shall only be performed to the extent necessary and if permitted under this Agreement) the Site Equipment throughout the Term. Licensor does not asinine any responsibility for the installation, maintenance, repair, operation or Modification of the Site Equipment. In addition, Licensee shall at all times obtain, maintain, and comply with any and all licenses, permits, consents, certificates and other approvals necessary for the installation, maintenance, repair, operation or Modification of the Site Equipment, and Licensor shall not have any obligations with respect to any such matters. (b) Licensee's installation, maintenance, repair, operation and Modification of the Site Equipment, and Licensee's activities at the Antenna Site and the Resort, shall at all times be in strict compliance with all applicable "Requirements," which applicable Requirements include (i) all applicable Laws (including Laws pertaining to non-ionizing radiation or electromagnetic emissions; Laws relating to antenna or other equipment type, effective radiated power and height; and Laws conceming marking and lighting requirements), (ii) the rules and regulations of alt insurance bodies applicable to the Resort, and (iii) the Technical Standards, and Rules and Regulations, for the Antenna Site and the Resort, as determined by Licensor or Manager. For the avoidance of doubt, if there are any modifications or expansions to any of the Requirements set forth above (e.g., modifications or expansions to any of the Laws, insurance rules or regulations, or Technical Standards and Rules and Regulations), Licensee must ensure, at its sole cost and expense, and without otherwise breaching this Agreement, that its installation, maintenance, repair, operation and Modification of the Site Equipment, and Licensee's activities at the Antenna Site and the Resort, are in strict compliance with such applicable Requirements by no later than the effective date of such modification or expansion Of the Requirements. The current applicable Technical Standards are attached hereto as Exliibit C. and the current Rules and Regulations of the Resort are attached hereto as Exhibit D. As recognized above, Licensor reserves the right to modify or expand the Technical Standards and/or the Rules and Regulations, but Licensor agrees that it shall provide Licensee with at least thirty (30) days' prior written notice to Licensee of such change, and that in no event shall the Rules and Regulations or the Technical Standards be changed by Licensor in a discriininatory manner. In addition, Licensee shall install, operate, maintain, repair and Modily the Site Equipment in a safe and structurally sound manner, and ih a manner that shall nol cause a violation of any mortgage, deed of trust, ground lease or other financing instrument now existing or hereafter recorded with respect to the Resort or any agreements or warranties with respect to the Resort or any pail thereof as are now or hereafter held by or entered into by Licensor, Manager or Marriott International, Inc. or any subsequent property owner or manager, (c) Without limiting Licensee's obligations under Section 5(b) above: (i) Licensee's compliance obligations whh respect to all applicable Laws then in effect applies to botli die Site Equipment individually and the integration of the Site Equipment with any other telecommunication facilities or other electromagnetic emitting facilities at the Resort; (ii) Licensee shall cooperate generally with Licensor and other carriers to ensure that the Resort shall be and remain in compliance with all applicable Laws then in effect; (lii) upon Licensor's request, Licensee shall, at its sole cost and expense, promptly perfonn any tests necessary, and provide any documentation or reports requested, confirming such compliance with all applicable Laws; and (iv) if, as a result of Licensee's breach of Section 5(b), either Licensor or Licensee is cited because the Resort is not in compliance vvith any applieable I^ws then in efl'ect. Licensee, at Licensee's sole cost and expense, shall immediately cure the conditions of noncompliance, subject to Licensor's prior written consent and approval, and Licensee shall be solely responsible (aind shal! immediately reimburse Licensor) for any and all fines and penalties imposed upon Licensor as a result of any such violation. (d) Without limiting the foregoing, if Licensor in its reasonable judgment believes that the Site Equipment, either by itself or in conjunction with other equipment in or on the Antenna Site or at the Resort, may exceed permitted emission levels. Licensee shall (i) promptly upon Licensor's written request, deliver to Licensor a reasonably acceptable certification or survey report demonstrating that the Resort's rooftop is in compliance with all applicable FCC and OSHA rules and regulations (a "Rooftop Survey"), and (ii) to the extent the Site Equipment or the operation thereof directly or indirectly causes, and the Site Equipment is the sole cause of the Resort's rooftop to not be in compliance with such rules and regulations. Licensee shall promptly remedy any such non-compliance in accordance with Licensor's reasonable directions and at Licensee's sole cost and expense; otherwise, if the Site Equipment is not the sole cause of such non-compliance. Licensee shall pay its pro rata share of the Cost (based upon the level of RF emissions from each telecommunications provider's equipmeni), together with other responsible parties, for remedying such non-compliance. (e) Licensee agrees to maintain the Site Equipment in proper operating condition, in compliance with all applicable manufacturer specifications, and within atl industry accepted safety standards; and Licensee shall ensure that the Site Equipment will be identified with permanently marked, weather proof tags at the following locations: (i) each antenna bracket; (ii) at the transmission line building entry point; (iii) at the interior wall feed through or any other transmission line exit point; and (iv) at any transmitter combiner, duplexer, or multifed receive port. AH Licensee telephone blocks, demarcations and cables shall be clearly identified with Licensee's name, type of line, and circuit number. Licensee shall match as nearly as possible the color ofany antennas (or cables, mounts or accessories that are visible) to the existing facade ofthe Resort. (f) Licensee shall ensure that the installation, maintenance and repair work for the Site Equipment, and any other work of any type performed by or on behalf of Licensee pursuant to this Agreement (including, without limitation, any excavations or Modifications), wilt be performed in compliance with Section 5(b) above, in a good, orderly and workmanlike manner and in accordance with good engineering practice, and.shall not materially interfere with, delay, or impose any additional expense upon Licensor or Manager in maintaining or operafing the Resort. Without {imiting the foregoing, all cable runs, conduit and sleeving shall be instaUed in a good workmanlike manner, and all cables and transmission lines shall be routed arid attached in accordance with cun-ent, state of the art, industry pracfices. (g) Prior to the installafion or placement of any of the Site Equipment at the Antenna Site, Licensee shall provide Licensor with detailed plans and specifications of the proposed installation for Licensor's written approval as well as any other infonnation Licensor reasonaiDly requests, In addition, Licensee shall submit written plans as well as any other infonnation Licensor reasonably requests and obtain Licensor's written approval, in each case, prior to Licensee performing any material installations, excavations, Modificafions (e.g., the addition of equipment or frequencies) or other work to the Site Equipment or at the Antenna Site. In all suoh instances referenced earlier in this Section 5(g), Licensor shall have a reasonable period of time to review and approve such Licensee plans, which in all events must be in compliance with the Technical Standards. In the event Licensor disapproves Licensee's plans. Licensee shall revise said plans to satisfy Licensor's objections, and resufaihtt same to Licensor for its review and approval within ten (10) days after Licensor notifies Licensee of Licensor's objections. In no event will Liijensor's approval of such plans (or any other requests by Licensee, such as requests pursuant to Section S(h)), be deemed a representation that such plans or actions by Licensee comply with applicable Laws or will not cause interference with other communications operafions, such responsibility being solely Licensee's. Without limiting Licensor's right to withhold approval under this Section 5(g) where such refusal to approve is reasonable, in no event will Licensor be required to consent to any installation or miaintenance or other work by Licensee that would negatively affect any part ofthe Resort or would, in Licensor's judgment, affect the proper functioning of any mechanical, electrical, sanitary or other systems of fhe Resort. Notwithstanding anything in this Section to the contrary, once the Site Equipment is installed in accordance with this Agreement, Licensee is permitted to perform immaterial alterations lo the Licensee Equipment only (i.e., repairs or svk'apping like equipment for like equipment) without obtaining Licensor's consenl, and only as long as such alterafions do not cause Licensee to be in default under any of the terms ofthis Agreement, including the limitafions on the Pennitted Use, and the prohibition against the Licensee Equipment causing interference under Section 9. (h) Licensor shall have the right of prior approval of any outside contractors or other Non- Employees (as defined in Section 19(q)) performing installation, maintenance, repair, Modificafion or other work on behalf of Licensee at the Resort, which approval shall not be unreasonably withheld, conditioned or delayed. If Licensee performs its own installation. Modification or maintenance work. Licensor's right of prior approval shall also extend to Licensee as a contractor, and any reasonable withholding of Licensor's approval of Licensee as a contractor shall not relieve Licensee of its obligations hereunder. Licensee shall submit the name of any proposed contractor or other Non-Employee to Licensor prior to such contractor or other Non-Employee prforming any work on behalf of Licensee, and Licensor shall notify Licensee within a reasonable period of rime thereafter as to whether Licensor has approved such contractor or other Non-Employee. Without limiting the foregoing, Licensee shall use the roofing company specified by Licensor to perform any work affecfing the Resort's roof, provided the costs charged by such roofer are competitive with charges for similar services within the same geographic region. If such costs are not compefitive. Licensor shall confinue to have the right of prior approval for any such contractor that Licensee wishes to select for work affecfing the Resort's roof, (i) To the fullest extent permitted by iaw. Licensee agrees not to suffer or permit mechanics' liens or materialmen's liens to be filed or confiriued apinst the Resort for services performed by Licensee's contractors, subcontractors, mechanics, laborers, suppliers or any other Person, for work performed in or on the Antenna Site or the Resort pursuant to the tenns of this Agreement. In the event that any such lien shall be filed. Licensee agrees to cause the release and discharge of such lien in the manner required by applicable state law, and under all circumstances Licensee shall cause the release and discharge of such lien, within ten {10) days following Licensee's nofice of such lien, ff Licensee fails to timely discharge any such mechanic's lien (by bonding over or otherwise). Licensor may, at its option, discharge the same, and Licensee shall reimburse Licensor for all costs of such discharge immediately upon demand therefor, and such discharge by Licensor will not be deemed to waive the default of Licensee in not discharging the same. (j) Licensee agrees and acknowledges that the Resort's primary function is to provide hospitality services to guests and patrons of the Resort, and that the physical appearance of the Resort, and the peaceful enjoyment ofthe Resort and its offerings, is an important component of such services. Accordingly, Licensee agrees to ensure that the installafion, operation, maintenance, repair and Modification of the Site Equipment will be performed by Licensee such that lhe Site Equipment will be concealed and/or camoufla^d in order to achieve a harmonious relafionship with the aesthefic attributes of the Resort, as determined in Licensor's sole discretion. Licensee shall not through its actions or otherwise in any way (i) interfere with the quiet enjoymeht of Licensor, Manager Or any lessor, sublessor, licensee, sublicensee or occupant (including Resort guests and patrons) of, in, or at the Resort; or (ii) hinder the ability of Licensor, Manager or any lessor, sublessor, licensee, sublicensee or occupant (including Resort guests and patrons) of, in, or at the Resort to reasonably, peaceably, safely and quietly have, hold, use and enjoy whatever rights that Licensor, Manager, the lessoi', sublessor, licensee, sublicensee or occupant (including Resort guests and patrons) of, in, or at the Resort may have with respect to the Resort or a portion thereof Without limifing the foregoing, Licensee agrees to ensure that it shall conduct its business (e.g., installing, operafing, maintaining, repairing and Modifying the Site Equipment) and control its agents, employees, invitees and visitors so that it shall not create any nuisance, or interfere with, annoy or disturb any lessor, sublessor, licensee, sublicensee or occupant (including Resort guests and patrons) of, in, or at the Resort, or Licensor or Manager in its operation of the Resort. (k) Throughout the Term, Licensee shall promptly remm the Resort, the Antenna Site and any personal properfy and fixtures thereon, as well as all surface and underground areas wiihin the Resort, lhat have been altered or affected in any way by virtue of the, installation, maintenance, repair or Modification of tbe Site Equipment to substantially the same state and condition that existed prior to the work, ordinafy wear and tear excepted. (I) Licensee shall, at its sole expense, keep the Site Equipment and the areas immediately surrounding same neat and clean. All penetrations into any Resort surfaces shall be sealed so as to prevent any water leakage. Throughout the period of such installation, and thereafter during any operation, maintenance or repair of the Site Equipment, Licensee shall install and utilize, at Licensee's sole expense, screening supports, walk boards, and such other materials as may be required by Licensor to protect the Resort or any part thereof, pedestrians, vehicles on adjacent roadways and any other properfy or owners of properfy adjacent to the Resort. 6- Access to the Site Equipmeni (a) Except in the event of an emergency with respect to the Resort, and subject to impediments to access beyond Licensor's reasonable control, Licensee shall have the right to access the Site Equipment and the Antenna Site during normal business hours (i.e., 9:00 A.M. to 5:00 P.M., on non- holidays Monday through Friday) and) in the event of an emergency for Licensee, twenty-four (24) hours a day, seven (7) days a week, provided that in all instances Licensee notifies the Resort prior to its arrival and shall check-in at the Resort's front desk upon its artlval, and provided further that Licensee is accompanied by an authorized repnssentafive of Licensor or, in the event no authorized representative of Licensor is available. Licensee has first complied with all of Licensor's security procedures for the Resort Licensee shall only be permitted to install and/or remove the Site Equipment during said normal business hours. (b) Except for using any rights of way, designated by Licensor, solely for ingress and egress lo the Antenna Site, Licensee shall not for any reason whatsoever use any other part of the Resort other than the Antenna Site unless Licensee receives Licensor's prior written approval, which approval may be denied at Licensor's sole discretion. (c) Licensor will have the riglit at any time to access the Site Equipment to (i) inspect the Site Equipment, (ii) make technical measurements or tests related to the Site Equipment, provided that no hard electrical connections are made to the Site Equipmeni unless Licensee or its representative is present, (iii) perform any obligations of Licensee hereunder that Licensee has failed to perform after notice to Licensee, and at Licensee's sole cost and expense, and (iv) assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules arid regulations. Notwithstanding the foregoing. Licensee is solely and fully responsible for complying, and ensuring that it complies, with al! of the terms of this Agreement, and (i) any actions by Licensor set forth in this Section 6(c) shall not diminish or eliminate any of Licensee's obligations to ensure that it complies with this Agreement, (ii) nor shall any actions by Licensor pursuant to this Section 6(o) be deemed a waiver of any of Licensor's rights under this Agreement, including its rights where Licensee has breached this Agreement. 7. Ovi'nership and Removal of the Site Equipment (a) The Site Equipment will remain the personal properfy of Licensee throughout the Term. At no time during the Term shali Licensor have the right to use the Site Equipment unless required by law or in an emergency affecting health or safefy where Licensee cannot or does nol respond in a timely fashion under the circumstances, provided Licensee has received oral notice of such emergency, if possible, and Licensor takes only those actions that are reasonably necessary under the circumstances. (b) Following the expiration or earlier termination of this Apeement, Licensee shall remove al! ofthe Site Equipmeni from the Resort. In performing such removal. Licensee shall restore the Resort, the Antenna Site and any personal properfy and fixtures thereon to as good a condition as they were prior to the installation or placemenl of the Site Equipment, reasonable wear and tear excepted. If Licensee fails to remove the Site Equipment within thirfy (30) days after expiration or earlier tennination of this Agreement, Licensor may remove and dispose of the Site Equipment and Licensee shall immediately reimburse Licensor for the costs of such removal and restoration ofthe Resort and the Antenna Site, In addifion. Licensor may deem the Site Equipment abandoned in which event the Site Equipment shall become Licensor's properfy. 8. Electric Utilities (a) Licensee shall pay for ail utilities to operate the Site Equipment at the Resat. Licensor, at Licensor's option, may either (i) require Licensee to directly contract with the local utility company servicing the Resort and have such utility company install, at Licensee's sole cost and expense, separate metering devices to measure Licensee's usage and Licensee shall pay the power utility directly for such usage, and Licensee shall either pay any charges for a third party contractor to read any approved sub - meter, or Licensee shall, at Licensee's sole cost and expense and as part of the installation of the Site Equipment, install a meter reading device which enables the reading of such sub -meter from a remote location, or (ii) allow Licensee the right to connect to the Resort's electrical system and install, at Licensee's sole cost and expense, a sub -meter to measure Licensee's usage. In the event Licensee is not billed directly by the local utility company; Licensee shall pay to Licensor a "Monthly Utility Pee" each calendar month throuchout the Term. in addition to and oavable in the same manner (and at the same time (b) Licensor shall not be in default under this Agreement or liable to Licensee or any other Person in connection with, or as a result of, any interruption in utility service, including the power provided by the electrical facilities. if any of the Site Equipment fails because of a loss of a electrical power that is not caused by Licensee, and such interruption in electrical service to the Site Equipment continues for more than twenty-four (24) consecutive hours, then, provided that the Site Equipment is not separately metered, Licensee shall receive a credit for each full twenty-four hour day that such Site Equipment is unusable due to such interruption in utility service. The credit shall equal one thirtieth (I/30) of the Monthly Licensee Fee for the month in which the interruption in utility service occurred. Notwithstanding the foregoing, upon reasonable prior written notice to Licensee (or upon oral notice to Licensee in the event of an emergency), Licensor has the right to shut down the electrical service to the Antenna Site and the Site Equipment in connection with any maintenance operation conducted for the Resort. Except in the case of an emergency, Licensor agrees to make a reasonable effort to schedule any such shutdown outside Licensee's peak demand period, but Licensor shall have no obligation hereunder to provide alternate power from emergency power sources. 9. Interference (a) Licensee shall ensure that neither Licensee nor the Site Equipment (including both the initial installation of the Site Equipment, and any subsequent installations or Modifications to the Site Equipment) will, through the operation of the Site Equipment or otherwise, disturb or interfere with (i) the communications configurations and/or frequencies and/or operation of any equipment, including communications equipment, of Licensor or Manager at the Resort, or of any then existing (i.e., then existing as of the tine of the installation or Modification to the Site Equipment) lessor, sublessor, licensee, sublicensee or occupant (including Resort guests and patrons) of, in, or at the Resort, including the roof of the Resort ("Existing User"), or (ii) the use of the roof of the Resort or any other part of the Resort by Licensor, Manager or any lessor, sublessor, licensee, sublicensee or occupant (including Resort guests and patrons) of, in, or at the Resort. Licensee shall also ensure that the operation of the Site Equipment will not interfere with the operation or maintenance of the Resort, including, but not limited to, the roof, MATV, CATV or other video systems, HVAC systems, electronically controlled elevator systems, computers, telephone systems or any other systems serving the Resort, its guests or other occupants. If either Licensee or the Site Equipment creates or causes any interference in violation of this Section 9(a), as determined in Licensor's sole but reasonable judgment, Licensee shall immediately cause the interference to be cured after oral notice via telephone, followed-up by written notice via electronic mail (e-mail), regular mail, ovemight delivety or facsimile (such notice, for purposes of this Section 9 only, "Interference Notice"), and if Licensee cannot cure the problem within twenfy-four (24) hours of said notice. Licensee shall shut down the portion of the Site Equipment that is causing the interference (except for intermittent testing on a schedule approved by Licensor and any affected Existing User) until a cure can be effected; provided, however, that if the interference creates an immediate danger to health or safefy or will result in the substantial inabiltty of Licensor to use the Resort or operate its business, Licensee shall shut down the portion of the Site Equipment that is creating the interference within four (4) hours of Licensee's notice ofthe interference. If Licensee fails to correct the interference within said four (;4)-hour period and fails to shut down the portion of the Site Equipment that is causing the interference. Licensor may either act to shut down or cut-off the power supply to the portion of the Site Equipment that is causing the interference until such time that Licensee corrects the interference, as delermined in Licensor's sole but reasonable judgment. (b) If the interference described in Section 9(a) above is not cured within sixfy (60) days, then, within five (5) days thereafter. Licensee shall remove the specific item of the Site Equipment causing the interference. (c) Licensor will not knowingly allow the installation of any future equipment of third- parties after the Commencement Date that Licensor knows will cause interference with the operation of the Site Equipment installed in or on the Resort as of the Commencement Date. If any interference described in this Section 9(c) cannot be cured within sixty (60) days, Licensee shall have the right, as its sole and exclusive remedy, lo terminate this Agreement pursuant to Section 14(c) hereof. For the avoidance of doubt. Licensee shall have no right to seek damages or seek to impose any other type of liability upon Licensor or any other Person if any interference described in this Section 9(c) cannot be cured within sixty (60) days, and Licensee hereby waives any right to seek such damages or liability against Licensor or any other Person. to. Cooperation with Licensor and Manager If, during the Term, Licensor or Manager elects at any time to maintain, upgrade, repair, relocate or replace any portion of (or any equiprnent in) the Resort, including any portion ofthe roof ofthe Resort, as determined by Licensor in its sole discretion, (collectively, the "Maintenance Work"), Licensee agrees to cooperate with Licensor and Manager so that Licensor or Manager can complete the Maintenance Work in a timely and cost-effective manner. Licensor agrees that if it requires Licensee's cooperation in connection %vith any Roof Work, Licensor shall provide at least thirty (30) days' notice to Licensee of its. or Manager's intention lo perfonn the Maintenance Work; except in the case of an emergency, in which event Licensor shall give as much notice as possible under lhe circumstances, Licensee acknowledges that the Maintenance Work niay require tlie temporary relocation of the Site Equipment, and if a relocation of the Site Equipment is required to accommodate the Maintenance Work, the parties shall determine the most technically suitable altemative location that will not impede the Maintenance Work, and Licensee shall perform the relocation within thirty (30) days after Licensor's request (or as soon as is necessaty, as determined by Licensor, in the case of an emergency). Licensee shall pay all costs of such relocation. 11. Condemnation and Casualty (a) Notwithstanding anything in this Agreement to the corilraty, if all or any portion of the Resort or the Antenna Site shall be taken or condemned for any public purpose to such an extent as to make Licensee unable to utilize the Site Equipment for the intended purposes specified herein, either party may terminate this Agreement upon notice to the other party. No proceeds from any taking or condemnation of the Antenna Site shall be paid to or belong to Licensee. Licensee shail have all rights to the Site Equipment and other personal property of Licensee, which shal! not be included in any taking or condemnation. (b) In the event ofa fire or other casualty in or around the Antenna Site, Licensee shall immediateiy notify Licensor, In the event of a total destruction of the Antenna Site whhout the fault or neglect of Licensee, and the election by Licensor not to rebuild the Resort or the Antenna Site, this Agreement shall terminate. Nothing herein shall be construed to require Licensor to rebuild or repair the Antenna Site or any other portion of the Resort. 12. Default/Termination Rights (a) If either party is in default under this Agreement and does not cure such default within sixty (60) days following receipt of written notice from the non-defaulting parfy detailing the nature ofthe default, the non-defaulting party may, except as limited by this Agreement, pursue any remedies available to it against the defauhing party at law and in equify, including, but not limited to, the right to terminate this Agreement. If a non-monetary default cannot r^sonably be cured within a 30-day period, this Agreement may not be terminated if the defauhing parfy commences action to cure the default within the 30-day period and proceeds with due diligence to fully cure the default within 60 days after receipt of written notice. (b) Notwithstanding anything in this Agreement to the contraty. Licensor shall have the right, at any tiine after the Initial Term, exercisable only by giving Licensee prior vi'ritten notice ("Licensor's Notice"), to terminate this Agreement without cause, which termination shall become effective only on that date which is sixfy (60) days following Licensor's Notice, (the "Licensor Termination Date"). In the event Licensor exercises its option pursuant to tiiis Seciion 13(c), this Agreement shall terminate on the Licensor Termination Date, and Licensor shall pay to Licensee within thirfy (30) days of such date a temiination fee equal to six (6) months of the Monthly License Fee then in effect as of the Licensor Terminatioii Date. (c) Except as provided below in this Section 13(d), Licensee shall have the right, al any time after the Commencement Date, to terminate this Agreement, upon sixfy (60) days' prior written notice to Licensor: (i) if Licensee is unable, in good faith utilizing diligent efforts, to obtain, maintain or reinstate any license, permit or governmental approval absolutely necessary for the operation of the Site Equipment at the Antenna Site in accordance with Licensee's Permitted Use hereunder within sixty (60) days after the expiration or termination of same; or (ii) if Licensee is unable to operate the Site Equipment at the Antenna Site as a resuh of material interference (other than on a temporary, non-recurring basis) resulting from the act of any third parfy (other thm Licensor or an Existing User or a parfy acting at Licensee's request), so long as Licensee pays to Licensor a termination fee of Two Thousand Five Hundred Dollars ($2,500.00). Notwithstanding the foregoing. Licensee shall not have a right to terminate this Agreement pursuant to this Section 13(d), ifat the time Licensee provides its notice of lermination to Licensor, Licensee is in default under this Agreemeni. 13. Indemnification (a) Licensee agrees to indemnify, defend and hold harmless Licensor. Manager, Martiott Intemationai, Inc., and each of their respective Affiliates, parhiers, shareholders, officers, directors, agents, servants, employees arid subcontractors against and from any and all costs, expenses, dainages, losses, liabilities, penalties, fines and claims (including, but not limited to, attorneys' fees and court costs through appeal), arising out of, caused by, or relating to: (i) a breach by Licensee of any representation or !0 warranty made in this Agreement; (ii) a default by Licensee under any material provision of this Agreement or a failure by Licensee to perform any of the covenants, terms and conditions of this Agreement; (iii) Licensee's actions and omissions, including, without limitation. Licensee's installation, operation, maintenance, repair or Modification ofthe Site Equipment or Licensee's use ofthe Antenna Site or the Resort; (tv) any shutdown to all or a portion oflhe Site Equipment in accordance with Section 9(a); (v) any accident, injuty or damage whatsoever to any Person, or to the property ofany Person, in or around the Antenna Site unless such accident, injuty or damage is caused by the gross negligence or wiltftil misconduct of Licensor; (vi) any accident, injury or damage to Persons or properfy occurring outside of the Antenna Site but in or about the Resort, where such accident, damage or injuty results or is claimed to have resulted from an act or omission on the part of Licensee; (vii) any claims by customers or vendors of Licensee relafing in any way to goods or services provided or that should have been provided by Licensee; or (viii) any claims by invitees or visitors of Licensee, or their representatives. (b) Licensor agrees to indemnify, defend and hold Licensee and each of its respective Affiliates, partners, shareholders, officers, directors, agents, servants, employees and subcontractors against and from any and all costs, expenses, damages, losses, liabilities, penalties, fines and claims (including, but not limited to, attorneys' fees and court costs through appeal), arising solely out of or caused solely by any willful misconduct or gross negligence of Licensor. 14, Limitation of Liability. No Warranties from Licensor, and Assumption of the Risk (a) NOTWITHSTANDING ANYTHINQ TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL LICENSOR OR LICENSEE BE LIABLE TO THE OTHER FOR, AND LICENSEE AND LICENSOR EACH HEREBY WAIVE THE RIGHT TO RECOVER, INCIDENTAL, CONSEQUENTWiL (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OR LOSS OF BUSINESS OPPORTUNITY), PUNITIVE, EXEMPLARY AND SIMILAR DAMAGES. WITHOUT LIMITING THE FOREGOING, BUT AS A FURTHER LIMITATION, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LICENSOR'S TOTAL LIABILITY TO LICENSEE ARISING FROM THIS AGREEMENT, OR ANY BREACH OR DEFAULT THEREOF, FAILURE TO PERFORM THEREUNDER^ OR TORTIOUS OR OTHER WRONGFUL CONDUCT TOWARDS LICENSEE, SHALL BE LIMITED TO, AND SHALL NEVER EXCEED, IN THE AGGREGATE, THE LESSER OF (I) LICENSEE'S PROVEN DIRECT DAMAGES OR (11) THE AGGREGATE MONTHLY LICENSE FEE UNDER THIS AGREEMENT FOR THE TERM. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION AND CLAIMS AGAINST LICENSOR, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY OTHER TORTS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL (I) LICENSOR BE LIABLE TO LICENSEE FOR ANY LOSS OR DAMAGE OF ANY KIND WHATSOEVER THAT MAY BE CAUSED BY OR THROUGH THE ACTS OR OMISSIONS OF PERSONS OCCUPYING OR USING ANY PART OF THE RESORT, INCLUDING THE ROOF OF THE RESORT, PATRONS, OR GUESTS, OR THE ACTS OR OMISSIONS GF ANYONE OTHER THAN LICENSOR'S AGENTS; (11) ANY OF THE OFFICERS, TRUSTEES, DIRECTORS, PARTNERS, BENEFICIARIES, EMPLOYEES JOINT VENTURERS, MEMBERS, STOCKHOLDERS OR OTHER PRINCIPALS OR REPRESENTATIVES OF LICENSOR, AND THE LIKE, DISCLOSED OR UNDISCLOSED, THEREOF, EVER BE PERSONALLY LIABLE TO LICENSEE (INCLUDING FOR DIRECT OR CONSEQUENTIAL DAMAGES), AND LICENSEE HEREBY WAIVES THE RIGHT TO RECOVER DAMAGES FROM ANY SUCH PERSON; (III) MANAGER AND MARRIOTT INTERNATIONAL, INC., EVER BE LIABLE TO LICENSEE FOR ANY TYPE OF DAMAGES, INCLUDING DIRECT AND CONSEQUENTIAL DAMAGES. AND LICENSEE HEREBY WAIVES THE RIGHT TO RECOVER ANY DAMAGES FROM MANAGER OR MARR101T INTERNATIONAL, INC.; OR (IV) ANY OF THE OFFICERS, TRUSTEES, DIRECTORS, PARTNERS, BENEFICIARIES, EMPLOYEES, JOINT VENTURERS, MEMBERS STOCKHOLDERS OR OTHER PRINCIPALS OR REPRESENTATIVES OF MANAGER AND MARRIOTT INTERNATIONAL, INC.. AND THE LIKE, DISCLOSED OR UNDISCLOSED. THEREOF, EVER BE PERSONALLY LIABLE TO LICENSEE (INCLUDING FOR DIRECT OR CONSEQUENTIAL DAMAGESX AND LICENSEE HEREBY WAIVES THE RIGHT TO RECOVER DAMAGES FROM ANY SUCH PERSON. IN ADDITION. AND WITHOUT LIMITING ANY OF THE FOREGOING LIMITATIONS, LICENSEE SPECIFICALLY AGREES TO LOOK SOLELY TO LICENSOR'S INTEREST IN THE RESORT FOR THE RECOVERY OF ANY JUDGMENT FROM LICENSOR, IT BEING AGREED THAT LICENSOR SHALL NEVER EVER BE PERSONALLY LIABLE FOR ANY SUCH JUDGMENT; AND LICENSEE AGREES THAT ALL DEBTS AND LIABILITIES HEREUNDER SHALL BE THE DEBTS AND LIABILITIES OF LICENSOR ONLY, AND MANAGER AND MARRIOTT INTERNATIONAL, INC. SHALL NOT BE LIABLE FOR ANY SUCH OBLIGATIONS (E.G., DEBTS AND LIABILITIES). (b) LICENSOR SHALL NOT BE LIABLE OR RESPONSIBLE TO LICENSEE FOR ANY DAMAGE OR INCONVENIENCE THAT MAY ARISE THROUGH THE MAINTENANCE, REPAIR OR ALTERATION OF ANY PART OF THE RESORT, INCLUDING THB ROOF OP THE RESORT. IN ADDITION, LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY DAMAGE TO PERSON OR PROPERTY CAUSED BY THE INSTALLATION OR OPERATION OF THE SITE EQUIPMENT OR ANY ACTION, OMISSION OR NEGLECT OF LICENSEE. (c) LICENSEE ACKNOWLEDGES AND AGREES THAT IT HAS HAD AND WILL liAVE AN OPPORTUNITY TO INSPECT THE ANTENNA SITE AND THAT IT IS TAKING THE ANTENNA SITE AND USING THE ANTENNA SITE "AS IS." WITHOUT LIMITING THE FOREGOING, LICENSEE ACKNOWLEDGES AND AGREES THAT NEITHER LICENSOR NOR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION OF THE ANTENNA SITE AND THAT LICENSEE IS RELYING UPON ITS OWN INSPECTION OF THE ANTENNA SITE IN ENTERING INTO THIS AGREEMENT. LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT NEITHER LICENSOR NOR ANY OTHER PERSON (OTHER THAN LICENSEE) HAS ANY OBLIGATION WHATSOEVER TO PREPARE OR CONSTRUCT THE ANTENNA SITE FOR LICENSEE'S USE OR TO PERFORM ANY WORK OR PROVIDE ANY MATERIALS TO PREPARE THE ANTENNA SITE FOR THE CONSTRUCTION AND INSTALLATION OF THE FACILITIES. NEITHER LICENSOR NOR ANY OTHER PERSON MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE ANTENNA SITE, AND LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE ANTENNA SITE IS SUITABLE FOR THE PERMllTED USE, AS LICENSEE HAS SATISFIED ITSELF WITH RESPECT THERETO AND NEEDS NO SUCH WARRANTY OR REPRESENTATION FROM LICENSOR. IN ADDITION, NEITHER LICENSOR NOR ANY OTHER PERSON MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER WITH RESPECT TO THE PORTIONS OF THE RESORT OTHER THAN THE ANTENNA SITE, AND LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS RELATING THERETO. (d) LICENSEE AGREES THAT ITS USE OF THE ANTENNA SITE IS AT LICENSEE'S OWN RISK. WITHOUT LIMITING THE FOREGOING, LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OF OR DAMAGE OF ANY KIND WHATSOEVER TO THE SITE EQUIPMENT. OTHER LICENSEES, SUBLICENSEES. LESSORS, SUBLESSORS, OR OCCUPANTS (INCLUDING RESORT GUESTS, INVITEES AND PATRONS) OF, IN, OR AT THE RESORT, INCLUDING THE ROOF OF THE RESORF, SHALL NOT BE 12 CONSTRUED TO BE AGENTS OR EMPLOYEES OF LICENSOR. IN ADDITION, IN NO EVENT SHALL LICENSOR OR ANY OTHER PERSON (OTHER THAN LICENSEE) HAVE ANY RESPONSIBILITY OR OBLIGATION WHATSOEVER TO REPAIR OR REPLACE THE SITE EQUIPMENT OR LICENSEE'S PERSONAL PROPERTY, REGARDLESS OF THE REASON SUCH ARE DAMAGED. 15. Licensee Warranties (a) Licensee represents and warrants that: (i) the Site Equipment will be free and clear of all liens, claims, encumbrances or demands of third parties; (ii) Licensee's design and implementation of the Site Equipment does not and will not infringe upon any patent, trademark, copyright, trade secret or other proprietaty righl of any third party, and there is currently no actual or threatened suit against Licensee by any such third parfy based on an alleged violation of such right; and (iii) to the best of Licensee's knowledge there is no action, suit, proceeding, claim or investigation pending or threatened against, by or afTecting Licensee In any court, or by or before any federal, stale, municipal or other governmental department, commisston, board, bureau, agency or instrumentality, domestic or foreign, or before any arbitrator of any kind which, if adversely determined, might adversely atTect the Site Equipment or restrict Licensee's abiiify to consummate the transactions contemplated hereby or continue in its obligations hereunder to the best of Licensee's knowledge. (b) All of the waiTanties under Section 16(a) will be deemed to be made wifh respect to any replacement, substitute or additional products provided by Licensee under this Agreement. The warranties associated with the replacement, substitute or additional products wiil be deemed to commence upon the instaiiation date ofany such replacement, substitute or additional products. 16. Assignment and SubiicensinE (a) Upon prior notice to Licensor, Licensee may assign this Agreemeni to an Affiliate of Licensee if such Affiliate has sufficient financial and technical capacify to perform the obligations ofthis Agreement, and such Affiliate has a net worth greater than or equal to the net worth of Licensee as ofthe etTeelive date of the assignment. Licensee may not otherwise assign this Agreement without the prior written consent of Licensor, which may be withheld in Licensor's sole discretion. Any purported assignment not in accordance with the terms hereof shall, at Licensor's option, to be exercised at any time after Licensor becomes aware of any such purported assignment, be null and void, and will constitute a default by Licensee under this Agreemeni. Licensee shall have no right to Sublicense all or any part of the Site Equipment or the Antenna Site. The temi "Sublicense" includes any fype of sublicense or sublease ofthe Site Equipment or the Antenna Site or any other fype of arrangement that allows the use of the Site Equipment or the Antenna Site by any Person other than Licensee, regardless of how the parties involved in the arrangement characterize the arrangement (b) Licensor (and any successor or Affiliate of Licensor) shall have the right freely to sell, assign or otherwise transfer, in whole or in part, its interest under this Agreement and/or in the Resort, and in the event of any such sale, assignment or otiier transfer. Licensor (and any successor or Affiliate of Licensor) shall be relieved of any and all of its obligations under this Agreement, and Licensee shall thereafter be bound to such purchaser, assignee or other transferee. 17. Insurance Licensee shall at all times throughout tills Agreement comply with Exhibit E, inciuding all insurance-related requirements set forth therein. Licensee and all parties claiming under them shall release and discharge Licensor and Manager and Marriott International, Inc. from all claims and liabilities 13 arising from, or caused by, any casualfy or hazard covered or required hereunder to be covered in whole or in part by insurance on the Antenna Site or in connection with the Site Equipment, and waive any right of subrogation lhat might otherwise exist in or accrue to any person on account thereof and evidence such waiver by endorsement to the required insurance policies. IS. Attomey Fees The prevailing parfy in any action or proceeding in court or mutually agreed upon arbitration proceeding to enforce the terms of this Agreement is entitled to receive its reasonable attorneys' fees and other reasonable enforcement costs and expenses from the non-prevailing party. Miscellaneous (a) Each person executing this Agreement on behalf of any parfy hereto warrants that he or she has the right and authority to execute this Agreement, and that all the procedures and approvals that are necessary and required to enable him or her to properly execute this Agreement and to bind the Person whom he or she represents in accordance with the terras hereof have been followed and secured. Each parfy agrees to execute and deliver all documents and to perform ail further acts as may be reasonably necessaty to carty out the provisions of this Agreement. (b) This Agreement shall be subject and subordinate to the lien of any and all mortgages and 10 any ground leases, and any and all renewals, extensions, modifications, recastings and refinancings thereof. This clause shall be self-operative, without execution of any further instrument, but if requested by Licensor or any mortgagee or any ground lessor. Licensee shall promptly execute a certificale or other document evidencing and providing for such subordination. (c) Ihis Agreement shall be binding upon and inure to the benefit of the successors and assigns of Licensor, and shall be binding upon and inure to the benefit of Licensee, its successors, and, to the extent assignment is permitted or is approved by Licensor hereunder, Licensee's assigns. (d) Failure of Licensor to insist on strict performance of any ol^ the condilions, covenants, terms or provisions of this Agreement or to exercise any of its rights hereunder shall not waive such rights, but Licensor shall have the right lo enforce such rights at any time and take such action as might be lawful or authorized hereunder, either at law or in equify. The receipt ofany sum paid by Licensee lo Licensor after a default under this Agreement shall not be deemed a waiver of such default unless expressly set forth in writing. (e) Licensor and Licensee shall be excused from performing any obligation or undertaking provided for in this Agreement to the extent (i.e., for the period of time only) that such performance is prevented, delayed, retarded or hindered by an Aet of GOd, force majeure, fire, earthquake, fiood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inabilify to procure or a general shortage of labor, equipment facilities, materials or supplies in the open market, failure of transportation, strike, lockout, action of labor unions, requisition, orders of govemment, or of civil, military or naval authorities, or any other cause whether similar or dissimilar to the foregoing, not within the reasonable control of Licensor or Licensee; provided, however, that no such event or eauite shall relieve Licensee of its obligations hereunder to make fiill and timely payments of the Monthly License Fee, or any other sums due hereunder, as provided herein. (f) This Agreement (or any memorandum thereof) may not be recorded in any public land or similar records without the express prior written consent of Licensor. 14 (g) Each party hereby represents and warrants that it (i) has full power and authorify to execute and perform this Agreement, and (ii) has taken all action necessary to authorize the e.xecution and performance of this Agreement. (h) This Agreemeni constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior written and verbal agreements, representations, promises or understandings between the parties. This Agreement will not be binding on either party unlil and unless it is fulfy executed by both parties. Any amendments to this Agreement will only be effective if they are in writing and executed by both parties. (i) Exhibits A-E are aitached to, and incorporated by reference into, this Agreement, hi addition, the parties understand and acknowledge that the exhibits attached hereto may be in preltminaty fonn subjecl to actual conditions and Licensor's approval as more fully set forth herein. Accordingly, the parties agree thai more complete exhibits may replace the preliminaty exhibits attached hereto, provided that any such replacement exhibits shall not materially alter the specifications and conditions set forth in such preliminary exhibits, unless such alterations hav«5 been approved fay Licensor in writing, (i) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which together shall constitute but one and the same agreement. (k) The prevailing parfy in any action or proceeding in court or mutually agreed upon arbitration proceeding lo enforce the terms of this Agreement is entitled to receive its reasonable attorneys' fees and other reasonable enforcement costs and expenses from the non-prevailing parfy, (i) The provisions ofthis Agreement, which by their nature are continuing, shall continue in full force and effect and shall bind the parties beyond any termination, cancellation or expiration of this Agreement and shall not be deemed to merge into any deed or other conveyance or document to be provided pursuant to this Agreement (m) This Agreement is governed by the laws of the state in which the Resort is located, irrespective of any conflict of law provisions. (n) If any provision of this Agreement is invalid or unenforceable with respect to any parfy, the remainder of this Agreement or the application of the provision to Persons other than those as to whom it is held invalid or unenforceable, will not be affected and each provision of this Agreement will be valid and enforceable to the fullest extent pennitted by law'. (o) All riglits and remedies of Licensor under this Agreement shall be cumulative and none shall exclude ariy other rights or remedies allowed by law. (p) The parties hereto acknowledge and agree that this Agreement is an arms-length transaction between disinterested parties, creates only a license terminable as set forth herein and not a lease or other estate in the Antenna Site or the Resort, and shall not be deemed or construed in any way to create a relationship of landlord,/tenant between the parties hereto. Notwithstanding anything in this Agreement to the contraty. Licensee expressly acknowledges lhat Licensee is not a tenant of the Antenna Site or the Resort. (q) Either parfy may use independent contractors, subcontractors, or other non employees (collectively, "Non-Employees") to perform any of its obligations or to act on behalf of that parfy, except that pursuant to Section 5(h), Licensee shall obtain Licensor's consent prior to using Non-Employees under the circumstances set forth in Section 5(h). A parfy's use of Non-Employees does not release that 15 party from any of its liabilities or obligations under this Agreement Each party is responsible for all actions and omissions of its Non-Employees when Non-Employees are performing for or acting on behalf of that party, and in addition, Licensee is aiso responsible for all acts of its invitees or visitors at the Resort. (r) The headings, captions and numbers in this Agreement are solely for convenience and shall not be considered in construing or interpreting any provision in this Agreement. (s) The pronouns of any gender shall include the other genders, and either the singular or the plural shall inciude the other. (t) Each party warrants and represents to the other party that it has not dealt with any brokerage firms, agents and other intermediaries in connection with the consummation ofthis Agreement (u) Each parfy's obligations under this Agreement which by their nature would continue beyond the termination or expiration hereof, will survive such termination or expiration. Further, this Agreement will be valid as to any obligation incurred prior lo termination of this Agreement, and without limiting the foregoing, all provisions of this Agreement concerning payments from License© to Licensor shall survive tennination of this Agreement to the extent necessary to ensure that Licensor receives all amounts owed under this Agreement, including, without limitation, any amounts that are not due until after this Agreement is terminated. (v) Licensee shall comply with Executive Order 11246, as amended, which is administered by the United Stales Department of Labor, Otilce of Federal Contract Compliance Programs (the "OFCCP"), with all relevant rules, regulations and orders pertaining thereto, with all other applicable federal, state and local non-discrimination and affinnative action taws, rules, regulalions and orders (collectively, the "EEO/AA Requirements"), and wilh all wage and hour, inimigralibn and other employment laws. The equal opportunity clause of E.O. 11246 is hereby incorporated by reference. Licensee shall furnish upon the request of Licensor or Manager or any appropriate federal, state or local regulatory body infonnafion and reports required by the EEO/AA Requirements, Licensee shall also comply with Executive Order 13201, as amended, which is also administered by the OFCCP, and with all relevant rules, regulations and orders pertaining thereto. The employee notice clause and all other provisions of 29 C F.R., part 470, are hereby incorporated by reference. Licensee shall include the provisions ofthis Section in evCty subcontract or purchase order so that such provisions shall be binding upon each contractor, subcontractor or vendor perfonning services or providing materials relating to this Agreement and the services provided pursuant to the terms hereof. Licensee agrees that it will, in response to a request from Licensor, provide assurances that Licensee is complying with state and federal employment laws, (w) Licensee acknowledges that the Resort is managed by Manager pursuant to an agreement between Licensor and Manager, Noti.vithstending anything in this Agreement to the contraty. Licensor directs Licensee to deal with, and Licensee agrees to dea! with, Manager and its representatives for all purposes under this Agreement (e.g., approvals, notices); provided that the foregoing shall not diminish Licensor's obligations under tiiis Agreement For the avoidance of doubt, (i) Manager shall have the right to exercise any of Licensor's rights under this Agreement, but (ii) it is Licensor - and not Manager - that has responsibility under this Agreement to the extent set forth herein, if any obligations of Licensoi* are not satisfied, as Manager, which is not a party to this Agreement, shall never have any obligations under this Agreemeni or responsibility for failure to perform or otherwise. (x) Concurtenlly with its execution and delivery of Uiis Agreement to Licensor, Licensee shall deposit with Manager the sum of One Thousand Dollars ($1,000.00) (the "Security Deposit"), which 16 Security Deposit shall be held by Manager on behalf of Licensor as security for the faithful performance by Licensee of each and evety term, covenant and condition of this Agreement applicable to Licensee, and not as a pt^payment of the Monthly License Fee or any other amounts due hereunder. Licensee shall not be entitled to receive any interest on the Security Deposit and the Security Deposit may be commingled with other funds of Licensor. If Licensee shall at any time fail to keep or perform any term, covenant or condition of this Agreement applicable to Licensee, including, without limitation, the payment Ofthe Monthly License Fee or any other amounts due hereunder or otherwise fail lo perfomi any of its obligations hereunder, Licensor may, but shall not be obligated to and without waiving or releasing Licensee from any obligation under this Agreement, use, apply or retain the whole or any part of the Security Deposit necessaty for the payment of any amount which Licensor may incur by reason of Licensee's default or as necessaty lo compensate Licensor for any loss or damage which Licensor may suffer by reason of Licensee's default. In the event Licensor uses or applies any portion of the Securify Deposit, Licensee shall, within thirfy (30) days after written demand by Licensor, remit to Licensor sufficient funds to restore the Security Deposit to its original sum. Licensee's failure to so remit sufficient funds to Lieensor to i-estore the Securify Deposit shall constitute a default by Licensee under this Agreement, In the event Licensee complies with all of the terms, covenants and conditions of this Agreement applieable to Licensee, the Securify Deposit shall be returned to Licensee within thirty (30) days after the date Licensee removes all ofthe Site Equipment from the Antenna Site, (y) Any notice, communication, request or reply ("Notice") made or accepted by either party to the other must be made in writing (except where otherwise expressly stated in this Agreement that oral notice is permitted) and shall be effectively given if addressed to the party to be notified and deposited in the United States Postal Service using certified or registered mail, postage prepaid with return receipt requested, or shipped by a recognized overnight delivety service, or delivered in person to such parfy. Any Notice mailed shali be effective, unless otherwise stated in this Agreement, (a) from and after the expiration of three (3) days after it is deposited in a depositoiy of the United States Postal Ser%'iee and (b) from and after the expiration of two (2) days after being sent by recognized overnight delivery services, except that in the event of any delivery overseas, such Notice shall be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after being sent by recognized overnight delivety' services. Any Notice delivered in person to a party shall be effective when received. Where oral notice is expressly permitted under this Agreement, it shall be effective vvhen received by the other party. For purposes of Notice, the addresses of the parties shall, until changed as hereinafter provided, be as follows: If to Licensor: The Ritz-Carlton Club, Aspen Highlands 0075 Prospector Road Aspen, Colorado 81611 Attn: Qeneral Manager With a copy to: The Ritz-Carlton Hotel Company, L.L.C. 4445 Willard Avenue, Suite 800 Chevy Chase, Marj'land 20815 Attn; Law Department 17 If to Licensee: (FOR OVERNIGHT COURIER) New Cingular Wireless PCS, LLC Attn; Network Real Estate Administration Re: Cell Site # COU4136; Cell Site Name: Aspen Highlands Fixed Asset No: FA# 10148150 12555 Cingular Way, Suite 1300 Alpharetta, Georgia 30004 With copies to: (FOR CERTIFED MAIL) New Cingular Wireless PCS, LLC Attn.: Legal Department Re: Cell Site #: COU4136; Cell Site Name: Aspen Highlands Fixed Asset No: FA#! 0148150 P.O. Box 97061 Redmond, Washington 98073-9761 and (FOR OVERNIGHT MAIL) New Cingular Wireless PGS, LLC Attn.; Legal Department Re: Cell Site #: GOU4136; Cell Site Name: Aspen Highlands Fi.xed Asset No: FA#10I48150 16331 NE 72'"'Wav Redmond, WA 98052 or at any other address which may be given by either party to the other in the manner provided above. [signatures on follow'ing page] IS aforesaid. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date LICENSOR: ASPEN HIGHLANDS CONDOMINIUM ASSOCIATION, INC. Date: 40r^\li LICENSEE: NEW CINGULAR WIRELESS PCS, LLC Name: Dennis Neal Title: Real Estate & Construction Manager Date; }^c*\\3iiX 2.^,2XM EXHIBIT A TO AGREEMENT SITE EQUIPMENT/LOCATION AT ANTENNA SITE [Attach Site Equipment Specifications and Site Equipment Locations at Antenna Site] A-1 CO M ill bl 5 O • 2 ft d 9 CQ d cn ^ J n Q- d 1^ cn z X z Q: a. CD cn < Lii < z Ul LU Ul E fc fc tn (/) (/) (0 00 0 U z yj D. 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It §1 • s g i 1 T Is 1 1 It Kg ii 1^ 5 « I 1 I-1 E" % i b g 1 1 i il i i 1 i I if li 1 0 © C 3) © ® ® © ® ® ® © © EXHIBIT B TO AGREEMENT DECLARATION This Declaration is attached to and made part of the Agieemetit entered into by and between ASPEN mCHLANDS CONDOMINIUM ASSOCIATION, INC., a Colorado non-profit corporafion ("Licensor") and NEW CINGULAR WIlSlLESS PGS, LLC, a Delaware limiled liability company "Licensee"). Licensor and Licensee do hereby declare that: 1. The Bffecfive Date of the Agreement is 2. The CGmmencemeht Date is. 3. The date of expirafion of the Initial Term ofthe Agreement is , subject to exten.sion as provided for in the Agreemeni. 4. The Agreement is in full force and effect as Of the date hereof. Licensor has fulfilled all of its obligations under the Agreement required to be fulfilled by Licensor on or prior to such dale, and Licensee has no righl of set-off against any Annual License Fees. LICENSOR; ASPEN HIGHEANDS CONDOMINIUM ASSOCIATION, INC. By; ^ Name; Title: Date: LICENSEE: NEW CINGULAR WIRELESS PCS, LLC By: AT&T Mobility Corporation, its manager By: Name: Dennis Neal Title: Real Estate & Construction Manager Date: [Note! Not to be executed at the fime of execution of the Agreement j 13-1 EXHIBIT C TO AGREEMENT TECHNICAL STANDARDS 1. General All users shall furnish the following to Licensor prior to installation of the Site Equipment: 1) Site application. 2) Copies of FCC licenses/construction permits. 3) Accurate block diagrams showing operating frequencies, all system components (acfive or passive) with gains and losses in dB, along with power levels. 4) Copies of Manufacturers' equipment specifications. 5) Final, sealed construction drawings The following will not be permitted at the Antenna Site without the written consent of Licensor, which consent shall not be unreasonably withheld. 1) Any equipment without FCC type acceptance, 2) Add-on power amplifiers. 3) "Hybrid" equipmeni with diffcrenl manufacturers' RF strips. 4) Open i"ack mounted receivers and transmitters. 5) Equipmeni with crystal oscillator modules which have not been temperature compensated, 6) Digital/analog hybriding in exciters, unless type-accepted. 7) Equipment which does not conform lo FCC rules and regulations. 8) Non-continuous duty rated transmitters used in continuous duty applications. 9) Transmitter outputs without a harmonic filter and antenna matching circuitry, 10) Change in operating frequency(ies). i 1) Equipment not designed for high-density site applicafions, 12) Ferrite devices or semiconductors looking directly at an antenna, 13) Nickel plated connectors. 14) Cascaded receiver multicouplers/preamps. H. Radio Frequency Interference Protective Devices In general, the following minimum specifications will apply: 30-76 MHZ Isolators - minimum of 60 Db TX cavity - minimum of 20 dB rejection at plus or minus 1 MHZ 130-174 MHZ Dual Stage Isolators - minimum of 60 dB TX cavity - minimum of 25 dB rejection at± 1 MHZ 406-512 MHZ Dual Stage Isolators - minimum of 60 dB TX cavity - minimum of 25 dB rejection at±l MHZ 806 - S66 MHZ c-i Dual Stage Isolators - minimum of 60 dB TX cavity - minimum of 20 dB rejection at ± 5 MHZ Frequencies Ranges as detennined by Licensor or Roof-Top Manager, if any It should be emphasized that the above specifications are minimum requiremenls. Addilional protective devices may be required based upon evaluation of the following information: Th«jretical TX mixes, particularly second and third order Antenna location and type Combiner/muHicoupler configurations Transmitter specifications Receiver specifications Historical problems Transmitter to transmitter isolation Transmitter to antenna isolation Transmittfcr to receiver isolation Calculated level of IM products Transmitter output power Transmitter ERP Spectrum analyzer measurements VSWR measurements Existing cavity selecfivitj' Antenna to Antenna proximity III. All Antennas and Mounts must be: 1) Mounted only on approved side arms or other specified mount and only one antenna per mount unless authorized by Licensor. 2) All mounting hardware hot dipped galvanized or non-corroding metal, 3) Tagged wilh weatherproof labels showing manufacturer, model, frequency i-ange, and owner. 4) Bonded with copper braid to tower or building grounding system. 5) Connections lo be taped with stretch vinyl tape (Scotch #33 or equivalent) Scolchkoted (including booted pigtails). 6) Must meet manufacturers VSWR specifications. 7) Antennas with corroded or oxidized elements must be repaired or replaced. 8) Must be D<j grounded type, or have the appropriate lighting protection as determined by Lieensor. 9) Unless otherwise authorized by Licensor, all antennas must be enclosed in fiberglass radomes, 10) Mounting pipes must be cut such that they do not extend into the antenna radiating element and, for panel antennas, mount pipes shall not extend above or belovv the antenna. 11) Any rusted, coixoded or damaged hardware musl be replaced. IV. Tower 1) No welding or drilling ofany tower members will be permitted. 2) Tower work shall be done only by authorized contractors. V~2 Cable 1) All antenna lines to be jacketed helix or (equivalent), 1/2" or greater. 2) No kinked or cracked cable. 3) Any cable fasteners exposed to weather must be nylon ultraviolet resistant type or stainless steel when installed on tower. 4) All transmit interconnecting cables/jurapers must be solid copper out conductor (1/2" superflex or equivalent), not to exceed 8' in length where practical. 5) All receiver tntercabling must be 100% double shielded coax. 6) All cable must be run in troughs or cable trays where provided, 7) All unused lines must be tagged at bodi ends showing terminafion points. 8) All AC lines cords must be 3 conductor with grounding plugs. 9) Where no troughs or cable trays exist, all cable must be secured at not less than 3' intervals. 10) All transmission lines must be grounded immediately before making the bend under the waveguide bridge with grounding kits made specifically for this purpose. 11) All transmission lines must be clamped with stainless steel clamps made specifically for this puipose (not wraplock) to the wave guide bridge for the full external run of the line. 12) All antenna transmission lines shall be grounded at both the antenna and equipment ends, with the appropriate grounding kits. VI. Connectors 1) Must have teflon inserts, UHF, DfN or N type, including chassis/bulkhead connectors. 2) Must be properly fabricated (soldered if applicable) if field installed. 3) Must be taped and Scolchkoted at least 4" onto jacket if exposed to weather. 4) Male pins must be proper length. 5) Female contacts may not be spread. 6) Connectors must be plier tight as opposed to hand tight 7) Must be silver plated or brass. 8) Must be electrically and mechanically equivalent to GEM connectors. vn. Receivers 1) No RF preamps permitled in front end unless authorized by Licensor. 2) All chassis shields must be in place, 3) VHF and up must use helical resonator front ends. 4) Must meet manufacttirer's specifications, particularly with regard to bandwidth, discriminator swing and symmetry, and spurious responses, 5) Crystal filters/preselectors/cavities must be installed in RX legs where appropriate. 6) All repeater tone squelch circuitry musl use "AND" logic. VUl. Transmitters 1) Must meet original manufacturer's specifications. 2) All chassis shields must be in place. 3) Must have a visual indication (panel light) of transmitter operation, 4) Must be lagged with Licensee's name, equipment model, serial number, and operating frequency(ies). 5) Ail low level, pre-driver and driver stages in exciter must be shielded. 6) All power amplifiers must be shielded. C-3 7) Output power may not exceed specific power guidelines for site, unless otherwise authorized by Licensor. IX. Combiners<Tvlulticouplers 1) Shal! at all limes meet manufacturer's specifications. 2) Must be tuned using manufacturer approved procedures. 3) Must provide dual stage isolation with a minimum standard of 60 dB transmitter to transmitter isolation for all frequency bands. X. Cabinets 1) Must be bonded together and must be grounded to the Resort ground system, 2) All doors must be on or closed. 3) All unused non-original holes larger than I" must be covered with copper screen or solid metal plates. XI. Installation Procedures 1) Installation may take place only after Licensor has been nofified of the date and time, and oniy during normal working hours unless otherwise authorized. 2) Where applicable equipmeni may not be operated unfil the installation has been approved by Licensor, which approval shall not be unreasonably withheld. XII. Maintenance/Tuning Procedures 1) All external indicator lamps/leads must be working, 2) Equipment parameters must meet manufacturer's specifications. 3) All cover, shield, and rack fastenere must be in place and securely fightened. 4) Local speakers must be turned off except during service. Xin. FCC Licensing 1) All FCC licenses must be current. 2) Must be posted as prescribed by FCC rules. XIV. Miscellaneous 1) All installations must be maintained in a neat and orderly manner. 2) Doors to equipment and antenna spaces shall be closed and locked at all times. 3) Access to equipment and antennas shall be by authorized pereonnel onty, and oniy for purposes of installation, service or maintenance. XV. Interference Diagnosing Procedures 1) All users must cooperate in a timely fashion with Licensor when called upon to investigate a source of interference, whether or not il can be conclusively proven that their equipment is involved. C-4 EXHIBIT D TO AGREEMENT RULES AND REGULATIONS The following rules and regulations have been formulated for the safety and well-being of all the licensees licensing space on the roof of the Resort Any violafion of these rules and regulations by any licensee which continues after nolice from the Resort shall be sufl-lcient cause for temiinaiion, at the opfion of Resort, of the licensee's license. Resort may, upon i-equest by any licensee, svaive the compliance by such licensee of any of the following rules and regulations, provided that (a) no waiver shall be effeclive unless signed by Manager or its authorized agent or representative, (b) any such waiver shall not relieve the licensee from the obligation to comply with such rule or regulation in the future unless expressly consented to, in writing, by Manager, and (c) no waiver of a rule or regulation granted to any licensee shall relieve any other licensee from the obligation unless such other licensee has received a similar waiver in writing from Manager. 1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways, corridors or halls or other pails of the Resort (hereinafter "Common Areas") shall not be obstructed or encumbered by arty licensee or used for any purpose olher than ingress and egress lo and from the licensee's Antenna Site. Manager shall have the right to control and operate the Common Areas, and the facilities furnished for the common use of the licensee in such manner as Manager, in its sole discretion, deems best for the benefit of the licensees generally. No licensee shali permit the visit to its Antenna Site of persons in such number or under such conditions as to interfere with the use and enjoyment by others ofthe Common Areas. 2. No sign, adveitisement, nofice or other lettering or material(s) shall be exhibited, inscribed, painted or affixed by any licensee on any part of the ouiside or inside of the licensee's Antenna Site, the Resort or elevators. In the event ofthe violatipn of the foregoing by any licensee, Manager may remove same without any liability, and may charge the expense incurred by such removal tp the licensee or licensees violating this rUle. 3. No space in or about the Resort shall be used by any licensee for the manufacture, storage, or sale or auction of merchandise, goods or property of any kind. 4. No flammable, combustible, explosive, hazardous or toxic fluid, chemical or substance shall be brought into or kept upon a licensee's Antenna Site. 5. All deliveries and removals, or the carrying in or out of any antennae or bulky matter or material of any descriplion, must take place in such manner and during such hours as Manager may require. Manager reserves the right to inspect all freight or bulky matter or materials to be brought into the Resort and to exclude from the Resort all orany of such which violates any of these rules and regulations or the license. 6. Manager reserves the right to exclude from the Resort at all fimes any person who is not known or does not properly identify himself or herself to the Resort's front desk management team. Manager may at its option require all persons admitted to or leaving the Resort to register, Each licensee shall be responsible for all persons for whom it authorizes entry into the Resort, and shall be liable to Manager for all acts of such persons. 7. There shall not be used in tlie Conimon Areas of die Resort either by any licensee or by jobbei^ or others in the delivery or receipt of equipment, any hand trucks, except those equipped with rubber tires and side guards. S. Trash or other objects shall not be placed in the Common Areas, 9. Resort employees other than those expressly authorized are prohibited from receiving any packages or other articles delivered to the Resort for any licensee and, should any such employee receive any such package or article, he or she in so doing shall be the agent of such licensee and not Licensor or Manager. 10. No licensee shall tie in, or permit others to tie in, to the electrical or water supply of the Resort without prior written consent of the Manager. 11. No licensee shall place, or pennit to be placed, on any part of the roof of the Resort a load exceeding the load per square foot which the roof was designed to carry and which is allowed by law. 12. Manager reserves the righl to rescind, amend, alter or waive any of the foregoing rules and regulations at any time when, in its sole judgment, it deems it necessary, desirable or proper for its best interest and for lhe best interests of the guests of the Resort and the licensees, and no such rescission, amendment, alteration or waiver of any rule or regulation in favor of one licensee shall operate as an alteration or waiver in favor of any other licensee. Manager shall not be responsible to any licensee for the non-observance or violafion by any other licensee of any of these rules and regulations at any time. 0-2 EXHIBIT E TO AGREEMENT INSURANCE Licensee shall al all times throughout lliis Agreement comply with all of the following requirements in this Exhibit E. (A) Licensee shall procure and maintain, at its own cost and expense, throughout the Term insurance policies with the following insurance coverages: (i) Workers' compensation insurance, which complies with the applicable workers' compensation la%vs governing the Licensee and all employees installing and servicing the Site Equipment and employer's liability insurance with a limit of one million dollars ($1,000,000) each accident and disease. (ii) Commercial general liability insurance, including completed operafions, contractual liability, and liability for bodily injury or property damage, with a combined single limit of not less than five million dollars ($5,000,000) for each occurrence. Such insurance shall name Licensor, Manager, and Marriott International, Inc., as additional insureds. (iii) Automobile liability insurance, including all owned, non-owned, and hired vehicles used in conjunction with this Agreement, for bodily injury or property damage, with a combined single limit of nol less than one million dollars ($1,000,000) for each occurrence. Such insurance shall name Licensor, Manager, and Marriott international, Inc. as addilional insureds. (iv) Builder's Risk Insurance with limit not less than 100% of the estimated value of the improvements being constructed by or on behalf of Licensee. Such insurance shali name Licensor, Manager, and Marriott Intemationai, Inc. as loss payees. (B) In addition, Licensee shall require that its contractors (and any subcontractors or other Non- Employees, as defined in Section 19(q)) procure and maintain prior to commencing any installation, maintenance, repair or other work at the Resort, insurance policies with the foilowing insurance coverages: (i) Commercial General Liabilily and Property Damage Insurance (including completed operations and contractual liability) on an occurrence basis in an amount not less than three million dollars ($3,000,000) combined single limit. Such insurance shall name Licensor, Manager, and Marriott International, Inc. as additional insureds. (ii) Workers' compensafion insurance, which complies with the applicable workers' compensation laws governing the contractor and all employees installing and servicing the Site Equipment and employer's liability insurance with a limit of one million dollars ($1,000,000) each accident and disease. (iii) Automobile liability insurance, including all owned, non-owned, and hired vehicles used in conjunction with this Agreement for bodily injuiy or property damage, with a combined single limit of not less than one million dollars ($1,000,000) for each occurrence. Such insurance shall name Licensor, Manager, and Marriott International, Inc. as additional insureds, (C) Licensee shall ensure that all policies required under Section 18 of this .Agreement and this E.xhibit E shall be specifically endorsed to provide that the coverages obtained by virtue of this Agreement will be primary and that any insurance carried by Licensor, Manager, and Marriott International, Inc. shall be excess and noncontributory. Licensee agrees that such coverage shall not be canceled or materially changed without at least thirty (30) days' prior written notice to Licensor from Licensee. Prior to entering the Resort, Licensee and its contractors and subcontractors and any other Non-Employees of Licensee shall deliver to the Resort's general manager certificates of insurance and any renewals thereof that evidence the required coverages. #10101279 v7 E-2