Wireless Telecommunications Network Facilities Sharing Agreement
(Sample Agreement)
Between
[
]
and
[
DATED
]
2010
Sample agreement for the provision of Wireless Telecommunications Network Facilities sharing at [Site
Address]
IMPORTANT – PLEASE READ
This is a sample agreement provided by Telecommunications Regulatory Authority of the
Kingdom of Bahrain (“TRA”) in accordance with Article 6.11 of the Wireless Telecommunications
Network Facility Sharing Regulation to facilitate efficient and balanced Sharing Agreements
between Licensees. This is not a regulated agreement and is only an example of a sharing
agreement.
Parties relying on this sample do so at their own risk. TRA accepts no liability for any damages,
losses (commercial or otherwise), or injuries arising from its use.
TRA does not provide legal advice on commercial agreements. Parties are advised to seek their
own legal advice prior to entering into any agreement.
TRA reserves its right under Article 6.10 of the Wireless Telecommunications Network Facility
Sharing Regulation to amend Sharing Agreements negotiated between parties in order to rectify
any failures to comply with the Regulation.
TABLE OF CONTENTS
1
INTERPRETATION
1
2
PROVISION OF THE FACILITIES
4
3
COMMENCEMENT AND DURATION OF THE TERM
4
4
THE SHARING LICENCEE’S OBLIGATIONS
4
5
ACCESS ROUTE; ADDITIONAL APPARATUS
6
6
MAINTENANCE WORKS
7
7
RESERVED CAPACITY
8
8
THE OWNING LICENSEE’S OBLIGATIONS
8
9
PAYMENT TERMS
9
10
REVIEW OF ANNUAL FEE
9
11
THE SHARING LICENSEE’S WARRANTIES
9
12
SUSPENSION
10
13
TERMINATION
11
14
LIMITATION OF LIABILITY
13
15
THE SITE AND THE STRUCTURE - CONFIRMATION AND ACKNOWLEDGEMENT 13
16
THIRD PARTY APPARATUS; INTERFERENCE
14
17
FORCE MAJEURE
14
18
CONFIDENTIALITY
15
19
RISK AND INSURANCE
15
20
MISCELLANEOUS MATTERS
16
21
NOTICES
16
22
ENFORCEMENT BY THIRD PARTIES
17
23
ASSIGNMENT AND SUBCONTRACTING
17
24
COSTS
17
25
DISPUTE RESOLUTION
17
26
GOVERNING LAW
18
27
COUNTERPARTS
18
28
SEVERABILITY
18
SCHEDULE 1 - Particulars
20
SCHEDULE 2 - Facilities
21
SCHEDULE 3 - [TO BE AGREED BY THE PARTIES]
22
Part 1 – Owning Licensee’s Infrastructure
SCHEDULE 4 - The Sharing Licensee’s Apparatus
22
23
Part 1
23
Part 2
23
SCHEDULE 5 - Plan
24
SCHEDULE 6 - Access Services
25
Part 1
25
Part 2
25
SCHEDULE 7 - Review of Annual Fee
26
THIS AGREEMENT is made on [
] day of [ MONTH ] [ YEAR ]
BETWEEN:
(1)
[
] whose registered office is at [
Licensee”); and
]
(the
“Owning
(2)
[
] whose registered office is at [
Licensee”).
]
(the
“Sharing
BACKGROUND
(A)
The Owning Licensee is entitled to real property and/or contractual rights in the Site
and rights in respect of the Structure for a term of years greater than the Term.
(B)
The Owning Licensee has agreed to provide facilities for the Sharing Licensee’s
Apparatus and to allow the Sharing Licensee to install and operate equipment on
the Site for the duration of the Term, and on the terms of this Agreement.
OPERATIVE PROVISIONS
1
INTERPRETATION
1.1
In this Agreement, the following expressions shall have the following meanings
except where inconsistent with the context:
“Access Route” means the vehicular [and pedestrian] access route or routes from
the public highway to the Site and the Structure over the route or routes shown
hatched in brown on the Plan [and incorporating the vehicle parking area shown
cross-hatched in brown on the Plan];
“Access Services Fee” means the fee payable from time to time for Access
Services as set out in Part 2 of Schedule 6. These are subject to variation from time
to time by agreement between the Parties;
“Access Services” means the services provided to the Sharing Licensee by the
Owning Licensee pursuant to clause 5.1 and Schedule 6;
“Additional Sharing Licensee’s Apparatus” means any Telecommunications
Equipment (other than the Sharing Licensee’s Apparatus) which is installed at the
Site from time to time by the Sharing Licensee pursuant to the terms of this
Agreement;
“Additional Maintenance Works” means works approved by the Owning Licensee
pursuant to clause 5.4 comprising the installation on the Structure and/or the Site of
Additional Sharing Licensee’s Apparatus;
“Agreement” means this Agreement including the Schedules attached (and any
documents supplemental, or made pursuant to it) and any amendments to the
Agreement and Schedules made by written agreement by the parties;
“Annual Fee” means the annual fee for providing the Facilities the same being
subject to review in accordance with clause 10;
“Annual Fee Commencement Date” means the date specified in the Particulars
set out in Schedule 1.
“Apparatus” means the Sharing Licensee’s Apparatus and any Additional
Sharing Licensee’s Apparatus (or any part of either) installed by or on behalf of
the Sharing Licensee at the Site or on the Structure from time to time pursuant to
the terms of this Agreement;
1
“Business Day” means any day which is not a Friday, Saturday or a public holiday
in the Kingdom of Bahrain;
“Confidential Information” means all information in respect of the business of
either party including, without prejudice to the generality of the foregoing, any ideas;
business methods; finance; prices, business, financial, marketing, development or
manpower plans; customer lists or details; computer systems and software;
products or services, and information concerning either party’s relations with actual
or potential customers or suppliers and the needs and requirements of such
persons;
“Effective Date” means the date on which this Agreement is legally completed and
takes effect accordingly;
“Facilities” means the facilities and services which the Owning Licensee agrees to
provide to the Sharing Licensee at the Site as set out in Schedule 2;
“Facility Sharing Regulation” means Regulation No. 2 of 2009 on Wireless
Telecommunications Network Facility Sharing issued by the TRA on 3 September
2009 under sections 3(b)(2) and 3(c)(13) of the Telecommunications Law;
“Frequency Licence” means any frequency licence granted by the TRA pursuant
to section 44 of the Telecommunications Law, with a “Frequency Licensee” being
the holder of a Frequency Licence;
“Grantor’s Land” means land (including the Site) on which Telecommunications
Equipment is installed which is connected to (and used in conjunction with)
Radiocommunications Equipment installed on the Structure;
“Grantor” means the person with whom the Owning Licensee has entered into a
Site Lease;
“Group Company” means any company which from time to time during the period
of this Agreement is a holding company or subsidiary of the holding company or any
one of that company;
“Maintenance Works” means works which may be undertaken by or on behalf of
the Sharing Licensee in accordance with clause 5.1 to inspect, maintain, adjust,
repair, test, remove and (on a like for like basis) to replace the Sharing Licensee’s
Apparatus and any Additional Sharing Licensee’s Apparatus;
“Outgoings” means all municipality charges or rates, electricity charges and other
outgoings payable in respect of utilities which at any time during the Term may be
charged or imposed on the Site or on the Facilities or on the Sharing Licensee’s
Apparatus or on the Owning Licensee’s Infrastructure;
“Owning Licensee’s Infrastructure” means the infrastructure described in
Schedule 3 Part 1 provided by the Owning Licensee at the Site and the Structure
which is owned and/or used by the Owning Licensee in connection with the
provision of the Facilities;
“Particulars” means the details set out in Schedule 1 to this Agreement;
“Plan” means the plan showing the Site, Structure and Access Route the same
being attached to and forming Schedule 5;
“Planning Authority” means the Ministry of Municipalities, Affairs and Agriculture
and any other authority whose permission is required prior to the deployment of the
wireless telecommunications networks facilities;
2
“Radiocommunications” means the transmission, emission or reception of
messages, sound, visual images or signals using electromagnetic waves which are
propagated in space and having frequencies of lower than 3,000 GHz;
“Radiocommunications Equipment” means any equipment or apparatus
designed or used for Radiocommunications;
“Reserved Capacity” means capacity or space available where the existing Site is
technically and physically capable of accommodating extra Apparatus;
“Sharing Licensee’s Apparatus” means the Telecommunications Equipment
installed at the Site and the Structure as at the Effective Date which is owned and/or
controlled by the Sharing Licensee and which is described in Schedule 4;
“Site” means a place where a wireless telecommunications network facility or group
of similar facilities is located. Complete site details are set out in Schedule 7;
“Site Lease” means a lease between a Grantor and the Owning Licensee;
“Site Rental” means part of the Annual Fee specified in Schedule 1;
“Specified Rate” means interest at 3% per annum above the base lending rate
from time to time of [NAME OF BANK] (or such other bank as the Owning Licensee
may hereinafter nominate);
“Structure” means the pylon tower or other structure described in the Particulars
which is suitable for use as a support structure for Radiocommunications Equipment
and in respect of which the Owning Licensee is entitled to contractual rights for a
term of years unexpired greater than the Term;
“Telecommunications” means the conveyance and/or routing of messages,
sound, visual images or signals on Telecommunications Networks, other than
Broadcasting (as defined by the Telecommunications Law);
“Telecommunications Equipment” means any equipment or apparatus used or
intended to be used for Telecommunications and that is part of or connected to, or
comprises, a Telecommunications Network, and includes Radiocommunications
Equipment;
“Telecommunications Law” means the law promulgated by Legislative Decree
No. 48 of 2002, as amended;
“Individual Telecommunications Licence” means any individual licence granted
by the TRA pursuant to section 29 of the Telecommunications Law permitting the
holder of such a licence (the “Telecommunications Licensee”) to operate a
Telecommunications Network;
“Telecommunications Network” means a network permitting the conveyance of
messages, sound, visual images or signals between defined termination points by
wire, radio, optical or other electro-magnetic means;
“Telecommunications Purposes” means the provision by the Sharing Licensee of
the Telecommunications services permitted by its Telecommunications Licence(s);
“Telecommunications Technical Office” means the technical telecommunications
office established by the TRA for the purpose of representing the
Telecommunications industry at the Central Planning Office of the Ministry of Works;
“Term” means the term of this Agreement as specified in the Particulars;
“Tower Rental” means part of the Annual Fee specified in Schedule 1;
3
“TRA” means the Telecommunications Regulatory Authority of the Kingdom of
Bahrain.
1.2
A reference to a particular law shall include any modification, extension,
replacement or re-enactment thereof for the time being in force and shall also
include all instruments, orders, plans, regulations, permissions and directions for the
time being made, issued or given thereunder or deriving validity therefrom.
1.3
The singular number shall include the plural and vice versa and reference to natural
persons shall include bodies corporate.
1.4
References to the Owning Licensee and to the Sharing Licensee shall be construed
as including each party’s employees, contractors and agents where applicable and
each party’s permitted assigns and/or successors to the benefit of this Agreement.
1.5
The clause and Schedule headings are for convenience purposes only and shall be
ignored for the purposes of construction.
References to clauses, Schedules, paragraphs and sub-paragraphs are to the
clauses, Schedules, paragraphs and sub-paragraphs of this Agreement.
2
PROVISION OF THE FACILITIES
In consideration of the agreements and undertakings given by the Sharing Licensee
to the Owning Licensee and the Sharing Licensee paying to the Owning Licensee
[the Annual Fee], the Owning Licensee agrees and undertakes to the Sharing
Licensee that it will, [as from the Annual Fee Commencement Date], and thereafter
throughout the Term provide and make available the Facilities for the Sharing
Licensee in accordance with this Agreement.
3
COMMENCEMENT AND DURATION OF THE TERM
This Agreement shall come into force and effect on the Effective Date and (subject
to the provisions of clause 13 (Termination) and clause 12 (Suspension)) shall
continue for the Term.
4
THE SHARING LICENSEE’S OBLIGATIONS
4.1
The Sharing Licensee shall pay the [Annual Fee] in accordance with the provisions
of clause 9.
4.2
The Sharing Licensee shall reimburse to the Owning Licensee a fair proportion (as
reasonably determined by the Owning Licensee) of all Outgoings in respect of the
Site, the Owning Licensee’s Infrastructure and the Structure and of the costs
reasonably and properly incurred or paid by the Owning Licensee in maintaining the
Owning Licensee’s Infrastructure.
4.3
The Sharing Licensee shall pay all Outgoings in respect of the Sharing Licensee’s
Apparatus.
4.4
The Sharing Licensee shall pay all [charges (including standing charges and
charges for meters) for provision of electricity to the Sharing Licensee’s Apparatus /
a fair proportion of charges for electricity to the Site according to use].
4.5
The Sharing Licensee shall keep the Apparatus safe and in a good state of repair
and condition throughout the Term and shall comply with:
4.5.1
the recommendations and requirements for the time being in force of the
International Commission on Non-Ionising Radiation Protection; and
4
4.5.2
any other requirements and recommendations which may prevail from
time to time of any government or regulatory body concerned with the
emissions of radio frequency radiation from the use of
Radiocommunications Equipment.
4.6
The Sharing Licensee, its employees, sub-contractors and agents shall not do or
permit anything which is or may become a nuisance, annoyance or inconvenience to
the Owning Licensee or any other party using facilities provided by the Owning
Licensee on the Grantor’s Land or the Structure nor interfere with any
Telecommunications Equipment on the Grantor’s Land or on the Structure belonging
to any third party.
4.7
The Sharing Licensee shall not be permitted to make any alteration or modification
to the Site or the Structure or any part of the Owning Licensee’s Infrastructure or
other facilities provided by the Owning Licensee without the Owning Licensee’s prior
written consent such consent not to be unreasonably withheld or delayed. If such
consent is given, the Sharing Licensee shall at the expiry or determination of the
Term (if requested to do so by the Owning Licensee at its own cost reinstate the Site
and/or the Structure and/or the Owning Licensee’s Infrastructure and Facilities to its
former condition to the reasonable satisfaction of the Owning Licensee or in default
to pay the Owning Licensee on demand the full cost incurred by the Owning
Licensee in such reinstatement.
4.8
The Sharing Licensee shall refrain from obstructing the Access Route at any time.
4.9
The Sharing Licensee shall provide the Owning Licensee with an agreed method of
isolating its Radiocommunications Equipment (either through remote operations or
by provision on site in accordance with industry guidelines) in the event that the
Owning Licensee has the right to suspend provision of the Facilities pursuant to
clause 12.
4.10
The Sharing Licensee shall ensure that the Owning Licensee and any third party
reasonably authorised by the Owning Licensee to attend the Site for the purpose of
fulfilling the Owning Licensee’s obligations under this Agreement has unrestricted
access to the Site at all times for such purpose and to ascertain whether the Sharing
Licensee’s obligations under this Agreement have been duly observed and
performed.
4.11
The Sharing Licensee shall not make any application to any local Planning Authority
for permission to carry out any development at the Site without the Owning
Licensee’s prior written consent such consent not to be unreasonably withheld or
delayed.
4.12
The Sharing Licensee undertakes to use the Facilities in accordance with:
4.13
4.12.1
the Sharing Licensee’s relevant Telecommunications Licences and
Frequency Licences;
4.12.2
such reasonable conditions as may be notified in writing to the Sharing
Licensee by the Owning Licensee from time to time;
4.12.3
all relevant legislation, regulations or codes of practice;
4.12.4
any direction of the TRA;
4.12.5
any specific requirements set out in the Particulars.
For the avoidance of doubt the Sharing Licensee shall only be permitted to retain
Apparatus at the Site and upon the Structure which is for its own exclusive use in
connection with the running of its own Telecommunications Network.
5
4.14
The Sharing Licensee undertakes not to use the Facilities:
4.14.1
other than for Telecommunications Purposes;
4.14.2
for any illegal or unlawful purpose;
4.14.3
in a manner which constitutes a violation or infringement of rights of any
party or any subsequent Telecommunications Licensee at the Owning
Licensee’s Site or on the Structure which all cases have been notified to
the Sharing Licensee in writing and are not inconsistent with the
provisions of this Agreement.
4.15
The Sharing Licensee shall indemnify and keep the Owning Licensee indemnified
on demand against any costs (including the costs of enforcement) expenses,
liabilities (including any tax liability) injuries, losses, damages (including payments to
the Grantor for damage caused to the Grantor’s land by the exercise of the rights
hereby granted), claims, demands or legal costs (on a full indemnity basis) and
judgements which the Owning Licensee incurs or suffers arising from or in any way
connected with the presence of the Apparatus at the Site or on the Structure or the
use of the Facilities [in each case where in breach by the Sharing Licensee and any
persons authorised by it of the Sharing Licensee’s warranties, undertakings and
obligations under this Agreement].
5
ACCESS ROUTE AND ADDITIONAL APPARATUS
5.1
The Owning Licensee shall, subject to such reasonable Site access rules as are set
out or referred to in the Particulars or as the Owning Licensee may from time to time
stipulate, permit the Sharing Licensee to have access to the Site on the following
basis:
5.1.1
in the case of access to the Structure, no access will be permitted to the
Structure without prior notification to the Owning Licensee which in the
case of a non service affecting fault shall be not less than seven days
notice in writing and in the case of a service affecting fault shall be as
much notice as possible in the circumstances and (subject to any
contrary agreement with the Grantor as set out in the Particulars) the
Owning Licensee will use all reasonable endeavours to provide access to
the Structure for such service affecting faults on a 24 hours a day, 7 days
a week basis. All work on the Structure will be carried out by persons
approved by the Owning Licensee and set to work by the Owning
Licensee as part of the Access Services;
5.1.2
in the case of access to the Site (not requiring access to the Structure):
5.1.3
5.2
(a)
at any time for maintenance or repair work capable of being
carried out by walking access only at any time (subject to any
contrary agreement with the Grantor as set out in the Particulars);
(b)
upon not less than 7 Business Days prior written notice to the
Owning Licensee for maintenance and repair work not capable of
being carried out by walking access only or the installation of any
Additional Sharing Licensee’s Apparatus.
the Sharing Licensee will pay the Owning Licensee the Access Services
Fee.
Where the Owning Licensee has specified an Access Route the Sharing Licensee
shall follow such access route at all times and shall comply with such reasonable
security and safety procedures in relation to the same as specified by the Owning
Licensee from time to time.
6
5.3
The Sharing Licensee shall make good any damage caused by the use of the
Access Route.
5.4
Save for Maintenance Works, the Sharing Licensee shall not be permitted to move,
replace, upgrade, modify or make any other alterations or additions to the Sharing
Licensee’s Apparatus nor to add any Additional Sharing Licensee’s Apparatus
whatsoever to any part of the Site or the Structure without:
5.4.1
5.5
submitting to the Owning Licensee for prior approval (such approval not
to be unreasonably withheld or delayed) a specification, drawing, plan,
and a method statement in the agreed form describing the Additional
Sharing Licensee’s Apparatus and the works required to install the same;
and securing such written approval.
The Owning Licensee shall be entitled to an increase in the Annual Fee upon the
installation of any Additional Sharing Licensee’s Apparatus on the following basis:
5.5.1
for Additional Sharing Licensee’s Apparatus on the Structure a sum equal
to [
];
5.5.2
for Additional Sharing Licensee’s Apparatus on the Site (other than on the
Structure) a sum equal to [
].
5.6
Where the Sharing Licensee has ceased to use any Apparatus for the
Telecommunications Purposes it shall promptly remove such Apparatus from the
Site and in any event within [thirty (30)] days of use ceasing. The Sharing Licensee
shall use its reasonable endeavours to cause as little damage, disturbance and
inconvenience as reasonably possible to the Site and/or the Structure during the
execution of such removal and to immediately make good to the reasonable
satisfaction of the Owning Licensee any damage caused to the Site or the Structure
by the Sharing Licensee, its employees, authorised agents or sub-contractors.
6
MAINTENANCE WORKS
6.1
When carrying out the Maintenance Works the Sharing Licensee shall carry out and
complete the same:-
6.2
6.1.1
as promptly and diligently as reasonably possible;
6.1.2
in a good and workmanlike manner, using good quality materials and
appropriate engineering and telecommunications techniques and
standards;
6.1.3
with all reasonable skill, care and diligence;
6.1.4
(in the case of Additional Maintenance Works) in accordance with the
approved specification, drawing, plan and method statement;
6.1.5
in accordance with any safety management system which affects the
Structure and is in force from time to time.
The Sharing Licensee further undertakes to carry out the Maintenance Works in
accordance with the requirements (as relevant) of:
6.2.1
the local Planning Authority;
6.2.2
the Telecommunications Technical Office;
6.2.3
the Sharing Licensee’s Telecommunications Licence(s) or Frequency
Licence(s);
7
6.2.4
The Telecommunications Law;
6.2.5
clause 5 of this agreement,
and to comply with all relevant legal (including health and safety) requirements and
any other guidelines, recommendations, regulations issued by TRA from time to time.
6.3
The Sharing Licensee, its employees and authorised contractors engaged in
connection with the carrying out of the Maintenance Works shall comply with the
reasonable rules, regulations and requirements (including but not limited to those
relating to health and safety or security arrangements) as may be in force from time
to time for the conduct of personnel when at the Site, and as have been notified to
the Sharing Licensee.
6.4
The Sharing Licensee shall at its own cost provide, maintain and remove all plant
and equipment required for the carrying out of the Maintenance Works. The Sharing
Licensee shall use reasonable endeavours to ensure all such plant and equipment
is appropriate, adequate, clean, safe and secure for the proper performance of its
obligations under this Agreement.
6.5
The Sharing Licensee shall use its reasonable endeavours to cause as little
damage, disturbance and inconvenience as reasonably possible to the Site and/or
the Structure during the execution of the Maintenance Works and to immediately
make good to the reasonable satisfaction of the Owning Licensee any damage
caused to the Site or the Structure by the Sharing Licensee, its employees,
authorised agents or sub-contractors.
6.6
The Sharing Licensee shall when carrying out the Maintenance Works observe and
follow all guidelines, codes and recommendations issued or made by the TRA,
Government organisation or other official or responsible organisation relating to
health and safety at work.
7
RESERVED CAPACITY
The Owning Licensee shall deploy any Reserved Capacity at the Site within one (1)
year of the date on which such Reserved Capacity was reserved.
8
THE OWNING LICENSEES’S OBLIGATIONS
8.1
The Owning Licensee shall not knowingly:
8.1.1
interfere or tamper with the Apparatus;
8.1.2
obstruct or interfere with the Sharing Licensee’s access to the Apparatus;
8.1.3
do or permit anything which is or may become a nuisance, annoyance or
inconvenience to the Sharing Licensee at the Site or on the Structure
provided always that it is recognised by the Sharing Licensee that the
Owning Licensee may be granting facilities sharing agreements in similar
terms to this Agreement to other Licensees in respect of the Site and the
Structure nor shall the Owning Licensee knowingly permit any third party
at or using the Site and/or the Structure to do the same.
8.2
The Owning Licensee shall procure the maintenance of the Structure in a safe and
good state of repair and condition throughout the Term.
8.3
The Owning Licensee shall not install or permit the installation of any
Telecommunications Equipment on the Structure by or on behalf of another
Telecommunications Licensee or Frequency Licensee which causes radio or
electromagnetic interference with the Apparatus already on the Structure at the date
of such installation.
8
8.4
The Owning Licensee covenants to pay the rents and observe and perform the
covenants and conditions on their part contained in the Site Lease and indemnify
the Sharing Licensee against any costs, expenses, liabilities, loss, damage, claim or
demand arising directly from breach thereof and any resulting termination by the
Owning Licensee of this Agreement.
9
PAYMENT TERMS
9.1
The Sharing Licensee shall pay the Annual Fee annually in advance in two half
yearly instalments on 1 January and 1 July in each year (the ”Due Date”), the first
such payment (being an apportioned sum) being due on the Annual Fee
Commencement Date in respect of the period from the Annual Fee Commencement
Date to the nearest ensuing 1 January or 1 July; and the last such payment (also
being an apportioned sum) being due on the 1 January or 1 July as appropriate in
the last year of the Term in respect of the period from that date until the last day of
the Term.
9.2
All sums due to the Owning Licensee under this Agreement will be paid in full
(without any set-off deduction or withholding of any kind) (and subject to 8.1 above)
within 20 Business Days of the Due Date by to such bank account as the Owning
Licensee shall from time to time nominate.
9.3
If any sum due to the Owning Licensee under this Agreement is not paid when due
then, without prejudice to the Owning Licensee’s other rights under this Agreement,
the Owning Licensee shall be entitled to charge interest on any arrears of payment
from the due date until payment is made in full, both before and after any
judgement, at the Specified Rate.
9.4
Repayment of any damage claim agreed and paid by the Owning Licensee as part
of the Access Services shall be made by the Sharing Licensee within 20 Business
Days of its receipt of the Owning Licensee’s invoice.
10
REVIEW OF ANNUAL FEE
The Owning Licensee shall review the Annual Fee in accordance with the procedure
set out in Schedule 7.
11
THE SHARER LICENSEE’S WARRANTIES
11.1
The Sharing Licensee warrants and represents to the Owning Licensee that:
11.2
11.1.1
it will at all times exercise its rights under this Agreement in relation to the
use of the Facilities in accordance with accepted industry standards, and
with all reasonable skill and care;
11.1.2
it shall maintain in place requisite planning consents in connection with
the installation of the Apparatus at the Site and on the Structure and the
use of the Facilities; and
11.1.3
the execution and performance of this Agreement is within the Sharing
Licensee’s power and authority and has been duly authorised by all
requisite actions (corporate or otherwise) by the Sharing Licensee’s and it
has all necessary statutory or regulatory licences and authorities to
perform its obligations under this Agreement.
The Sharing Licensee further warrants to the Owning Licensee that:
11.2.1
it will maintain or procure that the Apparatus for the time being installed at
the Site and/or on the Structure is maintained in a good and safe
operating condition throughout the Term in accordance with industry
accepted safety standards;
9
11.2.2
it will ensure that any Apparatus installed and operating at the Site and/or
on the Structure complies with industry accepted electromagnetic
compatibility standards in order not to cause any radio or electromagnetic
interference with any Telecommunications Equipment installed on the
Structure prior to the Apparatus nor any interference with the proper
functioning, maintenance or operation of any computers, information
technology or Telecommunications Equipment which is in service at any
building adjacent or nearby to the Sharer Apparatus as at the date of this
Agreement.
12
SUSPENSION
12.1
The Owning Licensee may at its sole discretion and without prejudice to any of its
rights to terminate this Agreement, elect to immediately suspend the provision and
use of all or any of the Facilities until further notice upon giving notice to the Sharing
Licensee either orally (confirming such notice in writing) or in writing, without liability
to the Sharing Licensee, in the event that:
12.1.1
the Owning Licensee is entitled to terminate this Agreement in
accordance with the provisions of clause 13.1;
12.1.2
the Owning Licensee is obliged to comply with an order instruction or
request of the TRA, Government, an emergency service organisation or
other competent administrative authority which requires such suspension;
12.1.3
the Owning Licensee in its reasonable opinion believes that the
continuation of provision of any part of the Facilities will result in:
(a)
interference with the Telecommunications Equipment of any third
party entitling the Owning Licensee to request the Sharing
Licensee to switch off the relevant items of Apparatus pursuant to
clause 16.3;
(b)
unlawful disruption to or interference with the provision of any
services or facilities provided by the Owning Licensee to any third
party; or
(c)
material damage with the Owning Licensee’s Infrastructure or to
the Structure; or
(d)
material damage to any other property, or to any person.
12.1.4
the Owning Licensee has reasonable grounds for suspecting the Sharing
Licensee of using any part of the Facilities fraudulently or attempting to
do so or of committing any other illegal or unlawful act in connection with
the use of the Facilities;
12.1.5
the Sharing Licensee prevents or delays the Owning Licensee in carrying
out any of its obligations under this Agreement.
12.2
In the event that the Sharing Licensee’s use of any of the Facilities are suspended
as a consequence of the act or omission of the Sharing Licensee in breach of this
Agreement or as mentioned in clauses 12.1.1, 12.1.4 or 12.1.5, the Sharing
Licensee shall not be entitled to any refund of any part of the Annual Fee paid in
respect of any period of suspension and the Sharing Licensee shall reimburse the
Owning Licensee all reasonable costs and expenses incurred in the implementation
of such suspension and any subsequent re-commencement of the provision of any
Facilities.
12.3
ln the event that the Sharing Licensee’s use of the Facilities are suspended as
mentioned in clauses 12.1.2, or 12.1.3 or otherwise than as a consequence of the
10
act or omission of the Sharing Licensee in breach of this Agreement the Sharing
Licensee’s liability to the Annual Fee or a fair and appropriate proportion of the
same will cease for the duration of the suspension and the Owning Licensee shall
reimburse the Sharing Licensee all reasonable costs and expenses incurred in the
implementation of such suspension and any subsequent re-commencement of the
provision of any Facilities. (For the avoidance of doubt these costs and expenses
shall not include any costs or expenses relating to or associated with the loss of
service).
13
TERMINATION
13.1
The Owning Licensee may by notice in writing immediately terminate this
Agreement if the Sharing Licensee:
[ 13.2
13.1.1
fails to pay the Annual Fee or any other payments due to the Owning
Licensee pursuant to the terms of this Agreement when they are due
provided that such failure has not been rectified within 30 days;
13.1.2
shall be in breach of any of the terms of this Agreement and where the
breach is capable of remedy fails to remedy the same within 30 days of
receipt of notice of the breach from the Owning Licensee requiring
remedy of the same;
13.1.3
summons a meeting of its creditors, has a receiver, manager,
administrator or administrative receiver appointed over its assets,
undertakings or income, has passed a resolution for its winding-up (save
for the purpose of a voluntary reconstruction or amalgamation), has a
petition presented to any Court for its winding-up (save for the purpose of
a voluntary reconstruction or amalgamation), or is otherwise insolvent;
13.1.4
has any distraint, execution or other process levied or enforced on any of
its property;
13.1.5
ceases or threatens to cease to trade.
The Owning Licensee may by notice in writing terminate this Agreement on not less
than 6 months’ notice at any time in the event that the Owning Licensee’s rights in
respect of the Structure are lawfully terminated as follows:
13.2.1
in the event that any wayleave from the Grantor in respect of the
Structure is terminated;
13.2.2
in the event that the Site Lease is lawfully terminated.
In case of the above the Owning Licensee will advise the Sharing Licensee as soon
as practicable after becoming aware of the possible need to terminate and shall
keep the Sharing Licensee fully advised of the process. The Owning Licensee will
in all cases where practicable offer the Sharing Licensee the right to install the
Sharing Licensee’s Apparatus on an alternative Structure.]
13.3
Either party may by notice in writing terminate this Agreement immediately:
13.3.1
if the Sharing Licensee’s relevant Telecommunications Licence or
Frequency Licence is at any time withdrawn or expires without any
replacement or alternative licence or permission taking effect;
13.3.2
if at any time the Site or the Structure (or any building of which the
Structure forms part) is damaged or destroyed by fire or other insured risk
and in consequence the Apparatus is likely to be out of service for a
period in excess of six months;
11
13.3.3
13.4
13.5
13.6
if at any time the Site or the Structure becomes unusable for the
Apparatus due to development of buildings and other permanent
structures nearby which adversely affect the line of sight between the
Apparatus and other parts of the Sharing Licensee’s Telecommunications
Network.
The Sharing Licensee may by notice in writing terminate this Agreement
immediately if the Owning Licensee:
13.4.1
shall be in material breach of any of the terms of this Agreement and
where the breach is capable of remedy fails to remedy the breach within
30 days of receipt of notice of the breach from the Sharing Licensee
requiring remedy of the breach;
13.4.2
summons a meeting of its creditors, has a receiver, manager,
administrator or administrative receiver appointed over its assets,
undertakings or income, has passed a resolution for its winding-up (save
for the purpose of a voluntary reconstruction or amalgamation), has a
petition presented to any Court for its winding-up (save for the purpose of
a voluntary reconstruction or amalgamation), or is otherwise insolvent;
13.4.3
has any distraint, execution or other process levied or enforced on any of
its property;
13.4.4
ceases or threatens to cease to trade.
Upon the expiry or the earlier termination of this Agreement the Sharing Licensee
will as quickly as practicable:
13.5.1
cease to use and operate any Apparatus installed at the Site or on the
Structure;
13.5.2
make safe any fibre, copper, coaxial cable or wire or other
telecommunication or power cable which is connected to or forms part of,
or is otherwise used in conjunction with any Apparatus at the Site or the
Structure other than any such cable which forms part of the Owning
Licensee’s Infrastructure;
13.5.3
remove from the Site all Apparatus (other than any cable as referred to in
clause 13.5.2), using reasonable endeavours not to cause any damage to
the Site or the Structure or the Owning Licensee’s Infrastructure and will
make good any damage caused to the reasonable satisfaction of the
Owning Licensee.
13.5.4
restore (“make good”) the Site and the Structure and the Owning
Licensee’s Infrastructure to as near as possible to its condition prior to
this Sharing Agreement to the reasonable satisfaction of the Owning
Licensee.
In the event that the Sharing Licensee fails to remove the Apparatus from the Site or
the Structure within 60 days of the date of termination of this Agreement the Owning
Licensee shall be permitted to remove the Apparatus and to dispose of the
Apparatus as it sees fit without Liability to the Sharing Licensee. The Sharing
Licensee shall not be entitled to the proceeds of sale of any of the Apparatus and
shall be responsible for any costs incurred by the Owning Licensee in relation to this
clause 13.6 or the cost, in the event of failure by the Sharing Licensee to do so, of
making good the Site or the Owning Licensee’s Infrastructure in accordance with
clause 13.5.4 of this Sharing Agreement..
12
13.7
Termination of this Agreement shall be without prejudice to the rights, duties and
liabilities of either party accrued prior to termination.
14
LIMITATION OF LIABILITY
14.1
To the maximum extent permissible in law, all conditions and warranties which are
to be implied by statute or otherwise by general law into this Agreement or relating
to the provision of the Facilities are hereby excluded.
14.2
The following provisions in this clause set out the entire liability of each party to the
other (including any liability for the acts and omissions of its employees, agents or
sub-contractors) in respect of:
14.2.1
a breach of that party’s contractual obligations;
14.2.2
a tortious act or omission for which that party is liable;
14.2.3
an action arising out of a misrepresentation (unless negligent) by that
party arising in connection with the performance or contemplated
performance of this Agreement.
14.3
The Owning Licensee’s total liability to the Sharing Licensee in respect of all claims
referred to in clause 14.2 shall not exceed the sum of [
] for any one
occurrence and/or series of occurrences arising from one event.
14.4
The Sharing Licensee’s total liability to the Owning Licensee in respect of all claims
referred to in clause 14.2 shall not exceed the sum of [
] for any one
occurrence and/or series of occurrences arising from one event.
14.5
Neither party shall be liable to the other in respect of any matter arising out of any
connection with this Agreement in contract, tort or otherwise for any loss of profit,
loss of business or contracts, or for any indirect or consequential loss or damage
whatsoever.
14.6
Notwithstanding anything to the contrary herein contained neither party’s liability
shall be limited for death or personal injury resulting from negligence of that party, its
employees, agents or sub-contractors.
15
THE
SITE
AND
THE
ACKNOWLEDGEMENT
15.1
The Owning Licensee confirms and warrants (as at the date hereof and as a
continuing warranty) to the Sharing Licensee that it is entitled to:-
15.2
STRUCTURE
-
CONFIRMATION
AND
15.1.1
real property and/or contractual rights in the Site;
15.1.2
contractual rights to use the Structure for Telecommunications Purposes
(in each such case) sufficient for the Sharing Licensee to quietly enjoy the
Facilities for a term of years unexpired greater than the Term; and that it
does not have notice (including constructive notice) of any reason why it
should not enter into this Agreement;
15.1.3
that the execution and performance of this Agreement is within the
Owning Licensee’s power and authority and has been duly authorised by
all requisite actions (corporate or otherwise) by the Owning Licensee and
it has all necessary statutory or regulatory licences and authorities to
perform its obligations under this Agreement.
The Sharing Licensee acknowledges that nothing in this Agreement shall confer on
the Sharing Licensee any right to exclusive use of or create a lease or tenancy of or
otherwise create any right or interest in any part of the Structure and the Sharing
13
Licensee undertakes and agrees that it will not make any claim in this respect and
further acknowledges that the Owning Licensee may permit other
Telecommunication Licensees to share the use of the Structure or any part of it on
such terms as the Owning Licensee shall in its absolute discretion determine.
16
THIRD PARTY APPARATUS; INTERFERENCE
16.1
Nothing in this Agreement shall prevent the Owning Licensee installing or granting
consent to any third party to install any Telecommunications Equipment on Site or
on the Structure provided that such Telecommunications Equipment does not
impede, disrupt, degrade or interfere with the operation of the Apparatus.
16.2
If after the installation of any third party Telecommunications Equipment on the
Structure the Sharing Licensee can demonstrate to the Owning Licensee’s
reasonable satisfaction that the same is causing electro-magnetic interference with
the operation of the Apparatus then the Owning Licensee shall use all reasonable
endeavours to ensure that the third party Telecommunications Equipment is
switched off with immediate effect and remains switched off until such interference is
cured.
16.3
If the Owning Licensee can demonstrate to the Sharing Licensee’s reasonable
satisfaction that any part of the Apparatus on the Structure is interfering with the
operation of any third party Telecommunications Equipment on the Structure prior to
the date of this Agreement provided always that the parties acknowledge that this
will be checked prior to installation and should not therefore occur without a change
in operational usage then the Sharing Licensee shall on request switch off the
relevant items of Apparatus with immediate effect and such items of Apparatus shall
remain switched off until such interference is cured.
17
FORCE MAJEURE
17.1
Neither party to this Agreement shall be deemed in default or liable to the other
party for any delay in performance or failure to comply with the terms of this
Agreement due to any cause beyond that party’s reasonable control including,
without limitation:
17.1.1
acts of God;
17.1.2
acts or omissions of any owner of any legal or beneficial interest in a Site
which is superior to that of the Owning Licensee including (without
limitation) acts or omissions relating to the Access Route unless that
party’s act or omission is in breach of its obligations to the Owning
Licensee;
17.1.3
war or national emergency, riots, civil commotion;
17.1.4
fire, explosion, flood, extreme weather conditions;
17.1.5
restriction to land due to disease,
subject always to the party unable to perform its obligations (“the affected party”) by
virtue of the event of force majeure using its reasonable endeavours to overcome or
remedy its inability to perform as promptly as possible.
17.2
Where the affected party is affected by an event of force majeure it shall at the
earliest possible moment give notice thereof to the other party specifying where
possible the relevant events or circumstances and the delay or default likely to be
caused thereby or resulting therefrom and shall provide regular reports on the likely
duration and effects of the same; and on the progress of work to overcome such
force majeure; and shall give prompt notice of the end of such force majeure.
14
17.3
Neither party shall be relieved from any obligations to pay money due hereunder as
a result of an event of force majeure.
17.4
If as a result of force majeure the performance by either party of its obligations
under this Agreement is only partially affected such party shall nevertheless remain
liable for the performance of those obligations not affected by force majeure.
18
CONFIDENTIALITY
18.1
Each party shall at all times keep confidential (and ensure that its employees and
agents shall keep confidential) the terms of this Agreement and any information
which it may acquire under this Agreement or in relation to the clients, business or
affairs of the other party (or any member of its respective group) and shall not use or
disclose such information or any information derived from such information except
with the consent of the other party. The restriction in this clause shall not apply to
any information:
18.1.1
which is publicly available or becomes publicly available through no act of
the parties;
18.1.2
which was in the possession of the parties prior to its disclosure;
18.1.3
which is disclosed to that party by a third party which did not acquire the
information under an obligation of confidentiality;
18.1.4
which is independently acquired by that party as the result of work carried
out by an employee to whom no disclosure of such information had been
made; or
18.1.5
which is disclosed in accordance with the requirements of law, any stock
exchange regulation or any binding judgment, order or requirement of any
court or other competent authority.
18.2
The provisions of this clause shall survive any termination of this Agreement.
19
RISK AND INSURANCE
19.1
For the avoidance of doubt, the carrying out of the Maintenance Works, by or on
behalf of the Sharing Licensee is at the risk of the Sharing Licensee.
19.2
Each party shall maintain adequate and proper insurance cover with a reputable
insurer throughout the Term as follows:
19.3
19.2.1
in the case of the Sharing Licensee, public liability insurance and
insurance to cover death or personal injury to third parties; and cover in
respect of damage to third party property (real or otherwise) (including,
without limitation, the Owning Licensee’s Infrastructure, the Structure
and the Telecommunications Equipment of third parties) in the minimum
sum of [
] per event;
19.2.2
in the case of the Owning Licensee public liability insurance and
insurance to cover deaths or personal injury to third parties, and cover in
respect of damage to third party property (real or otherwise) (including
without limitation the Structure and the Apparatus) in the minimum sum of
[
] per event.
Each party will produce evidence to the other on request of the insurance policies
set out in clause 19.2.
15
19.4
Each party warrants that nothing has or will be done or be omitted to be done which
may result in any of the insurance policies set out in clause 19.2 being or becoming
void, voidable or unenforceable.
20
MISCELLANEOUS MATTERS
20.1
This Agreement comprises the entire agreement between the parties with respect to
the Site, the Structure and the Owning Licensee’s Infrastructure and supersedes
and replaces all prior communications, drafts, representations, warranties,
stipulations, undertakings and agreements of whatsoever nature, whether oral or
written, between the parties relating to the same. Nothing in this clause will operate
to exclude or limit either party’s liability for fraudulent misrepresentation.
20.2
Failure or delay by any party in exercising any right or remedy under this Agreement
will not in any circumstances operate as a waiver of it, nor will any single or partial
exercise of any right or remedy in any circumstances preclude any other or further
exercise of it or the exercise of any other right or remedy.
20.3
No waiver by a party of a failure by the other party to perform any provision of this
Agreement operates or is to be construed as a waiver in respect of any other failure
whether of a like or different character.
20.4
The rights and remedies expressly provided for by this Agreement will not exclude
any rights or remedies provided by law.
20.5
A variation of this Agreement is valid only if it is in writing and signed by or on behalf
of each party.
20.6
For the avoidance of doubt the relationship between the parties shall not be
construed as one of legal partnership.
21
NOTICES
21.1
Any formal notice to be given by either party to the other in connection with this
Agreement shall be given in writing signed by or on behalf of the party giving it. It
shall be delivered by hand or sent by prepaid recorded delivery, special delivery or
registered post to the address specified in clause 21.3.
21.2
In each case it shall be marked for the attention of the relevant party in (or as
otherwise notified from time to time). Any notice given by hand delivery or post shall
be deemed to have been duly given:
21.2.1
if hand delivered, when delivered; and
21.2.2
if sent by recorded delivery, special delivery or registered post, at 10am
on the second Business Day from the date of posting,
unless there is evidence that it was received earlier than this and provided that,
where (in the case of delivery by hand) the delivery or transmission occurs after 6pm
on a Business Day or on a day which is not a Business Day, service shall be
deemed to occur at 9 am on the next following Business Day. References to time in
this clause are to local time in the country of the addressee.
21.3
The addresses and names for the purpose of clause 21.1 are:
Owning
Licensee:
attention of:
For
the
Address:
16
Sharing
Licensee:
attention of
For
the
Address:
22
ENFORCEMENT BY THIRD PARTIES
This Agreement is enforceable by the original parties to it, and by their successors in
title and permitted assigns and transferees.
23
ASSIGNMENT AND SUBCONTRACTING
23.1
Subject to clause 23.3 neither party may assign, transfer, charge, delegate or
otherwise deal with any of its rights or obligations under this Agreement without the
written consent of the other party such consent not to be unreasonably withheld.
23.2
The Sharing Licensee shall not purport to underlet, part with or share possession or
occupation or grant licences to use or occupy the whole or any part of the Site or the
Structure or the Facilities.
23.3
Subject to written notification either party may assign or transfer its rights or
obligations under this Agreement to a Group Company of equivalent financial
standing.
23.4
Neither party to this Agreement may sub-contract to any third party the performance
of any or all of its obligations under this Agreement in whole or in part without the
prior written consent of the other, such consent not to be unreasonably withheld and
provided further that that party shall in any event remain liable for the performance
of such obligations.
24
COSTS
24.1
The Sharing Licensee shall pay all reasonable and properly incurred costs, charges
and expenses (including solicitor’s costs and surveyor’s fees) incurred by the
Owning Licensee:
24.1.1
in connection with any application for consent made necessary by this
Agreement (including where consent is lawfully refused or the application
is withdrawn); or
24.1.2
in connection with the remedying of any breach of the Sharing Licensee’s
obligations or undertakings in this Agreement.
25
DISPUTE RESOLUTION
25.1
Subject to any dispute resolution procedures set out in the Wireless
Telecommunications Network Facility Sharing Regulation that may apply, any
dispute arising between the Owner and the Sharer concerning this Agreement (a
“Dispute”) shall be determined in accordance with the procedures set out in Article
13 of the Wireless Telecommunications Network Facility Sharing Regulation.
25.2
The parties shall continue to comply with their respective obligations under this
Agreement during a Dispute.
25.3
In this clause:
25.3.1
“Civil and Commercial Procedural Law” means the law promulgated
by Legislative Decree No. 12 of 1971, as amended;
17
25.3.2
“ICC ADR Rules” means the International Chamber of Commerce ADR
Rules in force as from 1 July 2001; and
25.3.3
“Representative” means each party’s representative set out at clause
21.3 or such other representative as each party may notify the other in
writing from time to time.
25.4
If a Dispute arises between the parties, then either party may by written notice to the
other party refer the Dispute to the Representative of each party, or a nominee of
the Representative, to resolve the Dispute. The parties must first refer any Dispute
to the Representatives before pursuing any other dispute resolution procedure. The
Representatives must confer and endeavour in good faith to resolve the Dispute by
negotiating a commercial settlement.
25.5
If the Dispute remains unresolved ten (10) Business Days after referral to the
Representatives under clause 25.4, then either party may by written notice to the
other party, refer the dispute to the Chief Executive Officer of each party, or a
nominee of the Chief Executive Officer, who must confer and endeavour in good
faith to resolve the General Dispute by negotiating a commercial settlement.
25.6
If the Dispute remains unresolved ten (10) Business Days after referral to the Chief
Executive Officers of the parties under clause 25.5, then either party may submit the
Dispute to settlement proceedings under the ICC ADR Rules.
25.7
If:
25.7.1
the Dispute has not been settled pursuant to the ICC ADR Rules within
forty-five (45) days following the filing of request by either party for
settlement under the ICC ADR Rules, or within such other period as the
parties may agree in writing; or
25.7.2
neither party submits the Dispute to settlement under the ICC ADR Rules
within fifteen (15) Business Days of the referral of the Dispute to the Chief
Executive Officers,
then either party may by written notice to the other party refer the Dispute for final
resolution by compulsory arbitration by three (3) arbitrators in accordance with the
Civil and Commercial Procedures Law, provided that the parties agree that the
arbitration and its proceedings (except where required by the Civil and Commercial
Procedures Law) shall be conducted in English.
26
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Kingdom of Bahrain.
27
COUNTERPARTS
This Agreement may be executed in counterpart each of which shall be an original
but all of which together constitute one and the same instrument.
28
SEVERABILITY
If at any time any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, that provision may be
severed from this Agreement and its illegality, invalidity or unenforceability shall not
affect or impair:
(a)
the legality, validity or enforceability in that jurisdiction of any other
provision of this Agreement; or
18
(b)
the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
19
SCHEDULE 1
Particulars
1
The Site:
(describe in full the Site over which the
Owning Licensee has a Site Lease) all as
shown for identification purposes only on a
Plan
2
The Structure:
[identify and describe the Structure in
respect of which rights are to be granted]
[as shown on the Plan]
3
Annual Fee:
Site Rental
[
]
Tower Rental
[
]
[AMOUNT] per annum
4
Annual Fee Commencement
Date:
[Date/Effective Date]
5
Term:
From and including the Effective Date to
and including [
]
6
[Site Access Rules]:
7
[requirements of Grantor as to
use of Site/Facilities]:
8
Termination Rights:
Any additional rights of termination in the
Site Lease
20
SCHEDULE 2
Schedule 2
Facilities
The Facilities to be provided to the Sharing Licensee by the Owning Licensee are as
follows:
1
The right, license and authority to keep at the Site and on the Structure throughout
the Term:-
1.1
the Sharing Licensee’s Apparatus in accordance with the details set out in the “as
built” drawings attached at Schedule 4;
1.2
any Additional Sharing Licensee’s Apparatus in accordance with the details set out
in the drawings describing the same as have been approved by the Owning
Licensee pursuant to clause 5.4.
2
The right, license and authority to use the Owner Infrastructure throughout the
Term:-
2.1
for the Sharing Licensee’s Apparatus in accordance with the details and the “as
built” drawings attached at Schedule 4; and
2.2
for any Additional Sharing Licensee’s Apparatus in accordance with the specification
drawing plan and method statement as having been approved by the Owning
Licensee pursuant to clause 5.4
3
The right to use the Structure for the installation of the Apparatus.
4
The right to access the Site and/or the Structure in accordance with clause 5.1.
5
The right to install a fibre, copper, coaxial cable or wire to and through the Site over
a route to be agreed.
6
The right to install a power supply from the electricity supply or distribution
company’s transformer to the cabin for any part of the Apparatus.
7
The right to have a generator on Site from time to time.
21
SCHEDULE 3
Schedule 3
[TO BE AGREED BY THE PARTIES]
Part 1 – Owning Licensee’s Infrastructure
[List of the Owning Licensee assets and infrastructure installed at the Site and on the
Structure]

reinforced concrete base;

steel work/gantry on the Structure, (including feeder gantry and trays);

[
]

[
]

[
]
22
SCHEDULE 4
Schedule 4
The Sharing Licensee’s Apparatus
Part 1
The Sharing Licensee’s Apparatus installed at the Site:

Cabin for BTS

BTS and associated electronics

Antennas

microwave dish

feeder cables between Site and Antennas
[NB to users – the above list are examples of Sharing Licensee’s Apparatus.
Part 2
“As Built” Drawings
[Insert copy of “As Built” drawings here]
23
SCHEDULE 5
Schedule 5
Plan
Attach Plan to scale showing:

the Site edged in red showing boundary and any route for cables;

the Structure;

the Access Route hatched in brown, [incorporating a parking area];
24
SCHEDULE 6
Schedule 6
Access Services
Part 1
(a)
Provision of a 24 hour 7 day a week single point of contact to log/manage/monitor
requests for access to Sites in accordance with clause 5 and general queries.
(b)
Where access to a Site is required [contact Grantor and] arrange access, advise the
Sharing Licensee of any specific requirements and liaise with the Sharing Licensee
as necessary.
(c)
Where access to a Structure is required arrange access to the Structure and liaise
with the Sharing Licensee as necessary.
(d)
Liaise with Grantor as necessary during the carrying out of any works and complete
and agree any damage claims.
(e)
Check and confirm that any Sharing Licensee contractors are suitably trained and
qualified to access the Structure.
Part 2
Access Services Fees
(a)
Attendance at Site by technician or engineer to supervise/set contractors to work on
the Structure.
(b)
Attendance at Site by a [Wayleave officer] as necessary to agree access or damage
claim or as required during the carrying out of the works.
JOB TYPE
HOURLY RATE
Normal
Overtime
Technician
[ ]
[ ]
Engineer
[ ]
[ ]
Wayleave Officer
[ ]
[ ]
_
Weekend
Overtime Rates
.,
[ ]
25
SCHEDULE 7
Schedule 7
Review of Annual Fee
[Select appropriate review provisions –
[Index linked Annual Fee review calculated by reference to a formula]
1
DEFINITIONS
In this Schedule the following expressions shall have the following meanings except
where inconsistent with the context:
“Base Figure” means the Index figure for the month immediately preceding the
Effective Date;
“Current Figure” means the Index figure for the month preceding the relevant
Review Date;
“Index” [means the Consumer Price Index published by the Ministry of Industry and
Commerce of Bahrain or any successor Ministry, Department or Government
Agency];
“Initial Annual Fee” means the annual fee stated in Schedule 1; and
“Review Date” means [INSERT FIRST REVIEW DATE] [and [INSERT
SUBSEQUENT REVIEW DATES]] and any other date when the Annual Fee may be
reviewed under this Agreement and the expression “relevant Review Date” shall be
construed accordingly.
2
REVIEW OF ANNUAL FEE
The Annual Fee payable under this Agreement with effect from each Review Date
shall be the greater of:
2.1
the Annual Fee payable under this Agreement immediately before the relevant
Review Date (disregarding any suspension of the Annual Fee); and
2.2
the revised Annual Fee calculated in accordance with the following formula:
R  A  CB
Where:
R is the revised Annual Fee
A is the Initial Annual Fee
C is the Current Figure, and
B is the Base Figure.
3
NOTICE OF REVISED ANNUAL FEE
The Owning Licensee shall give written notice to the Sharing Licensee of the Annual
Fee payable with effect from the relevant Review Date.
4
CHANGES TO THE INDEX
4.1
If the reference base used to compile the Index shall change after the date of this
Agreement the figure taken to be shown in the Index after the change shall be the
26
figure which would have been shown in the Index had the reference base current at
the date of this Agreement been retained
4.2
If:
4.2.1
publication of the Index ceases; or
4.2.2
it becomes impossible by reason of the circumstances referred to in
paragraph 4.1 or any other change after the date of this Agreement in the
methods used to compile the Index or for any other reason whatever to
calculate the Annual Fee payable from any Review Date by reference to
the Index; or
4.2.3
any dispute should arise as to the amount of Annual Fee payable from
any Review Date,
then the matter shall be determined by an expert to be appointed either by
agreement between the parties or, in the absence of agreement, on the application
of either party by the General Director for the time being of the TRA (or any person
authorised by him to make appointments on his behalf).
4.3
The expert appointed in accordance with paragraph 4.2 shall have full power to
determine, on such dates as he considers appropriate, what would have been the
increase in the Index had it continued on the basis assumed for the operation of this
Schedule and in view of the information assumed to be available for it. If that
determination is also impossible or impracticable then the expert must determine a
reasonable fee on such date as he considers appropriate, having regard to the
purposes and intent of the provisions in this Agreement for the review of the Annual
Fee.
[OR OPEN MARKET REVIEW]
1
DEFINITIONS
In this Schedule the following expression shall have the following meanings except
where inconsistent with the context:
“Open Market Rent” means the annual fee at which the Owning Licensee’s Site
could reasonably be expected to attract as a whole at the relevant Review Date in
the open market:
(a)
by a willing licensor to a willing licensee; and
(b)
otherwise on the same terms as this Agreement, except as to the amount
of the Annual Fee,
assuming that:
(c)
the Site and the Owning Licensee’s Infrastructure are in a safe and good
state of repair and condition and if damaged or destroyed that they have
been reinstated;
(d)
the Site is fit and ready for immediate occupation and use by the willing
Sharing Licensee;
(e)
the Sharing Licensee has fully complied with its obligations in this
Agreement;
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(f)
the Site can, in its assumed state, be lawfully used by the willing licensee
for the running of a telecommunications network;
(g)
any consents or licences current or required at the relevant Review Date
are available to the willing licensee;
but disregarding:
(h)
any use of the Site by the Sharing Licensee; and
(i)
the effect on Annual Fee of any works carried out by the Sharing
Licensee before or during the Term, with the consent (if required) of the
Owning Licensee, at the cost of the Sharing Licensee, and not pursuant
to an obligation owed by the Sharing Licensee to the Owning Licensee.
“Review Date” means [INSERT FIRST REVIEW DATE] [and [INSERT
SUBSEQUENT REVIEW DATES]] and any other date when the Annual Fee may be
reviewed under this Agreement and the expression “relevant Review Date” shall be
construed accordingly.
2
DETERMINATION OF REVISED ANNUAL FEE
2.1
The Annual Fee will be reviewed at each Review Date, and from each Review Date
the Annual Fee will be the higher of the Annual Fee payable immediately before the
relevant Review Date and the Open Market Rent at the relevant Review Date.
2.2
If the Owning Licensee and the Sharing Licensee have not agreed the Open Market
Rent three months before the relevant Review Date, either may require it to be
determined by a “Surveyor”, who shall be an independent chartered surveyor
appointed jointly by the Owning Licensee and the Sharing Licensee or, if they do not
agree on the identity of such surveyor, by the General Director for the time being of
the TRA (or any other officer authorised to carry out that function) on the application
of either the Owning Licensee or the Sharing Licensee in accordance with this
Agreement.
2.3
The Owning Licensee and the Sharing Licensee may agree the level of the Open
Market Rent at any time before the Surveyor has determined it.
2.4
The Surveyor will act as an expert in which case the decision of the Surveyor will be
final and binding.
2.5
If the Surveyor dies, or gives up the appointment, or fails to act in accordance with
this paragraph 2, or it becomes apparent that the Surveyor is or will become unable
so to act, the Owning Licensee and the Sharing Licensee may make a further
appointment of, or application for, a substitute Surveyor.
2.6
The costs of appointment and fees of the Surveyor shall be paid in such proportions
as the Surveyor directs, or if no such direction is made, then equally by the Owning
Licensee and the Sharing Licensee.
3
GENERAL
3.1
If the revised Annual Fee has not been agreed or determined before the relevant
Review Date, then the Annual Fee shall continue to be payable at the rate payable
immediately before the relevant Review Date and within 10 Business Days after the
revised Annual Fee has been agreed or determined the shortfall, if any, between the
Annual Fee paid and the revised Annual Fee for the period from the relevant Review
Date until the next Due Date will become due together with interest on that shortfall
at the base rate from time to time of [
] Bank.
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3.2
Following the agreement of the revised Annual Fee after each Annual Fee review,
the Owning Licensee, the Sharing Licensee and any Guarantor shall sign a
memorandum recording the revised level of the Annual Fee.
3.3
Time will not be of the essence in relation to this Schedule.
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