THIS COMMUNICATIONS SITE LISENCE
AGREEMENT (This “License Agreement”) is dated this 11th
day of June 2003 (herein, the “Effective Date”), by and between Frontier
Radio Inc. (“Licensor”) and SkyBridge Wireless, Inc.
(“Licensee”).
WHEREAS, licensor desires to
license to Licensee, and Licensee desires to license from Licensor, all upon the terms and
conditions set forth herein, certain space on a tower operated by Licensor upon which
Licensee has mounted, or intends to mount, one or more antennas owned and/or operated by
licensee, together with related and ancillary equipment, and certain space within a
building owned or leased by Licensor in which Licensee intends to install other equipment
and devices used in connection with the operation of the antennas; and
WHEREAS, the parties
acknowledge that, although this agreement was facilitated by Frontier Radio, Inc
(“Frontier”), and Frontier manages the premises on behalf of the Licensor, this
agreement is between Licensee and Licensor only, and Frontier is not a party to this
agreement.
NOW, THEREFORE, for and in
consideration of the premises and the terms and mutual promises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Licensor and Licensee hereby agree as follows:
| |
1. |
Definitions.
In addition to all other terms defined herein, the following
terms shall have the following meanings: |
| |
a. |
“Governmental Authority” means any federal, state or
local governmental, quasi-governmental, administrative, regulatory division or
authority with legal, administrative or regulatory authority over any person
with respects to the application, administration and/or enforcement of Rules and
Regulations. |
| |
b. |
“License Agreement” means this Communications Site
License Agreement and any and all subsequent amendments, extensions, supplements
and modifications hereto or hereof. |
| |
c. |
“Occupant” means any person from the time entitled to
the use and occupancy of any portion of the property under an ownership right or
any lease, sublease, license, concession, or other similar agreement. |
| |
d. |
“Permittee” means all occupants and the officers,
directors, employees, agents, contractors, customers, guests, patrons, venders,
suppliers, visitors, invitees and licensees of Occupants insofar as their
activities relate to the intended development, use and occupancy of the
Property. |
| |
e. |
“Person” means any individual, partnership, firm
association, corporation, trust, limited liability company or any other form of
business or government entity. |
| |
f. |
Rules and Regulations” means all laws, statutes, codes,
rules, regulations, restrictions, ordinances, consents, approvals and other
requirements imposed or granted by an applicable Governmental Authority. |
| |
a. |
Licensor hereby grants to Licensee the following rights (collectively, the
“License”); (i) a limited non-exclusive license to install,
maintain and operate Licensee’s wireless communications equipment and
appurtenances on a tower owned and/or operated by Licensor (the
“Tower”), including one or more antennas at a centerline height
of forty five (45) feet above ground level on the Tower, which is located on
certain real property owned or leased by Licensor and more particular described
on Exhibit “A” attached hereto and incorporated herein by this
reference (the “Property”), and (ii) a limited non-exclusive
license to install, maintain, operate and otherwise use Licensee’s
equipment cabinet or compound and related devices owned by Licensee within a
space consisting of a four (4) square feet portion of the property identified as
the operation site on Exhibit “B” attached hereto (the space in
which the operations site is to be occupied by Licensee on the Property and the
Tower are hereinafter referred to collectively as the “Premises”.) |
| |
b. |
Licensor also grants Licensee, in common with other Permittees entitled to use
the same, a non-exclusive reasonable right of access to the Premises twenty-four
(24) hours per day, seven (7) days per week during the Term (as hereinafter
defined) for the purpose of installing and maintaining the equipment (as
hereinafter defined). The access is subject to revocation by Licensor at any
time and from time to time to exclude and restrain any Person who is not a
Permittee from accessing the Premises, as well as other provisions contain in
the agreement. |
| |
c. |
The Premises are delivered in an “AS IS” condition by Licensor.
Licensee acknowledges and agrees that it has visited and inspected the Premises
and hereby accepts the physical condition thereof. Licensee further acknowledges
that no representation or warranties have been made to Licensee or Licensor as
to the condition or suitability of the Premises, including the Tower, or as to
any engineering or other operational data. Licensee is solely responsible for
determining all aspects as the suitability, acceptability, accuracy and adequacy
of the Premises for the Licensee’s intended use. |
| |
d. |
Licensor shall have the right, with no less than thirty (30) days’ prior
written notice to Licensee, to require Licensee to relocate the Premises to
another area within the property, at Licensee’s sole cost expense,
provided, however, that the area to which the Premises are relocated, whether in
the building or on the Tower, shall be substantially similar in size and
functionality to the Premises. |
| |
3. |
Use. Licensee shall use the Premises solely for the receipt
and transmission of wireless communications signals. The use granted Licensee by
this License shall be non-exclusive and is limited in accordance with the terms
and conditions of this License Agreement. |
| |
4. |
Term. The Term of this license shall be for a period of six
(6) months, commencing on the earlier to occur of the first day of July, 203 or
the date on which Licensee commences installation of the Equipment (as hereafter
defined) (the earlier of such dates is herein, the “Commencement
Date”), and expiring on the six month anniversary of the Commencement
Date (the “Term”). Licensee agrees to provide immediate written
notice to Licensor of Licensee’s commencement of the installation of the
equipment. |
| |
5. |
No Renewal Terms No right to renewal Terms are granted
herein. Licensee agrees and understands that this License Agreement
shall expire in accordance with Section 4 above and Licensee shall have no
rights to renew this License Agreement unless Licensor and Licensee
enter into a separate agreement or this License Agreement is amended in
writing. |
| |
a. |
During the Term, Licensee shall pay to licensor the sum of One Thousand Eight
Hundred and 00/100 Dollars ($1,800.00) (the “Fee”), to be paid
in equal monthly installments of and Three Hundred and 00/100 dollars ($300.00),
On the first day of each month in advance to Licensor at Licensor’s address
as specified herein. |
| |
b. |
Appropriate proration shall be made if the Term does not commence on the first
day of a calendar month, or if the date of termination of the License Agreement
is not the last day of a calendar month. All payments of the Fee shall be made
by Licensee without deduction or offset or prior notice or demand from Licensor.
Any payment of the Fee or other amount due hereunder not received by Licensor
within ten (10) days of the date when due shall be subject to a late payment
charge of ten percent (10%) OF THE AMOUNT WHICH IS OVERDUE. |
| |
7. |
Conditions. The parties’ obligations under this
License Agreement are subject to the continuing satisfaction by Licensee that it
shall secure and maintain all appropriate and required approvals for
Licensee’s intended use of the Premises from the Federal Communications
Commission (the “FCC”), the Federal Aviation Administration
(the “FCC”) and any other Governmental Authority having
jurisdiction over Licensee’s proposed use of the Premises. Licensee’s
inability (following all reasonable efforts) to successfully satisfy these
conditions or the occurrence of any other event which effective prohibits
Licensee’s intended use of the Premises shall relieve Licensee and Licensor
from any obligation to perform under the License and Licensee shall remove the
equipment and vacate the Premises as soon thereafter as reasonably practicable,
but in no event later than ten (10) days thereafter. In the event that the
Equipment is not removed within such time period, then Licensee shall be liable
to pay to Licensor the Holdover Equipment Fee (as defined in paragraph 8b) from
and after the expiation of such time period until the equipment is removed. |
| |
8. |
Improvement
by Licensee |
| |
a. |
Plans, Structural Analysis and RF Analysis. Prior to commencement of any
construction or installation of improvements on the Premises by Licensee,
Licensee shall furnish, for review and approval by Licensor, which approval
shall not be unreasonably withheld, delayed or conditioned, plans and
specifications which may be required by Licensor for such construction or
installation of such improvements. Prior to the installation of Licensee’s
Equipment or any substitutions, replacements or accessions thereto, Licensee
shall upon written request of the Licensor conduct a structural analysis and
wind load analysis of the Tower at Licensee’s sole cost and expense which
should include any existing loads and the projected load of Licensee’s
antennas, cabling and appurtenances. Prior to the installation of
Licensee’s Equipment on the Tower, upon the written request of the
Licensor, Licensee shall conduct at Licensee’s sole cost and expense a
radio frequency interference analysis (“RF Analysis”) of the
Equipment with all other equipment which is on the tower as of Commencement
Date. Licensee shall be solely responsible for and shall indemnify Licensor from
all reasonable costs and expenses associated with such structural analysis, RF
Analysis and the design and construction of platforms, antenna systems, cable
runs and any other modification of any type to the Premises. Licensee shall be
responsible for securing all building permits from any and all applicably
Governmental Authorities prior to commencement of any construction or
installation. Copies of the construction permit issued to Licensee shall be
provided to Licensor prior to the commencement of construction. All work
performed at the Property in connection with the installation or modification of
the Equipment and the work described in the subparagraph (a) shall be performed
by Licensee or by one or more contractors approved by Licensor, such approval
not to be unreasonably withheld or delayed. Licensee shall require all
contractors, as a condition to their engagement, to agree to be bound to
Licensee by provisions substantially identical to those included in this
Agreement, specifically those relating to the indemnification of Licensor and
insurance requirements. |
| |
b. |
Equipment Licensee’s communications system, including antennas,
radio equipment and operating frequency, cabling and conduits, shelter and/or
cabinets, and any other personal property owned or operated by Licensee, which
Licensee anticipates shall be located by Licensee on the Premises, is more
particularly described on Licensee’s collocation application, a copy of
which is attached hereto as Exhibit “C” (the
“Equipment”) Licensee shall attach Exhibit “D” to
this License Agreement, copies of all FCC operating licenses, other licenses and
permits which Licensee has been issued pertinent to this License Agreement. All
of the Equipment shall be clearly marked to show Licensee’s name, address,
telephone number and the name of the person to contact in case of emergency, FCC
call sign, frequency and location. All coaxial cable relating to the Equipment
shall be identified in the same manner at the bottom and top of the line, At
Licensor’s request, Licensee shall promptly deliver to Licensor written
proof of compliance with all applicable Rules and Regulations in connection with
the installation of the Equipment. Licensee shall not construct or install any
equipment or improvements on the Premises or operate any operating frequency
other than that described on Exhibit “C”. The Equipment shall
remain Licensee’s exclusive personal property throughout the Term and upon
termination of the License. Licensee shall have the right to remove all
Equipment and Licensee’s sole expense on or before the expiration or
earlier termination of the Licensee; provided that Licensee repairs any damage
to the Premises or the Tower caused by such removal, reasonable wear and tear to
pads, utilities, fixtures and similar items excepted. If Licensee does not
remove the Equipment on or prior to the expiration or termination of this
License Agreement, Licensee shall remove such Equipment within a reasonable
period after written notice from the licensor thereafter and shall pay the
Licensor an amount equal to one hundred and twenty-five percent (125%) of the
fee then in effect during such a hold over period during which any portion of
the Equipment is actually located on the Tower (the “Holdover Equipment
Fee”). |
| |
c. |
Compliance with Governmental Rules. Licensee shall provide all materials
and shall pay for all labor for the construction, installation, operation,
maintenance or repair of the equipment, and shall cause all such work to be
performed in a good and workmanlike manner and completed in a lien-free
condition. All construction, installations and operations in connection with
this License Agreement by Licensee shall meet with all applicable Rules and
Regulations of the FCC, FAA and all other applicable Governmental Authorities. |
| |
9. |
Utilities. All utility services installed on the premises
for the use or benefit of Licensee shall be made at the sole cost of and expense
of Licensee and shall be separately metered from the Licensor’s utilities.
In the event that Licensee requires an electric power supply and/or usage
different from that currently at the Property, then Licensee shall, at its sole
cost and expense, obtain such power supply. Any work performed in connection
with connecting such power supply to the Licensee’s Equipment shall comply
with all applicable Rules and Regulations. |
| |
10. |
Taxes and Assessments Except as provided immediately below,
Licensor shall pay all real property taxes and assessments Licensor is obligated
to pay with respect to the Property. Licensee shall reimburse Licensor for any
increases in such real property taxes. As a condition of Licensee’s
obligation to pay such Assessments, Licensor shall provide to Licensee the
documentation from the taxing authority, reasonably acceptable to Licensee,
indicating the increase is due to Licensee’s improvements. In the event any
sales, use or other tax shall he payable by Licensor in connection with this
License Agreement. Licensee shall reimburse Licenser on demand for such payments
or shall furnish necessary documentation to the appropriate Governmental
Authority to show that the payments hereunder shall be exempt from such sales,
use or other taxes. |
| |
11. |
Interference;
Emissions. |
| |
a. |
Licensee agrees not to install additional equipment of types and radio
frequencies which will cause material interference to normal communications
operations being conducted from the Property or the Tower by Licensor or other
occupants of the Premises which are in place as of the Commencement Date (the
“Pre-Existing Users”), Licensee covenants that the Equipment
installed by Licensee shall comply with all applicable laws, ordinances and
regulation, including but not limited to those regulations promulgated by the
FCC. In the event the Equipment causes such interference to Pre-Existing Users,
Licensee will take the steps necessary to correct and eliminate the
interference. If such interference cannot be eliminated with forty-eight (48)
hours after receipt by Licensee of notice from Licensor describing the existence
of the interference, Licensee or Licensor shall reduce or temporarily disconnect
the electric power to such levels to cancel interference and, if necessary, shut
down the Equipment until such interference is corrected. If it is determined
that any such interference cannot be rectified, then Licensor may, at its
option, terminate this License Agreement upon written notice the Licensee,
whereupon Licensee shall vacate the Premises and remove the Equipment at its
sole cost and expense as soon thereafter as reasonably practicable, but in no
event later than Ten (10) days thereafter. In the event that the Equipment is
not removed within such time period, then Licensee shall be liable to pay to
Licensor the Holdover Equipment Fee (as defined in paragraph 8(b)) from and
after the expiration of such time period until the Equipment is removed. |
| |
b. |
Licensor shall impose upon future licensees a duty to refrain from interfering
with Licensee which is similar to that set forth herein. However, in the event
that the operation of Licensee’s Equipment shall interfere with any other
radio communications systems and equipment installed at the Properly after the
date of Licensee’s initial installation of the Equipment or any future
modifications thereof, Licensee shall cooperate fully xxxx Licensor and any
future Occupant injured by Licensee’s interference (a “Future
Party”) to remedy the interference. Licensee shall do whatever Licensor
deems reasonably necessary to cure such interference, provided, however, that
all costs related to remedying such interference shall be the responsibility of
the Future Party, unless such interference is proven to be due to
failure, defects or deficiencies in Licensee’s systems or Equipment or the
installation thereof. |
| |
c. |
Licensee hereby acknowledges that Licensor has licensed, and will continue to
license, space at and upon the Property to third parties for the installation
and operation of radio communication facilities. Licensee accepts this License
Agreement with this knowledge and waives any and all claims against Licensor
resulting from or attributable to interference caused by present or future
equipment, facilities or methods of operation employed by Licensor is its
business on the Property. Licensee also waives any and all claims against
Licensor arising from interference resulting to Licensee by virtue of equipment,
facilities or operations employed by any other Pre-Existing User or Future Party
or other Occupant in its business upon the Property. In the event that any such
interference occurs that materially interferes with Licensee’s utilization
of the Premises, Licensee, as its sole remedy, in lieu of any and all other
remedies at law or in equity, may terminate this License Agreement at any time
thereafter by giving Licensor thirty (30) days’ prior written notice to
that effect, and such termination shall be effective at the end of such thirty
(30) day period; provided, however, that such termination will not be effective
if Licensor eliminates such interference within thirty (30) days of
Licensee’s termination notice. Licensee shall pay Licensor any Fees due for
the period up to the termination of this License Agreement. Any advance payments
of the Fee for periods after the termination of this License Agreement: will be
reimbursed to Licensee by Licensor within thirty (30) days of the effective date
of such termination. |
| |
d. |
Licensee hereby acknowledges that antenna power output (“RF
Emissions”) are presently subject to restrictions imposed by the FCC
for RF Emissions standards on Maximum Permissible Exposure
(“MPE”) limits. Licensee, at its sole cost and expense, shall
be solely responsible for causing the Equipment and Licensee’s activities
at the property to be in compliance with all applicable MPE limits and RF
Emissions, including, without limitation, performing any and all tests, analyses
and similar procedures to determine whether MPE limits are being exceeded at the
Premises. |
| |
12. |
Maintenance
and Repairs |
| |
a. |
Licensee shall perform all repairs and maintenance work necessary or appropriate
to the Equipment on or about the Premises or located on to the Premises in good
condition, reasonable wear and tear or other casualty excepted. |
| |
b. |
Licensor, at Licensor’s sole cost and expense, shall maintain the Tower,
and any other portion of the Property and improvements thereto in good order and
repair, wear and tear, the elements or other casualty excepted. Damage to the
Tower or the equipment or improvements of Licensor or others located on the
Property or the Tower which results from the acts or omissions of Licensee shall
be repaired by Licensee at Licensee’s sole cost and expense, or, at the
sole, option of Licensor, Licensee shall reimburse Licensor for the actual and
reasonable costs incurred as evidenced by adequate documentation in repairing
such damage or replacing such equipment or improvements. |
| |
13. |
Mechanics’ Liens. Licensee shall promptly discharge or
cause to be discharged any mechanics’ or materialmen’s liens or claims
of lien filed of otherwise asserted against the Property, the Premises, the
Tower or any funds due to any contractor arising from any work to be performed
by or on behalf of Licensee hereunder, and any proceedings for the enforcement
thereof. |
| |
a. |
Licensee shall indemnify, protect and hold Licensor and/or Frontier harmless
from (i) all costs of any damage done to Licensor’s or another
Occupant’s facilities or equipment located at the Premises that occur as a
result of the installation, operation or maintenance of Licensee’s
Equipment or other improvements: (ii) any claims, demands, or causes of action
for personal injuries, including any payments made under any workmen’s
compensation law or any plan of employee’s disability and death benefits,
arising out of Licensee’s occupancy of the Premises or the installation,
maintenance and operation or removal of Licensee’s Equipment, except only
such damages. Costs, claims, causes of action or demands caused solely by the
gross negligence or willful misconduct of Licensor or Frontier, as applicable. |
| |
b. |
Neither Licensor nor Frontier shall not be responsible or liable to Licensee for
any loss, damage or expense that may be occasioned by, through or in connection
with any acts or omissions of other Occupants or any other third parties
operating any equipment on or near the Premises. Licensee hereby assumes the
risk of the inability to operate as a result of any structural or power failures
at the Property or failure of Licensee or Licensee’s Equipment for any
reason whatsoever and agrees to indemnify and hold Licensor and/or Frontier
harmless from all damages and costs of defending any claim, or suit for damages
of any kind, including but not limited to, business interruption and
attorneys’ fees, asserted against Licensor and/or Frontier by reason of
such failure. |
| |
c. |
Licensee shall also indemnify, protect and hold Licensor and, or Frontier
harmless from any losses, liabilities, claims, demands or causes of action for
claims or liability arising from failure of the Premises to comply with
applicable MPE requirements with respect to RF Emissions standards under current
or future applicable Rules and Regulations. |
| |
d. |
Licensee shall also indemnify, protect and hold Licensor and/or Frontier
harmless from any losses, liabilities, claims, demands or causes of action for
property damage or personal injuries, including any payment made under any
worker’s compensation law or any plan of employees’ disability and
death benefits arising out of or resulting from any claims, damages,
losses, liabilities or causes of action resulting in any way from RF Emissions
from: Licensee’s Equipment or any other harmful effect of Licensee’s
Equipment. |
| |
15. |
Environmental Indemnification. Licensor has not been
subject to, or received any notice of, any administrative or judicial action, or
notice of any intended administrative or judicial action, or received a request
for information relating to the presence or alleged presence of hazardous
substances in, under, at or upon the Premises or the Property. Licensor hereby
covenants and agrees to protect, save, defend, indemnify and hold Licensee
harmless for, from and against any and all damages, losses, liabilities,
judgments. suits, proceedings, costs, disbursements or expenses (including,
without limitation, attorneys’ and experts’ reasonable fees and
disbursements) of any kind or of any nature whatsoever incurred by or asserted
or awarded against Licensee and arising from the presence of any hazardous
substances of the Premises as of the Effective Date. Licensee hereby covenants
and agrees to protect, save, defend, indemnify and hold Licensor and/or Frontier
harmless for, from and against any and all damages, losses, liabilities,
judgments, suits, proceedings, costs, disbursements or expenses (including,
without limitation, attorneys’ and experts’ reasonable fees and
disbursements) of any kind or of any nature whatsoever incurred by or asserted
or awarded against Licensor and/or Frontier, and arising from (i) the presence,
caused or permitted by Licensee of any hazardous substances on the Premises or
the Property, or (ii) the disposal, caused or permitted by Licensee, of any
hazardous substances from the Premises or the Property, or (iii) any violation,
caused or permitted by Licensee, of any environmental law, statute, ordinance,
rule or regulation. |
| |
a. |
Licensee shall carry during the Term of this License Agreement, at
Licensee’s sole cost and expense, the following insurance: (i) “All
kick” property insurance which insures Licensee’s property for such
property’s full replacement cost; and (ii) Comprehensive general liability
insurance, including blanket contractual and completed operations coverage,
having a minimum limit of liability of $2,000,000, with a combined limit for
bodily injury and/or property damage for any one occurrence of $3,000,000, and
(iii) excess/umbrella coverage of $10,000,000. Licensee shall name Licensor and
Frontier as an additional insured under Licensee’s policies of insurance. |
| |
b. |
Certificates
of insurance acceptable to Licensor shall be filed with Licensor prior to
the Commencement Date arid annually thereafter evidencing the required
coverages and limits. These Certificates shall contain a provision that
coverage afforded under the policies will not be cancelled, altered, or
amended or not renewed until at least thirty (30) days’ prior written
notice has been given to the Licenses and Frontier. |
| |
c. |
All
insurance required to be carried by Licensee hereunder shall be issued by
responsible insurance companies, qualified to do business in the State of
Nevada and reasonably acceptable to Licensor. Neither the issuance of any
such insurance policy nor the minimum limits specified in this paragraph
10 shall be deemed to limit or restrict in any way Licensee’s
liability arising under or out of this License Agreement. |
| |
d. |
To
the extent such waivers are obtainable from insurance carriers, Licensee and
Licensor waive their respective right of recovery against the other for
any direct or consequential damage to the property of the other including
its interest in the Premises and the Equipment by fire or other casualty
to the extent such damage is insured against under a policy or policies of
insurance. Each such insurance policy carried by either Licensor or
Licensee shall include such a waiver of the insurer’s rights of
subrogation. Such waiver shall in no way be construed or interpreted to
limit or restrict any indemnity or other waiver made by Licensee under the
terms of this License Agreement. |
| |
17. |
Destruction or Condemnation. Licensor and Licensee agree
that Licensor shall in no way be liable for loss or use or other damage of any
nature arising out of the loss, destruction or damage to the Premises or
licensee’s Equipment located thereon, by fire, explosion, windstorms, water
or any other casualty or acts of third parties. In the eventt he Premises or any
part thereof is damaged or destroyed by elements or any other cause, Licensor
may elect to repair, rebuild, or restore the Premises or any part thereof, to at
least the same condition as it was immediately prior to such casualty. In such
event, the Fee shall cease as of the date of such casualty until the Premises,
in Licensor’s opinion, is restored to a usable condition for
Licensee’s operations. If Licensor chooses not to repair, restore or
rebuild the Premises, Licensor shall send to Licensee a notice of cancellation
of this License Agreement within thirty (30) days of such casualty. If this
License Agreement is cancelled, the payments required herein shall terminate as
of the date of such casualty. |
| |
18. |
Default. The occurrence of any of the following, after the
expiration of any applicable cure or grace period without cure, shall constitute
a breach and material default (an “Event of Default”) of this
License Agreement by Licensee: |
| |
(i) |
The failure of Licensee to pay or cause to be paid when due the Fee or any
portion thereof or any other charges required by this License Agreement to be
paid by Licensee within ten ( 10) days after such payment is due; |
| |
(ii) |
The abandonment of the Premises and operation thereof by Licensee for a
consecutive period of sixty (60) days or more; or |
| |
(iii) |
The failure of Licensee to observe, perform or cause to be done any material
act, other than payment of monies, required by this License Agreement (except
for acts covered by any other provision of this paragraph 18(a)), within thirty
(30) days of receipt by Licensee of written notice from Licensor of such
failure; or |
| |
(iv) |
Licensee causing, permitting, or suffering, without the prior written consort of
Licensor, any act when this Agreement requires Licensor’s prior written
consent or prohibits such act; or |
| |
(v) |
The occurrence of any event of insolvency or bankruptcy with respect to
Licensee, including any of the following by way of illustration: |
| |
A. |
Any
general assignment or general arrangement for the benefit of creditors; |
| |
B. |
The
filing of any petition by or against Licensee to have Licensee adjudged a
bankrupt or a petition for reorganization or arrangement under any law
relating to bankruptcy, unless such petition is filed against Licensee and
the same is dismissed within sixty (60) days. |
| |
C. |
The
appointment of a trustee or receiver to take possession of substantially all
of the Licensee’s assets or of the Licensee’s interest in this
License Agreement; or |
| |
D. |
The
attachment, execution, or other judicial seizure of the Equipment,
substantially all of Licensee’s assets or of Licensees interest in
this License Agreement; or |
| |
(vi) |
The
failure of Licensee to maintain the insurance required to be maintained
pursuant to paragraph 16. |
| |
19. |
Remedies. Upon the occurrence of an Event of Default,
Licensor may, in addition to all other rights or remedies Licensor may have
hereunder or at law or in equity, (i) terminate the License and this License
Agreement by giving written notice of such termination to Licensee, (ii)
accelerate and declare to be immediately due and payable all Fees which would
have otherwise been due to Licensor absent an Event of Default hereunder, (iii)
terminate electrical power to the Equipment, and (iv) remove the Equipment
without being deemed liable for trespass or conversion and store the same at
Licensee’s sale cost. |
| |
20. |
Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing addressed to the respective
party as set forth below (or to such different address; as any party may from
time to time give notice of to accordance with the provisions of this Section)
and may be personally serviced, telecopied or sent by overnight courier or U.S.
Mail and shall be deemed given: (a) if served in person, when served; b) it
telecopied, on the date of transmission if before 5:00 p.m.. (Las Vegas time)
(any notice received after such time shall be deemed received on the next
business day)) provided that a hard copy of such notice is also sent pursuant to
clause (c) or (d) below; (c) if by overnight courier, on first business day
after delivery to the courier; or (d) if by U.S. Mail, on the fourth (4th) day
after deposit in the mail, postage prepaid, certified mail, return receipt
requested. |
|
If to Licensor:
If to Licensee: |
Frontier Radio
000 Xxxx Xxxxxxx Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
SkyBridge Wireless, Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000 |
| |
21. |
Assignment
and Sublicensing |
| |
a. |
Notwithstanding anything to the contrary contained in this License Agreement,
Licensee shall not assign, convey, pledge, encumber or otherwise transfer this
License Agreement or any interest herein or license, sublicense, grant any
concession or otherwise give permission to any one other than Licensee to
occupy the Premises, operate the Equipment or enjoy any benefit of or arising
under this License Agreement without the prior written consent of Licensor. Any
attempted assignment, conveyance, pledge, encumbrance, transfer, license or
concession agreement without Licensor’s prior written consent thereto shall
be void and confer no rights upon any third person. The sale, assignment,
transfer, or disposition, whether for value, by operation of law, gift, will or
intestacy, of (i) twenty-fire percent (25%) or more of the issued and
outstanding stock of Licensee if Licensee is a corporation, or (ii) the interest
of any general partner, joint venture, associate or co-tenant, if Licensee is
partnership, joint venture, association or cotenancy, shall be deemed an
assignment of this License Agreement under this paragraph 21. |
| |
b. |
In the event of any assignment of this License Agreement whether consented to be
Licensor or otherwise, Licensee shall remain primarily liable on its covenants
hereunder. In the event of an assignment the assignee shall agree in writing to
perform and be bound by all of the covenants of this License .Agreement required
to be performed by Licensee. |
| |
a. |
The waiver by either party of any breach of any term, provision, covenant or
condition contained in this License Agreement, or the failure of such party to
insist on the strict performance by the other party, shall not be deemed to be a
waiver of such term, provision, covenant or condition as to any subsequent
breach thereof or of any other term, covenant or condition contained in this
License Agreement. The acceptance of payments of the Fee hereunder by Licensor
shall not be deemed to be a waiver or any breach of default by Licensee of any
term, provision, covenant or condition herein, regardless of Licensee’s
knowledge of such breach or default at the time of acceptance of such Fee
payments. |
| |
b. |
All covenants and agreements to be performed by Licensee under any of the terms
of this License Agreement shall be performed by Licensee at Licensee’s sole
expense and without abatement of the Fee or any portion thereof. If Licensee
shall fail to observe and perform any covenant, condition, provision or
agreement contained in this License Agreement or shall fail to perform any other
act required to be performed by Licensee, Licensor may, upon notice to Licensee,
but without any obligation whatsoever, and without waiving or releasing Licensee
from any default or obligations of Licensee, make any such payment or perform
any such obligation on Licensee’s part to be performed. All sums so paid by
Licensor and all costs incurred by Licensor, including reasonable
attorneys’ fees, shall be payable to Licensor on demand and Licensee
covenants to pay any such sums. |
| |
c. |
This License Agreement along with any exhibits and attachments or other
documents affixed hereto, or referred to herein, constitutes the entire and
exclusive agreement between Licenser and Licensee with respect to the Premises
and the operation thereof by Licensee hereunder. This License Agreement and said
exhibits and atachments and other documents may be altered, amended, modified or
revoked only by an instrument in renting signed by both Licensor arid Licensee.
Licensor and Licensee hereby agree that all prior or contemporaneous oral
understandings, agreements or negotiation is relative to the Premises and the
operation thereof are merged into and revoked by this instrument. |
| |
d. |
Subject to the provisions of paragraph 31 relating to assignment, this License
Agreement is intended to and does bind the heirs, executors, administrators,
successors and permitted assigns of any and all of the parties hereto. |
| |
e. |
If any term or provision of this License Agreement, the deletion of which would
not adversly affect the receipt of any material benefit by
either party hereunder, shall be held invalid or unenforceable to any extent,
the remaining terms, conditions and covenants of this License Agreement shall
not be affected thereby and each of said terms, covenants and conditions shall
be valid and enforceable to the fullest extent permitted by law. |
| |
f. |
Time is of the essence of this License Agreement and each provision hereof in
which time of performance is established |
| |
g. |
This License Agreement shall be governed by, interpreted and construed in
accordance with the laws of the State of Nevada. |
| |
h. |
If any action or proceeding is brought by Licensor or Licensee to enforce its
respective rights under this License Agreement, the unsuccessful party therein
shall pay all costs incurred by the prevailing party therein, including
reasonable attorneys’ fees to be fixed by the court. |
| |
i. |
This License Agreement creates a license only and Licensee acknowledges that it
does not and shall not claim at any time any real property interest or estate of
any kind or to any extent whatsoever in the Property, Premises or the Tower by
virtue of this License Agreement or Licensee’s use of the Premises pursuant
hereto. Notwithstanding any provision of this License .Agreement Licensor does
not by this License Agreement, in any manner nor for any purpose, become a
partner or joint venture of Licensee in the conduct of its business or
otherwise. |
IN WITNESS WHEREOF, the undersigned
parties by and through their duly authorized officers or representatives
|
|
Frontier Radio Inc
BY: /s/ Xxxxx X Xxxxxxxx Xx
——————————————
Xxxxx X Xxxxxxxx Xx
Treasurer
Skybridge Wireless, Inc
BY: /s/ Xxxxx Xxxxxxxxx
——————————————
Xxxxx Xxxxxxxxx
President |
Communications Site
License Agreement
Exhibit “A”
Property Description
|
|
| Site Name: |
Frontier Radio, Inc. |
| Site Location: |
270 East Pamalyn |
| Coordinates: |
North: 36 04 01 |
| |
West: 115 09 39 |
Communications Site License
Agreement
Exhibit “B”
Space configuration
Communications Site
License Agreement
Exhibit “C”
Equipment
Type of Antenna
|
Antenna #1
|
Antenna #2
|
| Antenna Quality |
1 |
1 |
| Receive or Transmit |
RX/TX |
RX/TX |
| Manufacture |
Proxim |
Proxim |
| Type of Antenna |
Directional |
Directional |
| Model # |
48001-001 |
48001-001 |
| Antenna Weight |
10lbs |
10lbs |
| Antenna Dimensions |
10.5Wx10.5Hx7" |
10.5Wx10.5Hx7" |
| Antenna Mount Height |
| Rad Center AGL |
| Mount Type |
Pole Mount |
Pole Mount |
| Tower Lag |
| Direction of Radiation |
North |
East |
| TX Frequency |
5742.19MHz |
5806.10MHz |
| RX Frequency |
5742.19MHz |
5806.10MHz |
| Receive Band of Freq |
5725-5825MHz |
5725-5825MHz |
| Transmit Band of Freq |
5725-5825MHz |
5725-5825MHz |
| Antenna Gain |
20dBi |
20dBi |
| # of Lines per Antenna |
1 |
1 |
| Line Type |
Ethernet |
Ethernet |
| Line Diameter |
1/8" |
1/8" |
| Call Sign(s) |
N/A |
N/A |
| Manufacturer |
Proxim |
Proxim |
| Type & Model |
48001-001 |
48001-001 |
| Type of Service |
Digital |
Digital |
| Rack/Cabinet Dimensions |
N/A |
N/A |
| TX Frequency |
5742.19MHz |
5806.10MHz |
| TX Power Output (Xxxxx) |
31.6mW |
31.6mW |
| RX Frequency |
125dB |
125dB |
| Licensed ERP |
450mA |
450mA |
| Actual Power Consumption |
Outlet Access |
Outlet Access |
| Electric Service Required |
110 VAC 1 AMP |
110 VAC 1 AMP |
| # of Outlets |
1 |
1 |
| Combiner # of Xxxxx |
N/A |
N/A |
Communications Site
License Agreement
Exhibit “D”
FCC Operating Licenses
