THIS
COMMUNICATIONS SITE LICENSE AGREEMENT (“License Agreement”) is dated this
25th day of 9, 2002 (herein, the
“Effective Date”), by and between Rio Properties, Inc. (“Licensor”)
and SkyBridge Wireless, LLC, a Nevada Corporation (“Licensee”).
WHEREAS,
Licensor desires to lease to Licensee, and Licensee desires to lease 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 Licensor, this
Agreement is between Licensor and Licensee 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, Licenser and Licensee hereby agree as follows:
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1. |
Definitions: In addition to all other terms defined herein,
the following terms shall have the following meanings: |
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a) |
Governmental Authority” means any federal, state, and local governmental,
quasi-governmental, administrative, regulatory division or authority with legal,
administrative or regulatory over any Person with respect to the application,
administration and/or enforcement of Rules and Regulations. |
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c) |
“Occupant” means any person from time to 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. |
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d) |
“Permittee” means all Occupants and officers, directors, employees,
agents, contractors, customers, guests, patrons, vendors, suppliers, visitor,
invitees and licensees of Occupants insofar as their activities relate to the
intended development, use and occupancy of the Property. |
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e) |
“Person” means any individual, partnership, firm association,
corporation, trust, limited liability company or any other form of business or
government entity. |
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f) |
“Rules and Regulations” means all laws, statutes, codes, rules,
regulations, restrictions, ordinances, consents, approvals and other
requirements imposed or granted by any applicable Governmental Authority. |
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a) |
Licensor hereby grants to licensee the following rights: (collectively, the
“Licensee”); (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 250 feet above ground level on
the Tower, which is located on certain real property owned or leased by Licensor
and more particularly 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, remove and otherwise
use Licensee’s equipment cabinet or compnd and related devices owned by
Licensee within a space consisting of a four (4) square foot portion of the
Property identified as the operations site on Exhibit “B”
attached hereto (the space in which the operations site to be occupied by
Licensee on the Property and the Tower are hereinafter referred to collectively
as, the “Premises”. |
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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 a week during the Initial Term and any
Renewal 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
provision contained in the Agreement. |
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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 Licensee’s intended use. |
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d) |
Licensor shall have the right, with no less than thirty (30) days’ prior
written notice to Licensee, to require Licensee to relocate the equipment to
another area within the Property, at Licensee’s sole 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. |
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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. |
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4. |
Initial Term. The Initial Term of this license shall be for a
period of three (3) years, commencing on the earlier to occur of the first day
of August, 2002 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 third (3) year
anniversary of the Commencement Date (the “Initial Term”).
Licensee agrees to provide immediate written notice to Licensor of
Licensee’s commencement of the installation of the Equipment. |
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5. |
Renewal Terms. Provided that an Event of Default has not occurred
during the immediately preceding Initial or Renewal Term (as applicable),
Licensee shall have the right to extend this License for one (2) additional 1
(1) year terms (each a “Renewal Term”). Provided that this
License Agreement has not previously been terminated, this License shall
automatically renew for each successive Renewal Term, unless Licensee notifies
Licensor of Licensee’s intention not to renew this License at least ()
months prior to the end of the then existing term of this License. Each Renewal
Term shall be on the same terms and conditions as set forth in this License
except that consideration for this License shall increase as provided in
paragraph 6. |
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a) |
During the first year of the Initial Term, Licensee shall pay annually to
licensor the sum Eight Thousand Four Hundred and 00/100 ($8,400.00) to be paid
in equal monthly installments of Seven Hundred and 00/100 ($700.00) on the first
day of each month in advance to Licensor at Licensor’s address as specified
herein. |
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b) |
Effective on the anniversary of the Commencement Date of this Agreement during
each year of the Term, the then current Base Fee payable by Licensee to Licensor
shall be increased by an amount equal to the greater of (i) five (5.0%) percent
over the total base Fee payable by Licensee for the preceding twelve (12) month
period; or (ii) the percentage increase which occurred in the Consumer Price
Index (“CPI”), as defined below, for the most recent (12) month period
for which the CPI is published. |
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c) |
CPI is used herein shall mean the Consumer Price Index published by the Bureau
of Labor Statistics of the United States Department of labor, All Urban
Consumers, All Items (1982-84=100), or an equivalent successor official index
then in effect. In the event that the Bureau of Labor Statistics changes the
form or basis for computation of the CPI, a reliable governmental or other
non-partisan publication of Licensor’s choice evaluating substantially the
same information previously used in determining the CPI shall be used. No
adjustments or recomputations, retroactive or projective, shall be made because
of any revision which may later be made in the first published figure of the
CPI. |
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d) |
In addition to the Base Fee payable by Licensee hereunder, Licensee shall pay to
Licensor upon the execution and delivery of this Agreement a one-time
non-refundable Administrative Fee in the amount of ($500.00) Dollars. |
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e) |
Appropriate proration shall be made if the Initial Term does not commence on the
first day of a calendar month, or if the date of termination of this License
Agreement is not on the last day of a calendar month. All payments of the Fee
shall be made by Licensee without decudtion 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 thedate when due shall be subject to a late
payment charge of ten percent (10%) of the amount which is overdue. |
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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 “FAA”) 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 this 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 8(b))
from and after the expiration of such time period until the Equipment is
removed. |
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8. |
Improvement by Licensee. |
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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 the
written request of Licensor conduct a structural analysis and wind load analysis
of the Tower at Licensee’s sole cost and expense which shall 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 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 the 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 applicable 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 commencement of construction. All work performed at the Property in
connection with the installation or modification of the Equipment and the work
described in this 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. |
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b) |
Equipment. Licensee’s communications system, including antennas,
radio equipment and operating frequency, cabling and conduits, shelter and/or
cabinets, and 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 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 at Licensee’s sole expense on or
before the expiration or earlier termination of the License; provided that
License 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 licensor
thereafter and shall pay to Licensor an amount equal to one hundred and
twenty-five percent (125%) of the Fee then in effect during such holdover period
during which any portion of the Equipment is actually located on the Tower (the
“Holdover Equipment Fee”). |
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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. |
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9. |
Utilities. All utility services installed on the Premises
for the use or benefit of Licensee shall be made at the sole cost and expense of
Licensee and shall be separately metered from 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. |
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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 be payable by Licensor in connection with this
License Agreement, Licensee shall reimburse Licensor 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. |
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11. |
Interference, Emissions. |
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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
regulations 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 promulgated by the FC. In the event 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. |
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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 Property after the
date of Licensee’s initial installation of the Equipment or any future
modifications thereof, Licensee shall cooperate fully with 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. |
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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 in 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, at 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 of 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. |
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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 on 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. |
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12. |
Maintenance and Repairs. |
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a) |
Licensee shall perform all repairs and maintenance work necessary or appropriate
to the Equipment on or about the Premises or located on any access to the
Premises in good condition, reasonable wear and tear or other casualty excepted. |
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b) |
Licensor, at Licensor’s sole cost and expense, shall maintain the Tower,
and any other portions 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. |
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13. |
Mechanics’ Liens. Licensee shall promptly discharge or cause
to be discharged any mechanics’ or materialmen’s liens or claims of
lien filed or 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. |
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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. |
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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. |
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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. |
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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 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. |
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15. |
Environmental Indemnification. |
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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 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 Licensee 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. |
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a) |
Licensee shall carry during the term of this License Agreement, at
Licensee’s sole cost and expense, the following insurance: (i) “All
Risk” 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 Licensor and
Frontier as an additional insured under Licensee’s policies of insurance. |
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b) |
Certificates of insurance acceptable to Licensor shall be filed with Licensor
prior to the Commencement Date and 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 Licensor and Frontier. |
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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 reasonable acceptable to Licensor. Neither the issuance of any such
insurance policy nor the minimum limits specified in this paragraph 16 shall be
deemed to limit or restrict in any way Licensee’s liability arising under
or out of this License Agreement. |
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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 of 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
waver made by Licensee under the terms of this License Agreement. |
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17. |
Destruction or Condemnation |
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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 event the 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 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
casualt;y. If this License Agreement is cancelled, the payments required herein shall
terminate as of the date of such casualty. |
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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. |
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(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. |
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(ii) |
The abandonment of the Premises and operation thereof by Licensee for a
consecutive period of sixty (60) days or more; or |
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(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 recept by Licensee of written notice from Licensor of such failure;
or |
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(iv) |
Licensee causing, permitting, or suffering, without the prior written consent of
Licensor, any act when this Agreement requires Licensor’s prior written
consent or prohibits such act; or |
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(v) |
The occurrence of any event of insolvency or bankruptcy with respect to
Licensee, including any of the following by way of illustration: |
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(A) |
Any general assignment or general arrangement for the benefit of creditors; |
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(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; |
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(C) |
The appointment of a trustee or receiver to take possession of substantially all
of Licensee’s assets or of Licensee’s interest in this License
Agreement; or |
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(D) |
The attachment, execution or other judicial seizure of the Equipment ,
substantially all of Licensee’s assets or of Licensee’s interest in
this License Agreement; or |
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(vi) |
The failure of Licensee to maintain the insurance required to be maintained
pursuant to paragraph 16 hereof. |
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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 deemede
liable for trespass or conversation and store the same at Licensee’s sole cost. |
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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 tine to time give notice of in 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) if 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 the 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:
With a copy to:
If to Licensee:
|
Rio Suite Hotel $ Casino
0000 Xxxx Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Frontier Radio, Inc.
0000 Xxxxx Xxxxxxx Xxx.
Xxx Xxxxx, Xxxxxx 00000
Skybridge Wireless, LLC
0000 Xxxxxxx Xx. Xxxxx 000
Xxx Xxxxx, XX 00000
Telecopy: 000-000-0000
|
| |
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-five 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 a partnership, join
venture, association or co-tenant, 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 of this License Agreement required ot 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 Licensor’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 therof. 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 Licensor and Licensee with respect to the
Premises and the operation thereof by Licensee hereunder, This License
Agreement and said exhibits and attachments and other documents may be
altered, amended, modified or revoked only by an instrument in writing
signed by both Licensor and Licensee. Licensor and Licensee hereby agree
that all prior or contemporaneous oral understandings. Agreements or
negotiations relative to the Premises and the operation therof are merged
into and revoked by this instrument. |
| |
(d) |
Subject
to the provisions of paragraph 21 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 xxxxx License Agreement, the deletion of which would
not adversely 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
therin shall pay all costs incurred by the prevailing party therin,
including reasonable attorney’s 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 jTower by virtue of this License Agreement or Licensee’s use
of the Premises pursuant hereto. Notwithstanding any provisions 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. |
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the undersigned
parties by and through their duty authorized officers or representatives hereby execute
this License Agreement as of the date first-above written.
Rio Properties, Inc.
By:
/s/ Rio Properties, Inc.
Name: Rio Properties, Inc.
SkyBridge Wireless, LLC,
a Nevada Corporation
By: /s/ Xxxxx Xxxxxxxxx
Name:
Xxxxx Xxxxxxxxx
Title: CEO
Exhibit “A”Property
Description
|
|
Site Name:
Site Location :
Coordinates:
|
Rio Properties, Inc., dba Rio Suite Hotel & Casino
0000 Xxxx Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000
North Latitude: 36 07 03
West Longitude: 115 11 17
|
Exhibit “B”
Space
Configuration
Exhibit “B”
Space
Configuration
Communications
Site License Agreement
Exhibit “C”
Equipment
|
|
|
|
|
|
| Type of Antenna |
|
Antenna #1 |
|
Antenna #2 |
|
Antenna #3 |
|
Antenna #4 |
|
Antenna #5 |
|
| Antenna Quality | |
1 | |
1 | |
1 | |
1 | |
1 | |
| Receive or Transmit | |
RX/TX | |
RX/TX | |
RX/TX | |
RX/TX | |
RX/TX | |
| Manufacture | |
Radiowaves | |
Radiowaves | |
Radiowaves | |
Radiowaves | |
Radiowaves | |
| Type of Antenna | |
5Ghz Xxxxxx | |
0Xxx Xxxxxx | |
0Xxx Xxxxxx | |
00Xxx Parabolic | |
2.4 GHz Xxxxxx | |
| Xxxxx # | |
XXX-00X-00-00 | |
XXX-00X-00-00 | |
XXX-00X-00-00 | |
XX0-00 | |
SEC-25V-90-13 | |
| Antenna Weight | |
5LBS | |
5LBS | |
5LBS | |
25 LBS | |
4.2 LBS | |
| Antenna Dimensions | |
25.5x8.5x7.5" | |
25.5x8.5x7.5" | |
25.5x8.5x7.5" | |
24" | |
25.5x8.5x7.5" | |
| Antenna Mount Height | |
15' | |
15' | |
15' | |
10' | |
15' | |
| Rad Center AGL | |
200 ft AGL | |
200 ft AGL | |
200 ft AGL | |
200 ft AGL | |
200 ft AGL | |
| Mount Type | |
Quick Align Mount | |
Quick Align Mount | |
Quick Align Mount | |
Direct Mount | |
Quick Align Mount | |
| Direction of Radiation | |
Grid North East | |
Grid West | |
Grid South West | |
Grid East | |
Grid Northwest/East/Southeast | |
| TX Frequency | |
5.7250 - 5.8500 | |
5.7250 - 5.8500 | |
5.7250 - 5.8500 | |
21.2 - 23.6 | |
2.400 - 2.483 | |
| RX Frequency | |
5.7250 - 5.8500 | |
5.7250 - 5.8500 | |
5.7250 - 5.8500 | |
21.2 - 23.6 | |
2.400 - 2.483 | |
| Receive Band of Freq | |
5.7/5.8 GHz | |
5.7/5.8 GHz | |
5.7/5.8 GHz | |
23Ghz Parabolic | |
2.4 GHz | |
| Transmit Band of Freq | |
5.7/5.8 GHz | |
5.7/5.8 GHz | |
5.7/5.8 GHz | |
23Ghz Parabolic | |
2.4 GHz | |
| Antenna Gain | |
16 DBI | |
16 DBI | |
16 DBI | |
40.2 Dbi | |
16 DBI | |
| # of Lines per Antenna | |
1 | |
1 | |
1 | |
1 | |
1 | |
| Line Type | |
LMR600 | |
LMR600 | |
LMR600 | |
LDF 5.5 | |
LMR600 | |
| Line Xxxxxxxx | |
0/0" | |
0/0" | |
0/0" | |
0/0" | |
0/0" | |
| # of Cabinets | |
1 RACK (19" x 8') | |
| | |
Transmitter #1 | |
Transmitter #2 | |
Transmitter #3 | |
Transmitter #4 | |
Transmitter #5 | |
| Manufacturer | |
Wi-LAN | |
Wi-LAN | |
Wi-LAN | |
Proxim | |
Orinoco | |
| Type & Model | |
Ultima3 MP | |
Ultima3 MP | |
Ultima3 MP | |
Tsunami Licensed | |
AP-1000 | |
| Type of Service | |
Fixed Wireless Broadband | |
Fixed Wireless Broadband | |
Fixed Wireless Broadband | |
Network Backhaul | |
Fixed Wireless Broadband | |
| TX Frequency (GHz) | |
5.741 | |
5.7874 | |
5.8338 | |
21.2 - 23.6 | |
2.400 - 2.483 | |
| TX Power Output | |
21dBm | |
21dBm | |
21dBm | |
17dBm | |
15dBm | |
| RX Frequency | |
5.741 | |
5.7874 | |
5.8338 | |
21.2 - 23.6 | |
2.400 - 2.483 | |
| Actual Power Consumption | |
14w | |
14w | |
14w | |
95w | |
14w | |
| Electric Service Required | |
110v/50 | |
Existing | |
Existing | |
Existing | |
Existing | |
| # of Outlets | |
8 | |
Existing | |
Existing | |
Existing | |
Existing | |
