Communications Site License
Agreement
THIS COMMUNICATIONS SITE
LISENCE AGREEMENT (This
“ License Agreement ”) is dated this 11
th 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 disconnec
|
|