SOUTH BEND
MMDS LEASE AGREEMENT
THIS AGREEMENT OF LICENSE made and entered into this 22 day of
December, 1992 by and between OI Capital Corporation a corporation organized and
existing under the laws of the State of Indiana, with its principal office at
421 South Second Street, Elkhart, IN 46516, herein called LICENSOR, AND National
Micro Vision Systems, Inc., a Nevada Corporation herein called LICENSEE:
WITNESSETH:
That, for and in consideration of the mutual promises of LICENSOR and
LICENSEE, herein contained, and the respective performances thereof, the
LICENSOR grants to the LICENSEE a nonexclusive License to use its 700 foot
tower, transmitter building (Premises) at the base of said tower or in close
proximity, together with such other portion of its property located in the South
One-Third (1/3) of the West Half (1/2) of the Northwest Quarter (1/4) of Section
33, Township 37 North, Range 3 East, containing approximately 8.209 acres in St.
Joseph County, Indiana, as is herein specified, but for no other purposes,
subject to the following terms and conditions:
1. This License is granted to enable the LICENSEE to rent space and
install equipment for the purpose operating MMDS wireless cable system E Group
For South Bend, Ind. at its own risk and expense. The use of the property
granted by this License is for the installation, operation, and maintenance of
said equipment, including base station, antenna pole or mast, wiring, and
accessories used therewith at places designated by LICENSOR.
2. The term of the License shall be for a period of five years
commencing on the 1st day of January, 1993, and ending on the 31st day of
December, 1998; provided, however, that either the LICENSOR or the LICENSEE may
cancel this agreement by One Hundred Twenty (120) days written notice ot the
other party. After the term of this agreement expires, this contract shall
continue for successive additional periods of one (1) month, provided that
either LICENSOR or LICENSEE may terminate this agreement at any time with or
without cause upon written notice other the other party sent by certified or
registered mail. LICENSEE shall have the option to renew this License upon
completion of the term of said License, except that the rental factor shall be
renegotiated between both parties for the renewal period.
3. LICENSOR agrees that this License Agreement becomes binding only
upon issuance, by the Federal Communications Commission, of the LICENSEE'S
Operating License or Permit.
4. The LICENSEE may install an antenna for the heretofore related
equipment, at the 675 foot level on said tower. A base station for such system
may be installed in the transmitter building. Associated transmission line may
be installed between the base station in the transmitter building and the
antenna on the tower. The location and quality of the installation, removal
maintenance and operation of all such equipment shall be subject to the absolute
control and approval of the LICENSOR or it's agents. All costs and expenses of
each installation, removal, relocation, operation and maintenance shall be paid
by the LICENSEE, except the power supply as hereinafter mentioned. No equipment
shall be installed by the LICENSEE until it is determined to the satisfaction of
the LICENSOR or it's agent that said equipment will not interfere in any way
with the normal operation of existing communications and broadcast equipment at
the site. If, at any time, LICENSEE'S equipment shall interfere in any way with
the normal operation of existing communications and broadcast equipment at the
site, any cost connected with the adjustment of LICENSEE'S or any other
occupant's transmitting equipment, made necessary by the LICENSEE'S
installation, shall be borne solely by the LICENSEE. LICENSEE further agrees
that at any time during the term of this License, should the Licensor or it's
agents determine that it is in the best interest of the tower site or the other
occupants of the tower for the LICENSEE to relocate it's antenna or place it's
transmitting equipment on an antenna jointly used by other occupants of the
tower, the LICENSEE shall do so at it's expense, provided that this can be done
without any undue harm to the LICENSEE'S signal. LICENSOR shall
make no unreasonable request of LICENSEE, and any request shall be supported by
adequate technical information.
5. The LICENSEE shall pay to the LICENSOR the sum of Two Thousand &
00/100 Dollars ($2000.00) per month for each such MMDS wireless cable system
installed and operated under this License. Said payments for each system shall
begin on the day of commencement of installation of equipment for that system or
90 days from the date of this License which ever occurs first, and end on the
day of the removal of the last of such equipment for that system. Said monthly
payments shall be paid in advance and on the first day of each monthly period
while the equipment for such system is on the property of the LICENSOR. Power
required for each such MMDS wireless cable system shall be paid for, but not
guaranteed, by the LICENSOR as a part of said rental consideration. LICENSEE
agrees to the LICENSOR increasing the monthly rental rate, not to exceed fifteen
percent (15%), at the end of the third (3rd) year of the LICENSE AGREEMENT.
6. The LICENSEE shall pay to and deposit with the LICENSOR the sum of
Two Thousand & 00/100 Dollars ($2000.00) prior to the commencement of the term
of this License Agreement, which said amount shall be held by LICENSOR as
security for the full and timely performance by the LICENSEE of all the terms
and conditions hereof. The rights of the LICENSOR against the LICENSEE for a
breach of this agreement shall in no way be limited or restricted to the amount
of the security deposit and the LICENSOR shall have the right to pursue any
available remedy to protect its interest herein. The deposit shall be returned
to the LICENSEE at the final termination of this agreement, provided that all
the terms and conditions herein have been fully performed.
7. The LICENSOR agrees that the LICENSEE may further license others to
use it's equipment located upon the premises, but any such sublicenses shall be
subject to the increased payment provisions of this License Agreement. The
LICENSEE hereby agrees to indemnify and save harmless the LICENSOR from and
against any and all claims, demands, damages, and liabilities of every kind and
nature resulting from such sublicense agreements, except liability caused solely
by the negligence of the LICENSOR.
8. Rights of ingress and egress over the property of the LICENSOR are
hereby granted to the LICENSEE for the purpose of conducting the business for
which this License is granted; provided, however, that such rights and the
exercise thereof are subject to the absolute control and approval of the
LICENSOR.
9. At the termination of this License, by the expiration of timer,
cancellation, or otherwise, the LICENSEE shall promptly remove all property
placed on the premises under this License and restore the LICENSOR'S property to
the condition it was in at the date of the execution of this Agreement,
reasonable wear and tear excepted. All such repairs to all of the LICENSOR'S
property used under this License shall be made by the LICENSEE at the times and
in the manner determined and directed by the LICENSOR.
10. The LICENSEE hereby covenants with the LICENSOR to indemnify and
save harmless the LICENSOR against and from any and all liability of every kind
and nature whatsoever resulting form the existence of this License and all
operations and activities thereunder. To provide the LICENSOR with the indemnity
herein set forth, the LICENSEE agrees to maintain a policy of insurance issued
by a company authorized to do business in Indiana in an amount not less than
$500,000.00 for bodily injury, including death, to any one person, and
$1,000,000.00 for all bodily injuries, including death, sustained by more than
one person in any one occurrence and $300,000.00 for property damage in any one
occurrence. The LICENSEE shall furnish the LICENSOR with a certificate of
insurance issued by said company evidencing the existence of such insurance
annually.
11. To secure the payment of the License Agreement monthly fee and
other liabilities of the LICENSEE hereunder, LICENSEE hereby grants to LICENSOR,
which shall continue upon default by LICENSEE, as defined in this License
Agreement, a security interest in all of LICENSEE'S personal property;
(including without limitation LICENSEE'S transmission equipment, feedline,
antenna, dishes, etc.; whether now or hereinafter
acquired) which is now or hereinafter located at the premises and in the
proceeds thereof, including tort claims and insurance (all hereinafter
collectively referred to as "collateral"). LICENSEE shall not permit the removal
of any collateral from the premises, except with the permission of the LICENSOR.
Upon the occurrence of default of this License Agreement, LICENSOR shall have
the remedies of a secured party available under Indiana law. Theses remedies
shall include, without limitation, the right to take possession of the secured
collateral and for that purpose LICENSOR may enter the premises and remove it
and LICENSEE shall hold LICENSOR harmless from any and all liability sustained
thereby, except through wonton or willful misbehavior. LICENSOR may require that
LICENSEE make the collateral available to LICENSOR at a place to be designated
convenient to both parties. LICENSOR shall give LICENSEE at least 10 days prior
to notice of the time and place of any public sale thereof or of the time at
which any private sale or any other intended disposition thereof is to be made
Expenses of retaking, holding, preparing for sale, selling and the like shall
include LICENSOR'S reasonable attorney's fees and legal expenses.
12. This Agreement is subject to all Federal, State, and Municipal laws
and rules, regulations, and order of governmental agencies, including, but not
limited to, the rules, regulations, and order of the Federal Communications
Commission.
13. Neither this Agreement nor any right or privileges thereunder may
be assigned or transferred by operation of law or otherwise without the written
consent of the LICENSOR.
14. Failure or delay on the part of the LICENSOR or the LICENSEE to
exercise any right, power or privilege hereunder shall not operate as a waiver
thereof.
15. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing and shall be sent by
United Stated Certified or registered mail, postage prepaid, addressed to the
LICENSEE at 17138 Von Karman, Irvine, California 92714 and addressed to the
LICENSOR at 421 South Second Street, Elkhart, IN 46516, or to such other firm or
to such other place as LICENSOR or it's agents may from time to time designate
in writing.
16. This contract constitutes the entire agreement of the parties
hereto and shall supersede all other prior offers, negotiations and agreements.
17. Licensee at it's discretion, may install an electrical generator
for the operation of it's equipment. The location and installation procedure
shall require prior written approval of license.
Executed at Elkhart, Indiana, the day and year first above written.
OI CAPITAL CORPORATION
By: _______________________________
LICENSOR
NATIONAL MICRO VISION SYSTEMS, INC.
By: _______________________________
LICENSEE