EXHIBIT 10.16
SUBSCRIPTION AGREEMENT
BETWEEN
RESNET COMMUNICATIONS, LLC
AND
TCI SATELLITE MDU, INC.
Dated as of June 4, 1997
EXECUTION COPY
SUBSCRIPTION AGREEMENT
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This SUBSCRIPTION AGREEMENT (this "Agreement") is entered into as of
June 4, 1997, by and between ResNet Communications, LLC, a Delaware limited
liability company ("ResNet"), and TCI Satellite MDU, Inc., a Delaware
corporation ("TCI-Satellite") (each of TCI-Satellite and ResNet being referred
to herein individually as a "Party" and together as the "Parties").
RECITALS
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A. TCI-Satellite wishes to subscribe for and purchase from ResNet,
and ResNet desires to issue and sell to TCI-Satellite, 4.99% of the Ownership
Interests in ResNet.
AGREEMENT
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For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions.
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For purposes of this Agreement, the following terms shall have the
following meanings:
"Affiliate" of any Person at any time shall mean any other Person directly
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or indirectly controlling, controlled by or under common control with such
Person at such time; with "control" for such purposes meaning ownership of
securities representing at least 75% of the economic interests in and 75% of the
voting power of a Person.
"Agreement" shall mean this Subscription Agreement, including any exhibits
and attachments hereto, as amended from time to time.
"Assets" shall have the meaning specified in Section 4(n).
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"Equipment" shall mean the equipment to be purchased by ResNet from TCI-
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Satellite pursuant to the Equipment Agreement.
"Equipment Agreement" shall mean an Equipment Sale Agreement pursuant to
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which TCI-Satellite shall agree to sell Equipment to ResNet, which shall be
executed and delivered on the date of and simultaneously with the execution of
this Agreement.
"Financial Statements" shall have the meaning specified in Section 4(l).
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"GAAP" shall mean generally accepted accounting principles as in effect
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from time to time in the United States applied on a consistent basis.
"Governmental Authority" shall mean any federal, state, municipal or local
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governmental authority or political subdivision thereof.
"Initial Purchase Order" shall mean a purchase order pursuant to which
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ResNet will purchase Equipment from TCI-Satellite under the Equipment Agreement
for a purchase price of $5,396,053, payable in cash, which has been delivered by
ResNet to TCI-Satellite on or prior to the date of this Agreement.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
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amended, and the rules and regulations thereunder as in effect from time to
time.
"Legal Requirements" shall mean the requirements of any law, ordinance,
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statute, rule, regulation, code, order, judgment, decree, injunction, franchise,
determination, approval, permit, license, authorization or other requirement of
any Governmental Authority.
"Lien" shall mean any mortgage, lien, pledge, charge, claim, security
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interest or encumbrance of any kind.
"LLC Agreement" shall mean the Limited Liability Company Agreement of
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ResNet dated as of June 4, 1997, as amended.
"Loan Agreement" shall mean a Subordinated Convertible Term Loan Agreement
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between ResNet, as borrower, and TCI-Satellite, as lender, in the principal
amount of $34,603,947, which shall be executed and delivered on the date of and
simultaneously with the execution of this Agreement.
"LodgeNet" shall mean LodgeNet Entertainment Corporation, a Delaware
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corporation, and any successor corporation.
"Material Adverse Effect" shall mean a material adverse effect on the
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business, assets, operations, or financial condition of a Party.
"1933 Act" shall mean the Securities Act of 1933, as amended, and the rules
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and regulations thereunder as in effect from time to time.
"Ownership Interest" means an interest of a member in ResNet, including
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such member's interest in the income and losses, capital, and distributive share
of assets of ResNet, and all rights and obligations of such member under the LLC
Agreement, expressed as a percentage interest carried to two decimal places.
"Parties" and "Party" shall have the meanings specified in the Preamble.
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"Permitted Liens" shall mean (a) Liens for taxes, assessments and
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governmental charges not yet due and payable, (b) zoning laws and ordinances and
similar Legal Requirements, (c) rights reserved to any Governmental Authority to
regulate the affected property, and (d) as to any real property, any Liens which
are reflected in the public records and which do not individually or in the
aggregate interfere with the right or ability to own, use or operate the
property as it is currently being used or operated or to convey good, marketable
and indefeasible title to the same; provided that "Permitted Liens" will not
include any Lien which could prevent or inhibit in any material way the conduct
of the business of ResNet as it is currently being conducted.
"Person" shall mean and include an individual, a corporation, a
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partnership (general, limited or limited liability), a joint venture, a limited
liability company, an association, a trust or any other organization or entity,
including a Governmental Authority.
"Purchase Price" shall have the meaning specified in Section 2(a).
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"Redemption Agreement" shall mean the Redemption Agreement pursuant to
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which ResNet Corp. shall redeem all of its shares of common stock previously
issued to TCI-Satellite for $5,396,053, which shall be executed and delivered
and the transactions under which shall be consummated on the date of and
immediately prior to the execution of this Agreement.
"ResNet" shall have the meaning specified in the Preamble.
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"ResNet Corp." shall mean ResNet Communications, Inc., a Delaware
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corporation.
"TCI-Satellite" shall have the meaning specified in the Preamble.
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"Transaction Documents" shall mean the LLC Agreement, the Redemption
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Agreement, the Equipment Agreement, the Loan Agreement, an Option Agreement, a
Signal Availability Agreement, and a Standstill Agreement to be entered into by
and between either TCI-Satellite or TSAT Parent and either ResNet or LodgeNet on
the date of and simultaneously with the execution of this Agreement.
"TSAT Parent" shall mean TCI Satellite Entertainment, Inc., a Delaware
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corporation and the parent corporation of TCI-Satellite.
2. Subscription and Purchase of Ownership Interests.
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(a) Subscription, Issuance, Purchase and Sale of Ownership Interests. Upon
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the terms and subject to the conditions set forth in this Agreement, TCI-
Satellite hereby subscribes for and purchases, and ResNet hereby sells and
issues to TCI-Satellite, Ownership Interests (the "TCI Satellite Initial
Ownership Interests") representing, immediately after their issuance, 4.99% of
the total Ownership Interests in ResNet for $5,396,053 (the "Purchase Price").
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(b) Payment of Purchase Price; Issuance of Ownership Interests. The
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Purchase Price shall be payable on the date of this Agreement by TCI-Satellite
to ResNet by TCI-Satellite directing ResNet Corp. to deliver to ResNet the
proceeds to be received by TCI-Satellite from ResNet Corp. under the Redemption
Agreement. Upon receipt of the Purchase Price, ResNet and TCI-Satellite will
execute and deliver any documents reasonably requested by either ResNet or TCI-
Satellite to reflect the receipt of the Purchase Price by ResNet and the
issuance of the TCI-Satellite Initial Ownership Interests to TCI-Satellite.
3. Representations and Warranties of TCI-Satellite.
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TCI-Satellite represents and warrants to ResNet that:
(a) It (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, (ii) is authorized to transact
business and is in good standing in each state in which its ownership of assets
or conduct of business requires such qualification, and (iii) has all corporate
powers required to carry on its business as conducted on the date hereof and as
proposed to be conducted, with such exceptions to clauses (ii) and (iii) as
would not have a material adverse effect on the ability of TCI-Satellite to
perform its obligations under this Agreement or under the Transaction Documents.
(b) The execution, delivery and performance by it of this Agreement and the
Transaction Documents are within its corporate powers and have been duly
authorized by all necessary corporate action on its part. Each Person executing
this Agreement and the Transaction Documents on behalf of TCI-Satellite is fully
authorized to execute and deliver the same.
(c) The execution, delivery and performance by it of this Agreement and the
Transaction Documents require no material action by or in respect of, or filing
with, any Governmental Authority other than those that have been obtained or
made and are in full force and effect.
(d) No consent by any Person under any contract to which it is a party or
to which its assets are subject is required or necessary for the execution,
delivery and performance by it of this Agreement and the Transaction Documents,
with such exceptions as would not have a material adverse effect on the ability
of TCI-Satellite to perform its obligations under this Agreement or under the
Transaction Documents.
(e) The execution, delivery and performance by it of this Agreement and the
Transaction Documents do not and will not (x) contravene its certificate of
incorporation or bylaws or (y) result in or constitute a breach or default
(including any event that, with the passage of time or giving of notice, or
both, would become a breach or default) under any applicable Legal Requirement
or any judgment, order, decree, contract, license, lease, indenture, mortgage,
loan agreement, note, security agreement or other agreement or instrument to
which it is a party or by which any of its properties may be bound, the effect
of which would be to cause a material adverse effect on the ability of TCI-
Satellite to perform its obligations under this Agreement or under the
Transaction Documents.
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(f) This Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by the principles governing the availability of
equitable remedies.
(g) There is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of TCI-Satellite or
any of its Affiliates who might be entitled to any fee or commission from ResNet
or any of its Affiliates in connection with the execution, delivery and
performance of this Agreement or the Transaction Documents.
(h) TCI-Satellite is acquiring the TCI-Satellite Initial Ownership
Interests for its own account, not as a nominee or agent, for investment
purposes only and not with a view to or for the resale, distribution or
fractionalization thereof, in whole or in part.
(i) TCI-Satellite acknowledges that the offer and sale of the TCI-Satellite
Initial Ownership Interests to it has not been accomplished by any form of
general solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media, or broadcast over television or radio and
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(j) TCI-Satellite acknowledges its understanding that the offering and sale
of the TCI-Satellite Initial Ownership Interests is intended to be exempt from
registration under the 1993 Act by virtue of section 4(2) of the 1933 Act and
the provisions of Rule 506 of Regulation D promulgated thereunder. In
furtherance thereof, TCI-Satellite acknowledges that:
(i) It has the financial ability to bear the economic risk of its
investment in the TCI-Satellite Initial Ownership Interests (including its
possible loss), has adequate means for providing for its current needs and
contingencies and has no need for liquidity with respect to its investment
in the TCI-Satellite Initial Ownership Interests;
(ii) It has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the TCI-Satellite Initial Ownership Interests and protecting
its own interests in connection with the investment and has obtained, in
its judgment, sufficient information from ResNet to evaluate the merits and
risks of an investment in the TCI-Satellite Initial Ownership Interests,
and it has not utilized any Person as its purchaser representative in
connection with evaluating such merits and risks; and
(iii) It is an "accredited investor" within the meaning of Regulation
D promulgated under the 1933 Act.
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(k) TCI-Satellite acknowledges that:
(i) It has been furnished any documents it has requested, has
carefully read any such documents and understands and has evaluated the
risks of a purchase of the TCI-Satellite Initial Ownership Interests, and
has relied solely (except as indicated in subsections (ii) and (iii) below)
on the information contained in any such documents;
(ii) It has been provided an opportunity to obtain any additional
information concerning the TCI-Satellite Initial Ownership Interests and
ResNet;
(iii) It has been given the opportunity to ask questions of, and
receive answers from, representatives of ResNet concerning the terms and
conditions of this subscription and other matters pertaining to this
investment, and has been given the opportunity to obtain such additional
information necessary to verify the accuracy of the information which was
provided in order for it to evaluate the merits and risks of an investment
in the TCI-Satellite Initial Ownership Interests to the extent ResNet
possesses such information or can acquire it without unreasonable effort or
expense, and has not been furnished any other offering literature or
prospectus except as mentioned herein; and
(iv) It has determined that the TCI-Satellite Initial Ownership
Interests are a suitable investment for it and that at this time it could
bear a complete loss of its investment.
(l) TCI-Satellite agrees that it will not sell or otherwise transfer the
TCI-Satellite Initial Ownership Interests without registration under the 1993
Act or an exemption therefrom, and fully understands and agrees that it must
bear the economic risk of its investment for an indefinite period of time
because, among other reasons, the TCI-Satellite Initial Ownership Interests have
not been registered under the 1993 Act or under the securities laws of certain
states and, therefore, cannot be resold, pledged, assigned or otherwise disposed
of unless the TCI-Satellite Initial Ownership Interests are subsequently
registered under the 1933 Act and under the applicable securities laws of such
states or an exemption from such registration is available. TCI-Satellite
understands that ResNet is under no obligation to register the TCI-Satellite
Initial Ownership Interests on its behalf or to assist it in complying with any
exemption from registration under the 1933 Act or any applicable state
securities laws. TCI-Satellite also understands that sales or transfers of the
TCI-Satellite Initial Ownership Interests are further restricted by the
provisions of the LLC Agreement.
(m) There are no suits, claims, grievances, actions, proceedings, or
governmental investigations pending or, to the best knowledge of TCI-Satellite,
threatened against or affecting TCI-Satellite which (i) seek to restrain or
enjoin the consummation of the transactions contemplated by this Agreement or
the Transaction Documents or (ii) might have a material adverse effect on the
ability of TCI-Satellite to perform its obligations under this Agreement or
under the Transaction Documents. TCI-Satellite is not in violation of any term
of any judgment, decree, injunction, or order to which it is subject, which
violation could have a material adverse effect on the ability of TCI-Satellite
to perform its obligations under this Agreement or under the Transaction
Documents.
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4. Representations and Warranties of ResNet.
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ResNet represents and warrants to TCI-Satellite that:
(a) It (i) is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware, (ii) is authorized
to transact business and is in good standing in each state in which its
ownership of assets or conduct of business requires such qualification, and
(iii) has all corporate powers required to carry on its business as conducted on
the date hereof and as proposed to be conducted, with such exceptions to clauses
(ii) and (iii) as would not have a Material Adverse Effect on ResNet or a
material adverse effect on the ability of ResNet to perform its obligations
under this Agreement or under the Transaction Documents.
(b) The execution, delivery, and performance by it of this Agreement and
the Transaction Documents are within its powers and have been duly authorized by
all necessary action on its part. Each Person executing this Agreement and the
Transaction Documents on behalf of ResNet is fully authorized to execute and
deliver the same.
(c) The execution, delivery and performance by it of this Agreement and the
Transaction Documents require no material action by or in respect of, or
material filing with, any Governmental Authority other than those that have been
obtained or made and are in full force and effect.
(d) No consent by any Person under any contract to which it, ResNet Corp.,
or LodgeNet is a party or to which their respective assets are subject is
required or necessary for the execution, delivery and performance by it of this
Agreement and the Transaction Documents, except those set forth on Schedule 4(d)
all of which have been obtained and are in full force and effect.
(e) The execution, delivery and performance by it of this Agreement and the
Transaction Documents do not and will not (x) contravene its certificate of
formation or the LLC Agreement or (y) result in or constitute a breach or
default (including any event that, with the passage of time or giving of notice,
or both, would become a breach or default) under any applicable Legal
Requirement or any judgment, injunction, order, decree, contract, license,
lease, indenture, mortgage, loan agreement, note or other agreement or
instrument to which it is a party or by which any of its properties may be
bound, the effect of which would be to cause a Material Adverse Effect on ResNet
or a material adverse effect on the ability of ResNet to perform its obligations
under this Agreement or under the Transaction Documents.
(f) This Agreement has been duly executed and delivered by it constitutes
its valid and binding obligation, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by the principles governing the availability of equitable
remedies.
(g) LodgeNet, ResNet Corp., and ResNet are being represented in connection
with the transactions contemplated by the Transaction Documents by PaineWebber
Incorporated, and LodgeNet will be responsible for payment of all fees and
expenses in connection with such
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representation. There is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf of
ResNet or any of its Affiliates who might be entitled to any fee or commission
from TCI-Satellite or any of its Affiliates in connection with the execution,
delivery and performance of this Agreement or the Transaction Documents.
(h) The TCI-Satellite Initial Ownership Interests, when paid for by and
issued to TCI-Satellite in accordance with the terms of this Agreement, will be
duly and validly issued, fully paid and nonassessable, and, after issuance will
constitute 4.99% of the total Ownership Interests in ResNet. Upon issuance of
the TCI-Satellite Initial Ownership Interests, ResNet will deliver to TCI-
Satellite good and valid title to the TCI-Satellite Initial Ownership Interests,
free and clear of any Liens. The TCI-Satellite Initial Ownership Interests are
not being issued in violation of, and are not subject to, any preemptive rights
or other similar rights. Assuming that the representations and warranties of
TCI-Satellite contained in Sections 3(h), (i), (j), (k), and (l) are true and
correct, when issued to TCI-Satellite in accordance with the provisions hereof,
the TCI-Satellite Initial Ownership Interests will have been issued in
accordance with the registration or qualification provisions of the 1933 Act and
any relevant state securities laws or pursuant to valid exemptions therefrom.
(i) ResNet is not an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act, and ResNet
has not relied on rule 3a-2 under the Investment Company Act as a means of
excluding it from the definition of an "investment company" under the Investment
Company Act at any time within the three year period preceding the date of
issuance of the TCI-Satellite Initial Ownership Interests to TCI-Satellite
hereunder.
(j) There are no suits, claims, grievances, actions, proceedings, or
governmental investigations pending or, to the best knowledge of ResNet, ResNet
Corp., or LodgeNet, threatened against or affecting ResNet which (i) seek to
restrain or enjoin the consummation of the transactions contemplated by this
Agreement or (ii) might have a Material Adverse Effect on ResNet or a material
adverse effect on the ability of ResNet to perform its obligations under this
Agreement or under the Transaction Documents. ResNet is not in violation of any
term of any judgment, decree, injunction, or order to which it is subject, which
violation could have a Material Adverse Effect on ResNet or a material adverse
effect on the ability of ResNet to perform its obligations under this Agreement
or under the Transaction Documents.
(k) Prior to the formation of ResNet, the business of ResNet was operated
by ResNet Corp. ResNet has delivered to TCI-Satellite correct and complete
copies of ResNet Corp.'s audited balance sheet and the related audited statement
of income for the period from the date of incorporation of ResNet through
December 31, 1996 (collectively, the "Financial Statements"). The Financial
Statements were prepared in accordance with GAAP applied on a consistent basis
throughout the periods covered thereby and fairly present ResNet Corp.'s
financial position, results of operations and changes in financial position as
of the dates and for the periods indicated. Except as disclosed by, or reserved
against in, the balance sheet included in the Financial Statements, ResNet Corp.
did not have as of the date of such balance sheet any liability or obligation,
whether accrued, absolute, fixed or contingent (including liabilities for taxes
or unusual forward or long-term commitments), which was or would be material to
the business, results of operations or financial
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condition of ResNet Corp., nor to the best knowledge of ResNet or ResNet Corp.
does any aspect of the business form a basis for any claim by a third party
which, if asserted, could result in a liability not disclosed by or reserved
against in such balance sheet in each case of a type which would be required to
be disclosed in such Financial Statements in accordance with GAAP. Since the
date of the balance sheet included in the Financial Statements (i) the business
has been operated only in the ordinary course, (ii) neither ResNet nor ResNet
Corp. has sold or disposed of any assets other than in the ordinary course of
business, and (iii) there has been no Material Adverse Effect on, and no event
has occurred which is likely, individually or in the aggregate, to result in any
Material Adverse Effect on, ResNet or a material adverse effect on the ability
of ResNet to perform its obligations under this Agreement or under the
Transaction Documents.
(l) ResNet and ResNet Corp. have duly and timely filed in proper form all
income, franchise, sales, use, property, excise, payroll and other tax returns
and all other reports (whether or not relating to taxes) required to be filed
with the appropriate Governmental Authority, except where the failure to make
such filings could not be reasonably expected to have a Material Adverse Effect
on ResNet or a material adverse effect on the ability of ResNet to perform its
obligations under this Agreement or under the Transaction Documents. All taxes,
fees and assessments of whatever nature due and payable by ResNet or ResNet
Corp. have been paid, except such amounts as are being contested diligently and
in good faith and are not in the aggregate material. There are no outstanding
agreements or waivers extending the statutory period of limitations applicable
to any federal, state, local or foreign income tax return for any period, and
there are no tax audits pending.
(m) Schedule 4(m) contains a description of all material assets owned by
ResNet and all material contracts to which ResNet is a party or by which any of
its properties are bound (collectively, the "Assets"). Except as specifically
disclosed on Schedule 4(m), ResNet has good and marketable title to all of the
Assets, and the Assets are free and clear of all Liens other than Permitted
Liens. ResNet has no material assets of any kind other than the Assets, and
ResNet has no material liabilities, obligations, or commitments of any kind
other than obligations under the contracts described on Schedule 4(m) and
liabilities disclosed on the Financial Statements (except liabilities of a type
that would not be required to be disclosed in such Financial Statements in
accordance with GAAP).
5. Further Assurances. From time to time after the date hereof and without
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further consideration, the Parties will execute and deliver, or arrange for the
execution and delivery of such other instruments of conveyance and transfer or
other instruments or documents and take or arrange for such other actions as may
reasonably be requested to complete more effectively the transactions
contemplated by this Agreement or the Transaction Documents, to confirm the
issuance to TCI-Satellite of the TCI-Satellite Initial Ownership Interests as
provided herein, and to vest in TCI-Satellite all rights of a record owner of
the TCI-Satellite Initial Ownership Interests.
6. Conditions to the Obligations of TCI-Satellite.
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The obligation of TCI-Satellite to pay the Purchase Price is subject to the
prior satisfaction of each of the following conditions:
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(a) All consents required to be obtained by ResNet in connection with the
transactions contemplated by this Agreement or the Transaction Documents shall
have been obtained and remain in full force and effect.
(b) No order, stay, judgment or decree shall have been issued by any court
and be in effect restraining or prohibiting the consummation of the transactions
contemplated by this Agreement or the Transaction Documents.
(c) TCI-Satellite shall have received the payment required to be made to it
under the Equipment Agreement in connection with the Initial Purchase Order.
(d) The Parties shall have executed and delivered the Transaction
Documents.
(e) The transactions contemplated under the Redemption Agreement shall have
been consummated.
7. Conditions to the Obligations of ResNet.
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The obligations of ResNet to be performed by ResNet hereunder on the date
hereof are subject to the satisfaction of each of the following conditions:
(a) All consents required to be obtained by TCI-Satellite in connection
with the transactions contemplated by this Agreement or the Transaction
Documents shall have been obtained and remain in full force and effect.
(b) No order, stay, judgment or decree will have been issued by any court
and be in effect restraining or prohibiting the consummation of the transactions
contemplated by this Agreement or the Transaction Documents.
(c) TCI-Satellite shall have paid the Purchase Price to ResNet in the
manner specified in Section 2(b).
(d) The Parties shall have executed and delivered the Transaction
Documents.
(e) The transactions contemplated under the Redemption Agreement shall have
been consummated.
8. Miscellaneous.
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(a) Except as expressly set forth herein, the fees and expenses (including
the fees of any lawyers, accountants, investment bankers or others engaged by a
Party) in connection with this Agreement and the transactions contemplated
hereby, whether or not the transactions contemplated hereby are consummated,
will be paid by the Party incurring the same.
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(b) All documentation, notices, reports and correspondence under this
Agreement shall be submitted and maintained in the English language. As used
herein, the singular shall include the plural and the plural may refer to only
the singular. The use of any gender shall be applicable to all genders. The
captions contained herein are for purpose of convenience only and are not part
of the Agreement. Unless otherwise specified, all references to Sections and
Exhibits in this Agreement are references to Sections of, and Exhibits to, this
Agreement.
(c) If any portion or portions of this Agreement shall be deemed, for any
reason, invalid or unenforceable, the remaining portion or portions shall
nevertheless be valid, enforceable, and in effect, unless such remaining portion
or portions are not reasonably adequate to accomplish the basic purposes and
intent of the Parties. The Parties will negotiate in good faith to replace any
invalid or unenforceable provision of this Agreement with an enforceable
provision that accomplishes the original intent of the Parties to the extent
reasonably practicable.
(d) This Agreement cannot be amended except by a written instrument signed
by the Parties hereto.
(e) Either Party's failure to enforce any provision of this Agreement shall
not in any way be construed as a waiver of any such provision as to any future
violations thereof or prevent that Party thereafter from enforcing each and
every other provision of this Agreement. No waiver of any right or remedy
hereunder shall be effective unless contained in a writing signed by the waiving
Party. The rights granted to the Parties herein are cumulative and the waiver by
a Party of any single remedy shall not constitute a waiver of such Party's right
to assert all other legal remedies available to it under the circumstances.
(f) Termination or expiration of this Agreement for any reason shall not
release either Party from any liabilities or obligations set forth in this
Agreement which the Parties have expressly agreed shall survive any termination
or expiration, or remain to be performed or by their nature would be intended to
be applicable following any such termination or expiration.
(g) This Agreement shall be governed and interpreted by the laws of the
State of Delaware, without regard to its conflict of law rules. The Parties
agree that all litigation relating to this Agreement shall be brought in the
state and federal courts of appropriate subject matter jurisdiction in Delaware,
and each Party hereby submits itself to the non-exclusive in personam
jurisdiction of such courts for purposes of any such litigation. Neither Party
shall object to venue in such courts on the grounds of an inconvenient forum or
otherwise. In the event of any litigation between the Parties relating to this
Agreement, the prevailing Party shall be entitled to recover, in addition to any
other relief awarded by the court, its reasonable attorneys fees and all other
costs of preparing for and participating in the litigation, including all
appeals.
(h) Neither Party will be in default or otherwise liable for any delay in
or failure of its performance under this Agreement where such delay or failure
arises by reason of any act of God, acts of the common enemy, the elements,
earthquake, floods, fires, epidemics, quarantine restrictions, riots, strikes,
failure or delay in transportation, freight embargoes or other causes beyond its
control.
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(i) This Agreement, together with any exhibits, schedules, appendices, and
other attachments, expresses the understanding of the Parties hereto and
supersedes all prior agreements, whether oral or written, relating to the
subject matters specifically expressed herein; provided, however, that the
Parties acknowledge that simultaneously with the execution of this Agreement
they or their Affiliates are entering into the Transaction Documents which are
related to this Agreement in that they collectively document a transaction
between the Parties of which this Agreement is a part.
(j) Neither Party may assign any of its rights or delegate any of its
duties hereunder without the prior written consent of the other Party; provided
that either Party may assign this entire Agreement to an Affiliate of such Party
or to a Person that acquires all or substantially all of the assets or business
of such Party if such Party gives prior written notice to the other Party and
delivers an assumption agreement of such assignee in form and substance
reasonably satisfactory to the other Party pursuant to which such assignee
assumes the obligations of the assigning Party under this Agreement. Each Party
agrees that it will cause any acquiror of all or substantially all of the assets
or business of such Party to assume this Agreement. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the
Parties, their respective successors and permitted assigns. For purposes of
this paragraph, "assign" shall mean to directly or indirectly sell, assign,
convey, lease, sublease or permit the use of, in any manner, any rights or
obligations under this Agreement.
(k) This Agreement may be executed in any number of counterparts each of
which shall be an original with the same effect as if the signatures thereof and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date first above written.
RESNET COMMUNICATIONS, LLC TCI SATELLITE MDU, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------- ------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxx
-------------------- ------------------
Title: Vice President Title: President
-------------------- ------------------
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