EXHIBIT 10.4
OFS CHANNEL LEASE AGREEMENT
This AGREEMENT is entered into as of the 30 day of Sept., 1991, by New
England Wireless Inc., a Vermont Corporation referred to as ("Lessee")
having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxxx 00000 and Xxxxx Xxxxx, hereinafter referred to as ("Lessor"), having
his principal place of business at 000 00xx Xx. Xxxxx, XX 00000.
WHEREAS, the Federal Communications Commission ("FCC") has authorized
licensees for Private Operational-Fixed Microwave Radio Service ("OFS")
channels to lease time on such channels on a private carrier basis; and
WHEREAS, Lessor has been awarded a license by the FCC to construct and
operate OFS station WNTI-675 using channel H2 in the Burlington, Vermont
area; and
WHEREAS, Lessor has determined that he desires to lease the full capacity of
his channel on a twenty-four (24) hours a day, seven (7) days a week private
carrier basis; and
WHEREAS, Lessee is developing a wireless cable system to serve the
Burlington market and is desirous of leasing transmission capacity from
Lessor in order to expand its channel capacity, provided that Lessor's
facilities can be relocated to Lessee's transmission, headend and configured
in a manner that is technically compatible with the other stations Lessor
proposes to employ in connection with its wireless cable system in
Burlington .
NOW, THEREFORE, in consideration of their mutual promises, lessor and lessee
do hereby agree to the following terms and conditions:
I. TERM. The initial term of this Agreement shall be five (5) years from
the date hereof, with three (3) consecutive and automatic five (5) year
renewal terms, unless voluntarily terminated by written consent of both
parties or as provided in Section VIII below. Notstanding language in the
preceding sentence to the contrary, should lessee choose not to renew this
Agreement at the end of the initial term or any five (5) year renewal term,
lessee shall provide lessor with written notice of lessee election not to
renew at least six (6) months prior to the expiration date. If lessee fails
to provide lessor with six (6) months advance written notice of its election
not to renew, then this Agreement shall be deemed automatically renewed for
another five (5) year term.
II. THE FCC AUTHORIZATION.
A. Modification Application. Within five (5) working days of the
execution of this Agreement by both parties, lessor shall file with the FCC
an application for modification of the license in substantially the form of
Exhibit A hereto ("Modification Application") to secure a license for an H
Group station identical in all material respects to the other stations
lessee intends to employ in Burlington ("Modified Station"). The parties
recognize that the FCC may deny the Modification application. In such
event, lessee shall utilize its best efforts to redesign its system to
accommodate its requirements and those of the FCC, shall supply the
documentation necessary for lessor to further modify his authorization and
lessor shall properly submit a second Modification Application. In the
event such second Modification Application is granted, the station proposed
therein shall become the Modified Station for purposes of this Agreement.
If lessee is unable to redesign its wireless cable system to meet its
requirements and those of the FCC, it shall so notify lessor, at which this
time this Agreement shall terminate pursuant to Section VIII.A. In the
event that the time allowed by the FCC for construction of the modified
station is not reasonably sufficient to complete construction as provided
for in Section IV-A hereof, Lessor and Lessee shall cooperate in seeking
extension of such time and/or special temporary authority (STA) as may be
appropriate in the circumstances.
B. Covenant Not to Amend or Modify. Because the location and
configuration of lessor station is critical to lessee business, lessor shall
not attempt to amend its pending application or the Modification Application
or modify any license issued by the FCC for the Modified Station or the
Original Station without the prior written consent of lessee, which consent
shall not be unreasonably withheld.
III. USE OF THE CHANNELS.
A. Air Time. Commencing on the Start Date, lessor shall provide to
Lessee during the term of this Agreement all of the transmission capacity on
the Modified Station 24 hours a day, seven days a week, every week.
B. Scope of Use. The transmission capacity provided hereunder to
Lessee is for the transmission of Lessee provided video programming, data
and other information to reception points selected by Lessee. The
transmission capacity may be used by Lessee for any legal purpose, without
any restriction on the substance, format or type of information or signal to
be transmitted thereover.
IV. FACILITIES.
A. Provision of Transmission Facilities. No later than the earlier
of six months after receiving notice from lessor that lessor received a
grant of the Modification Application or such lesser time allowed by the FCC
for such construction, provided such lesser time is reasonably adequate for
such construction in accordance with the FCC's Rules, Lessee shall, at its
sole expense, install the facilities authorized by the FCC for the Modified
Station in accordance with the terms of lessor FCC authorization, the FCC's
rules and of this Agreement, subject to such supervision and control by
lessor as shall be required under the FCC's rules. Subsequently, throughout
the term of this Agreement, Lessee shall at its sole cost and expense
provide to lessor appropriate space (complete with utilities and necessary
environmental controls), transmitters, waveguide, antennas and other
associated equipment for the Modified Station (which equipment may be shared
with other stations). Subject to the provisions of Section VII.E, Lessee
shall retain title to the Modified Station. In addition, Lessee will
cooperate with lessor in obtaining at the earliest possible date (and in any
event prior to any renewal term) an agreement between lessor and the owner
of the transmission site at which the Modified Station will be located so as
to assure that lessor continues uninterrupted operations if Lessee's site
agreement expires or Lessee defaults under its site agreement. Lessor will
not take any action that would remove his eligibility to hold a license
issued under FCC rules then applicable to the facility during the initial
term and the renewal term(s) and he will duly file each license renewal
application) and any other FCC applications) or report(s) at Lessee's
expense that are required to continue and extend the term of license issued
by the FCC.
B. Start Date. For purposes of this Agreement, the Start Date shall
be the date Lessee completes construction of the Modified Station.
C. Operation and Maintenance. Lessee shall, at its own cost and
expense, retain technically qualified personnel to operate, repair, and
maintain the transmission facilities under the technical direction,
supervision and control of lessor to assure continued operation of the
Modified Station in accordance with lessor FCC license and the FCC's rules
and regulations. Lessee shall make available to lessor upon reasonable
request records of all repairs and maintenance activities and shall notify
lessor in the event transmission service is interrupted for any reason for a
period of five (5) minutes or more.
D. Interference. Lessee shall operate the Modified Station in such a
fashion as to ensure that such operation does not create or increase
interference to any other FCC applicant, permittee, or licensee entitled to
protection under the FCC's rules and policies. In the event of any creation
or increase in interference associated with the Modified Station, Lessee
shall pay all reasonable costs, including any costs of lessor attorney and
engineers, to resolve all interference to FCC applicants, permittees, or
licensees entitled to protection under the FCC's rules and policies,
provided however, that the Lessee shall have approved such costs in advance
in writing.
E. Modification of Transmission Facilities. lessor and Lessee
acknowledge the possibility that as a result of currently unforeseen events
or changes in the FCC's rules and policies, the technical configuration of
the Modified Station may prevent Lessee from optimizing its business
throughout the term of this Agreement. lessor therefore agrees that if any
time and from time to time Lessee so requests, lessor shall use his best
efforts to apply to the FCC for authority to modify the transmission
facilities (including, without limiting the generality of the foregoing, to
increase transmitted power, to increase antenna height, to modify the
transmission and antenna systems or to relocate the Modified Station) to
meet the reasonable requirements of Lessee. Lessee shall bear all
reasonable costs associated with such modifications, including engineering
and construction, and all reasonable costs associated with obtaining FCC
approval thereof, provided that such costs are approved by Lessee in advance
in writing. Upon the completion of such modification, the modified facility
shall become the Modified Station.
F. Additional Equipment. Lessee, at its own expense, may install
attachments to the Modified Station (including, without limitation, encoding
and/or addressing equipment selected by it) as may be required by the
exigencies of its business from time to time, provided that such alterations
and attachment do not violate any FCC rules and regulations. Any equipment
used in making attachments shall be provided by Lessee and Lessee shall be
responsible for the operation, maintenance and repair of all such equipment.
G. Reception Equipment. lessor has no responsibility hereunder to
provide any reception antennas, down converters, decoders, descramblers,
power supplies or any other equipment required to display signals
transmitted over the Modified Station ("Reception Equipment") . Lessee may,
in its sole discretion and on terms and conditions of its choosing, install
or cause to be installed such Reception Equipment as may be required, from
time to time, in order to receive the signals to be transmitted over the
Modified Station.
H. Program Origination and Delivery. Lessee shall be solely
responsible for the origination of any and all signals to be transmitted
over the Modified Station and the delivery of such to the Modified Station,
and shall bear all costs and expenses in connection therewith.
V. CHARGES
A. Commitment Fee. In consideration for Lessor's loss of opportunity
and forbearance from dealing with others for service on the Station, Lessee
shall pay to Lessor a Commitment Fee of One Thousand Dollars ($1,000) in the
form of a cashier's check within seven (7) days of receiving notice from
Lessor that the FCC has granted the Modified Application.
B. Transmission Fee. Commencing on the Start Date and continuing
thereafter for the term of this Agreement, Lessee shall pay to lessor in
consideration of the faithful performance by lessor of his obligations
hereunder a monthly fee (the "Transmission Fee") equal to the number of
Subscribers (as calculated in accordance with the formula below) during the
month in question multiplied by Ten Cents ($0.10). For purposes of computing
the Transmission Fee due hereunder for any month, the term "Subscribers"
shall be deemed to mean the number of subscribers contracting with Lessee to
receive Lessee's programming over the Modified Station as of the last day of
the prior month plus the number of such subscribers to Lessee's programming
over the Modified Station as of the last day of the current month divided by
two. Only Subscribers which are current with respect to their payments
shall be considered for this purpose; provided, however, that Subscribers
paying after the fact for a prior month or months shall be counted as
Subscribers for such month or months retroactively. In those situations
where programming is sold in bulk for viewing at isolated locations in the
same facility (that is, where a number of viewing units are grouped for
billing purposes such as may be the case with hotels and condominiums) and
Lessee's rates therefore are less than its prevailing monthly rate for the
sale of Lessee's programming. over the Modified Station to individual
Subscribers of its wireless cable service, the number of Subscribers from
such bulk billing points shall be determined by dividing the total monthly
revenues derived from the sale of Lessee's programming over Lessee's
wireless cable business to the bulk billing points by the Lessee's then
prevailing basic monthly rate for sale of programming to individual
subscribers.
C. Minimum Monthly Payments. Customer agrees to make minimum
payments to carrier, commencing on the Start Date as follows:
1) For the initial twelve month period commencing on the Start
Date, Lessee shall pay to lessor a minimum of $250.00 per month.
2) For the second year, Lessee shall pay lessor a minimum of
$500 per month.
3) For the third year thereafter throughout the term of this
Agreement, lessee shall pay lessor a minimum of $750 per month.
D. Cost of Living Adjustment. The Minimum Monthly Payment shall be
adjusted upward or downward based upon the consumer's price index as
reported by the U.S. Department of Labor (1967=100) for each five (5) year
renewal Term using 1991 as the base year.
E. Required Certificate and Payment Dates. Lessee shall, within
thirty (30) days of the end of each calendar month after the Start Date,
mail to lessor by first class United States mail, postage prepaid, a
certificate signed by an officer of Lessee showing the number of Subscribers
served during said month, together with the Transmission Fee to be paid by
Lessee hereunder for such month.
F. Right to Audit. For the purpose of permitted verification by
lessor of any payments due, Lessee shall keep and preserve for at least
three (3) years a true and accurate record of all sales and business
transacted during the term of this Agreement, including, without limitation,
all invoices, correspondence, ledgers, financial and other records relating
to its subscribers and xxxxxxxx. Lessor, his agents, employees, or
representatives, shall have the right, upon seventy two (72) hours advance
notice to Lessee, to examine all such books and records of Lessee at any
reasonable time during business hours. If, as a result of Lessor's
examination of such books and records, Lessor's certified public accountants
determine that any payment by Lessee was insufficient, Lessee agrees to pay
to the deficiency within five (5) days of receiving notice from Lessor. If
it is determined that Lessee has underpaid by seven (7%) or more, then in
addition to the payment of the deficiency, Lessee shall pay Lessor's cost of
examining Lessee's books and records and an additional fee equal to ten
percent (10%) of the amount of the deficiency. Lessor shall hold all
information obtained from Lessee's records in confidence, except as may be
necessary for the enforcement of his rights under this Agreement or except
pursuant to any legal requirements. In the event of dispute concerning the
sufficiency of any payment due Lessor under this agreement, the dispute
shall be resolved by arbitration conducted by a single arbitrator chosen by
the American Arbitration Association. The decision of such arbitrator shall
be final and binding on the parties hereto. The cost of such arbitration
shall be borne jointly by the parties provided, however, that if the
arbitrator shall determine that Lessee has underpaid the transmission fee
due to Lessor by 7% or more the cost of such arbitration shall be borne by
the Lessee.
G. Subscriber contracts. Lessor shall not interfere with the right
of Lessee or its designee to lawfully modify, waive, rescind, terminate or
cancel any and all services or contracts with Subscribers. In case any such
services or contracts are modified, waived, rescinded, terminated or
cancelled, Lessor shall not be entitled to any participation in revenues or
claims whatsoever with respect to the unperformed portion of any such
contract.
H. Proration of Fees. In the event that (i) the Start Date shall be
date other than the first day of a calendar month, or (ii) this Agreement
shall be terminated on a date other than the last day of a calendar month,
then the Transmission Fee for such month shall be proportionately reduced.
I. Taxes. If federal, state, or local taxes (other than taxes on the
income of Lessee) are applicable, or become applicable to the services
provided under this Agreement, it will be the responsibility of Lessor to
pay such taxes and/or reimburse Lessee for its payment of such taxes.
J. Broker's Fees. Simultaneously with the Execution of this
Agreement, Lessee shall pay to Suncoast Wireless Cable, 0000 000xx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, ("Broker") a broker's fee in the
form of a cashier's check for the amount of One Thousand Six Hundred
Seventy-Five Dollars ($1,675) in partial payment of Broker's services in
introducing Lessee and Lessor and brokering this Agreement. Within 7 days
of the granted modification, Lessee shall pay Suncoast Wireless Cable an
additional Three Thousand Three Hundred Twenty-Five Dollars ($3,325) in the
form of a cashier's check.
VI. PROSECUTION OF APPLICATIONS AND PETITIONS
A. FCC Filings. Both parties shall diligently prepare, file and
prosecute before the FCC all necessary or desirable petitions, waivers,
applications and other related documents required to secure FCC approval of
the matters addressed herein. Notwithstanding anything herein to the
contrary, it is understood that no filing shall be made with the FCC with
respect to the subject matter hereof unless both parties hereto shall have
reviewed said document and shall have consented in advance to its
submission.
B. Further Efforts. While this Agreement is in effect, Lessor shall
use his best efforts to obtain and maintain in force all licenses, permits
and authorizations required in connection with Lessee's use of the Modified
Station hereunder, and shall file and prosecute all necessary applications
for license renewal. Lessor shall also file such reasonable protests or
other petitions to deny against applications of third parties for licenses
as may be requested by Lessee. Lessor, if requested by Lessee, and to the
extent requested, shall use his best efforts to prevent any unauthorized
individual or entity from receiving the signals transmitted over the
Modified Station, provided that all costs and expenses in connection
therewith are paid by Lessee. Lessor shall promptly notify Lessee of any
event which may affect the licenses, permits, or authorizations for the
Modified Station. Lessor shall fully cooperate with all reasonable requests
of Lessee for assistance in the construction, operation and maintenance of
any additional facilities which Lessee may desire in order to optimize its
business within the city metropolitan area, provided that Lessee shall
reimburse Lessor for all reasonable expenses incurred by Lessor in providing
such assistance.
VII. REPRESENTATIONS AND WARRANTIES.
A. Lessee Representations and Warranties. In addition to
representations and warranties set forth above, Lessee represents and
warrants to Lessor that:
1. Organization. It is duly organized and existing under the
laws of the state of its incorporation, is qualified to do business in
the state in which the Modified Station will be located and has full
power and authority to carry out all of the transactions contemplated
hereby.
2. Authorization. All necessary actions on its parts to
authorize the execution and delivery of this Agreement and the
performance of its obligations hereunder have been taken.
3. Compliance with Law. It is in compliance and shall comply
with all laws, rules and regulations governing the business,
ownership, and operation of the Modified Station. The carrying out of
the provisions of this Agreement will not result in any violation or
be in conflict with any judgement, decree, order, statute, rule or
regulation of any governmental authority with jurisdiction over it.
4. No Violation. Neither the execution and delivery of this
Agreement nor the performance of the transactions contemplated hereby
constitutes or will constitute or will constitute a violation of, be
in conflict with, constitute a default under, or be ultra xxxxx as to,
any term of provision of its articles of incorporation or other
governing instruments or any agreement or commitment to which it is
bound. or any judgement, decree, order, regulation or rule of any
court or governmental authority, or any statute or law. Except for
approval of the FCC, no consent of any federal, state or local
authority is required in connection with the execution and delivery of
this Agreement or any other agreements, certificates or instruments
executed and delivered herewith or with the performance of the
transactions contemplated hereby and thereby.
5. Litigation. There is no action, suit, proceeding or
investigation pending or, to its best knowledge, threatened against it
before any court, administrative agency or other governmental body
relating in any way to the transactions contemplated by this
Agreement, and it does not know of any valid basis for the
commencement of any such action, proceeding or investigation. It has
not been charged with, and, to its best knowledge, has not been under
investigation with respect to any charge concerning, any material
violation of any provision of any federal, state, or local law or of
any administrative regulation. No unsatisfied judgement, order, writ,
injunction, decree or assessment of any court or of any federal,
state, local or other governmental department, commission, board,
bureau, agency or instrumentality relating in any way to this
Agreement has been entered against and served upon it. There is no
action, proceeding or investigation pending or, to its best knowledge,
threatened against it, nor are there questions or challenges that
otherwise seek to prevent the consummation or performance of this
Agreement.
X. Xxxxxx Representations and Warranties. In addition to
representations and warranties set forth above, Lessor represents and
warrants to Lessee that:
1. Authorization. He has full power and authority to carry out
all of the transactions contemplated hereby. All necessary actions on
his part to authorize the execution and delivery of this Agreement and
the performance of his obligations hereunder have been taken.
2. Compliance with Law. He is in compliance and shall comply
with all laws, rules and regulations governing the business,
ownership, and operation of the Modified Station. The carrying out of
the provisions of this Agreement will no result in any violation or be
in conflict with any judgement, decree, order, statute, rule or
regulation of any governmental authority with jurisdiction over him.
3. No Violation. Neither the execution and delivery of this
Agreement nor the performance of the transactions contemplated hereby,
constitutes or will constitute a violation of, be in conflict with,
constitute a default under, or be ultra xxxxx as to, any term or
provision of any agreement or commitment to which he is bound, or any
judgement, decree, order, regulation or rule of any court or
governmental authority, or any statute or law. Except for approval of
the FCC, no consent of any federal, state or local authority is
required in connection with the execution and delivery of this
Agreement or any other agreements, certificates or instruments
executed and delivered herewith or with the performance of the
transactions contemplated hereby and thereby.
4. Litigation. There is no action, suit, proceeding or
investigation pending or, to his best knowledge, threatened against
him before any court, administrative agency or other governmental body
relating in any way to the transactions contemplated by this
Agreement, and he does not know of any valid basis for the
commencement of any such action, proceeding or investigation. He has
not been charged with and, to his best knowledge, has not been under
investigation with respect to any charge concerning, any material
violation of any provision of any federal, state, or local law or of
any administrative regulation. No unsatisfied judgement, order, writ,
injunction, decree or assessment of any court or of any federal,
state, local, or other governmental department, commission, board,
bureau, agency, or instrumentality relating in any way to this
Agreement has been entered against and served upon him. There is no
action, proceeding or investigation pending or, to his best knowledge,
threatened against him, nor are there questions or challenges that
otherwise seek to prevent the consummation or performance of this
Agreement.
5. Lessor will not take any action that would remove his
eligibility to hold a license issued under FCC rules then applicable
to the facility during the initial term and the renewal term(s) and he
will duly file each license renewal application and any other FCC
application or report(s) at Lessee's expense that are required to
continue and extend the term of license issued by the FCC.
C. Survival of Representations and Warranties. The representations
and warranties contained in this Agreement shall not in any respect be
limited or diminished by any past or future inspection, examination, or
possession on the part of the parties or their representatives of any
records, documents, information or properties. Such warranties and
representations shall be deemed to be continuing during the term of this
Agreement, and each party shall have the duty promptly to notify the other
of any event or circumstance which might reasonably be deemed to constitute
a breach of or lead to a breach of its warranties or representations
hereunder.
D. Waiver. The express or implied waiver by either party of any
breach of any representation or warranty or any failure to fulfill any
condition, covenant or other obligation or liability under this Agreement
shall not constitute a waiver of any other representation or warranty or of
any other failure in the future or in the past by the other party to fulfill
such representation, warranty, condition, covenant, obligation or liability
hereunder.
E. Indemnification. Each of Lessor and Lessee (as the case may be
the ("Indemnitor") hereby covenants and agrees to, and shall, indemnify,
defend and save harmless the other, its directors, officers, and employees,
partners and affiliates and its respective successors or assigns (the
"Indemnitees") from and against, and shall reimburse the Indemnitees on
demand for any and all liabilities, losses, damages, claims, demands,
actions, costs and expenses (including without limitations, reasonable court
costs and attorney's fees) of whatsoever kind or nature, which any of the
Indemnitees may suffer, sustain, incur, or put to, pay, expend or lay out by
reason, by virtue or as a result of (i) each and every breach or default by
the Indemnitor of any of its covenants, agreements, duties or obligations
hereunder, or (ii) each and every breach or default of, or inaccuracy or
omission in, any representation or warranty of it contained herein. In any
case where indemnification is sought by the Indemnitees, the Indemnitees
shall (1) notify Indemnitor as soon as reasonably practicable of any claim,
litigation, or threatened claim or litigation, to which this indemnification
relates, and (2) shall afford the Indemnitor the opportunity to participate
in, and, at the option of the Indemnitor (subject to the approval of the
Indemnitees) comprise, settle, defend or otherwise resolve the claim or
litigation (and the Indemnitees shall not effect any such compromise or
settlement without prior written consent of the Indemnitor).
VIII. TERMINATION
A. Termination by Reason of FCC Action. This Agreement shall be
terminated in the event the FCC fails to grant the Modification Application
within four months prior to the expiration of Lessor's time to construct the
original Station. This Agreement shall be terminated immediately in the
event that the FCC determines after grant of the Modification Application
that Lessor is not authorized to operate the Modified Station as
contemplated by this Agreement. Should such determination occur without
either party having breached this Agreement, there shall be a final
accounting of monies due under this Agreement and, when completed, there
shall be no further liability of one party to the other.
B. Termination by Reason of Lessee Default or Non-Performance. This
Agreement may be terminated at the option of Lessor without further notice
if (I) Lessee fails to make a payment required by Section V and such breach
continued uncured for a period of ten (10) consecutive days after written
notice of such breach; (ii) Lessee does not commence transmission over the
Modified Station within one (1) year after the FCC grants the Modification
Application unless such failure is beyond Lessee's reasonable control. (iii)
Lessee is in default under the site agreement and such default is not cured
within the time allowed for cure in the site agreement, the site agreement
is terminated before the expiration of the term of this Agreement, or
Lessee's rights under the site agreement are restricted in any manner that
materially affects its ability to perform this Agreement; (iv) Lessee
commences any proceeding relating to its reorganization, dissolution or
liquidation or shall discontinue business, become insolvent or at any time
shall fail generally to pay its obligations as they fall due; (v) Lessee
makes an assignment for the benefit of creditors or applies for or consents
to the appointment of a receiver, trustee, or liquidator for all or
substantially all of its assets; or (vi) any governmental agency or
bankruptcy court or other court shall assume custody of the whole or any
part of Lessee's assets.
C. Termination in Other Cases of Breach, Default, or Non-Performance.
In all other cases not specifically provided for, this Agreement may be
terminated by either party upon the breach of any material warranty or
representation or the default or non-performance by the other party of its
obligations under this Agreement if such breach, default, or non-performance
continues uncured for a period of thirty (30) consecutive days after such
other party's receipt of written notice thereof from the party giving such
notice, provided, however, that in the event of a dispute concerning such
breach or default, the dispute shall be resolved by an arbitration conducted
by a single arbitrator chosen by the American Arbitration Association. The
decision of such arbitrator shall be final and binding on the parties
hereto. The cost of such arbitration shall be borne jointly by the parties
within 30 days after notice of one party to the other that termination is
sought pursuant to this provision.
D. Effects of Termination. Termination of this Agreement shall not
affect Lessee's obligation to pay any amounts due to Lessor accrued prior to
the effective date of termination, nor shall any termination pursuant to
Section VIII.B or VIII.C affect or diminish the rights or claims or remedies
available to the non-defaulting party arising by reason of such breach,
default or non-performance.
E. Continued Operations. Upon expiration or termination of this
Agreement (except for termination resulting from Lessor's breach of this
Agreement) , Lessee shall promptly surrender control of and title to the
Modified Station to Lessee free and clear of any and all liens, charges,
security interests and encumbrances whatsoever and shall take such further
steps as may be reasonably necessary to assure that there is no interruption
in service by Lessor.
IX. INSURANCE
A. Policies Required. Lessee shall, at its own cost, maintain with
sound and financially reputable insurers, insurance with respect to the
Modified Station and Lessee's utilization of the Modified Station against
casualty and other losses of the kinds customarily insured against by firms
of established reputations engaged in the same or a similar line of
business, of such types and in such amounts as are customarily carried under
similar circumstances by such firms, including, without limitation:
1. "All-risk" property insurance covering the Modified Station
to the extent of one hundred percent (100%) of its full replacement
value without deduction for depreciation;
2. "All-risk" business interruption insurance and/or extra
expense insurance covering Lessee's potential business losses in the
event of casualty to the Modified Station.;
3. Comprehensive general public liability insurance covering
liability resulting from Lessee's operation of the Modified Station on
an occurrence basis having minimum limited of liability in an amount
of not less than One Million Dollars ($1,000,000) for bodily injury,
personal injury or death to any person or persons in any one
occurrence, and not less than Two Million Dollars ($2,000,000) in the
aggregate for all such losses during each policy year, and not less
than One Million Dollars ($1,000,000) with respect to damage to
property;
4. All worker's compensation, automobile and similar insurance
required by law;
5. Such additional or difference insurance as Lessor, in his
reasonable business judgement, shall request as a result of changing
conditions.
B. Insurance Policy Forms. All policies of insurance required by
this Section shall, as appropriate, designate Lessor as either the insured
party or as a named additional insured, shall be written as primary
policies, not contributory with and not in excess of any coverage which
Lessor shall carry, and shall contain a provision that the issuer give to
Lessor thirty (30) days prior written notice of any cancellation or lapse of
such insurance or of any change in the coverage thereof.
X. MISCELLANEOUS.
A. Assignments
1. Assignment of Authorization. Lessor may not assign or
transfer his FCC authorization for the Modified Station during the
term hereof unless the assignee agrees in writing to assume Lessor's
obligations hereunder and unless Lessee gives its prior written
consent, which shall not be unreasonably withheld. Notwithstanding
the foregoing, Lessor may assign his authorization for the Modified
Station to any partnership or corporation in which he holds an equity
interest without the prior consent of Lessee if that partnership or
corporation agrees in writing to assume Lessor's obligations
hereunder.
2. Assignment of Agreement. Except as set forth above, no
party may assign or transfer its rights, benefits, duties or
obligations hereunder without the prior written consent of the other,
which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, Lessee may assign its rights, benefits, duties and
obligations hereunder to a lender in connection with the financing of
its wireless cable system without securing the prior written consent
of Lessor.
B. Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be an original and all of which
together shall constitute one and the same instrument.
C. Dealings with Third Parties. No party is, nor shall any party
hold itself out to be, vested with any power or right to contractually bind,
or act on behalf of any other as its contracting broker, agent or otherwise
for committing, selling, conveying or transferring any of the other party's
assets or property, contracting for or in the lessor of the other party, or
making any contractually binding representations as to the other party which
shall be deemed representations contractually binding such party.
D. Due Authorization. Each of the Signatories personally represents
and warrants that he is duly authorized to execute this Agreement on behalf
of the party on whose behalf he purports to execute this Agreement.
E. Entire Agreement. This Agreement states the entire agreement as
of this date between the parties with respect to the subject matter hereof
and supersedes all pre-existing oral, letter, or other agreements or
commitments with respect thereto. This Agreement may be modified only by an
agreement in writing executed by all of the parties hereto. This Agreement
shall be binding on and shall inure to the benefit of the parties hereto and
their respective successors and assigns, subject, however, to the provisions
hereof restricting assignment.
F. Force Majeure. If by reasons of force majeure either party is
unable, in whole or in part, to carry out its obligations hereunder, said
party shall not be deemed in violation or default during the continuance of
such inability. The term "force majeure" as used herein shall mean the
following: acts of God, acts of public enemies, orders of any kind of the
government of the United States of America or any of its departments,
agencies, political subdivisions, or officials, or any civil or military
authority; earthquakes; fires, hurricanes, volcanic activity, storms of
extraordinary force, floods, washouts, droughts, civil disturbances,
explosions, disruptions to the equipment manufacturing process, including
labor strikes and lockouts, beyond the control of Lessee, the inability of
the equipment manufacturer to deliver equipment ordered by Lessee in a
timely manner due to reasons beyond the control of Lessee.
G. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the state of Vermont.
H. Jurisdiction and Venue. In the event of any dispute between the
parties regarding the rights and obligations of any party hereunder, except
for the arbitration provisions contained herein, any party shall have the
right to xxx the other party in state courts located in Vermont. For any
and all such purposes, the parties hereto hereby irrevocably submit to the
jurisdiction of such courts waive all objections thereto (on the grounds of
improper venue, forum non conveniens or otherwise), and agree that service
of process upon each as provided in the section concerning Notices herein
shall be effective to establish personal jurisdiction over it in such
courts.
I. Headings. The headings herein are inserted for convenience only
and shall not constitute a part of this Agreement.
J. Notices. Except as set forth above concerning the payment of
Transmission Fees, all notices and documentation given under this Agreement
shall be in writing and shall be deemed given the first weekday (excluding
Federal holidays) after being sent by United States Express Mail, return
receipt requested, or by Federal Express, signature required, to the other
party at the following address:
If to Lessee:
New England Wireless
00 Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Xxxxxxx X. Xxxxxxx
XxXxxxxx, Xxxxx & Sill
0000 00xx Xxxxxx, X.X., #000
Xxxxxxxxxx, X.X. 00000
If to Lessor:
Xxxxx Xxxxx
000 00xx Xx.
Xxxxx, XX 00000
L. Parties Defined. The parties to this Agreement shall include the
parties identified at the head of this Agreement, or any corporation or
other entity into or with which any of them be incorporated, merged or
consolidated, or any corporation or entity which shall succeed to or acquire
all or substantially all of the business and/or assets of any of them, as
the case may be.
M. Specific Performance. The parties acknowledge and agree that the
rights reserved to each of them hereunder are of a special, unique unusual
and extraordinary character, which gives them a particular value, the loss
of which cannot be adequately or reasonably compensated for in damages in an
action at law, and the breach by either of the parties of any of the
provisions hereof will cause the other parties irreparable injury and
damage. In such event, the nondefaulting party shall be entitled, as a
matter of right, without further notice, to require of the defaulting party
specific performance of all of the acts, services and undertakings required
hereunder including the obtaining of all requisite authorizations to execute
or perform this Agreement and to obtain injunctive and other equitable
relief in any competent court to prevent the violation of any of the
provisions hereof. Neither this provision nor any exercise by any party of
rights to equitable relief or specific performance herein granted shall
constitute a waiver of any other rights which it may have to damages or
otherwise.
N. Reallocation of OFS H Group Channels. The parties acknowledge
that the FCC has proposed to reallocate the OFS H Group channels to the
Multipoint Distribution Service ("MDS"). In the event of such reallocation,
the parties shall use their best efforts to carry out the intention of this
Agreement by having Lessor provide a non-common carrier MDS transmission
service to Lessee.
O. Time of Essence, Whenever this Agreement shall set forth any time
for the performance of any act, such time shall be deemed of the essence.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
LESSOR /S/____________________________
New England Wireless /S/____________________________
