EXHIBIT 10.11
LETTER AGREEMENT
BETWEEN
RAINBOW MVDDS COMPANY, LLC, RAINBOW MEDIA HOLDINGS, LLC,
DTV NORWICH, LLC AND XXXXXX XXXXXXXXXX AND COMPANY, LLC
January 13, 2004
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Dear Xxxxxx:
This letter agreement (the "Agreement") confirms the mutual understanding
and agreements with respect to a series of transactions between DTV Norwich,
LLC, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, a Delaware limited
liability company ("Applicant"), wholly-owned by Xxxxxx X. Xxxxxxxxxx and
Company, LLC ("Xxxxxxxxxx"), a registered bidder in FCC auction Number 53
("MVDDS Auction"), and Rainbow MVDDS Company, LLC, a Delaware limited liability
company not registered in the MVDDS Auction ("Investor"). In consideration of
the mutual promises and covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, we agree as follows:
1. Investment in Applicant.
(a) Purchase of Membership Interests. Subject to the terms and conditions set
forth in this Agreement, and in reliance on the representations and
warranties set forth in this Agreement, Applicant agrees to issue to
Investor a forty-nine percent (49%) membership interest in the Applicant,
in exchange for a payment to Xxxxxxxxxx of $100,000, plus reimbursement to
Xxxxxxxxxx of forty-nine percent (49%) of Applicant's expenses, such
expenses not to exceed fifty thousand dollars ($50,000), incurred to date
in connection with Applicant's preparation and submission of an
application to participate in the MVDDS Auction.
(b) Loans to Applicant.
i. Within one (1) business day of the execution of this Agreement by
all of the parties thereto, Investor or an affiliate of Investor to
be designated by Investor ("Lender") agrees to lend Applicant seven
million, two hundred fifty thousand dollars ($7,250,000.00) (the
"Initial Bid Loan"), the proceeds of which loan shall be distributed
to Xxxxxxxxxx to reimburse it for Applicant's submission of the
upfront payment in connection with the MVDDS Auction. The Initial
Bid Loan is evidenced by a promissory note in the form attached
hereto as Exhibit A, bearing interest at an
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 2 of 12
annual rate of LIBOR plus three percent ("Base Rate"), guaranteed by
the members to the extent of their respective membership interests
with recourse limited solely to such interests, and secured by a
pledge of such membership interests in the Applicant. In the event
Applicant is not the winning bidder in the MVDDS Auction, Applicant
shall repay the Initial Bid Loan promptly to Lender upon receiving a
return of the upfront payment to the FCC in connection with the
MVDDS Auction.
ii. In addition to the amounts loaned under Section l(b)(i) above,
Lender agrees to lend Applicant funds sufficient to pay for the
licenses for which Applicant is the high bidder in the MVDDS Auction
(the "Additional Bid Loan") to secure Applicant's winning bids in
the MVDDS Auction. The Additional Bid Loan will be evidenced by a
promissory note in the form attached hereto as Exhibit B, bearing
interest at the Base Rate, guaranteed by the members to the extent
of their respective membership interest with recourse limited solely
to such interests, and secured by a pledge of such membership
interests evidenced by an agreement substantially in the form of the
Pledge of Limited Liability Company Interests executed by the
parties on January 13, 2004.
(c) Applicant's Representations and Warranties: Covenants. Xxxxxxxxxx and
Applicant represent, warrant, and covenant that:
i. Formation, Standing and Qualification. Applicant (i) is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization and (ii) has the requisite power
and authority to own, lease and operate its properties and to carry
on its business as presently conducted by it. Applicant is qualified
to transact business as a limited liability company) in, and is in
good standing under the limited liability laws of, those
jurisdictions in which it currently operates under its name.
Applicant has no subsidiaries and Xxxxxxxxxx is the sole owner of
Applicant.
iii. Power and Authority. Applicant has the requisite power and authority
to execute and deliver this Agreement and the other agreements
contemplated hereby to which it is a party (collectively, the
"Related Agreements"), to perform its obligations hereunder and
thereunder and to engage in the transactions contemplated hereby and
thereby. Applicant has taken or will take all requisite action to
make all the provisions of this Agreement and the Related Agreements
the valid and enforceable obligations they purport to be. This
Agreement is, and upon the execution and delivery thereof, each of
the Related Agreements will be, legal, valid and binding obligations
of Applicant, enforceable in accordance with their terms, subject to
laws of general application from time to time in effect affecting
creditors' rights and the exercise of judicial discretion in
accordance with general equitable principles.
iv. Certificate of Formation and Operating Agreement. Applicant has
furnished or made available to Investor true, correct and complete
copies of its Certificate of Formation and Operating Agreement (if
any).
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 3 of 12
v. Litigation. Neither Xxxxxxxxxx nor Applicant has received any notice
of and to the best knowledge of Xxxxxxxxxx and Applicant, there is
no action, suit, claim, hearing, litigation, proceeding,
investigation, arbitration or governmental inquiry, at law or in
equity, or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency, court or
instrumentality, domestic or foreign, or arbitrator or arbitration
panel (collectively, a "Proceeding") pending or, to the best
knowledge of Applicant, threatened against either Xxxxxxxxxx or
Applicant or affecting any of their properties or assets.
vi. Compliance with Laws. Xxxxxxxxxx and Applicant have complied in all
material respects with, and is not in material violation of or
material default (with due notice or lapse of time or both) with
respect to, all laws, governmental rules, governmental regulations,
including, without limitation, laws, rules and regulations regarding
protection of the environment, governmental consents or orders,
judgments, decrees, writs, injunctions and awards of any
arbitration, court or governmental authority which are material to
it and its business, operations, properties, assets, products and
services.
vii. No Conflicts. Neither Xxxxxxxxxx nor Applicant is in material
violation or default (with due notice or lapse of time or both) of
the Operating Agreement or Certificate of Formation, or of any
material agreement or instrument to which it is a party or by which
it nor any of its assets is bound. None of the authorization,
execution, delivery and performance of this Agreement or the Related
Agreements, the issuance of membership interests to Investor, the
consummation of the MVDDS Auction and the transactions herein and
therein contemplated, or the fulfillment of or compliance with the
terms hereof and thereof, will conflict with or result in a breach
or default (with due notice or lapse of time or both) of any of (i)
the terms of the Operating Agreement or (ii) of any statute, law,
rule or regulation, or of any judgment, decree, writ, injunction,
order or award of any arbitrator, court or governmental authority,
or (iii) of any material agreement or instrument, which is
applicable to Xxxxxxxxxx or Applicant or by which Xxxxxxxxxx or
Applicant or any of their assets are bound, or constitute a default
(with due notice or lapse of time or both) thereunder.
viii. Governmental Approvals. No registration or filing with, or consent
or approval of or other action by, any Federal, state or other
governmental agency or instrumentality, domestic or foreign, under
laws and regulations thereof as now in effect is or will be
necessary for the valid execution, delivery and performance by
Xxxxxxxxxx or Applicant of this Agreement or any of the Related
Agreements, or the issuance of the membership interest in Applicant,
other than filings pursuant to state securities laws (all of which
filings will be made within the period of time required by such
state securities laws) in connection with the issuance of the
membership interests, filings necessary to amend the FCC short form
application as described below and the approval of the FCC to
effectuate the provisions of the Call Option or Put Option.
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 4 of 12
ix. Use of Proceeds. Applicant is not required pursuant to any contract
or other arrangement to apply the proceeds received from Investor or
Lender pursuant to the transactions contemplated hereby other than
as specified herein.
x. Disclosure. Neither this Agreement nor any or written statement
furnished or made to Investor by Xxxxxxxxxx or Applicant pursuant to
this Agreement (taken as a whole) contains any untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements contained herein and therein not misleading
in light of the circumstances under which they were made.
(d) Investor's Representations and Warranties; Covenants. Investor hereby
represents, warrants, and covenants to Applicant that:
i. Formation, Standing and Qualification. Investor (i) is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization and (ii) has the requisite power
and authority to own, lease and operate its properties and to carry
on its business as presently conducted by it. Investor is qualified
to transact business as a limited liability company in, and is in
good standing under the limited liability company laws of, those
jurisdictions in which it currently operates under its name.
Investor has no subsidiaries.
iii. Power and Authority. Investor has the requisite power and authority
to execute and deliver this Agreement and the Related Agreements to
perform its obligations hereunder and thereunder and to engage in
the transactions contemplated hereby and thereby. Investor has taken
or will take all requisite action to make all the provisions of this
Agreement and the Related Agreements the valid and enforceable
obligations they purport to be. This Agreement is, and upon the
execution and delivery thereof, each of the Related Agreements will
be, legal, valid and binding obligations of Investor, enforceable in
accordance with their terms, subject to laws of general application
from time to time in effect affecting creditors' rights and the
exercise of judicial discretion in accordance with general equitable
principles.
iv. Certificate of Formation and Operating Agreement. Investor has
furnished or made available to Investor true, correct and complete
copies of its Certificate of Formation and Operating Agreement (if
any).
v. Litigation. The Investor has received no notice of, and to the best
knowledge of Investor, there is no Proceeding pending or, to the
best knowledge of Investor, threatened against Investor or affecting
any of its properties or assets.
vi. Compliance with Laws. Investor have complied in all material
respects with, and is not in material violation of or material
default (with due notice or lapse of time or both) with respect to,
all laws, governmental rules, governmental regulations, including,
without limitation, laws, rules and regulations regarding protection
of the environment, governmental consents or orders, judgments,
decrees, writs, injunctions and awards of
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 5 of 12
any arbitration, court or governmental authority which are material
to it and its business, operations, properties, assets, products and
services.
vii. No Conflicts. The Investor is not in material violation or default
(with due notice or lapse of time or both) of the Operating
Agreement or Certificate of Formation, or of any material agreement
or instrument to which it is a party or by which it nor any of its
assets is bound. None of the authorization, execution, delivery and
performance of this Agreement or the Related Agreements, and the
transactions herein and therein contemplated, or the fulfillment of
or compliance with the terms hereof and thereof, will conflict with
or result in a breach or default (with due notice or lapse of time
or both) of any of (i) the terms of the Operating Agreement or (ii)
of any statute, law, rule or regulation, or of any judgment, decree,
writ, injunction, order or award of any arbitrator, court or
governmental authority, or (iii) of any material agreement or
instrument, which is applicable to Investor or by which the Investor
or any of its assets is bound, or constitute a default (with due
notice or lapse of time or both) thereunder.
viii. Governmental Approvals. No registration or filing with, or consent
or approval of or other action by, any Federal, state or other
governmental agency or instrumentality, domestic or foreign, under
laws and regulations thereof as now in effect is or will be
necessary for the valid execution, delivery and performance by
Investor of this Agreement or any of the Related Agreements, other
than filings pursuant to state securities laws (all of which filings
will be made within the period of time required by such state
securities laws) in connection with the issuance of the membership
interests, filings necessary to amend the FCC short form application
as described below and the approval of the FCC to effectuate the
provisions of the Call Option or Put Option.
ix. Disclosure. Neither this Agreement nor any or written statement
furnished or made to Applicant by Investor pursuant to this
Agreement (taken as a whole) contains any untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements contained herein and therein not misleading
in light of the circumstances under which they were made.
(e) Transfer of Ownership Interests.
x. Xxxxxxxxxx shall not transfer interest in Applicant without
Investor's consent, which Investor may withhold for any reason.
Investor may transfer its membership interest or its other rights to
an affiliate of Investor at Investor's sole discretion.
ii. Investor also shall have "tag along" rights that permit Investor to
participate in any permitted transfer by Xxxxxxxxxx of Xxxxxxxxxx'x
membership interest or a permitted transfer of any other membership
interest on the same terms and conditions and on a pro rata basis.
iii. If at any time Applicant proposes to issue any equity securities or
securities convertible into equity, Investor will have the right to
subscribe for its pro rata share,
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 6 of 12
on a fully-diluted basis, of the offered securities in order to
maintain its then current equity and voting position in Applicant.
iv. Effective upon the making of Investor's initial capital
contribution, Applicant's governing document shall be amended to
provide that (i) a Member's Committee composed of two
representatives appointed by Xxxxxxxxxx and one representative
appointed by Investor, shall be constituted, which Member's
Committee shall have full authority and responsibility for the
Applicant's business except as otherwise provided herein, (ii)
except as provided for herein, Member's Committee action shall be by
majority vote, except that unanimous vote shall be required for
certain decisions including incurrence of debt, issuance of
membership interests, changes to Applicant's constituent documents,
changes in the structure or ownership of Applicant and capital calls
(except that capital calls required to fund the payment of amounts
due under the Initial Bid Loan or the Additional Bid Loan shall be
approved if approved by any representative on the Member's
Committee). Any such capital call should be made within ten (10)
days of receiving a capital call notice and the non-contributing
member's interest will automatically be reduced (but not below ten
percent (10%)) within ten (10) days of the deadline set forth in a
capital call notice. Immediately following the first to occur of (i)
consummation of the Call Option or the Put Option (each as defined
below), (ii) any reduction of Xxxxxxxxxx'x percentage membership
interest in Applicant resulting from any failure to contribute his
pro rata portion of any capital call, Xxxxxxxxxx shall cause its
representatives on the Member's Committee to resign and Investor
shall appoint two additional representatives to replace such
representatives.
v. Immediately upon the FCC's grant to the Applicant of the licenses it
has won in the MVDDS Auction ("the Licenses"), Investor shall have
the right to purchase from Xxxxxxxxxx (the "Call Option") 41%
(adjusted by permitted dilution) of the outstanding membership
interests in Applicant for $900,000 or 5% of Applicant's gross high
bid for all markets, whichever is higher (the "Option Exercise
Price"). Upon consummation of the Call Option, Xxxxxxxxxx will be
released from any and all personal guarantees on the loans incurred
under Section l(b)(i) and (ii).
vi. Xxxxxxxxxx shall have the option to put its membership interest in
Applicant to Investor (the "Put Option"), which Xxxxxxxxxx may
exercise if Investor has not, on or before the date that is sixty
(60) days after the grant of the Licenses to Applicant becomes final
and nonappealable, exercised the Call Option for any reason. At
Investor's sole discretion, Investor may change the first date on
which Xxxxxxxxxx may exercise the Put Option to the date that is
sixty (60) days after the FCC's grant of the Licenses. Upon
Xxxxxxxxxx'x exercise of the Put Option, Investor will be required
to purchase 41% (adjusted by permitted dilution) of the outstanding
membership interests in Applicant for the Option Exercise Price. If
Xxxxxxxxxx exercises the Put Option, Xxxxxxxxxx will be released
from any and all personal guarantees on the loans incurred under
Section l(b)(i) and (ii). If Xxxxxxxxxx does not
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 7 of 12
exercise the Put Option by end of six years from the date of the
closing of the MVDDS Auction, then Xxxxxxxxxx and Investor shall
share the expenses of the operation and construction of the system
on a pro rata basis.
vii. Xxxxxxxxxx will have the right to retain his remaining 10%
membership interest in Applicant, any time after the Call Option or
the Put Option is exercised. For a period of ten (10) years from the
time that either the Put Option or Call Option is exercised,
Xxxxxxxxxx shall have the option to put his remaining ten percent
(10%) membership interest to Investor ("Remaining Interest Put"). At
any time after Xxxxxxxxxx'x right to exercise the Remaining Interest
Put expires, Investor shall have the right to purchase from
Xxxxxxxxxx his remaining 10% membership interest (the "Remaining
Interest Call"). The Remaining Interest Put or Remaining Interest
Call may be exercised at a fair market value price (without
application of any minority discount), payable in cash or publicly
traded stock of an affiliate of Investor designated by Investor, to
be determined by two (2) entities experienced in valuing
telecommunications companies. If there is less than a ten percent
(10%) difference between the purchase price proposed by each of the
two (2) valuation firms, the valuation shall be the average of the
two proposed purchase prices. If there is a greater than ten percent
(10%) difference between the purchase price proposed by each of the
two (2) valuation firms, the valuation firm shall select a third
valuation firm, whose valuation shall be binding.
(f) No later than January 13,2004, Applicant shall amend its FCC short form
application in the MVDDS Auction to indicate (1) that Investor has
acquired a 49% interest in Applicant; (2) that Applicant has reached a
bidding agreement with Investor; (3) that Applicant is changing its
designated entity status so that it is no longer a "very small business"
and no longer seeking a bidding credit in the MVDDS auction and
Appropriate disclosure of Investor's other FCC related interests will be
made to the extent required under FCC rules.
2. Bidding.
(a) Prior to the commencement of the MVDDS Auction, the parties shall specify
the markets in which Applicant will bid and a do not exceed ("DNE") limit
for each license (based either on raw bid price or price per household
calculation), as well as an aggregate limit of the amount that Applicant
may bid on all licenses.
(b) Applicant will place bids consistent with specification of markets and the
DNE limits specified pursuant to Section 2(a), except as provided in
Section 2(d).
(c) Once DNE limit is reached for any license, or in the aggregate, it may be
exceeded upon mutual agreement of Investor and Applicant or unilateral
decision by Investor, with no change to the other terms of this Agreement.
If Investor does not wish to exceed DNE limit but Applicant does,
Applicant shall notify of Investor of its intent to continue participating
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 8 of 12
in the auction and must immediately refund all money transmitted by
Investor to Applicant to date. Parties otherwise absorb their own expenses
in such event. In exchange for the return of funds provided to Applicant,
Investor will divest its 49% interest in Applicant. Thereafter, Applicant
will be responsible for all future obligations to the FCC or otherwise. At
that time, any other obligations between the parties, whether under this
Agreement or successor agreements contemplated by this Agreement, shall be
terminated.
(d) Upon conclusion of the MVDDS Auction, when required by FCC, Lender will
make all additional payments to FCC either directly or indirectly through
Applicant.
3. Services.
(a) Investor or its designee shall have the right to operate the licensed
facilities, on an exclusive basis, for its own use, and shall have sole
authority to determine whether and what services will be provided over the
facilities. Investor shall have the foregoing right for duration of the
license term, and shall be renewable at Investor's option, upon required
notification to FCC.
(b) Once facilities are constructed and stations are operating, Investor will
provide Applicant with a services fee equal to fifty thousand dollars
($50,000) per annum.
(c) Investor shall have the right to enter into a sublease agreement with a
third party.
(d) Subject to any changes the FCC may make to its rules:
i. Applicant will maintain oversight of the spectrum so as to ensure
that Investor complies with applicable technical and operational
rules, and will retain the right to inspect Investor's operations
and to terminate the lease in the event of material non-compliance
by Investor;
ii. Applicant will retain responsibility for meeting all applicable
frequency coordination obligations and resolving
interference-related matters, and will be responsible for all
interactions, including filings, with the FCC associated with
technical rules and use of the spectrum;
iii. Investor or its designee will be directly responsible for compliance
with non-technical or operational rules, and any associated
interactions with the FCC, applicable to the services it provides
over the spectrum, such as regulatory and funding obligations
Investor incurs by virtue of being an MVDDS operator.
4. Definitive Agreements. The parties intend to negotiate and execute
definitive agreements that embody the provisions of Sections 1(e), 2, and 3;
provided, however, that unless
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 9 of 12
and until such agreements are entered into this letter shall be binding on the
parties and enforceable in accordance with its terms.
5. Exclusive Dealing. Until the earlier of (i) the date that is 60 days
from the date this Agreement is executed or (ii) the date the MVDDS Auction is
closed, neither Xxxxxxxxxx nor Applicant will (and will cause Xxxxxxxxxx'x and
Applicant's affiliates not to), directly or indirectly, through any
representative or otherwise, solicit or entertain offers from, negotiate with,
or in any manner encourage, discuss, accept, or consider any proposal of any
other person relating to the licenses that are the subject of the MVDDS Auction,
in whole or in part.
6. Indemnification.
(a) In General. The Rainbow Entity (as specified in Section 6(b))
hereby agrees to indemnify and hold harmless Xxxxxxxxxx and its members and
managers and their successors and assigns, against and from any and all claims,
liabilities, judgments, costs, demands, causes of action and expenses
(including, without limitation, reasonable attorneys' fees) arising from: (i)
the modification of Applicant's MVDDS application, as specified above; (ii) any
actions taken by Applicant after the date of this Agreement; (iii) Investor's
use of the Licenses pursuant to Section 3 of this Agreement; and (iv) any action
or proceeding brought on account of any event specified in (i), (ii) or (iii) of
this paragraph; provided, however, that the Rainbow Entity's indemnification
obligation shall not apply to any claims, liabilities, judgments, costs,
demands, causes of action and expenses arising out of (y) actions that
Xxxxxxxxxx or Applicant took prior to the date of this Agreement; or (z) any
action that Xxxxxxxxxx causes Applicant to take at any time without the
concurrence of Investor. If any action or proceeding is brought against
Xxxxxxxxxx by reason of such claim, upon notice from Xxxxxxxxxx, Investor shall
defend the same at Investor's expense. Xxxxxxxxxx shall give prompt written
notice to the Investor of any claim against Xxxxxxxxxx which might give rise to
a claim by it against the Investor hereto based upon the indemnity provisions
contained herein, stating the nature and basis of the claim and the actual or
estimated amount thereof. If any third party asserts a claim against Xxxxxxxxxx
hereto which, if true, would give rise to a claim for indemnification hereunder,
Xxxxxxxxxx shall be entitled to be indemnified against the costs and expenses of
defending the claim, whether or not the claimant ultimately prevails.
(b) Rainbow Entity. The Rainbow Entity obligated to indemnify
Xxxxxxxxxx shall be Rainbow Media Holdings, Inc. ("RMH"); provided, however,
that if Cablevision Systems Corp. spins off to its shareholders an entity that
includes Rainbow DBS Holdings, Inc. ("Rainbow DBS") and American Movie Classic
Company ("AMC"), then immediately prior to such spinoff RMH shall be released
from all of the indemnification obligations under Section 6(a) and replaced by
the such spun off entity.
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 10 of 12
(c) Termination. All obligations under this Section 6(a) shall
terminate on the earlier of (i) the date of consummation of the Call Option or
(ii) ten (10) days after the Put Option becomes exercisable.
(d) Applicant's operating agreement will provide customary
indemnification of its members for liabilities resulting from their ownership of
membership interests.
7. Expenses. Except as otherwise provided, herein, each party shall be
responsible for bearing its own respective costs and expenses associated with
consummating the transactions hereunder.
8. Confidentiality. The terms of this Agreement are confidential and
neither Xxxxxxxxxx nor Applicant may share this Agreement or its terms with any
non-employee or non-director of Applicant or any other party, except legal and
business advisors. Xxxxxxxxxx shall keep all information contained in this
Agreement confidential.
9. Miscellaneous
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supercedes all prior oral or written agreements and understandings
relating to the subject matter hereof.
(b) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(c) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(d) Governing Law/Jurisdiction. This Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance with and
governed by the law of the State of New York, without giving effect to the
conflict of law principles thereof. Any legal action or proceeding with respect
to this Agreement shall be brought in the courts of State of New York or of the
federal district courts with jurisdiction in such state. By execution and
delivery of this Agreement, each of the parties hereto accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts.
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 11 of 12
(e) Severability. The parties intend this Agreement to be enforced
as written. However, (i) if any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a duly authorized court
having jurisdiction, then the remainder of this Agreement, or the application of
such portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(f) No Waiver of Rights, Powers and Remedies. No failure or delay by
a party hereto in exercising any right, power or remedy under this Agreement,
and no course of dealing between the parties hereto, shall operate as a waiver
of any such right, power or remedy of the party. No single or partial exercise
of any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(g) Expenses Upon Breach. Should any party breach this Agreement, in
addition to all other remedies available at law or in equity, such party shall
pay all of any other party's costs and expenses resulting therefrom and/or
incurred in enforcing this Agreement, including reasonable legal fees and
expenses.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[signature page follows]
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 12 of 12
If the foregoing accurately sets forth our agreement, please so
indicate by signing and returning to us the enclosed copy of this letter.
Very truly yours,
RAINBOW MVDDS COMPANY, LLC
By: ______________________________
Name: _____________________________
Title: ____________________________
For purposes of Section 6 only:
RAINBOW MEDIA HOLDINGS, INC.
By: ______________________________
Name: _____________________________
Title: ____________________________
Accepted and Approved as of
the date first written above:
DTV NORWICH, LLC
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------
By: Xxxxxx X. Xxxxxxxxxx on behalf of
Xxxxxx X. Xxxxxxxxxx and Company, LLC,
its Managing Member
XXXXXX XXXXXXXXXX AND COMPANY, LLC
/s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
By: Xxxxxx X. Xxxxxxxxxx
Managing Member
Mr. Xxxxxx Xxxxxxxxxx
DTV Norwich, LLC
Page 12 of 12
If the foregoing accurately sets forth our agreement, please so
indicate by signing and returning to us the enclosed copy of this letter.
Very truly yours,
RAINBOW MVDDS COMPANY, LLC
By: /s/ XX XXXXXX
------------------------------
Name: XXXXXXX X. XXXXXX
------------------------------
Title:
------------------------------
For purposes of Section 6 only:
RAINBOW MEDIA HOLDINGS, INC.
By: /s/ XXXXX XXXXXX
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Name: XXXXX XXXXXX
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Title: SRVP, BUSINESS AFFAIRS
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Accepted and Approved as of the
date first written above:
DTV NORWICH, LLC
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By: Xxxxxx X. Xxxxxxxxxx on behalf
of Xxxxxx X. Xxxxxxxxxx and Company,
LLC, its Managing Member
XXXXXX XXXXXXXXXX AND COMPANY, LLC
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By: Xxxxxx X. Xxxxxxxxxx
Managing Member
