EXHIBIT 10.5
________________________________________
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is effective
as of October 17, 1996, by and between NORTHEAST TELECOM, INC.
("Assignor") and MISSOURI CABLE TV CORP. ("Assignee") (Collectively
referred to as "Parties").
WITNESSETH
Whereas, Assignor has received a lease from Xxxxxx Xxxxxxxxx (the "Lease")
for the operation of one (1) Low Power Television station in Poplar Bluff,
MO, having the Call sign K26EC and operating on channel 26 (the
"Channel").
Whereas, Assignor desires to assign its rights to the Lease pursuant to
section
27 of the Lease; and
Whereas, Assignee desires to assume Assignor's rights to the Lease and the
Channel, as described above.
Now Therefore, in consideration of the mutual promises and covenants herein
contained and other good and valuable consideration as hereinafter set forth,
the Parties agree as follows:
1. Assignor hereby assigns, sells, conveys and transfers to Assignee his
rights to Lease the Channel.
2. Assignee hereby agrees to assume any fees related to the execution of
this
agreement.
3. Assignor herein further represents and warrants that he has full power
and
authority to execute and deliver this agreement and to conclude the
transaction contemplated herein. Assignor also represents and warrants that
the has all the rights, title, and interest to the Lease and the Channel and
that
there are no existing or anticipated liabilities or legal action associated
with
the Lease or the Channel, to the best of his knowledge and Assignor has not
transferred (or agreed to transfer), nor will it transfer prior to the
completion
of the transaction contemplated herein, any portion of his interest in the
Lease
or the Channel to any other entity.
4. Assignor shall notify Channel holder of assignment per section 27 of the
Lease.
5. Notices: All notices and other communications hereunder shall be in
writing and shall be deemed given if hand delivered by, postage paid, to the
Parties named below:
IF TO ASSIGNEE: MISSOURI CABLE TV CORP.
0000 XXXXXXXX XXXX XXXX
XXXXX XXXXX, XX 00000
c/o XXXXX X. XXXXXX
IF TO ASSIGNOR: NORTHEAST TELECOM INC.
0000 XXXXX 0 XXXXX
XXXXXXXX, XX 00000
c/o XXXXXXX X. XXXXXX
6. Severability: Any provisions of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction. It is expressly
understood, however, that the Parties hereto intend each and every provision
of this Agreement to be valid and enforceable and hereby knowingly waive
all rights to object to any provisions of this agreement.
7. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective successors and assigns.
8. This Agreement shall be governed by and construed under the laws of the
state of Louisiana, without regard to conflict of law provisions.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date and year first written above.
Assignor: Assignee:
NORTHEAST TELECOM INC. MISSOURI CABLE TV CORP.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Its: President Its: CEO
MANAGEMENT AND LEASE AGREEMENT
This Management and Lease Agreement ("Agreement") is made this 24 day
of June, 1995 by and between Northeast Telecom Inc. (NTI), and Xxxxxx
Xxxxxxxxx ("Permittee"), together "the Parties".
WHERAS, the Federal Communications Commission ("FCC") has
authorized licensees of Low Power Television ("LPTV") stations as defined
in Section 74.701(F) of the Commission's Rules, to provide subscription
television ("STV") service on their authorized channels, subject to FCC rules
and policies;
WHERAS, Permittee has been granted a Construction Permit for LPTV
Channel 26 at Poplar Bluff, Mo. (Call Sign K26EC), and has determined that
it desires to provide STV service on such Channel on a twenty-four (24) hour
per day, seven (7) day per week basis;
WHERAS, NTI is in the business of providing STV management and
operational services and seeks to provide such services on Permittee's
Channel; and
WHERAS, Permittee wishes NTI to provide it such services, consistent with
its Construction Permit and all FCC Rules and Regulations.
NOW, THEREFORE, in consideration, of their mutual promises set forth
below; Permittee and NTI, intending to be legally bound, hereby agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall have
the meanings attributed to them in this Section 1:
1.1 Business or LPTV Service means the provision of video and data
programming of any kind to subscribers via the Channel.
1.2 Construction Permit means the authorization (Call Sign K26EC) which
issued by the FCC to Permittee to construct the Channel and provide service
on the Channel on a seven (7) day per week, twenty (24) hours per day basis,
and shall specifically include any regular, modified or renewal authorizations
to operate the Channel.
1.3 License Date means the date on which a License Application is filed with
the FCC certifying the completion of construction of the transmission
facilities, but not later than the date specified on the Construction Permit,
unless extended.
1.4 Transmission Facilities means the equipment and facilities to be owned
by NTI and used by NTI in its business.
1.5 Subscriber means a residential unit or other establishement, including
without limitation restaurants, bars, offices and businesses that receive LPTV
Service under contract with NTI or under rights granted by NTI.
2. Term. The term of this Agreement shall begin on the date hereof and
shall continue for a period of ten (10) years following the License Date,
provided that Permittee's authorization to operate the Channel has been
renewed as necessary by the FCC. Permittee shall use its reasonable best
efforts to obtain such renewals. This Agreement shall be authormatically
renewed for an additional ten (10) years, unless NTI shall have submitted to
Permittee at least six (6) months' advance written notice of its intent to
terminate this Agreement upon the expiration of the initial term.
3. Transition on Channel. Commencing on the License Date, Permittee
hereby authorizes NTI to transmit a broadcast signal on the Channel for STV
services seven (7) days per week, twenty-four (24) hours per day, subject to
FCC Rules and Regulations and all of the terms and conditions set forth in
this Agreement. For purposes of this Agreement, such transmission on the
Channel shall include all rights to transmit both video programming and data
over the entire frequency spectrum of Permittee's Channel. Consistent with
applicable FCC rules, NTI will apply charges, terms and conditions of service
to Subscribers uniformly; provided, however, that: (a) Subscribers may be
divided into reasonable classifications approved by the FCC, and the
imposition of different sets of conditions may be applied to Subscribers in
different classifications; and (b) for good cause, within such
classifications,
deposits may be required of some Subscribers and not of others.
4. Control of Facilities. Notwithstanding anything in this Agreement to the
contrary, Permittee, as the FCC permittee for the Channel, shall be
responsible for compliance with all applicable FCC rules and regulations.
Permittee shall have control, in operation, management and maintenance of
the station to the extent necessary to comply with such rules and regulations,
of the construction, operation, management and maintenance of the station
to the extent necessary to comply with such rules and regulations. Nothing
in this Agreement shall be construed to: (a) prevent or hinder Permittee
from
rejecting or refusing any STV broadcast program that it reasonably believes
to be unsatisfactory, unsuitable or contrary to the public interest, or from
substituting a program that in its opinion is of greater local or national
importance; (b) deprive Permittee of the right of ultimate decision concerning
the maximum amount of any STV program charge or fee; or (c) delegate to
any other individual or entity ultimate authority over the scheduling of STV
programs.
5. Payments. In consideration of Permittee's agreement to permit NTI to
transmit on the Channel, NTI agrees to pay Permittee a monthly transmission
fee of Fourteen Cents ($.14) per Subscriber ("Transmission Fee"), beginning
with and including the first calendar month immediately following the license
date. Payment will be due no later than the twentieth (20th) day of the
following month.
5.2 The number of Subscribers shall be determined by adding the number of
Subscribers as of the last day of the prior month to the number of Subscribers
as of the then-current month, and then dividing by two (2).
5.3 All payments from NTI to Permittee shall be paid in currency of the
United States of America by negotiable bank check drawn upon a United
States bank insured by the FDIC made payable to the order of Xxxxxx
Xxxxxxxx and mailed to or to such other address as Permittee shall
designate in writing to NTI. Payments shall be made by the twentieth (20th)
day of the following month.
6. Insurance. It is agreed that Permittee shall be insured as a third party
insured under any liability insurance obtained by NTI.
7. Construction. NTI shall bear all costs, including but not limited to,
consultant, design, engineering, licensing and legal fees, associated with
the
construction of the Transmission Facilities and any subsequent modifications
thereto. NTI shall also bear the costs of any licenses, permits,
authorizations,
or of such sites. NTI shall, at its sole cost and expense, complete
construction of the Transmission Facilities as authorized by the FCC. Upon
completion of construction of the Transmission Application on the
then-prescribed FCC form for submission to the FCC. Permittee agrees to
timely file the License Application with the FCC after its receipt from NTI.
NTI shall not be liable to make any payments under Section 5 hereof during
any delay caused by Permittee's failure to promptly file such License
Application. All lease, construction, legal, licensing and engineering costs
or any other costs associated therewith shall be the sole responsibility of
and
be paid by NTI, and NTI shall reimburse Permittee within fifteen (15) days
after receipt of invoice for reasonable payments made by Permittee and first
approved in writing by NTI, which approval will not be unreasonably
withheld or delayed.
7.1 Lease of Transmission Facilities to Permittee. In consideration of
the
sum of ONE DOLLAR ($1.00), the receipt and sufficiency of which is
hereby acknowledged, NTI shall lease the Transmission Facilities to
Permittee for a term equal to the duration of this Agreement, including any
renewals.
7.2 Operation and Maintenance. Subject to the provisions of Section 4, NTI
shall, at its sole cost and expense, operate and maintain the Transmission
Facilities in good operating condition and repair with Permittee being
notified of all such repairs. All persons performing maintenance, repairs or
any other duties shall work under ANTI's direct and continuing supervision
and in accordance with good engineering practices consistent with industry
standards. In the event transmission service is interrupted for any reason,
NTI shall notify Permittee immediately. NTI shall be solely responsible for
the origination of all programming to be transmitted over the Channel,
subject to the provisions of Section 4 hereof and applicable FCC rules and
regulations. All personnel required to install, operate and maintain any
program origination and delivery facilities shall be provided by NTI, at its
sole cost and expense, and such personnel shall be under NTI's exclusive
control, and shall not be considered to be employees or agents of Permittee
for any purpose.
7.3 Governmental and Third Party Authorizations. The Parties agree to take
no action that would jeopardize or otherwise impair the Construction Permit
or any other FCC approval or authorization necessary for the LPTV Service.
Permittee shall use its reasonable best efforts, and NTI shall cooperate with
Permittee, to obtain any and all FCC or other governmental licenses, permits,
authorizations or approvals required to carry out the transactions
contemplated by this Agreement; provided, however, that Permittee shall not
be required to pay for the relocation, reconstruction or similar costs
associated with the Channel, which costs shall be the sole responsibility of
NTI. Permittee also shall use its reasonable best efforts to cause the
authorization for the Channel to be renewed.
7.4 Access. Throughout the term of this Agreement, including any renewals
hereof, NTI shall provide, and/or cause others to provide, Permittee with
reasonable access to all Transmission Facilities for emergency repairs and
routine inspection, provided that Permittee shall not utilize such access in a
manner which unreasonably interferes with NTI's use of the Channel.
7.5 Site Lease. NTI either owns or has obtained a valid option to lease or
lease for the transmission site and shall be responsible for bearing all
expenses in connection with such site, including the payment of rent and all
other costs and expenses of every nature. The site lease, if any, shall be
maintained and renewed by NTI throughout the term of this Agreement,
including any renewals hereof.
8. Representations and Warranties of NTI. NTI represents and warrants as
follows:
8.1 Organization. NTI is a corporation duly organized, validly existing, and
in good standing under the laws of the State of . NTI is
qualified
or otherwise entitled to do business in all jurisdictions in which such
qualifications or entitlement is required by reason of its business,
activities,
ownership or property. NTI has all requisite power and authority to own its
properties and to carry on its business. NTI has all requisite power to
execute, deliver, and, subject to the regulatory authority of the FCC, perform
this Agreement. The person executing this Agreement on behalf of NTI is
authorized to do so execute and to bind NTI to the term hereof.
8.2 Authorization. All necessary actions on the part of NTI to authorize the
execution and delivery of this Agreement and the performance of the
obligations of NTI herein have been taken. This Agreement is valid and
legally binding upon NTI and enforceable in accordance with its terms except
to the extent that enforceability thereof may be limited by bankruptcy,
insolvency, or the laws relating to the enforcement of creditor's rights or by
the application of equitable principles. The person executing this Agreement
on behalf of NTI is authorized to so execute and bind NTI to the terms
hereof.
8.3 No Violations. The exectution, delivery, and performance of this
Agreement and all actions and transactions contemplated hereby: (a) will not
violate any provision of law or the Articles of Incorporation or By-Laws of
NTI, any order of any court or other agency of government to which NTI is
a party or by which it or any of its properties is bound, and (b) will not
violate, be in conflict with, result in a breach of, or constitute (with
notice or
lapse of time or both) a default under any applicable law, order, or
regulation,
indenture, agreement, or other instrument to which NTI is a party of, by
which it or any of its properties is bound and which has not been waived or
consented to, or result in the creation or imposition of any lien, charge, or
encumbrance of any nature whatsoever upon any of its property or assets.
9. Defaults. For the purpose of this Agreement, it shall be an "Event of
Default" hereunder if: (a) NTI fails to make any payment due and payable
under this Agreement within twenty (20) days after the date upon which a
payment is due hereunder, and NTI does not cure such default within thirty
(30) days after notice of default is provided by Permittee to NTI; (b) any of
the material "Representations or Warranties" of either party materially
breaches any covenant or agreement herein or fails to comply with any
material provision of this Agreement, and any such breach, failure or default
continues for thirty (30) days after written notice thereof, as contemplated
herein, shall have been sent by the non-defaulting Party to the defaulting
Party.
10. Termination. Upon an Event of Default, the non-defaulting Party may
cancel this Agreement and may pursue such legal and equitable remedies as
may be available.
11. Indemnification. Each Party shall indemnify, defend, and hold the other
Party harmless from and against any and all claims, damages, causes of
action, penalties,statutory damages, interest and costs and expenses,
including attorneys' fees, arising directly or indirectly out of the acts,
omissions, negligence or willful misconduct of said party, its employees or
agents in connection with the performance of this Agreement.
12. Representations, Warranties, and Covenants of Permittee. Permittee
represents and warrants as follows:
12.1 Organization. Permittee, if a corporation or a limited partnership, is
duly organized, validly existing and in good standing in the state of its
formation. Permittee is qualified or otherwise entitled to do business in all
jurisdictions in which such qualification or entitlement is required by reason
of its business, activities, ownership or property. Permittee has all
requisite
power and authority to own its own properties and to carry on its business.
Permittee has all requisite power to execute, deliver, and, subject to the
regulatory authority of the FCC, perform this Agreement. The person signing
this Agreement on behalf of Permittee is authorized to so execute and to bind
Permittee to the terms hereof.
12.2 Authorization. All necessary actions on the part of Permittee to
authorize the execution and delivery of this Agreement and the performance
of the obligations of Permittee herein have been taken. This Agreement is
valid and legally binding upon Permittee and enforceable in accordance with
its terms except to the extent that enforceability thereof may be limited by
bankruptcy, insolvency, or the laws relating to the enforcement of creditor's
rights or by the application of equitable principles. The person executing
this
Agreement on behalf of Permittee is authorized to so execute and bind
Permittee to the terms thereof.
12.3 Valid Construction Permit. The Construction Permit is in full force and
effect.
12.4 No Violation. The execution and delivery of this Agreement by
Permittee and the performance of Permittee's obligations hereunder are not
in violation or breach of, do not conflict with or constitute a default under,
and will not accelerate or permit the acceleration of the performance required
by any of the terms or provisions of any note, debt instrument, security
agreement, or mortgage or any other contract or agreement, written oral, to
which Permittee is a party or by which its Construction Permit is bound and
will not be an event which, after notice or lapse or time or both, will
result in
any such violation, notice or lapse of time or both, will result in any such
violation, breach, conflict, default, or acceleration, or under any law,
judgment, decree, order, rule or regulation of any governmental authority or
authority applicable to Permittee and will not result in the creation or
imposition of any lien (whether or not perfected), encumbrance, equity or
restriction in favor of any third person upon the Construction Permit;
provided, however, that the Permittee shall not be in default of this
provision
if the FCC determines that any provision of this Agreement, or the
Agreement as a whole, violates FCC rules or policies or the Communications
Act of 1934 as amended. In such event, the Parties shall negotiate in good
faith such changes to the Agreement so as to effectuate compliance with FCC
requirements.
13. Limitation of Damages. The liability of NTI for damages of any kind
arising in connection with this Agreement shall not exceed the aggregate
amount actually paid by NTI to Permittee pursuant to Section 5 of this
Agreement. Permittee shall not be liable for any consequential or similar
damages. This Section provides only for a limitation of damages otherwise
awardable, and shall not be construed to create an entitlement or legal right
to the amounts of damages specified herein upon an Event of Default. No
liability for damages shall be assessed under this Section except as a result
of a final judgment on a complaint for damages awarded by a court of
competent jurisdiction, or as otherwise agreed by the Parties to this
Agreement.
14. Permittee's Access to Records. From time to time and upon reasonable
notice to NTI, Permittee or its accountants shall have the right to request
information or be permitted at al reasonable times to inspect and copy all
records of NTI which Permittee or its accountants or attorneys reasonably
consider necessary to verify NTI's compliance with the terms and provisions
of this Agreement. It is understood by Permittee that such information is to
be held in confidence and not disclosed to any third parties without the prior
written consent of NTI, which consent shall not be unreasonably withheld or
delayed.
15. Specific Performance. The Parties acknowledge and agree that all of the
rights reserved thereunder are necessarily of a special, unique, unusual and
extraordinary character, which gives them a peculiar value, the loss of which
cannot be adequately or reasonably compensated for in damages in an action
at law, and that the breach by either Party of any of the provisions of this
Agreement will cause the other Party irreparable injury and damage.
Therefore, upon the occurrence of an event of Default, the non-defaulting
Party shall be entitled as a matter of right to seek specific performance of
the
defaulting Party's obligations and warranties hereunder, and/or declaratory,
injunctive or other equitable relief in court to correct the Event of
Default.
No exercise of this right to specific performance shall constitute a waiver of
such Party's other rights or remedies otherwise existing law or equity.
16. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, sent by U.S. registered Mail and shall be
effective upon receipt; provided, however, that the refusal to accept receipt
will constitute receipt for this purpose, in each case addressed:
If to Permittee, to:
If to NTI, to: Xxxxxx X. Xxxxxxx, President
Northeast Telecom, Inc.
0000 Xxxxx 0 Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxx & Coran, P.C.
0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx
000
Xxxxxxxxxx, X.X. 00000
provided, however, that if any party shall have designated a different address
by notice to the others, then to the last address so designated.
17. Waivers. Any waiver by any Party of any breach of or failure to comply
with any provision of this Agreement by the other Party shall not be
construed as or constitute a continuing waiver of such provision or a waiver
of any other provision of this Agreement.
18. Complete Agreement. This Agreement sets forth the entire
understanding of the Parties hereto and supersedes all prior agreements,
covenants, arrangements, communications, representations, or warranties,
whether oral or written, by any Party (or any officer, employee, or
representative of any Party).
19. Governing Law; Construction. This Agreement shall be construed and
enforced in accordance with and governed by the internal substantive law of
the State of and of the United States of America. The
headings
of the Sections of this Agreement are inserted for convenience of reference
only and shall not be deemed to constitute a part hereof. Unless otherwise
stated, references in this Agreement to sections refer to the Sections of this
Agreement.
20. Amendment; Termination. This Agreement may be amended or
terminated only by an instrument in writing duly executed by the Parties,
except as otherwise provided in this Agreement.
21. Force Majeure. If by reason of force majeure either party is unable in
whole or in part to carry out its obligations hereunder, the Party shall not
be
deemed in violation or default during the period 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 of any state or state departments, agencies, political
subdivisions,
or officials, or any civil or military authority; insurrections; riots;
epidemic;
landslides; lightning; earthquakes; fires; hurricanes; volcanic activity;
storms
of extraordinary force; floods; washouts; drought; civil disturbances;
explosions; or any other cause or event not reasonably within the control of
the adversely affected Party.
22. Counterparts. More than one counterpart of this Agreement may be
executed by the Parties hereto, and each fully executed counterpart shall be
deemed an original.
23. Dealings with Third Parties. Neither Party is, nor shall either Party
hold
itself out to be, vested with any power or right to contractually bind, act on
behalf of the 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 name of the other Party, or making any
agreement contractually binding upon such Party.
24. Severability. If any provision of this Agreement is declared void by any
court of competent jurisdiction, the validity of any other provision of this
Agreement shall not be affected.
25. Time of the Essence. Time shall be of the essence in the performance of
this Agreement.
26. Survival. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their respective assigns, heirs, successors and
legal
representatives.
27. Assignment. This Agreement may be assigned by NTI without the prior
consent of the permittee.
28.. Attorney's Fees. If it shall be necessary for either Permittee or NTI to
employ an attorney to enforce its rights pursuant to this Agreement because
of the default of the other Party, the defaulting Party shall reimburse the
prevailing Party for reasonable attorney's fees.
29. No Third Party Beneficiaries. It is not the intent of either Permittee
or
NTI that there by any third party beneficiary to this Agreement, and this
Agreement is exclusively for the benefit of Permittee and NTI and their
respective assigns.
30. Independent Relationship. Nothing in this Agreement shall be construed
as creating an employer-employee relationship, partnership or joint venture
by and between Permittee and NTI, and Permittee shall not be held
responsible for the acts or omissions of NTI and vice versa.
31. No Conclusion as to Draftsmanship. Each Party has cooperated in the
drafting and preparation of this Agreement. Hence, in any construction to be
made of this Agreement, the same shall not, as a matter of law, be construed
against any Party.
32. Right of First Refusal.
(a) In the event Permittee receives a bona fide offer from a third party to
purchase its Construction Permit or License, and Permittee desires to accept
such offer, Permittee, within five (5) days of receiving such offer, shall
notify
NTI in writing and provide NTI with a copy of the same, and NTI shall have
the right to acquire Permittee's Construction Permit or License on the same
terms and conditions as offered by the third party, such right to be exercised
by NTI within thirty (30) days of written notice by Permittee.
(b) In the event NTI does not exercise its right of first refusal hereunder,
then
Permittee shall be free to assign or transfer its Construction Permit or
License
to the third party, subject to the condition that the assignee or transferee,
as
the case may be, agrees to be bound by all of the terms and conditions of this
Agreement as if it was an original party hereto.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the day and year first above written.
PERMITTEE:
By: /s/ Xxxxxx Xxxxxxxx
Its:
NORTHEAST TELECOM, INC.
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx, Vice President
