Exhibit 10.10
[Execution Copy]
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions marked by [**] have been
separately filed with the Commission.
MUZAK(R)
PARTICIPATING AFFILIATE AGREEMENT
This MUZAK(R) PARTICIPATING AFFILIATE AGREEMENT is made as of this __ day
of January, 1996 between Muzak Limited Partnership, a Delaware limited
partnership ("Muzak") and ______________________ ("Affiliate").
WHEREAS:
A. Muzak has entered into (i) an Uplink Facility Agreement (the "Uplink
Agreement"), (ii) a DBS Programming Affiliation Agreement (the "Programming
Agreement"), and (iii) a Video Programming Sales Agent Agreement (the "Video
Agreement", and collectively with the Uplink Agreement and the Programming
Agreement, the "EchoStar Agreements") dated December 28, 1995, with EchoStar
Satellite Corporation ("EchoStar"), copies of which are attached hereto as
Exhibits A-1, A-2 and A-3.
- -------------------------
B. Under the terms of the EchoStar Agreements, Muzak will provide certain
programming services to EchoStar, EchoStar will permit Muzak to use certain
programming uplink facilities, and EchoStar will grant to Affiliate and other
participating Muzak affiliates certain distribution rights with respect to
certain audio and video services distributed via EchoStar's direct broadcast
satellite system.
C. Pursuant to the terms of a Muzak(R) License Agreement Between Muzak
and Affiliate (the "License Agreement"), Affiliate, as licensee thereunder, has
the exclusive right to distribute certain music services and adjunct services
within a specific geographic area, as defined in the License Agreement (the
"Territory").
D. Muzak's performance under the EchoStar Agreements is conditioned upon
Affiliate's waiver of certain of its exclusive rights under the License
Agreement, and Affiliate's participation in the distribution of services over
EchoStar's direct broadcast satellite system is conditioned upon Affiliate's
execution of this Agreement.
E. In consideration of Affiliate's participation in the distribution of
services over EchoStar's direct broadcast satellite system, Muzak and Affiliate
desire to amend certain provisions of the License Agreement.
NOW, THEREFORE, the parties agree as follows:
1
1. Definitions. The following capitalized terms shall have the meanings
-----------
ascribed to them in this Section 1. Terms used in this Agreement and not herein
defined are used with the meanings given such terms in the EchoStar Agreements.
"Combined Access Fees" shall mean the fees paid to EchoStar by each
Participating Muzak Affiliate for access to the EchoStar System to authorize
Commercial Subscribers to receive the Music Channels and the Exclusive Muzak
Channels, as more fully described in Section 4.3 of the Uplink Agreement.
"Commercial Subscribers" shall mean customers subscribing to an audio
and/or video service provided over the EchoStar System at retail, business,
office or other commercial locations.
"Commercial Subscriber Fee" shall mean the fee paid by EchoStar to each
Participating Muzak Affiliate for sales by EchoStar or EchoStar Dealers of the
Music Channels to Commercial Subscribers within such Participating Muzak
Affiliate's Territory, as more fully described in Section 2.7(a) of the
Programming Agreement.
"Commissions" shall mean the commissions paid by EchoStar to each
Participating Muzak Affiliate on sales of the Video Services, as more fully
described in Sections 6.1 and 6.2 of the Video Agreement.
"EchoStar Dealers" shall mean those persons or entities authorized by
EchoStar to act as agents of EchoStar to solicit orders for certain audio, video
and data programming services delivered Services via the EchoStar System, other
than the Participating Muzak Affiliates.
"Exclusive Muzak Channels" shall mean initially, the Environmental(R)
channel (east and west coast feed) and the FM-One(R) channel, and, upon
EchoStar's Second Satellite Launch, 2.4 megahertz of transponder capacity, on
the EchoStar System for exclusive commercial use by Muzak Affiliates, as more
fully described in Section 2.1 of the Uplink Agreement. The Exclusive Muzak
Channels shall at all times include the Environmental(R) channel and the FM-
One(R) channel and, after the Second Satellite Launch, any music channels
transmitted by Muzak on the Galaxy-4 satellite. Quantum Modulation(R) and
Stimulus Progression(R) will be incorporated into the Exclusive Muzak Channels
to the extent required under the License Agreement. The Exclusive Muzak Channels
shall predominantly consist of commercial music services.
"Music Channels" shall mean up to thirty (30) Commercial Music Channels and
Residential Music Channels programmed by Muzak for distribution over the
EchoStar System, as more fully described in Section 2.1 of the Programming
Agreement, and shall not include the Exclusive Muzak Channels.
2
"New Product" shall have the meaning given to such term in Section 4 of
this Agreement.
"Participating Affiliate Dealer Agreement" shall have the meaning given to
such term in Section 3(d) of this Agreement.
"Participating Muzak Affiliates" shall mean the independent Muzak
affiliates that execute this Participating Affiliate Agreement.
"Residential Subscribers" shall mean customers subscribing to an audio
and/or video service provided over the EchoStar System at their homes.
"Uplink Fees" shall mean the fee paid to EchoStar by Muzak on behalf of
itself and all Participating Muzak Affiliates for the right to distribute the
Music Channels and the Exclusive Muzak Channels, as more fully described in
Section 4.1 of the Uplink Agreement.
"Video Service" shall mean the multi-channel commercial video service
distributed over the EchoStar System, as more fully described in Section 4 of
the Video Agreement.
2. Provision of Music Channels to EchoStar and EchoStar Dealers.
------------------------------------------------------------
Affiliate hereby acknowledges and agrees that, in accordance with the terms of
the EchoStar Agreements, Muzak will provide the Music Channels to EchoStar for
distribution by EchoStar or EchoStar Dealers to Commercial and Residential
Subscribers, and Muzak will provide the Exclusive Muzak Channels (except the FM-
One(R) and Environmental(R) channels) to EchoStar for distribution by EchoStar
or EchoStar Dealers only to Residential Subscribers. Affiliate hereby waives the
terms of Section 1.1 and clause (i) of Section 4.1 of the License Agreement with
respect to Music Services (as defined in the License Agreement) only to the
extent necessary to permit EchoStar Dealers to distribute the Music Channels to
Commercial and Residential Subscribers and the Exclusive Muzak Channels (except
the FM-One(R) and Environmental(R) channels) to Residential Subscribers in
accordance with the terms of the EchoStar Agreements. The foregoing waiver shall
only apply to EchoStar Dealers that are authorized by EchoStar to distribute the
Music Channels in the Territory, and (except with respect to EchoStar's post-
termination rights under the EchoStar Agreements) shall only apply for so long
as Affiliate is authorized to distribute the Music Channels and the Exclusive
Muzak Channels to Commercial Subscribers in the Territory. The foregoing waiver
shall not apply to distribution of the Music Channels by Muzak acting as an
EchoStar Dealer in the Territory, and Muzak will not distribute the Music
Channels, Exclusive Muzak Channels or Video Service in the Territory, except in
connection with the Muzak Multi-Territory Accounts Program or Section 7(d)
below.
3
3. Distribution of EchoStar Services by Affiliate.
----------------------------------------------
(a) Affiliate shall be entitled to market and sell the Music
Channels to Commercial Subscribers and Residential Subscribers in the Territory,
and agrees to comply with all of the terms and provisions in the EchoStar
Agreements applicable to Affiliate and its distribution of such services.
(b) Affiliate shall be entitled to market and sell the Video Service
to Commercial and Residential Subscribers in the Territory, and agrees to comply
with all of the terms and provisions in the EchoStar Agreements applicable to
Affiliate and its distribution of such services.
(c) Affiliate shall have the exclusive right to distribute the
Exclusive Muzak Channels to Commercial Subscribers in the Territory in
accordance with the terms of the License Agreement, the exclusive right to
distribute the FM-One(R) and Environmental(R) channels to Residential
Subscribers in the Territory, and the nonexclusive right to distribute the
Exclusive Muzak Channels (other than the FM-One(R) and Environmental(R)
channels) to Residential Subscribers in the Territory in accordance with the
terms of the License Agreement.
(d) Affiliate's right to distribute the Video Service, and
Affiliate's right to distribute the Music Channels and the Exclusive Muzak
Channels (other than the FM-One(R) and Environmental(R) channels) to Residential
Subscribers, is conditioned upon Affiliate's execution of a Participating
Affiliate Dealer Agreement with EchoStar in substantially the form attached
hereto as Exhibit B (the "Participating Affiliate Dealer Agreement").
---------
(e) Affiliate shall not distribute the Music Channels, the Exclusive
Muzak Channels or the Video Service outside of the Territory. If Affiliate at
any time fails to comply with the terms or conditions of the EchoStar Agreements
applicable to it, or the Participating Affiliate Dealer Agreement, or materially
fails to comply with any material aspect of EchoStar's Policies and Procedures
Guidelines relating to the distribution of Video Services, Affiliate's right to
distribute Video Services shall terminate following notice and opportunity to
cure as provided in the Video Agreement.
(f) Muzak hereby waives the terms of Section 4.3(a) of the License
Agreement only to the extent necessary to permit Affiliate to distribute the
Video Service and the Music Channels to Commercial Subscribers and Residential
Subscribers in accordance with the terms of the EchoStar Agreements.
4. Right of First Refusal. In the event Muzak develops or introduces any
----------------------
product or service other than the Music Services and Adjunct Services (as
defined in the License Agreement) (a "New Product") for distribution by means of
the EchoStar System,
4
The information below marked by [**] has been omitted pursuant to a
request for confidential treatment. The omitted portion has been separately
filed with the Commission.
Affiliate's right, if any, to distribute such New Product shall be determined as
follows: If such New Product has been or will be made available for distribution
by any of Muzak's owned affiliates or any third party then Muzak shall in good
faith extend to Affiliate a bona fide right of first refusal to distribute such
product on the same terms as available to Muzak's owned affiliates or such third
party. Affiliate shall accept or reject such offer within 30 days of its
receipt. If Affiliate does not accept such offer within such thirty day period,
Muzak shall be free to distribute the New Product in the Territory directly
through its owned affiliates or through any third party.
5. Royalty Fee.
-----------
(a) Section 6.3 of the License Agreement is hereby amended to read
in its entirety as follows:
"(a) Licensee shall pay to Muzak each month a royalty fee in the
amount of ten percent (10%) of Licensee's Gross Billings, as defined in
Section 6.8 below.
(b) In consideration of Muzak's development and implementation of
services for delivery over the EchoStar satellite system, Licensee shall
pay Muzak each month a surcharge (the "EchoStar Surcharge") equal to the
percentage of Licensee's Gross Billings as described in this paragraph (b).
The EchoStar Surcharge shall be effective as of first day of the first full
month after the date of Service Launch (the "Effective Date"). The EchoStar
Surcharge shall continue in effect until the earlier of such time as (x)
Licensor is no longer paying Uplink Fees, (y) the EchoStar Residential
Revenue (as hereinafter defined) is equal to or greater than [**],
or (z) after the fifth anniversary of the Effective Date, Licensor is
either (i) no longer transmitting services on the Galaxy-4 satellite (or
its replacement) or (ii) closes its Direct Broadcast Satellite facility
currently located at Raleigh, North Carolina and does not replace such
facility with a comparable facility other than the facility located at
Cheyenne, Wyoming. "EchoStar Residential Revenue" shall mean Licensor's
annualized revenue from Residential Subscriber Fees paid by EchoStar for
the immediately preceding calendar month, as shown on Licensor's unaudited
financial statements for such calendar month. Licensor shall provide an
annual report of EchoStar Residential Revenue on each anniversary of the
Effective Date to the President of the International Planned Music
Association (or its successor, the "IPMA"), and the President of the IPMA
shall have the right to review, upon thirty (30) days' prior written
notice, any documentation provided by EchoStar as is necessary to
5
The information below marked by [**] has been omitted pursuant to a request
for confidential treatment. The omitted portion has been separately filed with
the Commission.
confirm the EchoStar Residential Revenue. The President of the IPMA may
request such a review at any time, but not more often than once in any
twelve-month period. The EchoStar Surcharge shall be in the following
amounts:
(i) The EchoStar Surcharge shall be in the amount of [**] percent ([**]%)
for a period of five years from the Effective Date.
(ii) Subject to clause (iii) below, the EchoStar Surcharge shall be in the
amount of [**] percent ([**]%) after the the fifth anniversary of the
Effective Date.
(iii) On the fifth anniversary of the Effective Date and each anniversary
following the fifth anniversary of the Effective Date, the EchoStar
Surcharge will be reduced as follows:
(A) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(B) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(C) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(D) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(E) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(F) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(G) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(H) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
(I) by [**] percent ([**]%), if the EchoStar Residential Revenue is then
greater than [**] and less than or equal to [**].
6
The information below marked by [**] has been omitted pursuant to a request
for confidential treatment. the omitted portion has been separately filed with
the Commission.
(J) by [**] percent ([**]%), if the EchoStar Residential Revenue is
then greater than [**].
If EchoStar at any time elects to discontinue the Music Channels in
accordance with the EchoStar Agreements, the EchoStar Surcharge will be
increased by such amount as Licensor then incurs to distribute the
Exclusive Music Channels over the EchoStar System (including without
limitation, Uplink Fees, rent and operations expenses at EchoStar's Uplink
Facility, and all other direct costs associated with the provision of the
Exclusive Muzak Channels) prorated based on Licensee's percentage of total
royalty fees to Licensor from all Muzak affiliates, including owned
affiliates (which for purposes of this section shall be deemed to pay
royalty fees on the same basis as independent affiliates). Capitalized
terms used in this Section 6.3 and not herein defined are used with the
meanings given to such terms in the Uplink Facility Agreement, DBS
Programming Affiliation Agreement and Video Programming Sales Agent
Agreement, each dated as of December 28, 1995 between Licensor and EchoStar
Communications Corporation (the "EchoStar Agreements")."
(b) Section 6.8 of the License Agreement is hereby amended to read in
its entirety as follows:
"6.8 Gross Billings. "Gross Billings" means all amounts billed
--------------
or otherwise charged to a Subscriber by Licensee in connection with (1) the
provision of any Music Service, (2) the provision to Commercial Subscribers
of the Music Channels or the Exclusive Muzak Channels, (3) the lease or
rental (but not the sale) of Service Delivery Equipment and other equipment
used to receive and distribute such Music Service, Music Channels or
Exclusive Muzak Channels, including equipment used to receive the Music
Channels or Exclusive Muzak Channels in combination with the Video Service
distributed over the EchoStar System, but excluding equipment that is not
used primarily in the provision or reception of a Music Service. "Gross
Billings" shall also include the Commercial Subscriber Fees received by
Licensee for the sale of Music Channels to Commercial Subscribers by
EchoStar or EchoStar Dealers. Notwithstanding the foregoing, "Gross
Billings" shall not include:
(a) any amount billed or otherwise charged to a Subscriber by
Licensee for (i) the provision of any Music Service on Recorded
Media, (ii) Music-Related Adjunct Services, or (iii) the lease or
rental of any Service Delivery Equipment used with Recorded Media.
7
(b) income to Affiliate from the sale or lease of any video
equipment (except for the lease of combined audio/video reception
equipment) to Commercial Subscribers or income to Affiliate from the
sale of any Music Channels to Residential Subscribers.
(c) any amounts billed to Subscribers as (and separately stated
on the billings or otherwise separately determinable as) sales or
similar excise taxes.
(d) one-time installation charges billed not later than ninety
(90) days following completion of such installation.
(e) charges for service of Subscriber-owned equipment, provided
that such charges are separately determinable.
(f) ad hoc (i.e., extraordinary) charges for service actually
----
performed on Subscriber-leased or Subscriber-owned equipment.
(g) late-payment penalties or interest charges imposed by
Licensee, provided that such penalties and charges do not exceed
standard industry practice.
Licensee may deduct from its Gross Billings (i) amounts paid by Licensee as
performing rights fees to ASCAP, BMI, or similar performing rights
organizations with respect to the Music Services (other than those
distributed by Recorded Media), the Music Channels, or Exclusive Muzak
Channels, and (ii) the amount of any billings that were previously reported
to Muzak as part of Licensee's Gross Billings but which, in the month of
the deduction, were written off by Licensee as uncollectible in accordance
with federal income tax standards of uncollectibility.
Capitalized terms used in this Section 6.8 and not herein defined are used
with the meanings given to such terms in the EchoStar Agreements."
6. Other Agreements.
----------------
(a) Muzak will not create, produce or assist in the creation or
production of any sales, marketing or advertising material for use by EchoStar
or EchoStar Dealers in the commercial marketplace.
8
(b) Muzak will provide no sales training or sales incentives related
to the Music Channels for use by EchoStar or EchoStar Dealers in the commercial
marketplace.
(c) Muzak shall neither participate in or create any national or
regional sales program or assistance related to the Music Channels for use by
EchoStar or EchoStar Dealers in the commercial marketplace.
(d) In exercising its right to audit EchoStar under the EchoStar
Agreements, Muzak will act on behalf of itself and its owned and independent
affiliates as a whole.
(e) The parties acknowledge that the Video Agreement provides that
the terms and wholesale prices at which Affiliate and Muzak shall be entitled to
purchase the equipment identified on Schedule 9.1(a) thereto shall be no less
favorable than the terms and wholesale prices then available to distributors
which perform the same marketing, economic and promotional functions and which
purchases like quantities of equipment from EchoStar.
(f) Muzak represents to Affiliate that, under the terms of the
EchoStar Agreements, Muzak will provide EchoStar with between twenty-seven and
thirty Music Channels, and EchoStar will transmit the Exclusive Muzak Channels
in accordance with the terms of the EchoStar Agreements, subject to any
amendment of the EchoStar Agreements (which amendment may be subject to
Affiliate's consent in accordance with Section 7(a) below).
(g) Muzak shall not utilize EchoStar Dealers to provide any Music
Service or Adjunct Service to any National Account, except to the extent that
Muzak may utilize an EchoStar Dealer as a subcontractor in accordance with
Muzak's Multi-Territory Account Program (as set forth in Exhibit G to the
License Agreement) or Section 7(d) below. Muzak shall not refer any commercial
subscriber account for Music Service or Adjunct Service (as defined in the
License Agreements) to EchoStar or any EchoStar Dealer.
(h) Muzak shall provide a list of EchoStar Dealers in the Territory
to Affiliate, if and when such a list is provided to Muzak by EchoStar.
(i) If a termination event described in Section 12.2(c) of the Video
Agreement, Section 10.2(c) of the Uplink Agreement and Section 9.2(c) of the
Programming Agreement occurs, but Muzak does not elect to terminate the EchoStar
Agreements, the International Planned Music Association (or its successor
organization), acting through its board of directors, may by written notice to
Muzak, require Muzak to terminate the EchoStar Agreements in accordance with the
procedures set forth therein.
9
7. EchoStar Agreements.
-------------------
(a) Affiliate represents and warrants that, in performing its
obligations hereunder and under the Participating Affiliate Dealer Agreement, it
shall not knowingly and intentionally act in a manner that will cause Muzak to
breach the terms of the EchoStar Agreements as they now exist or are hereafter
amended. Muzak shall obtain Affiliate's prior written consent to any amendments
to the EchoStar Agreements that will affect the rights, duties, or obligations
of, or benefits received by, Affiliate, and will promptly notify Affiliate in
writing (or electronically) of any amendments or modifications to the EchoStar
Agreements, whether or not affecting the rights, duties or obligations of, or
benefits received by, Affiliate. Except to the extent set forth in this
Agreement, Affiliate shall have no liability to Muzak under the EchoStar
Agreements. Muzak will promptly disclose to Affiliate in writing (or
electronically) the terms of any other agreements between Muzak and EchoStar or
any third party relating to the distribution on the EchoStar System of the Music
Channels, the Exclusive Muzak Channels, or the Video Service, or the purchase of
equipment for the reception or distribution of such services, if such
agreements, or the terms of such agreements are different than those offered to
Affiliate. Affiliate will promptly disclose to Muzak in writing the terms of any
other agreements between Affiliate and EchoStar or any third party relating to
the distribution on the EchoStar System of the Music Channels, the Exclusive
Muzak Channels, or the Video Service, or the purchase of equipment for the
reception or distribution of such services, if such agreements, or the terms of
such agreements, are different than those offered to Muzak.
(b) Affiliate shall indemnify and hold harmless Muzak and the
EchoStar Indemnities from, against and with respect to any and all claims,
damages, liabilities, costs and expenses (including reasonable attorneys' and
experts' fees) (collectively, "Damages") incurred in connection with any claim
against any of the EchoStar Indemnities arising out of: (i) Affiliate's breach
of any provision of this Agreement, (ii) Affiliate's marketing and distribution
of the Music Channels, the Exclusive Muzak Channels or the Video Service, (iii)
any performance rights fees payable in connection with Affiliate's distribution
of the Music Channels or the Exclusive Muzak Channels to Commercial Subscribers,
or (iv) Affiliate's failure to perform any of the obligations applicable to it
under the EchoStar Agreements. In addition, Affiliate shall pay and hold the
EchoStar Indemnities and Muzak harmless from any federal, state or local taxes
or fees that are based upon revenues derived by, or the operations of,
Affiliate.
(c) Affiliate shall comply with and perform all obligations,
covenants, representations and warranties applicable to Participating Muzak
Affiliates under the EchoStar Agreements. EchoStar is a third party beneficiary
with respect to Affiliate's obligations under this paragraph (c).
10
(d) In the event that Affiliate fails to perform its obligations
hereunder in the manner provided herein, and EchoStar notifies Muzak in writing
that, as a result thereof (either alone or in combination with other breaches by
other Muzak Affiliates), Muzak is in material breach of one or more of the
EchoStar Agreements, Muzak shall give Affiliate written notice specifying the
nature of Affiliate's failure to perform. If Affiliate does not cure such
failure within seventy-two (72) hours after the date of delivery or mailing of
such notice (or such shorter period as may be required by the EchoStar
Agreements), Muzak (directly or through a subcontractor) shall have the option,
exercisable immediately upon notice to Affiliate, to perform the obligations and
exercise the rights (including the rights to receive payments with respect to
any affected subscriber account) of Affiliate hereunder, and Affiliate shall
reimburse Muzak for the costs associated therewith.
8. Term. This Agreement shall commence as of the date hereof and shall
----
terminate at the earlier of (i) the termination of the EchoStar Agreements (it
being understood that Affiliate enjoys the same post-termination rights as Muzak
under the EchoStar Agreements) or (ii) the termination of the License Agreement.
9. Miscellaneous.
-------------
(a) If and to the extent that war, government restrictions
(excluding the imposition of wage and price controls by any governmental
agency), embargoes, civil commotion, strikes, labor unrest, fires, breakdown,
failure or shortage of materials or equipment, acts of God or any other similar
conditions beyond the control of a party shall prevent such party from
performing its obligations under this Agreement or under any other agreement or
instrument specifically referred to herein, such party (and the other party to
the extent that the other party's performance is dependent upon the performance
so prevented) shall be excused from such performance during the existence of any
such conditions.
(b) Each party hereby agrees to indemnify, defend and hold harmless
the other party from all third-party claims directly or indirectly resulting
from or arising out of any act or omission by such party or such party's
officers, directors, employees, assignees, or agents pursuant to or in
connection with this Agreement.
(c) At all times during the term of the EchoStar Agreements and for
a period of three (3) years thereafter, Affiliate and its employees will
maintain, in confidence, the terms and provisions of this Agreement and the
EchoStar Agreements, and will not reveal the same to any persons except (i) at
the written direction of Muzak; (ii) to the extent necessary to comply with law
or the order of a court of competent jurisdiction, in which event Affiliate
shall notify Muzak as promptly as practical (and, if possible, prior to making
any disclosure) and shall seek
11
confidential treatment of such information; (iii) as part of its normal
reporting or review procedure to its parent company, its auditors and its
attorneys, and such parent company, auditors and attorneys agree to be bound by
the provisions of this Section 10(c); (iv) in order to enforce any of its rights
pursuant to this Agreement; (v) to affiliates, potential investors, insurers and
financial entities; (vi) to the extent necessary to permit the performance of
obligations under this Agreement; and (vii) to the extent readily available in
public records or documents.
(d) This Agreement constitutes the entire agreement and understanding
of the parties hereto with respect to the subject matter hereof and supersedes
all other prior agreements, understandings, discussions, projections, and
presentations, written or oral, between the parties hereto with respect to the
subject matter hereof, and this Agreement may be amended, modified or
supplemented only by a written instrument signed by each of the parties hereto.
Muzak makes no warranties or representations as to the costs or benefits to
Affiliate of entering into this Agreement.
(e) No waiver of any term or condition contained in this Agreement
shall be effective unless it is signed by the party claimed to be bound by the
waiver. The waiver of any term or condition of this Agreement by any party shall
not be construed as a waiver of any subsequent breach or failure of the same
term or condition, or as a waiver of any other term or condition of this
Agreement.
(f) In case any one or more of the provisions contained herein shall,
for any reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or the remainder of such provision or provisions,
but such provision or provisions shall be ineffective only to the extent of such
invalidity, illegality or unenforceability, without invalidating the remainder
of such provision or provisions or the remaining provisions of this Agreement,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or provisions had never been contained herein, unless
the deletion of such provision or provisions would substantially deny a party
the benefit of the bargain negotiated.
(g) This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto and is not intended
to confer upon any other person any rights or remedies hereunder. Muzak shall
not assign this Agreement separate from an assignment of the License Agreement.
Affiliate shall not assign its rights or delegate its obligations under this
Agreement without the prior written consent of Muzak, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, Affiliate may assign its
rights and delegate its duties hereunder to any person who shall have been
approved by Muzak as the assignee and delegee of Affiliate's rights and duties
under the License
12
agreement. Without limiting the foregoing, all references in this Agreement to
the License Agreement between Muzak and Affiliate shall mean the License
Agreement in effect as of the date hereof or any successor License Agreement
between Muzak and Affiliate (or their respective successors-in-interest with
respect to any such License Agreement).
(h) Any notices or other communications provided for hereunder shall,
unless otherwise stated herein, be in writing and hand-delivered or sent by
certified mail, postage prepaid, or sent by express overnight mail, postage
prepaid, to each party, at its address set forth below (or at such other address
as shall be designated for such purpose by such party in a written notice to the
other party hereto):
(i) If to Muzak, at:
2901 Third Avenue, Suite 400
Seattle, WA 98121
Attention: John R. Jester
(ii) If to Affiliate, at:
_____________________________
_____________________________
Attention: __________________
(i) This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and shall become a
binding agreement when one or more counterparts have been signed by each of the
parties hereto and delivered to the other party hereto.
(j) Titles and headings to Sections herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
(k) All disputes of any kind, nature or description arising in
connection with the terms and conditions of this Agreement shall be submitted to
the American Arbitration Association, in the city and state in which Affiliate's
principal place of business is located, for arbitration under its prevailing
rules. The arbitrator(s) will be selected as follows. The parties shall attempt
to agree upon a single arbitrator. If the parties are not able to so agree, each
of the parties shall, by written notice to the other, have the right to appoint
one arbitrator. If, within ten (10) days following the giving of notice by one
party, the other party shall not, by written notice, appoint another arbitrator,
the first arbitrator shall be the sole arbitrator. If two arbitrators are so
appointed, they shall appoint a third arbitrator. If the two arbitrators are
unable to agree upon the third arbitrator within ten (10) days after the
appointment of the second arbitrator, the third arbitrator will be appointed by
the
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American Arbitration Association. The arbitration decision shall be binding and
conclusive on the parties and the judgment may be, but is not required to be,
entered in the court having jurisdiction. The prevailing party in such
arbitration shall be entitled to receive its costs, expenses and reasonable
attorneys' fees in an amount to be determined by the arbitrator(s).
(l) Except as specifically amended herein, the License Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
Affiliate's right to distribute the Music Services and Adjunct Services (as
defined in the License Agreement) by means other than the EchoStar System is
unaffected by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MUZAK LIMITED PARTNERSHIP
By: __________________________
Its: _________________________
AFFILIATE:
______________________________
By: __________________________
Its: _________________________
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