ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of February 14, 1997 (the "Agreement"),
among TVMAX TELECOMMUNICATIONS, INC., a Delaware corporation ("TVMAX"), SUNSHINE
TELEVISION ENTERTAINMENT, INC., a Florida corporation ("Sunshine"), RICHEY
PACIFIC CABLEVISION, INC., a California corporation ("Richey"), IRPC ARIZONA,
INC., an Arizona corporation ("IRPC" and, together with TVMAX, Sunshine and
Richey, the "Assignors"), and TRANSMISSION HOLDINGS, INC., a Delaware
corporation ("THI").
R E C I T A L S:
Each Assignor is the licensee under the licenses and authorizations issued
by the Federal Communications Commission ("FCC"') set forth opposite such
Assignor's name in Exhibit 1 hereto (collectively, all such licenses and
authorizations, the "Authorizations").
TVMAX owns, or has the right to use and license the use of, various
microwave facilities and related equipment which are used for or in connection
with certain transmission services pursuant to the Authorizations (all such
facilities and equipment, the "Equipment").
Each Assignor wishes to assign to THI the Authorizations under which such
Assignor is a licensee, and THI wishes to assume such Authorizations from each
Assignor.
THI and each Assignor will apply for FCC approval (the "FCC Consent") of
the assignment of such Assignor's Authorizations, as contemplated hereby, and
expect to receive, pending FCC Consent, special temporary authority (the "STA")
from the FCC for such assignment.
Concurrently herewith, as an inducement and a condition concurrent to the
Assignors' entering into this Agreement, TVMAX and THI are entering into an
Equipment License and Services Agreement, and an Option Agreement, relating to,
among other things, the Equipment and the Authorizations.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. ASSIGNMENT AND ASSUMPTION. Effective as of earliest date on which the
STAs for the assignment of all of the Authorizations have been received and are
effective (the "Effective Date"), each of the Assignors hereby sells, assigns,
transfers and conveys to THI, its permitted successors and assigns, forever, all
of such Assignor's right and interest in and under all of the Authorizations set
forth opposite such
Assignor's name in Exhibit 1, and THI hereby assumes and agrees to pay, perform
and discharge when due, all of such Assignors obligations that arise from and
after the Effective Date under the Authorizations; provided, however, that in
the event of, and immediately upon, the final non-appealable denial by the FCC
of the FCC Consent with respect to any Authorization, the foregoing assignment
and assumption of such Authorization and all of the transactions contemplated
hereby with respect to such Authorization shall automatically become, and be
deemed to be, void ab initio, subject to further FCC approval to the extent
required, and all parties shall be restored, and shall take all such actions as
may be necessary to restore all the other parties, to their respective positions
and circumstances immediately prior to the Effective Date.
2. REPRESENTATIONS AND WARRANTIES OF Assignors. Each Assignor hereby
represents and warrants to THI as follows:
(a) As of the date hereof, the Authorizations set forth opposite such
Assignor's name in Exhibit 1 are in full force and effect, and there is no
proceeding pending, or, to such Assignor's knowledge, threatened, before
the FCC, that could result in the revocation, or material impairment of any
of the Authorizations.
(b) Each Assignor has the full corporate power and authority to enter
into this Agreement and to assign its rights under the Authorizations
pursuant hereto, and this Agreement has been duly authorized, executed and
delivered by such Assignor and (assuming due authorization, execution and
delivery by all other parties) constitutes the legal, valid and binding
obligation of such Assignor, enforceable against such Assignor in
accordance with its terms.
3. REPRESENTATIONS MID WARRANTIES OF THI. THI represents and warrants to
each Assignor as follows:
(a) THI has the full corporate power and authority to enter into this
Agreement and to assume the liabilities and obligations under the
Authorizations pursuant hereto. This Agreement has been duly authorized,
executed and delivered by THI and (assuming due authorization, execution
and delivery of this Agreement by all other parties) constitutes the legal,
valid and binding obligation of THI, enforceable against THI in accordance
with its terms.
4. INDEMNIFICATION. TVMAX shall indemnify and hold harmless THI, its
agents, affiliates, and their respective officers, directors, shareholders,
partners and employees from and against any and all losses, damages,
claims, demands, liabilities, costs and expenses (including reasonable
attorneys' and other professionals' fees and expenses) attributable to,
arising from or caused by any obligations or liabilities (including,
without limitation, damages, fines, interest or
penalties) accrued or owing or that may hereafter be accrued or owing with
respect to any act, omission or event relating to the Authorizations that occurs
prior to the Effective Date.
5. NOTICES. All notices, consents, instructions and other communications
required or permitted under this Agreement (collectively, "Notice") shall be
effective only if given in writing and shall be considered to have been duly
given when (i) delivered by hand, (ii) sent by telecopier (with receipt
confirmed), provided that a copy is mailed (on the same date) by certified or
registered mail, return receipt requested, postage prepaid, or (iii) received by
the addressee, if sent by Express Mail, Federal Express or other reputable
express delivery service (receipt requested), or by first class certified or
registered mail, return receipt requested, postage prepaid. Notice shall be sent
in each case to the appropriate addresses or telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may from time to
time designate as to itself by notice similarly given to the other parties in
accordance herewith, which shall not be deemed given until received by the
addressee). Notice shall be given:
(1) to the Assignors:
c/o TVMAX Telecommunications, Inc.
1111 West Mockingbird Lane
Dallas, Texas 75247
Attention: General Counsel
Telecopier: (214) 634-3889
with a copy to:
Kronish, Lieb, Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036-7798
Attention: Ralph J. Sutcliffe, Esq.
Telecopier: (212) 479-6275
(2) to THI:
1111 West Mockingbird Lane
Dallas, Texas 75247
Attention: Rory O. Cole
Telecopier: (214) 634-3850
with a copy to:
Goldberg, Godles, Wiener & Wright
1229 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Joseph Godles, Esq.
Telecopier: (202) 429-4912
6. AMENDMENTS. This Agreement may not be amended or terminated nor may any
provision hereof be waived except by a writing signed by or on behalf of all
parties hereto or, in the case of a waiver, by the party against which such
waiver may be asserted.
7. FURTHER ACTION. Each party hereto shall cooperate fully with the other
party and shall use all reasonable efforts to take, or cause to be taken, all
appropriate action, do or cause to be done all things necessary, proper or
advisable under applicable laws, and execute and deliver such documents and
other papers as may be required or appropriate to carry out the provisions of
this Agreement and consummate and make effective the transactions contemplated
hereby, including, without limitation, to effect, obtain or facilitate any
governmental approval or acceptance of this Agreement, the filing or recording
hereof, or the consummation of the transactions contemplated hereby.
8. ENTIRE AGREEMENT. This Agreement, including all Exhibits hereto, and the
other writings referred to herein or delivered pursuant hereto contain the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
9. SEVERABILITY. Any provision of this Agreement that is 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 shall not invalidate or render unenforceable such provision in any
other jurisdiction; provided, however, that if at any time the FCC determines
that this Agreement is inconsistent with THI's licensee obligations or is
otherwise contrary to FCC policies, rules and regulations, or statutes, the
parties shall renegotiate this Agreement in good faith and recast this Agreement
in terms that are likely to cure the defects perceived by the FCC and return a
balance of benefits to all parties comparable to the balance of benefits
provided by this Agreement on its current terms and by related agreements, of
even date herewith, between the parties. If, after such good faith negotiations,
either party determines that recasting this Agreement to meet the defects
perceived by the FCC is impossible, either party may terminate this Agreement
without further liability upon 180 days' prior notice, provided that FCC consent
for a wind-down period of such length is obtained.
10. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart.
11. ASSIGNMENT. This Agreement, and the rights and
obligations hereunder of the parties hereto, shall not be assigned or delegated
(by operation of law or otherwise), in whole or in part, including, but not
limited to, assignments or delegations effecting the assignment or transfer of
control of the Authorizations, by any party without the prior written consent of
the other parties hereto. The provisions of this Agreement shall bind and inure
to the benefit of the respective permitted successors and assigns of the
parties.
12. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of New York applicable to contracts entered into and to be performed
wholly within such state.
13. HEADINGS. The descriptive headings of the several Sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
IN WITNESS WHEREOF, this Assignment Agreement has been duly executed and
delivered by or on behalf of the parties hereto as of the date first above
written.
TVMAX TELECOMMUNICATIONS, INC.
By: /s/ Michael E. Katzenstein
------------------------------------
Name: Michael E. Katzenstein
Title: Vice President
SUNSHINE TELEVISION ENTERTAINMENT, INC.
By: /s/ Michael E. Katzenstein
------------------------------------
Name: Michael E. Katzenstein
Title: Vice President
RICHEY PACIFIC CABLEVISION, INC.
By: /s/ Michael E. Katzenstein
------------------------------------
Name: Michael E. Katzenstein
Title: Vice President
IRPC ARIZONA, INC.
By: /s/ Michael E. Katzenstein
------------------------------------
Name: Michael E. Katzenstein
Title: Vice President
TRANSMISSION HOLDINGS, INC.
By: /s/ Rory O. Cole
------------------------------------
Name: Rory O. Cole
Title: President
EXHIBIT 1
To the Assignment Agreement
Authorizations
EXHIBIT 1
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LICENSE NAME FCC FILE NUMBER FCC CALL SIGN
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TVMAX TELECOMMUNICATIONS, INC. 726174 WNTZ720
TVMAX TELECOMMUNICATIONS, INC. 9602724168 WPJF208
TVMAX TELECOMMUNICATIONS, INC. 9507718013 WNTZ719
TVMAX TELECOMMUNICATIONS, INC. 96027240154 WPJE780
IRPC ARIZONA INC. 793687 WNTS892
IRPC ARIZONA INC. 9603724468 WNTS893
TVMAX TELECOMMUNICATIONS, INC. 726651 WPJF813
TVMAX TELECOMMUNICATIONS, INC. 9506716203 WNTZ721
TVMAX TELECOMMUNICATIONS, INC. 9603725256 WPJF741
TVMAX TELECOMMUNICATIONS, INC. 9505715056 WNTZ484
TVMAX TELECOMMUNICATIONS, INC. 9511721060 WNTY545
TVMAX TELECOMMUNICATIONS, INC. 9603725255 WPJF740
TVMAX TELECOMMUNICATIONS, INC. 9603725235 WNTY541
TVMAX TELECOMMUNICATIONS, INC. 9507718010 WNTY543
TVMAX TELECOMMUNICATIONS, INC. 9604725657 WPJA219
TVMAX TELECOMMUNICATIONS, INC. 9511721683 WPJA220
TVMAX TELECOMMUNICATIONS, INC. 9507718021 WNTZ986
TVMAX TELECOMMUNICATIONS, INC. 9507718011 WNTT455
TVMAX TELECOMMUNICATIONS, INC. 725908 WPJF314
TVMAX TELECOMMUNICATIONS, INC. 9506716879 WPJA554
TVMAX TELECOMMUNICATIONS, INC. 9506716149 WNTZ728
TVMAX TELECOMMUNICATIONS, INC. 9511721059 WPJD444
TVMAX TELECOMMUNICATIONS, INC. 9601723129 WNTZ861
RICHEY PACIFIC CABLEVISION 9602723753 WNTM202
RICHEY PACIFIC CABLEVISION 775401 WNTK644
RICHEY PACIFIC CABLEVISION 9511721061 WNTP503
RICHEY PACIFIC CABLEVISION 798856 WNTU342
TVMAX TELECOMMUNICATIONS, INC. 727153 WPJD443
TVMAX TELECOMMUNICATIONS, INC. 727646 WPNB396
RICHEY PACIFIC CABLEVISION 9507718014 WNTU344
TVMAX TELECOMMUNICATIONS, INC. 9505715055 WNTZ483
TVMAX TELECOMMUNICATIONS, INC. 9602724017 WPJE782
TVMAX TELECOMMUNICATIONS, INC. 727460 WPNB364
TVMAX TELECOMMUNICATIONS, INC. 9507716611 WNTZ863
RICHEY PACIFIC CABLEVISION 783103 WNTP502
RICHEY PACIFIC CABLEVISION 9511721062 WNTM733
TVMAX TELECOMMUNICATIONS, INC. 725909 WPJF315
TVMAX TELECOMMUNICATIONS, INC. 727647 WPNB397
TVMAX TELECOMMUNICATIONS, INC. 9506716607 WNTZ860
TVMAX TELECOMMUNICATIONS, INC. 9603725254 WPJF739
TVMAX TELECOMMUNICATIONS, INC. 9602724016 WPJE781
TVMAX TELECOMMUNICATIONS, INC. 9507718020 WNTZ985
RICHEY PACIFIC CABLEVISION 702728 WNTV718
TVMAX TELECOMMUNICATIONS, INC. 9506716610 WNTZ862
TVMAX TELECOMMUNICATIONS, INC. 9506716612 WNTZ864
TVMAX TELECOMMUNICATIONS, INC. 727461 WPNB365
TVMAX TELECOMMUNICATIONS, INC. 727532 WNTP850
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LICENSE NAME FCC FILE NUMBER FCC CALL SIGN
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TVMAX TELECOMMUNICATIONS, INC. 727533 WPJC636
TVMAX TELECOMMUNICATIONS, INC. 9511721158 WPJC635
TVMAX TELECOMMUNICATIONS, INC. 726170 WPJF328
TVMAX TELECOMMUNICATIONS, INC. 726173 WPJF330
TVMAX TELECOMMUNICATIONS, INC. 726171 WPJF329
TVMAX TELECOMMUNICATIONS, INC. 726172 WPJF342
TVMAX TELECOMMUNICATIONS, INC. 9604725253 WPJF742
TVMAX TELECOMMUNICATIONS, INC. 9604725475 WPJF424
TVMAX TELECOMMUNICATIONS, INC. 9603725252 WPJF738
TVMAX TELECOMMUNICATIONS, INC. 9511721154 WPJC631
TVMAX TELECOMMUNICATIONS, INC. 9511721155 WPJC632
TVMAX TELECOMMUNICATIONS, INC. 9511721156 WPJC633
TVMAX TELECOMMUNICATIONS, INC. 9511721157 WPJC634
TVMAX TELECOMMUNICATIONS, INC. 9509719902 WPJB536
TVMAX TELECOMMUNICATIONS, INC. 9604725852 WNTM918
TVMAX TELECOMMUNICATIONS, INC. 9604725851 WPJF667
TVMAX TELECOMMUNICATIONS, INC. 9604725853 WNTN793
TVMAX TELECOMMUNICATIONS, INC. 9601723134 WNTZ572
TVMAX TELECOMMUNICATIONS, INC. 9505715240 WNTX955
TVMAX TELECOMMUNICATIONS, INC. 9511721463 WPJD340
TVMAX TELECOMMUNICATIONS, INC. 9511721464 WPJD341
TVMAX TELECOMMUNICATIONS, INC. 9602723898 WPJE955
TVMAX TELECOMMUNICATIONS, INC. 9505715274 WNTN239
TVMAX TELECOMMUNICATIONS, INC. 9505715224 WNTZ567
TVMAX TELECOMMUNICATIONS, INC. 9505715225 WNTZ568
TVMAX TELECOMMUNICATIONS, INC. 9505715227 WNTZ570
TVMAX TELECOMMUNICATIONS, INC. 9505715228 WNTZ571
TVMAX TELECOMMUNICATIONS, INC. 9505715223 WNTZ566
SUNSHINE TV ENTERTAINMENT 9505715047 WNTN784
SUNSHINE TV ENTERTAINMENT 702293 WNTV452
SUNSHINE TV ENTERTAINMENT 798584 WNTN784
SUNSHINE 1V ENTERTAINMENT 9505715044 WNTY540
SUNSHINE TV ENTERTAINMENT 9412710185 WNTX646
SUNSHINE TV ENTERTAINMENT 9412710184 WNTX645
SUNSHINE JV ENTERTAINMENT 9412710183 WNTX644
SUNSHINE TV ENTERTAINMENT 702546 WNTU230
SUNSHINE TV ENTERTAINMENT 727432 WPNB362
SUNSHINE TV ENTERTAINMENT 9505715048 WNTZ580
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