EQUIPMENT LICENSE
EQUIPMENT LICENSE AGREEMENT, dated as of February 14, 1997 (the
"Agreement"), between TVMAX TELECOMMUNICATIONS, INC., a Delaware corporation
("TVMAX") and IRPC ARIZONA, INC., an Arizona corporation ("Licensor").
R E C I T A L S:
Licensor owns the microwave facilities and related equipment (all such
facilities and equipment, the "Equipment") used to provide transmission
services, and otherwise associated with the operation of 18-Gigahertz microwave
paths, pursuant to the licenses and authorizations, issued by the Federal
Communications Commission ("FCC") set forth in Schedule 1 hereto (the
"Authorization).
Concurrently herewith, (i) TVMAX, Licensor and certain of their affiliates
are entering into an Assignment Agreement with Transmission Holdings, Inc.
("THI"), pursuant to which, among other things, Licensor is assigning to THI,
and THI is assuming from Licensor, the Authorizations; and (ii) TVMAX and THI
are entering into an Equipment License and Services Agreement, pursuant to which
TVMAX is granting to THI a non-exclusive right and license to use certain of
TVMAX's and its affiliates' microwave facilities and related equipment
(including the Equipment), whether now owned or hereafter acquired, and THI will
be providing to TVMAX certain transmission capacity services.
TVMAX desires to obtain from Licensor, and Licensor is willing to grant to
TVMAX, a non-exclusive royalty-free right and license, with the right to
sublicense, to use the Equipment.
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Grant of License. Licensor hereby grants to TVMAX for the Term (as
defined in Section 2) a non-exclusive non-assignable royalty-free right and
license, with the right to sublicense, to use the Equipment pursuant to and in
accordance with the Authorizations.
2. Term. The term of this Agreement shall commence on the date first set
forth above and, unless otherwise terminated, renewed or extended as provided
herein, shall continue in effect for a term of ten (10) years, terminating on
February 13, 2007 (the "Initial Term", and together with any renewal terms, the
"Term").
Upon termination of the Initial Term, the Term shall be automatically renewed
for successive 10 year renewal terms, unless either party notifies the other at
least six months prior to the expiration of the Initial Term or the then current
renewal term of its intent not to renew the Term.
3. 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.
4. 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, perform and make effective the transactions
contemplated hereby.
5. Entire Agreement. This Agreement, including all Schedules 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.
6. Severability; Renegotiation Upon FCC Action. 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 during the term of this Agreement the FCC
determines that this Agreement is inconsistent with or 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 both parties
comparable to the balance of benefits provided by related agreements between the
parties of this date and by this Agreement in its current terms. 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.
7. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and it
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shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
8. 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, by either party without the prior written
consent of the other party hereto. The provisions of this Agreement shall bind
and inure to the benefit of the respective permitted successors and assigns of
the parties.
9. 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.
10. 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.
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IN WITNESS WHEREOF, this Equipment License has been duly executed and
delivered by or on behalf of he parties hereto as of the date first above
written.
TVMAX TELECOMMUNICATIONS, 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
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SCHEDULE 1
To the Equipment License
AUTHORIZATIONS
FCC FILE NUMBER FCC CALL SIGN
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793687 WNTS892
96037244684 WNTS893
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