Exhibit 10.11
[Confidential information has
been designated with the
phrase: Confidential infor-
mation has been omitted and
filed separately with the
Commission.]
August ___, 1997
Wireless One, Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxx X000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx, President
Re: Transport Rights
Dear Xx. Xxxxxxxxxx:
Reference is made to that certain DIRECTV MDU System Operator
Agreement ("Agreement'), dated the 25th day of August, 1997, by and between
Wireless One, Inc. ("System Operator") and DIRECTV, Inc. ("DIRECTV").
Capitalized terms not defined herein shall have the meaning ascribed to
them in the Agreement. All terms and conditions set forth in the Agreement
and the exhibits thereto are hereby incorporated by reference and shall
also apply to the transactions contemplated by this letter agreement (this
"Transport Agreement").
In connection with System Operator's program to establish and maintain
Signal Distribution Systems in MDU Properties and to act as DIRECTV's
commissioned sales representative therein, DIRECTV is willing to provide
certain transport rights to System Operator under the terms and conditions
set forth herein. SUCH RIGHTS ARE INTENDED TO ALLOW SYSTEM OPERATOR TO
UTILIZE THE SATELLITE FEED OF PROGRAMMING PROVIDED BY DIRECTV TO DELIVER
DIRECTV PROGRAMMING TO RESIDENTS OF WIRELESS CABLE PROPERTIES ("RESIDENTS")
WHO RECEIVE SYSTEM OPERATOR'S WIRELESS CABLE SERVICE.
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. The following capitalized terms shall have the
following definitions. Certain other capitalized terms shall have the
meanings given them elsewhere in this Transport Agreement or in the
Agreement.
"Authorized Service" shall mean each DIRECTV Programming Service (as
defined below) as to which System Operator has executed an agreement with
the provider thereof (an "Affiliation Agreement"), satisfactory to DIRECTV,
stating that (a) System Operator possesses all of the necessary rights
(including music performance rights) to distribute such service as received
from the DBS Distribution System (as defined below) under and pursuant to
such provider's agreement with System Operator regarding distribution of
the programming service, (b) the distribution of such programming service
by System Operator shall not implicate in any way DIRECTV's agreements with
the provider of programming service and (c) in no event shall System
Operator or any party to whom System Operator distributes programming from
the DBS Distribution System pursuant to this Transport Agreement be counted
or considered, as a subscriber or customer of DIRECTV under DIRECTV's
agreements with such programming provider. DIRECTV may revoke the status of
any DIRECTV Programming as an Authorized Service for failure to meet the
definition set forth above, and as directed by the programming provider for
failure to comply with the terms of the Affiliation Agreement.
"DBS Distribution System" shall mean the distribution system for
video, audio, data and other programming services (including without
limitation, cable programming services) whereby the cable programming
satellite signal or feed is received from DIRECTV's transponder source by a
DIRECTV turnaround earth-station facility which compresses and encrypts the
signal or feed and then uplinks it at one of the DIRECTV Frequencies on a
DBS communications satellite located at or about 101( West Longitude
orbital location for transmission to those parties authorized by DIRECTV.
"DIRECTV Frequencies" shall mean the DBS operating frequencies
associated with the 101( West Longitude orbital location for which DIRECTV
Enterprises, Inc. is the Federal Communications Commission-authorized
permitee.
"DIRECTV Programming Services" shall mean the programming services
described on Exhibit A hereto (as amended from time to time by DIRECTV in
its sole discretion).
"Wireless Cable Property" shall mean a condominium complex, apartment
building (including both rental and cooperative apartments), or townhouse
community, located in the Territory, comprised of multiple dwelling units,
which in each case is occupied by a single family household and is not
generally accessible to the public or otherwise shares a common area to
which there is unrestricted access by two or more persons, and which unit
may receive System Operator's wireless cable service.
ARTICLE II
GENERAL RIGHTS AND OBLIGATIONS
2.1 GRANT OF RIGHTS.
(a) DIRECTV hereby grants to System Operator the non-exclusive
right to, and System Operator may, at its own cost, access the Authorized
Services provided via the DBS Distribution System for purposes of
distributing such Authorized Services to Wireless Cable Properties in
compliance with the terms of this Transport Agreement.
2.2 SATELLITE FEED TRANSMISSION. The parties acknowledge and agree
that System Operator shall distribute the satellite feed of Authorized
Services provided by DIRECTV to Residents via System Operator's
Distribution Equipment (as defined herein) pursuant to the terms of System
Operator's agreements with the providers of such Authorized Services. The
parties further agree that each such agreement with the providers of the
Authorized Services is solely between System Operator and the relevant
provider of Authorized Services and that DIRECTV bears no responsibility or
liability whatsoever to any provider of DIRECTV Programming Services or to
any Wireless Cable Property relating to the distribution to Residents.
System Operator shall be responsible for all fees and charges required to
be paid by or on behalf of each Resident in connection with the provision
of the Authorized Services, including, but not limited to, any copyright
royalty fees.
2.3 PERFORMANCE REQUIREMENTS. [Confidential information has been
omitted and filed separately with the Commission.]
2.4 ACTIVATION INFORMATION. System Operator shall forward to DIRECTV
a notice when a Wireless Cable Property is ready for activation, which
notice shall contain such information regarding the Wireless Cable Property
as may be reasonably requested by DIRECTV (the "Activation Request"). Only
after receiving and approving the Activation Request from System Operator
shall DIRECTV be obligated to arrange for the necessary authorization
messages to the Distribution Equipment.
2.5 DIRECTV PROGRAMMING. System Operator shall distribute the
Authorized Services in their entirety, in the original format and as
provided by DIRECTV. System Operator shall not modify, add to, delete or
in any way alter the satellite feed provided by DIRECTV, or insert any
commercial announcement or other materials in such feed.
2.6 PROVISION, INSTALLATION AND MAINTENANCE OF HARDWARE; DISCLAIMER
OF WARRANTY. [Confidential information has been omitted and filed
separately with the Commission.] SYSTEM OPERATOR UNDERSTANDS AND AGREES
THAT DIRECTV HAS NO RESPONSIBILITY WHATSOEVER FOR THE DISTRIBUTION
EQUIPMENT OR FOR THE PROVISION OF THE SERVICES BY SYSTEM OPERATOR TO ITS
RESIDENTS AND THAT DIRECTV HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND
IMPLIED, IN CONNECTION WITH THE DISTRIBUTION EQUIPMENT. ALL SUCH
WARRANTIES ARE EXPRESSLY EXCLUDED. DIRECTV IS NOT RESPONSIBLE FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
RELATING TO THE DISTRIBUTION EQUIPMENT.
ARTICLE III
TERM AND TERMINATION
3.1 TERM. The term of this Transport Agreement (the "Term")
shall commence on the date first written above and terminate on the earlier
of (i) the termination of the Agreement for any reason, or (ii) any date on
which this Transport Agreement is terminated pursuant to the terms of this
Transport Agreement or at law.
3.2 TERMINATION. Either party may terminate this Transport
Agreement, at any time upon any of the following occurrences: (a) upon the
failure by the other party, its successors or assignees to perform any
material obligation hereunder which is not cured or as to which reasonable
steps to cure have not been commenced (or are not thereafter diligently
pursued) within [confidential information has been omitted and filed
separately with the Commission] days after receipt of written notice
thereof from the affected party; or (b) upon the assignment by the other
party of this Transport Agreement contrary to the terms hereof.
Termination of this Transport Agreement pursuant to this Section 3.2 shall
not relieve either party of any of its liabilities or obligations under
this Transport Agreement which shall have accrued on or prior to the date
of such termination.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 SYSTEM OPERATOR. System Operator hereby represents,
warrants and covenants that:
(a) System Operator shall comply with and abide by any and
all agreements and/or requirements as may be requested by providers of
Authorized Services, each as applicable to System Operator and its
employees and agents in connection with the performance of its obligations
pursuant to this Transport Agreement;
(b) System Operator has in effect as of the date of this
Transport Agreement, and shall maintain in full force and effect throughout
the Term or shall immediately notify DIRECTV if not in full force and
effect, (i) agreements with the providers of Authorized Services granting
to System Operator those rights necessary to permit System Operator to
distribute the Authorized Services to SO Properties and (ii) agreements
with such providers containing provisions necessary to qualify such
programming provided as Authorized Services (true and complete copies of
such agreements qualifying such programming are attached hereto as Exhibit
B). System Operator shall, from time to time as agreements are signed with
additional program providers, provide to DIRECTV, for its approval in
granting additional Authorized Services, true and complete copies of those
agreements containing provisions necessary to qualify such programming as
Authorized Services; and
(c) System Operator shall, at its sole expense, obtain all
permits and licenses which may be required under any applicable federal,
state or local law, rule, regulation or ordinance to perform its
obligations pursuant to this Transport Agreement.
4.2 DIRECTV. DIRECTV hereby represents, warrants and covenants
that DIRECTV shall, at its sole expense, obtain all permits and licenses
which may be required under any applicable federal, state or local law,
rule, regulation or ordinance to perform its obligations pursuant to this
Transport Agreement.
4.3 NO WARRANTY. System Operator understands and agrees that DIRECTV
makes no warranty whatsoever concerning the rights of any provider of
programming, or any other person or entity, to offer, provide or utilize
the DBS Distribution System, including without limitation, the Authorized
Services, or any programming contained therein.
ARTICLE V
ADDITIONAL RIGHTS AND OBLIGATIONS
5.1 INDEMNIFICATION.
(a) In addition to those indemnification obligations contained
in the Agreement, System Operator shall indemnify and hold harmless each of
DIRECTV, its Affiliated Companies (as defined below), and their respective
employees, officers, directors, contractors, subcontractors and authorized
distributors (the "DIRECTV Indemnitees") from and against any and all
claims, damages, costs, expenses and other liabilities (including
attorneys' fees and other costs of investigation and defense)
(collectively, "Claims") arising out of, directly or indirectly, (i) any
breach or alleged breach of System Operator's obligations under this
Transport Agreement, (ii) any negligence in the performance of System
Operator's obligations under this Transport Agreement, (iii) any failure or
alleged failure by System Operator to obtain any necessary trademarks,
copyrights, licenses and any other intellectual property or use rights
required in connection with System Operator or the Residents' use of, or
for DIRECTV's distribution to System Operator of, the Authorized Services
(including without limitation, the right to use any of its programs, or the
names, voices, photographs, music, likenesses or biographies of any
individual participant or performer in, or contributor to, any program or
any variations thereof), (iv) System Operator's installation and/or
maintenance of the Distribution Equipment or any other equipment utilized
in connection with the provision of services to Residents, or (v) DIRECTV's
feed transmission via the DBS Distribution System, System Operator's
distribution, or the cessation of either such feed transmission or
distribution of Authorized Services, to Residents (including, without
limitation, Claims for license fees by any person or entity and all Claims
by any programmer or any rights holder). As used in this Transport
Agreement, "Affiliated Companies" shall mean, with respect to any person or
entity, any other person or entity directly or indirectly controlling,
controlled by or under common control (i.e., the power to direct affairs by
reason of ownership of voting stock, by contract or otherwise) with such
person or entity and any member, director, officer or employee of such
person or entity.
(b) DIRECTV shall indemnify and hold harmless each of System
Operator, its Affiliated Companies, and their respective employees,
officers, directors, contractors, subcontractors and authorized
distributors (the "System Operator Indemnitees") from and against any and
all Claims arising out of, directly or indirectly, any breach or alleged
breach of DIRECTV's obligations under this Transport Agreement.
(c) Notwithstanding anything to the contrary contained herein,
System Operator expressly waives any right to indemnification arising
primarily out of (i) the content of any programming (including without
limitation claims relating to trademark, copyright, music, performance and
other proprietary interests), or (ii) the construction, use and/or
operation of DIRECTV's satellite(s) and related systems.
(d) Termination of this Transport Agreement shall not affect the
continuing obligations of the parties hereto as indemnitors hereunder.
5.2 NO UNAUTHORIZED WARRANTIES OR REPRESENTATIONS.. System Operator
shall not make any warranty or representation inconsistent with or in
addition to any warranty or representation stated in writing by DIRECTV.
If System Operator makes any such inconsistent or additional warranty or
representation, System Operator shall, at its own expense, indemnify,
defend and hold DIRECTV harmless from any claim relating thereto.
5.3 CESSATION OF DISTRIBUTION/TERMINATION OF TRANSPORT AGREEMENT.
[Confidential information has been omitted and filed separately with the
Commission.]
5.4 FORCE MAJEURE. Notwithstanding any other provision in this
Transport Agreement, neither System Operator nor DIRECTV shall have any
liability to the other or any other person or entity with respect to any
failure of System Operator or DIRECTV to perform its obligations under the
terms of this Transport Agreement if such failure is due to a Force
Majeure. "Force Majeure" shall mean any labor dispute; fire; flood;
earthquake; riot; legal enactment; government regulation; Act of God; any
problem associated with the construction, use and/or operation of DIRECTV's
satellite(s) or related systems; any problem associated with any
scrambling/descrambling equipment or any other equipment owned or
maintained by others; or any cause beyond the reasonable control of both
parties.
IN WITNESS WHEREOF, the parties have caused this Transport
Agreement to be executed as of the date first above written.
DIRECTV, INC. WIRELESS ONE, INC.
BY: /s/ Xxxx Xxxxxxxx BY: /s/ Xxxxx Xxxxxxxxxx
--------------------------- --------------------------
Name: Xxxx Xxxxxxxx Name:
Title: Director Title:
