Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment to Form S-1 HTML 115K
2: EX-4.6 Investor Rights Agreement 14 77K
3: EX-9.1 Voting Agreement 10 44K
4: EX-10.10 Agreement 9 47K
5: EX-10.11 Amendment to Agreement 31 128K
6: EX-10.12 Agreement and Undertaking 2 14K
7: EX-10.25 Form of Subscription Agreement 45 169K
8: EX-10.26 Market Operation, Spectrum Lease and Sublicense 190 679K
Agreement
9: EX-10.29 Subscription Agreement 21 97K
10: EX-10.30 Master Supply Agreement 105 316K
11: EX-10.31 Side Agreement 17 77K
12: EX-10.39 Vendor Agreement 12± 50K
13: EX-10.40 Subscription Service Addendum to Vendor Agreement 39 100K
14: EX-10.41 Co-Marketing Agreement 22 86K
15: EX-10.42 Purchase and Sale Agreement 48 166K
16: EX-10.45 Bundled Wireless Broadband Services Agreement 32 83K
17: EX-10.46 Subscription Agreement 29 113K
18: EX-10.47 Side Agreement 3 21K
19: EX-10.48 Amended and Restated Limited Liability Company 58 207K
Agreement
20: EX-10.51 Common Stock Purchase Agreement 51 217K
21: EX-10.52 Mobile Wimax Network Collaboration Agreement 36 112K
22: EX-10.53 Stock Purchase Agreement 81 340K
23: EX-10.55 Wireless Broadband System Services Agreement 20 48K
24: EX-10.56 Wireless Broadband System Infrastructure Agreement 146 358K
25: EX-10.57 Wireless Broadband Cpe Supply Agreement 40 94K
26: EX-10.58 Side Letter Agreement 9 51K
27: EX-10.59 Master Royalty and Use Agreement 196 648K
28: EX-10.60 Master Royalty and Use Agreement 103 325K
29: EX-10.61 Membership Interest Purchase Agreement 51 181K
30: EX-10.62 Purchase Agreement 64 201K
31: EX-10.63 Educational Broadband Service Long Term De Facto 84 276K
Transfer Lease Agreement
32: EX-21.1 List of Subsidiaries 2± 13K
EX-10.26 — Market Operation, Spectrum Lease and Sublicense Agreement
Exhibit Table of Contents
EXHIBIT 10.26
MARKET OPERATION, SPECTRUM LEASE AND SUBLICENSE AGREEMENT
dated
October 22, 2004
by and among
the Sprint Subsidiaries listed on the Schedule R-1 hereto
("Sprint")
and
Fixed Wireless Holdings, LLC
("Operator")
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
Table of Contents
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Page
Article I DEFINITIONS ................................................................... 2
Article II ROLLING CLOSING AND CLOSING CONDITIONS ....................................... 9
2.1 Term ........................................................................ 9
2.2 Rolling Closings ............................................................ 9
2.3 Initial Closing ............................................................. 9
2.4 Deliveries on Initial Closing Date .......................................... 11
2.5 Market Closings ............................................................. 12
2.6 Deliveries on the Rolling Market Closing Date ............................... 13
2.7 Termination Date ............................................................ 13
2.8 Tower Lease Consents ........................................................ 14
2.9 Covenants Pending Closing ................................................... 14
Article III LEASE OF SPRINT SPECTRUM; USE OF THIRD PARTY SPECTRUM ....................... 15
3.1 Lease of Sprint Spectrum .................................................... 15
3.2 Use of Leased Spectrum ...................................................... 19
Article IV PRIMARY LEASE MANAGEMENT ..................................................... 22
4.1 Primary Lease Performance ................................................... 22
4.2 Primary Lease Defaults By Third Party Licensees ............................. 23
4.3 Primary Lease Management .................................................... 24
Article V SPECTRUM MANAGEMENT ........................................................... 25
5.1 Sprint Authorization Modifications and Coordination Documents ............... 25
5.2 Leased Authorization Modifications and Coordination Documents ............... 26
5.3 Limitations ................................................................. 27
5.4 Third Party Licensee Programming Obligations ................................ 28
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5.5 Additional Spectrum Rights .................................................. 29
5.6 Band Plan ................................................................... 31
5.7 FCC Transitions ............................................................. 31
Article VI FEES AND EXPENSES ............................................................ 33
6.1 Primary Lease Fees and Expenses ............................................. 33
6.2 Regulatory Fees and Expenses ................................................ 33
6.3 Initial Fee ................................................................. 33
6.4 Monthly Fee ................................................................. 33
6.5 Payments .................................................................... 33
6.6 Taxes ....................................................................... 34
6.7 Reimbursement and Other Expenses ............................................ 34
6.8 Security .................................................................... 34
6.9 Spectrum Opportunities ...................................................... 35
Article VII EQUIPMENT AND OPERATION OF SPECTRUM ......................................... 35
7.1 Transmission Equipment ...................................................... 35
7.2 Option to Purchase or Continue to Use Transmission Equipment ................ 36
7.3 Site Availability ........................................................... 36
7.4 Use of Transmission Facilities Following Term of Primary Lease .............. 37
7.5 Construction ................................................................ 37
7.6 Insurance ................................................................... 37
7.7 Obligation to Operate ....................................................... 38
7.8 Inspection Rights ........................................................... 38
Article VIII INFORMATION AND REPORTING .................................................. 38
8.1 Financial Statements ........................................................ 38
8.2 Spectrum and Operator Controlled Spectrum ................................... 39
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Article IX REPRESENTATIONS AND WARRANTIES ............................................... 39
9.1 By Operator ................................................................. 39
9.2 By Sprint ................................................................... 40
9.3 Survival of Representations and Warranties .................................. 43
Article X DEFAULTS; TERMINATION ......................................................... 43
10.1 Termination for Loss of Authorizations or Primary Leases ................... 43
10.2 Termination by Agreement or for Default .................................... 43
10.3 Partial Termination for Default ............................................ 45
10.4 Breach of Representations and Warranties ................................... 45
10.5 Other Remedies ............................................................. 45
10.6 Expenses ................................................................... 45
Article XI INDEMNIFICATION .............................................................. 45
11.1 Indemnification by Sprint .................................................. 45
11.2 Indemnification by Operator ................................................ 46
11.3 Claims for Indemnification ................................................. 46
Article XII ASSIGNMENT .................................................................. 47
Article XIII CONFIDENTIALITY [***] ..................................................... 48
13.1 Confidentiality ............................................................ 48
13.2 No Publicity Without Consent ............................................... 49
13.3 [***] ...................................................................... 49
Article XIV DISPUTES 50
14.1 Dispute Resolution Through Arbitration 50
14.2 Specific Performance 51
14.3 Jurisdiction and Venue 51
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Article XV COVENANTS .................................................................... 51
15.1 Compliance with Law ........................................................ 51
15.2 Wholesale Pricing .......................................................... 51
15.3 Other Relationships ........................................................ 52
Article XVI SPRINT'S TOWER FACILITIES ................................................... 52
Article XVII SPRINT'S RIGHT TO RECAPTURE MARKET ......................................... 53
17.1 Recapture Right ............................................................ 53
17.2 Put Option ................................................................. 63
17.3 Purchase Option ............................................................ 68
17.4 Fair Market Value Determination ............................................ 72
Article XVIII INTERPRETATION AND CONTRACT ADMINISTRATION ................................ 73
18.1 Notices .................................................................... 73
18.2 Interpretation and Construction ............................................ 74
18.3 Amendment and Waiver ....................................................... 75
18.4 Third Parties .............................................................. 75
18.5 Entire Understanding ....................................................... 75
18.6 Severability ............................................................... 75
18.7 Further Assistance ......................................................... 75
18.8 Force Majeure .............................................................. 76
18.9 Counterparts ............................................................... 76
18.10 Word Meanings ............................................................. 76
18.11 Reliance .................................................................. 76
18.12 Survival of Obligations ................................................... 76
18.13 Relationship of the Parties ............................................... 77
18.14 Governing Law ............................................................. 77
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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18.15 Limitation of Liability ................................................... 77
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Schedule R-1 Sprint Subsidiaries
Schedule R-2 Primary Leases, Third Party Licensees and Leased Authorizations
Schedule R-3 Sprint Authorizations
Schedule R-4 Markets
Schedule 3.2 Consents
Schedule 3.2(b) Disputed Primary Leases
Schedule 4.1 Sprint Primary Lease Duties
Schedule 4.3(b) Non-Flex Use Primary Leases
Schedule 5.1(b) Spectrum Management Fees
Schedule 5.2(b) Sprint Management Fees for Leased Spectrum
Schedule 5.5 Existing Operator Controlled Spectrum
Schedule 6.3 Market Closing Payments
Schedule 6.4 Monthly Fees
Schedule 6.9 Spectrum Opportunities
Schedule 7.1(a) Sprint Transmission Equipment
Schedule 7.1(b) Equipment Service Level Requirements
Schedule 7.5 Construction Obligations
Schedule 9.1(f) Financing Commitments
Schedule 9.2(c) No Violation
Schedule 9.2(d) Litigation
Schedule 9.2(e) (iii) Pending Applications
Schedule 9.2(e) (iv) Valid Authorizations
Schedule 9.2(e) (v) Primary Lease Defaults
Schedule 9.2(e) (vi) Tower Lease Defaults
Schedule 9.2(e) (vii) Sprint Interference Consents
Schedule 9.2(e) (viii) Licensee Interference Consents
Schedule 16 Tower Leases
Schedule 17.1(h) Example of Computation of Paid In Fees
Schedule 17.2(a) Example of Computation of Put Price
Exhibit A Form of Consent
Exhibit B MHz Household Computation
Exhibit C Transmission Facilities Operation and Maintenance Agreement
Exhibit D Form of Licensee Notice
Exhibit E Transition Services Agreement
Exhibit F Parent Guaranty
Exhibit G Put/Call Term Sheet
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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MARKET OPERATION, SPECTRUM LEASE AND SUBLICENSE AGREEMENT
THIS MARKET OPERATION, SPECTRUM LEASE AND SUBLICENSE AGREEMENT
("Agreement") is entered into as of October 22, 2004 (the "Effective Date"), by
and among each of the wholly owned subsidiaries of Sprint Corporation identified
in Schedule R-1 attached hereto (each, a "Sprint Subsidiary" and collectively,
the "Sprint Subsidiaries" or "Sprint"), and Fixed Wireless Holdings, LLC
("Operator"). Sprint and Operator are also referred to in this Agreement as a
"Party" and collectively as the "Parties".
PRELIMINARY STATEMENTS
Certain Sprint Subsidiaries are parties to the channel lease
agreements identified in Schedule R-2 attached hereto, pursuant to which the
respective subsidiaries lease certain Multichannel Multipoint Distribution
Service, Multipoint Distribution Service or Instructional Television Fixed
Service spectrum rights from the respective licensees which are parties to such
channel leases.
Pursuant to each of the authorizations identified in Schedule R-3
attached hereto, certain Sprint Subsidiaries are authorized by the FCC to
construct and operate facilities utilizing the frequencies assigned to certain
FCC authorizations within the geographic areas designated therein and, in the
case of the Basic Trading Area authorizations, hold the right to utilize
additional frequencies in additional areas under certain conditions.
Operator is in the business of acquiring, constructing and operating
an advanced high speed wireless data system and may, in the future, provide
voice, video, data or other communications services via microwave transmissions.
Operator desires to use (a) certain transmission capacity of the spectrum
licensed to certain Sprint Subsidiaries pursuant to the terms hereof and (b)
certain transmission capacity of the channels leased to Sprint by third party
licensees, pursuant to the terms hereof and the terms and conditions set forth
in the underlying channel leases.
The Parties are entering into this Agreement with the intent that
Operator will construct and commence operation of an advanced high speed
wireless data system using such spectrum and that Operator may use such spectrum
for any other purposes now or hereafter allowed by the FCC's rules and policies.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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AGREEMENT
In consideration of the premises and the mutual covenants,
agreements, undertakings, representations and warranties set forth in this
Agreement, and subject to the terms and conditions contained in this Agreement,
the Parties agree as follows:
Article I
DEFINITIONS
For purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article I:
"AAA" has the meaning set forth in Section 14.1.
"Acquisition Costs" has the meaning set forth in Section 17.1(h).
"Agreement" means this Market Operation, Spectrum Lease and
Sublicense Agreement.
"Applicable Percentage" has the meaning set forth in Section
17.1(h)
"Authorization" means either a Sprint Authorization or Leased
Authorization and "Authorizations" means collectively the Sprint Authorizations
and Leased Authorizations.
"Band Plan" has the meaning set forth in Section 5.6.
"BRS" means Broadband Radio Service, as that term is defined in the
New FCC Order.
"BTA" means Basic Trading Area, as that term is defined in the FCC
Rules.
"Call Assignment Application" has the meaning set forth in Section
17.3(d)(i)
"Call Closing" has the meaning set forth in Section 17.3(e).
"Call Leased Spectrum Assignment Application" has the meaning set
forth in Section 17.3(d)(ii).
"Call Leased Spectrum Assignment Notification" has the meaning set
forth in Section 17.3(d)(iii).
"Call Notice" has the meaning set forth in Section 17.3(a).
"Call Option" has the meaning set forth in Section 17.3(a).
"Call Price" has the meaning set forth in Section 17.3(a).
"Call Waiting Period" has the meaning set forth in Section 17.3(b)
"Claiming Party" has the meaning set forth in Section 11.3.
"Closed Market" has the meaning set forth in Section 2.2.
"Closing" has the meaning set forth in Section 2.2.
"Confidential Information" has the meaning set forth in Section
13.1.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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"Co-Proponent" means any Sprint Subsidiary or the Operator which is
then jointly serving as a Proponent to effectuate the transition of adjacent
markets pursuant to the FCC Market Transition Rules.
"Consent" has the meaning set forth in Section 3.2(b).
"Consent Date" has the meaning set forth in Section 3.2(b).
"Construction Default" has the meaning set forth in Section 10.2.
"Coordination Document" means any market coordination agreement,
interference consent or similar document consenting to facilities of another
licensee which would not otherwise be permitted under the FCC Rules.
"Costs" means all costs and expenses of every kind that a Party pays
to any unrelated third-party arising out of the performance and administration
of this Agreement, including legal fees, engineering fees, consulting fees, and
all expenses incurred in providing such services, regulatory fees and all taxes
other than income taxes and payroll taxes.
"Current FCC Rules" means the Title 47 U.S. Code of Federal
Regulations and the policies of the FCC as in effect as of the Effective Date.
"EBS" means Educational Broadband Service, as that term is defined
in the New FCC Order.
"Effective Date" means the date first written above.
"Efforts" means the efforts that a reasonably prudent person or
entity desirous of achieving a result would use in similar circumstances to
ensure that such result is achieved; provided, however, that an obligation to
use Efforts under this Agreement does not require the Party subject to that
obligation to take actions or incur costs that would result in a materially
adverse change in the benefits such Party expects to realize from this
Agreement.
"Eligible Spectrum" has the meaning set forth in Section 17.1(a).
"Engineering Arbitrator" has the meaning set forth in Section 14.1.
"FCC" means the Federal Communications Commission.
"FCC Lease Applications" has the meaning set forth in Section
3.1(c).
"FCC Market Transition Rules" has the meaning set forth in Section
5.7.
"FCC Rules" means Title 47 U.S. Code of Federal Regulations and the
policies of the FCC, as each may be amended from time to time.
"Final Order" means an order of the FCC which is effective, which is
not subject to any petition for reconsideration, petition to deny or informal
objection, application for review, notice of appeal, petition for writ of
certiorari or request for stay and the time for any Party to seek such relief or
for the FCC to grant such relief sua sponte has expired.
"Financial Statements' has the meaning set forth in Section 9.1(e).
"GSA" means Geographic Service Area as that term is defined in the
New FCC Order.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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"Guarantor" means Clearwire Corporation, a Delaware corporation, and
its successors and assigns.
"Indemnifying Party" has the meaning set forth in Section 11.3.
"Initial Closing Date" means the date upon which the first Closing
occurs with respect to any of the Markets.
"Initial Fee" has the meaning set forth in Section 6.3.
"Initial Term" has the meaning set forth in Section 2.1.
"Investment Costs" has the meaning set forth in Section 17.1(h).
"ITFS" means Instructional Television Fixed Service, as such term is
defined in the Current FCC Rules. Pursuant to the New FCC Order, the FCC has
changed the name of ITFS to EBS and therefore following the date on which the
rules promulgated pursuant to the New FCC Order become effective, the term
"ITFS" as used herein will be deemed to mean "EBS".
"Leased Authorization" means, subject to adjustment as provided in
this Agreement, (a) each authorization listed in Schedule R-2 which is
attributable to a Closed Market, and (b) any FCC authorization for ITFS or MDS
spectrum which is now or hereafter considered Leased Spectrum. Upon any Market
becoming a Closed Market, any authorization listed in Schedule R-2 attributable
to such newly Closed Market will automatically be considered as a Leased
Authorization for purposes of this Agreement. Each and every Leased
Authorization is collectively referred to herein as the "Leased Authorizations".
"Leased Spectrum" means the spectrum which is leased by a Sprint
Subsidiary from a third party and which Operator is entitled to use pursuant to
the terms of this Agreement, including, (a) subject to the terms of Section
3.2(b), all spectrum listed in Schedule R-2 which is attributable to a Closed
Market and (b) any ITFS or MDS spectrum which is hereafter leased to a Sprint
Subsidiary, or which a Sprint Subsidiary is otherwise entitled to use in the
Markets, pursuant to any contractual arrangement, and which is leased to
Operator pursuant to the terms of Section 5.5 of this Agreement. Upon any Market
becoming a Closed Market, subject to Section 3.2(b), any spectrum listed in
Schedule R-2 attributable to such newly Closed Market will automatically be
considered as Leased Spectrum for purposes of this Agreement.
"Licensees" means collectively the Third Party Licensees and the
Sprint Licensees.
"Long Term De Facto Lease Transfer Effective Date" has the meaning
set forth in Section 3.1(d).
"Market" means any BTA listed on Schedule R-4 attached hereto or the
[***] Geographic Service Area (as such term is defined in the New FCC Order),
and "Markets" means all BTAs listed on Schedule R-4 and the [***] Geographic
Service Area.
"Market Closing" has the meaning set forth in Section 2.5.
"Market Closing Date" has the meaning set forth in Section 2.5.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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"Market Closing Payments" means those payments identified and
allocated by Market in Schedule 6.3 and which are due and payable to Sprint on
the Initial Closing Date and each subsequent Market Closing Date.
"MDS" means collectively Multichannel Multipoint Distribution
Service and Multipoint Distribution Service, as such terms are defined in the
Current FCC Rules. Pursuant to the New FCC Order, the FCC has changed the name
of MDS to BRS and therefore following the date on which the rules promulgated
pursuant to the New FCC Order become effective, the term "MDS" as used herein
will be deemed to mean "BRS."
"MHz Households" means the MHz per household in any given Market as
determined in accordance with the methodology set forth in Exhibit B.
"Minimum Number of Markets" has the meaning set forth in Section
2.3(b).
"Monthly Fee" has the meaning set forth in Section 6.4.
"Monthly Gross Revenues" has the meaning set forth in Section 6.8.
"New FCC Order" means that certain Report and Order and Further
Notice of Proposed Rulemaking dated June 10, 2004 in WT Docket No. 03-66 and
several related dockets, and which was released by the FCC on My 29, 2004.
"Operator" means Fixed Wireless Holdings, LLC, a Delaware limited
liability company, and its permitted successors and assigns.
"Operator Acquisition Expenses" has the meaning set forth in Section
17.1(h).
"Operator Affiliate" means (a) Guarantor, for so long as it controls
Operator, (b) any entity other than Guarantor which directly has the power to
vote by ownership, proxy, contract or otherwise, securities constituting 50% or
more of the voting securities of Operator or direct the appointment of 50% or
more of the membership of the board or similar governing body of Operator, (c)
any entity or person which is owned or controlled by Operator and (d) any entity
which Guarantor controls, for so long as Guarantor controls Operator. For the
purpose of this definition, an entity or person will be deemed to "control"
another entity if (and only for so long as) such entity has the right to
directly or indirectly (a) vote by ownership, proxy, contract or otherwise,
securities constituting 50% or more of the voting securities of an entity, or
(b) appoint 50% or more of the membership on the board or similar governing body
of an entity.
"Operator Contributed Proportion" has the meaning set forth in
Section 17.1(h).
"Operator Controlled Spectrum" means collectively the Operator
Leased Spectrum and Operator Owned Spectrum.
"Operator Indemnitee(s)" has the meaning set forth in Section 11.1.
"Operator Leased Spectrum" means any MDS or ITFS spectrum rights
held or hereafter acquired by Operator or any Operator Affiliate in any Closed
Market pursuant to a contractual agreement with a party which is not a Sprint
Subsidiary where the Operator or Operator Affiliate is not, or does not become,
the licensee of said spectrum. For avoidance of doubt, as of the Effective Date
the spectrum rights listed on Schedule 5.5 which Operator or any Operator
Affiliate is, or will be, entitled to use pursuant to a contractual agreement,
is Operator Leased Spectrum for purposes of this Agreement (as of the effective
date of such contractual
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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agreement); provided that the Markets to which such spectrum is attributable are
Closed Markets.
"Operator Owned Spectrum" means any MDS or ITFS spectrum rights held
or hereafter acquired by Operator or any Operator Affiliate in any Closed
Market, where Operator or such Operator Affiliate is or becomes the licensee for
said spectrum. For avoidance of doubt, as of the Effective Date the spectrum
rights listed on Schedule 5.5 which is, or will be, licensed to Operator or any
Operate Affiliate is Operator Owned Spectrum for the purpose of this Agreement
(as of such time as such spectrum right is assigned to or acquired by Operator
or an Operator Affiliate); provided that the Markets to which such spectrum is
attributable are Closed Markets.
"Operator Transmission Equipment" has the meaning set forth in
Section 7.1.
"Owned Spectrum Assignment Application" has the meaning set forth in
Section 17.1(e)(i).
"Paid In Fees" has the meaning set forth in Section 17.1(h).
"Parent Guaranty" has the meaning set forth in Section 6.8.
"Party" means either Sprint or Operator and "Parties" means both
Sprint and Operator.
"Potential Spectrum" has the meaning set forth in Section 6.9.
"Primary Lease" means each channel lease agreement identified in
Schedule R-2 which is attributable to a Closed Market and any new channel lease
agreement pursuant to which any Sprint Subsidiary becomes entitled to use any
ITFS or MDS channels for commercial purposes in Region 1 and which are subleased
to Operator pursuant to Section 5.5 of this Agreement, as each may be amended or
extended as contemplated herein. Upon any Market becoming a Closed Market, any
channel lease agreement listed in Schedule R-2 attributable to such newly Closed
Market and any new channel lease agreement which channels are applicable to a
Closed Market and which are subleased to Operator pursuant to Section 5.5 will
automatically be considered as a Primary Lease for purposes of this Agreement.
Each and every Primary Lease from time to time in effect are herein collectively
referred to as the "Primary Leases".
"Primary Lease Costs" has the meaning set forth in Section 6.1.
"Primary Lease Fees" has the meaning set forth in Section 6.1.
"Primary Lease Reimbursements" has the meaning set forth in Section
6.1.
"Prohibited Entity" has the meaning set forth in Article XII.
"Proponent" has the meaning set forth in the FCC Market Transition
Rules.
"Proposed Leased Authorizations" means all of the authorizations
listed in Schedule R-2 or any FCC authorizations covering any Proposed Leased
Spectrum.
"Proposed Primary Leases" means all of the third party lease
agreements with Sprint set forth in Schedule R-2.
"Proposed Leased Spectrum" means the spectrum which is leased by a
Sprint Subsidiary from a third party and which is listed in Schedule R-2.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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"Proposed Spectrum" means the Proposed Sprint Spectrum and the
Proposed Leased Spectrum.
"Proposed Sprint Spectrum" means all of the spectrum which is listed
in Schedule R-3.
"Put Assignment Application" has the meaning set forth in Section
17.2(d)(i).
"Put/Call Term Sheet" has the meaning set forth in Section 17.2(d).
"Put Closing" has the meaning set forth in Section 17.2(e).
"Put Leased Spectrum Assignment Application" has the meaning set
forth in Section 17.2(d)(ii).
"Put Leased Spectrum Assignment Notification" has the meaning set
forth in Section 17.2(d)(iii).
"Put Notice" has the meaning set forth in Section 17.2(a).
"Put Price" has the meaning set forth in Section 17.2(a).
"Recapture Closing" has the meaning set forth in Section 17.1(f).
"Recapture Notice" has the meaning set forth in Section 17.1(a).
"Recaptured Lease Assignment Application" has the meaning set forth
in Section 17.1(e)(ii).
"Recaptured Lease Assignment Notification" has the meaning set forth
in Section 17.1(e)(iii).
"Recapture Price" has the meaning set forth in Section 17.1(h)
"Recaptured Spectrum" has the meaning set forth in Section 17.1(a).
"Region 1" means collectively all Markets.
"Rejected Lease Credit" has the meaning set forth in Section 3.2(b).
"Rejected Lease Fee" has the meaning set forth in Section 3.2(b).
"Rejected Lease Initial Fee" has the meaning set forth in Section
3.2(b).
"Rejected Primary Lease" has the meaning set forth in Section
3.2(b).
"Renewal Term" has the meaning set forth in Section 2.1.
"Revenue Threshold" has the meaning set forth in Section 6.8.
"Rules" has the meaning set forth in Section 14.1.
"Security" has the meaning set forth in Section 6.8.
"Spectrum" means collectively, the Leased Spectrum and Sprint
Spectrum.
"Spectrum Development Cap" has the meaning set forth in Section
4.3(b).
"Spectrum Grouping" has the meaning set forth in Section 17.1(c)(i).
"Spectrum Grouping Criteria" has the meaning set forth in Section
17.1(d).
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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"Sprint" means collectively all Sprint Subsidiaries.
"Sprint Authorization" means (a) any FCC authorization identified in
Schedule R-3 attributable to a Closed Market, and (b) any FCC authorization
hereafter issued by the FCC to, or acquired by, any Sprint Subsidiary to
construct and operate MDS or ITFS facilities assigned to such authorization
within a Closed Market and which is leased to Operator as contemplated pursuant
to this Agreement. Each and every Sprint Authorization from time to time in
effect are herein collectively referred to as the "Sprint Authorizations" Sprint
Authorizations do not include any FCC authorizations acquired by any Sprint
Subsidiary pursuant to Section 17.1.
"Sprint Contributed Proportion" has the meaning set forth in Section
17.1(h).
"Sprint Entity" means Sprint Corporation and any subsidiary of
Sprint Corporation.
"Sprint Indemnitee(s)" has the meaning set forth in Section 11.2.
"Sprint Licensee" means any Sprint Subsidiary which holds a Sprint
Authorization which is then subject to the terms of this Agreement. Each and
every Sprint Licensee is collectively referred to herein as the "Sprint
Licensees".
"Sprint Renewal Application" has the meaning set forth in Section
3.1(g).
"Sprint Spectrum" means the frequencies that the Sprint Licensees
are authorized at any given time to utilize pursuant to the Sprint
Authorizations within the geographic areas designated therein, provided that
such Sprint Authorizations are attributable to a Closed Market. Upon any Market
becoming a Closed Market, any spectrum listed in Schedule R-3 attributable to
such newly Closed Market will automatically be considered as Sprint Spectrum for
purposes of this Agreement, provided that the corresponding Sprint Authorization
is in full force and effect.
"Sprint Subsidiary" means of any of the wholly owned subsidiaries of
Sprint Corporation which are identified on Schedule R-1 attached hereto, and
each of their respective successors and assigns.
"Sprint Subsidiaries" means collectively, each and every Sprint
Subsidiary.
"Sprint Transmission Equipment" has the meaning set forth in Section
7.1.
"Sprint's Pro Rata Share" has the meaning set forth in Section 17.1
(k).
"Substitute Tower Lease" has the meaning set forth in Section 2.8.
"Term" has the meaning set forth in Section 2.1.
"Third Party Licensee" means any person or entity, other than a
Sprint Entity, which may be from time to time a party to a Primary Lease. Each
and every Third Party Licensee is collectively referred to herein as "Third
Party Licensees".
"Towers" has the meaning set forth in Article XVI.
"Tower Leases" has the meaning set forth in Article XVI.
"Tower Sublease Consent" has the meaning set forth in Article XVI.
"Tower Subleases" has the meaning set forth in Article XVI.
"Transition Costs" has the meaning set forth in Section 17.1(h).
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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"Transition Plan" has the meaning set forth in the FCC Market
Transition Rules.
"Transition Services Agreement' has the meaning set forth in Section
5.4.
"Transmission Equipment" has the meaning set forth in Section 7.1.
"Transmission Facilities Operation and Maintenance Agreement" has
the meaning set forth in Section 3.2(d).
"Unilateral Action" has the meaning set forth in Section 5.1(a).
"Unincorporated Spectrum" has the meaning set forth in Section 17.1
(a).
Article II
ROLLING CLOSING AND CLOSING CONDITIONS
2.1 Term. Subject to the provisions for earlier termination
contained in Article X and Section 18.6, this Agreement will extend for: (a) an
initial term of [***] from the Initial Closing Date (the "Initial Term") and (b)
one additional term of [***] (the "Renewal Term") unless Operator notifies
Sprint at least [***] before the end of the Initial Term that Operator elects
not to extend this Agreement for the Renewal Term. The Initial Term and Renewal
Term, if it becomes effective, are herein referred to collectively as the
"Term".
2.2 Rolling Closings. The Parties acknowledge that it is in their
respective best interests for the sublease of the spectrum set forth in Schedule
R-2 and the lease of the spectrum set forth in Schedule R-3 contemplated
pursuant to this Agreement be consummated as soon as reasonably practical.
Furthermore, the Parties acknowledge that it may not be practical to consummate
the lease and sublease contemplated pursuant to this Agreement with respect to
all Markets at the same time. Therefore, the various leases, sublease and
licenses contemplated pursuant to this Agreement may take effect (each a
"Closing") as to each Market at different times in the manner described in this
Article II. Upon a Closing having occurred with respect to any Market, such
Market will be a "Closed Market" for purposes of this Agreement.
2.3 Initial Closing.
(a) Upon the Initial Closing Date, Operator will have all the
rights granted herein with respect to Spectrum and Sprint Transmission
Equipment in each Market that is the subject of such Closing.
(b) Following the date on which Sprint and Operator have obtained
Tower Lease Consents to enter into Tower Subleases or have procured
Substitute Tower Leases, or combination thereof, for at least five
Markets, which Markets, along with those Markets identified in the last
two sentences of this Section 3.2(b), will include without limitation at
least four of the top ten Markets as determined by the number of
households in each Market ("Minimum Number of Markets"), Sprint will
proceed with the initial Closing by providing Operator with notice of
Sprint's selection of a date which is no sooner than 10 days following
such notice and no later than 180 days following the Effective Date and
such date will be the Initial Closing Date. If Sprint and Operator have
obtained Tower Lease Consents to enter into Tower Subleases or
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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have procured Substitute Tower Leases for the Minimum Number of Markets
and Sprint fails to provide such notice, then the Initial Closing Date
will occur on the earlier of the 30th day following the date that Sprint
and Operator have obtained the Tower Sublease Consents or Substitute Tower
Leases for the Minimum Number of Markets or the 180th day following the
Effective Date. The Parties acknowledge that Sprint does not have any
tower facilities in the following Markets and that such Markets will
become Closed Markets on the Initial Closing Date without any condition of
a Tower Sublease Consent or Substitute Tower Lease: [***] The Parties
acknowledge that a Sprint Subsidiary owns the tower facilities in the
[***] Market and that such Market will become a Closed Market on the
Initial Closing Date, subject to such Sprint Subsidiary and Operator
entering into a lease agreement as mutually agreed upon for such tower
facilities.
(c) Following the selection or determination of the Initial
Closing Date, the Parties will proceed with Closing with respect to all
applicable Markets, provided that:
(i) The following conditions to Operator's obligation to
proceed with Initial Closing Date are satisfied or waived by
Operator:
(A) Sprint will have delivered to Operator Tower
Subleases (with any required Tower Sublease Consents) and
Substitute Tower Leases for at least the Minimum Number of
Markets.
(B) Sprint will have delivered to Operator all documents
referenced in Section 2.4(a) hereof.
(C) As of the Initial Closing Date there will exist no
valid order, statute, rule, regulation, executive order, stay,
decree, judgment or injunction which prohibits or prevents the
consummation of the transactions contemplated by this
Agreement.
(D) All representations and warranties made by Sprint in
or pursuant to this Agreement will be true and correct in all
material respects, except for those representations and
warranties that are qualified as to materiality which will be
true and correct in all respects, on and as of the Initial
Closing Date with the same effect as if such representations
and warranties had been made on and as of the Initial Closing
Date, except to the extent that any such representation or
warranty by its terms relates to an earlier date, and except
to the extent that any change is expressly permitted by the
terms of this Agreement or expressly consented to in writing
by Operator.
(E) Sprint will have performed or complied in all
material respects with all covenants, agreements and
conditions contained in this
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Agreement required to be performed or complied with at or
prior to the Initial Closing Date.
(ii) The following conditions to Sprint's obligation to
proceed with Initial Closing Date are satisfied or waived by Sprint:
(A) Operator will have delivered to Sprint all items
referenced in Section 2.4(b) hereof.
(B) As of the Initial Closing Date there will exist no
valid order, statute, rule, regulation, executive order, stay,
decree, judgment or injunction which prohibits or prevents the
consummation of the transactions contemplated by this
Agreement.
(C) All representations and warranties made by Operator
in or pursuant to this Agreement will be true and correct in
all material respects, except for those representations and
warranties that are qualified as to materiality which will be
true and correct in all respects, on and as of the Initial
Closing Date with the same effect as if such representations
and warranties had been made on and as of the Initial Closing
Date, except to the extent that any such representation or
warranty by its terms relates to an earlier date, and except
to the extent that any change that is expressly permitted by
the terms of this Agreement or expressly consented to in
writing by Operator.
(D) Operator will have performed or complied in all
material respects with all covenants, agreements and
conditions contained in this Agreement required to be
performed or complied with at or prior to the Initial Closing
Date.
(E) Operator will have paid Sprint all Market Closing
Payments for each Market Closing on the Initial Closing Date.
2.4 Deliveries on Initial Closing Date.
(a) On the Initial Closing Date, Sprint will deliver to Operator:
(i) Each Tower Sublease (with any required Tower
Sublease Consent) or, as applicable, Substitute Tower Lease for the
Markets then Closing, duly executed by the appropriate Sprint
Subsidiary;
(ii) A cross receipt executed by an officer of Sprint
identifying each of the Markets subject to such Closing and
acknowledging that each such Market is a Closed Market for purposes
of this Agreement;
(iii) Each Consent attributable to the Market then
Closing which Sprint has obtained;
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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(iv) The Spectrum Operation Agreement duly executed by
Sprint;
(v) The tower lease for the [***] Market duly executed
by the appropriate Sprint Subsidiary;
(vi) The Transition Services Agreement duly executed by
Sprint; and
(vii) A certificate duly executed by Sprint that all of
the conditions set forth in Section 2.3(c)(i) have been satisfied.
(b) On the Initial Closing Date, Operator will deliver to Sprint:
(i) Each Tower Sublease (along with any required Tower
Sublease Consent) for the Markets then Closing, duly executed by
Operator;
(ii) The Parent Guaranty, duly executed by Guarantor;
(iii) A cross receipt executed by an officer of Operator
identifying each of the Markets subject to such Closing, and
acknowledging that each such Market is a Closed Market for purposes
of this Agreement;
(iv) The Spectrum Operation Agreement duly executed by
Operator;
(v) The Transition Services Agreement duly executed by
Operator;
(vi) The tower lease for the [***] Market duly executed
by the appropriate Sprint Subsidiary;
(vii) Operator will have paid to Sprint the Market
Closing Payments for all of the Markets which are closing on the
Initial Closing Date; and
(viii) A certificate duly executed by Operator that all
of the conditions set forth in Section 2.3(c)(ii) have been
satisfied.
2.5 Market Closings. Following the Initial Closing Date, from time
to time or all at once, at such time as Sprint or Operator obtains a Tower
Sublease Consent for an applicable Tower Sublease or a Substitute Tower Lease
for a Market which is not a Closed Market, the Parties will proceed to Closing
pursuant to the terms set forth in this Section 2.5 with respect to each such
Market (each a "Market Closing"). Each Market Closing will occur on a date (a
"Market Closing Date") mutually agreed upon by the Parties, provided however,
that as long as there exists no valid order, statute, rule, regulation,
executive order, stay, decree, judgment or injunction which prohibits or
prevents such Market Closing, such Market Closing will not occur later than 15
days following the date on which Sprint receives the Tower Sublease Consent for
an applicable Tower Sublease for such Market or Sprint provides a Substitute
Tower
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
12
Lease for such Market. Upon each Market Closing, Operator will have all the
rights granted herein with respect to the Spectrum and Sprint Transmission
Equipment in each such Closed Market.
2.6 Deliveries on the Rolling Market Closing Date.
(a) On each Market Closing Date, Sprint will deliver to Operator:
(i) the Tower Sublease for such Market, along with any required Tower
Sublease Consent, or the Substitute Tower Lease for each such Market, (ii)
a certificate executed by an officer of Sprint identifying each of the
Markets subject to such Closing, and acknowledging that each such Market
is a Closed Market for purposes of this Agreement, and (iii) each Consent
attributable to the Markets then Closing which Sprint has obtained.
(b) On each Market Closing Date, and with respect to each Market
then Closing, Operator will: (i) pay Sprint all Market Closing Payments
for the Markets then Closing, and (ii) deliver a certificate executed by
an officer of Operator identifying each of the Markets subject to such
Closing, and acknowledging that each such Market is a Closed Market for
purposes of this Agreement.
(c) Commencing with each Market Closing Date, the Monthly Fee
otherwise payable pursuant to Section 6.4 will be increased by an amount
equal to the amount corresponding to such Closed Market on Schedule 6.4
attached hereto.
2.7 Termination Date.
(a) At the election of either Party, this Agreement will terminate
on the 10th day following the notice of such electing Party's intent to
terminate this Agreement if the Initial Closing Date has not occurred on
or before the 180th day following the Effective Date, provided, however
that a Party may not terminate this Agreement if the Initial Closing Date
has not occurred as a result of that Party's failure to comply with its
obligations under this Agreement.
(b) Each Party's right of termination under this Section 2.7 is in
addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an
election of remedies. If this Agreement is terminated pursuant to this
Section 2.7, all further obligations of the Parties under this Agreement
will terminate, except the obligations in Article XIII will survive.
(c) Except as otherwise specifically provided in this Agreement,
if this Agreement terminates for any reason other than (i) the Tower
Sublease Consents or Substitute Tower Leases for the Minimum Number of
Markets as contemplated pursuant to Section 2.3(b) having not been
obtained, (ii) the existence of any valid order, statute, rule,
regulation, executive order, stay, decree, judgment, or injunction which
prohibited or prevented any such Market Closings or (iii) Sprint's failure
to comply with its obligations under this Agreement, then Sprint will
retain the Initial Fee. Otherwise the Initial Fee will be refunded within
5 business days of any such termination.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
13
2.8 Tower Lease Consents. For a period of 180 days following the
Effective Date, Sprint will use Efforts to obtain the Tower Sublease Consents
for all Tower Subleases for the Tower Leases identified in Schedule 16 and which
are denoted therein as requiring the landlord's consent. At any time during the
18 months following the Initial Closing Date, Sprint may deliver a Tower
Sublease Consent for any Tower which is located in a Market which is not a
Closed Market or a lease for other suitable replacement tower facilities
("Substitute Tower Lease") on financial terms and conditions at least as
favorable to Operator as the relevant Tower Lease being replaced and such
Substitute Tower Lease will automatically take the place of such Tower Lease for
purposes of this Agreement. Upon delivery of such Tower Sublease Consent or
Substitute Tower Lease, the Parties will proceed to Closing with respect to such
Market as contemplated pursuant to Section 2.6. In addition, if at any time
during such eighteen (18) month period, Operator elects, by written notice to
Sprint, to lease or sublease the spectrum in a Market which is not a Closed
Market even though the Tower Sublease Consent or a Substitute Tower Sublease has
not been procured for such Market, then the Parties will proceed to Closing with
respect to such Market pursuant to Section 2.6. In such case, Sprint will have
no liability whatsoever for the failure to obtain a Tower Sublease Consent or a
Substitute Tower Lease for such Market. To the extent that any Tower Sublease or
Substitute Tower Lease is not obtained within a reasonable period of time, the
obligations of Operator set forth in Section 7.7 will be adjusted appropriately.
If a Tower Sublease Consent or a Substitute Tower Lease with respect to any
Market is not obtained within 18 months following the Initial Closing Date then,
provided that Sprint provides Operator with notice of its intent to lease or
otherwise transfer spectrum in Markets which are not Closed Markets and Operator
does not elect to proceed to Closing without a Tower Sublease Consent or
Substitute Tower Lease within 30 days of such notice, Sprint's obligations set
forth in Section 2.9 will terminate with respect to such Market in which case
Sprint may then enter into any transaction with respect to the spectrum in any
such Markets with any other party and Sections 5.5 and 13.3 will thereafter no
longer be applicable to any such Markets.
2.9 Covenants Pending Closing.
(a) Except as otherwise specified herein, from and after the
Effective Date, each Party will use its Efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable and consistent with applicable law to perform its
obligations under this Agreement to facilitate the Closing of the Markets
and to satisfy its respective conditions to Closing.
(b) From and after the Effective Date, but subject to the terms of
Section 2.8, Sprint will not enter into any agreement, arrangement or
understanding to, or otherwise offer or commit to sell, transfer, assign,
lease or dispose of any of the spectrum identified on Schedule R-2 and
Schedule R-3. Notwithstanding the preceding sentence, this Section 2.9(b)
will not apply to (i) any spectrum in a Closed Market which becomes
Recaptured Spectrum or which is no longer leased or subleased, as
applicable, by Operator pursuant to this Agreement, (ii) any sale, lease,
transfer, assignment, or other disposition which takes effect after the
Term, and (iii) any sale, lease, transfer, assignment, or other
disposition of any spectrum rights provided that such spectrum rights
remain subject to the terms of this Agreement.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
14
(c) From and after the Effective Date through the Initial Closing
Date and/or Market Closing Date, as applicable, but subject to the
provisions of Section 2.8 and Section 3.2(b), Sprint will make all
required payments and perform all material obligations then required under
each channel lease agreement identified in Schedule R-2 which is
attributable to any Market which is not a Closed Market. From and after
the Effective Date through the applicable Initial Closing Date or Market
Closing Date, Sprint will, consistent with its past business practices and
procedures, maintain all necessary qualifications to hold and obtain
renewal in the ordinary course all authorizations identified in Schedule
R-3 which are attributable to any Market which is not a Closed Market.
Article III
LEASE OF SPRINT SPECTRUM; USE OF THIRD PARTY SPECTRUM
3.1 Lease of Sprint Spectrum.
(a) Operator's right to use any Proposed Sprint Spectrum in any
given Market is subject to the Initial Closing Date or a Market Closing
Date having occurred for such Market. Commencing with the Initial Closing
Date, and subject to the terms and conditions of this Agreement, each
Sprint Licensee will lease its respective Sprint Spectrum to Operator for
the duration of the Term. Subject to the terms of this Agreement, the
Sprint Authorizations, the FCC Rules, the Initial Closing Date and the
applicable Market Closing Date having occurred, Operator may use all of
the currently and potentially available capacity on the Sprint Spectrum
during the Term for any purpose now or hereafter allowed by FCC Rules.
(b) The parties acknowledge that on July 29, 2004 the FCC released
the New FCC Order in which the FCC substantially modified the FCC Rules
applicable to MDS and ITFS, but that the new FCC Rules have not yet become
effective. It is the intent of the Parties that this Agreement be
interpreted in a manner consistent with the Current FCC Rules until such
modified FCC Rules become effective and that thereafter this Agreement be
interpreted in a manner consistent with the modified FCC Rules.
Specifically, Operator and the Sprint Licensees acknowledge that in the
New FCC Order, the FCC has adopted rules permitting long term de facto
transfer leasing by MDS licensees, but that such rules have not become
effective as of the Effective Date. Until the Long Term De Facto Transfer
Lease Effective Date (as defined herein) with respect to any given Sprint
Spectrum, the lease of such Sprint Spectrum pursuant to this Agreement
will be deemed to be, and will be interpreted as, a lease of all of the
currently and potentially available capacity on the Sprint Spectrum
pursuant to the Current FCC Rules which govern the leasing of MDS
capacity. Notwithstanding any provision herein to the contrary, until the
Long Term De Facto Transfer Lease Effective Date, each Sprint Licensee
will exercise such de jure and de facto control over the construction and
operations of all facilities authorized pursuant to its respective Sprint
Authorizations as is required by the Current FCC Rules, and each Third
Party Licensee will exercise such de jure and de facto control over the
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
15
construction and operations of all facilities authorized pursuant to their
respective Leased Authorizations as is required by the Current FCC Rules.
(c) The Sprint Licensees and Operator will use Efforts to prepare
all application forms and related exhibits, certifications and other
documents necessary to secure the FCC's consent to the long term de facto
transfer leasing of all of the Proposed Sprint Spectrum ("FCC Lease
Applications") and to file the FCC Lease Applications within 5 business
days following the later of (i) the date the FCC Rules permitting MDS
licensees to engage in long term de facto transfer leasing become
effective and (ii) the Effective Date. Subsequently, the Sprint Licensees
and Operator each will promptly and diligently prepare, file and prosecute
all necessary amendments, briefs, pleadings, petitions for
reconsideration, applications for review, waiver requests, documents and
supporting data, and take all such actions and give all such notices as
may be required or requested by the FCC or as may be appropriate to
expedite the grant of each FCC Lease Application without conditions
materially adverse to the respective Sprint Licensee or Operator. If any
person or entity petitions the FCC to deny one or more of the FCC Lease
Applications, or if the FCC grants such applications and any person or
entity petitions for reconsideration or review of such grant before the
FCC or appeals or applies for review in any judicial proceeding, then the
respective Sprint Licensee and Operator will use their Efforts to oppose
such petition before the FCC or defend such grant by the FCC. If the FCC
denies one or more of the FCC Lease Applications or grants one or more of
such applications with conditions materially adverse to Operator or the
relevant Sprint Licensee, then if requested to do so by such adversely
affected Party, such Party and the other relevant Party will use their
Efforts to secure reconsideration or review of such action. Operator will
be responsible for the payment of all Costs that the Sprint Licensees
incur in connection with their performance under this Section 3.1 (c),
including all application fees imposed by the FCC on the filing of the FCC
Lease Applications and all legal fees incurred in the preparation and
prosecution of the FCC Lease Applications.
(d) With respect to any given Sprint Spectrum, the "Long Term De
Facto Transfer Lease Effective Date" will be the later of (i) the date on
which the FCC's grant of the respective FCC Lease Application becomes a
Final Order, or (ii) the applicable Market Closing Date or Initial Closing
Date. This Agreement will be deemed to be, and will be interpreted as, a
long term de facto transfer lease with respect to such Sprint Spectrum
immediately upon the Long Term De Facto Transfer Lease Effective Date with
respect to such Sprint Spectrum, without further action by the Sprint
Licensee or Operator. Upon the Long Term De Facto Transfer Lease Effective
Date with respect to any given Sprint Spectrum and subject to the terms
set forth herein, including those set forth in Article V hereof, the
maximum control over and responsibility for the construction and operation
of facilities utilizing such Sprint Spectrum and compliance with the FCC
Rules will automatically be transferred to Operator and the relevant
Sprint Licensee will be relieved of such responsibility to the maximum
extent permitted by the FCC Rules. Notwithstanding the foregoing, during
the Term each Sprint Licensee will remain in de jure control of its Sprint
Authorizations and will remain in de facto control over any Sprint
Spectrum for which the Long Term De Facto Transfer Lease Effective Date
has not occurred. During the Term, Operator will not hold itself
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
16
out to the public as the de jure licensee of any of the Sprint
Authorizations or take any action inconsistent with or contrary to the
relevant Sprint Licensee's de jure control over its Sprint Authorizations.
(e) Notwithstanding anything contained herein to the contrary: (i)
Operator will comply at all times with the FCC Rules and all other
applicable laws; (ii) this Agreement may be revoked, cancelled, or
terminated by Sprint pursuant to Section 10.2 or by the FCC if Operator
fails to comply with the FCC Rules and other applicable laws related
hereto; (iii) if any Sprint Authorization is revoked, cancelled,
terminated, or otherwise ceases to be in effect, Operator will have no
continuing authority or right to use the Sprint Spectrum authorized
pursuant to that Sprint Authorization, unless otherwise authorized by the
FCC, nor will it have any continuing obligations with respect thereto;
(iv) this Agreement is not an assignment, sale, or other type of
irrevocable transfer of the Sprint Authorizations; (v) this Agreement will
not be assigned to any entity that is ineligible or unqualified to enter
into a spectrum leasing arrangement under the FCC Rules; and (vi) Sprint
will not consent to an assignment of this Agreement unless such assignment
complies with applicable FCC Rules.
(f) Notwithstanding anything to the contrary contained herein, the
lease for the Sprint Spectrum authorized pursuant to a given Sprint
Authorization will not extend beyond: (i) the date such Sprint
Authorization expires by its terms; provided, however that if a
timely-filed application for renewal is submitted, the lease for the
Sprint Spectrum authorized pursuant to such Sprint Authorization will not
cease unless and until such application for renewal is dismissed or denied
with prejudice by the FCC by Final Order; (ii) the date such Sprint
Authorization is terminated, forfeited or cancelled by the FCC; or (iii)
the expiration of the Term or the termination of this Agreement pursuant
to Article X. Upon the expiration or termination of the lease for any
given Sprint Spectrum pursuant to this Section 3.1 (f), such spectrum will
no longer be considered Sprint Spectrum for purposes of this Agreement and
the Sprint Authorization for such spectrum will no longer be considered a
Sprint Authorization for purposes of this Agreement. If the FCC terminates
or does not renew any Sprint Authorization and provides Sprint with any
other spectrum in consideration for such termination or non-renewal, then
such new spectrum will be Sprint Spectrum for purposes of this Agreement.
If the FCC terminates or does not renew any Sprint Authorization and the
FCC provides monetary compensation to Sprint in return, such compensation
will be credited against the Monthly Fees to the extent it does not exceed
the net present value (using a discount rate of [***] of the Monthly Fees
allocable to the Sprint Spectrum subject to such termination or
non-renewal (determined by multiplying the Monthly Fees otherwise payable
to Operator by a fraction, the numerator of which is the MHz Households
for such Sprint Spectrum subject to the termination or non-renewal, and
the denominator of which is the MHz Households for all Proposed Spectrum
as of the Effective Date), minus any other compensation paid by the FCC to
Operator in consideration of the termination or non-renewal of such Sprint
Authorizations. Except as set forth in the immediately preceding sentence
and in Section 10.3, in no event will Monthly Fees be reduced as a result
of the loss of any Sprint Authorization. If the FCC terminates or does not
renew any Sprint Authorization and provides Sprint compensation in the
form of bidding credits to Sprint
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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in return, to the extent permitted by the FCC, and subject to the terms
and conditions set forth in this Section. Sprint will make such bidding
credits available to Operator for the purpose of acquiring spectrum within
Region 1. Operator will provide Sprint with at least 60 days advance
notice of its intent to participate in any FCC auction in which Operator
intends to use such bidding credits. Sprint and Operator will take such
actions as are necessary and proper to transfer such bidding credits to
Operator prior to the date on which Operator is required to pay for any
spectrum it acquires in Region 1 pursuant to an FCC auction, provided,
however that the face value of such bidding credits will not exceed the
lesser of : (i) the total bidding credits received by Sprint which are
allocable to the termination or non-renewal of any Sprint Authorizations
within Region 1, or (ii) the value on a per MHz/pop basis for the bidding
credits received by Sprint which are allocable to the termination or
non-renewal of any Sprint Authorizations within Region 1, multiplied by
the MHz/pop for all spectrum acquired by Operator at such auction for
Region 1. As a condition of the transfer of the bidding credits, Operator
will execute and deliver an agreement, in form and substance reasonably
satisfactory to Sprint, to assign the spectrum acquired in Region 1 to a
Sprint Subsidiary. Upon the consummation of such assignment and such
spectrum becoming authorized by the FCC, it will be deemed Sprint Spectrum
for purposes of this Agreement. Operator's rights to use any such bidding
credits as set forth herein will only apply to the next FCC auction which
follows the termination or non-renewal of any Sprint Authorization for
which such bidding credits were awarded. Thereafter, Operator will have no
claim whatsoever to such bidding credits. If Operator is entitled to the
bidding credits as set forth in this Section 3.1 (f) and Sprint is unable
to transfer the bidding credits to Operator or Operator is unable to use
or receive the benefit of the bidding credits as set forth in this Section
3.1 (f), then upon written notice to Sprint, the Monthly Fees for the
affected Market will be reduced by a percentage determined by dividing (A)
the number of MHz Households for the Spectrum subject to such termination,
by (B) the number of MHz Households for all Potential Spectrum for such
Market as of the Effective Date. The reduction in Monthly Fees
contemplated pursuant to the preceding sentence will take effect on the
first day of the next calendar month following delivery of such notice. In
no event will Operator have any claim to bidding credits arising from the
termination of any Sprint Authorization resulting from a breach of
Operator's obligations under this Agreement.
(g) If any Sprint Authorization expires during the Term, the
relevant Sprint Licensee will use its Efforts to prepare and timely file
such application for renewal as is required by the FCC Rules ("Sprint
Renewal Application"). Operator will provide Sprint with such information
as Sprint reasonably requests to assist in the preparation of any Sprint
Renewal Application. Any such Sprint Renewal Application will include an
affirmative statement of the Sprint Licensee that it intends, subject to
the approval of the FCC, to extend the lease of such Spectrum pursuant to
the terms of this Agreement. If any Sprint Authorization subject to long
term de facto transfer leasing expires during the Term, Operator and the
relevant Sprint Licensee will timely seek any required approval from the
FCC for continued long term de facto transfer leasing pursuant to the
terms of this Agreement in the Sprint Renewal Application for the
underlying Sprint Authorization. If any person petitions the FCC to deny
one or more of the Sprint Renewal Applications, or if the FCC grants a
Sprint Renewal Application and any
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
18
person petitions for reconsideration or review of such grant before the
FCC, or appeals or applies for review in any judicial proceeding, then the
respective Sprint Subsidiary and Operator will use their Efforts to oppose
such petition before the FCC or defend such grant by the FCC. If the FCC
denies one or more of the Sprint Renewal Applications or grants one or
more of such applications with conditions materially adverse to any Party,
then if requested to do so by such adversely affected Party, such Party
and the other relevant Party will use their Efforts to secure
reconsideration or review of such action. Operator will be responsible for
the payment of all Costs that the Sprint Licensees incur in connection
with their performance under this Section 3.1 (g), including all
application fees imposed by the FCC on the filing of the Sprint Renewal
Applications and all legal fees incurred in the preparation and
prosecution of the Sprint Renewal Applications.
3.2 Use of Leased Spectrum.
(a) Operator's right to use any Proposed Leased Spectrum
contemplated pursuant to this Section in any given Market is subject to
the Market Closing Date, or Initial Closing Date, as applicable, having
occurred for such Market. Each Sprint Subsidiary which is a party to a
Proposed Primary Lease will grant to Operator, for the duration of the
Term, a license to use, subject to the terms of this Agreement, all of the
currently and potentially available capacity on the Leased Spectrum which
the respective Sprint Subsidiaries are entitled to use pursuant to the
Primary Leases. Subject to the terms of this Agreement, Operator may use
the Leased Spectrum for any purpose now or hereafter allowed by the FCC
Rules, provided, however, that Operator's use of the Leased Spectrum will
at all times be subject to the terms of the Primary Lease governing such
Leased Spectrum. Notwithstanding any provision hereof, during the Term
each Third Party Licensee will remain in de jure and de facto control over
its Leased Spectrum and Operator will not hold itself out to the public as
the de jure or de facto licensee of any of the Leased Authorizations or
take any action inconsistent with or contrary to the relevant Third Party
Licensee's de jure or de facto control over its Leased Authorizations
unless the FCC has authorized Operator to exercise long term de facto
transfer leasing control over such Leased Authorization pursuant to
Section 5.5.
(b) Notwithstanding anything to the contrary contained herein, but
subject to Section 3.2(e), the spectrum encumbered by those certain
Proposed Primary Leases identified in Schedule 3.2 will not be considered
Leased Spectrum until and unless the Parties obtain the consent of the
Third Party Licensee of such spectrum as contemplated pursuant to this
Section 3.2(b). From and after the Initial Closing Date through the 180th
day thereafter (the "Consent Date") the relevant Sprint Subsidiary and
Operator will each use their Efforts to obtain each consent identified in
Schedule 3.2 to the transfer of such Sprint Subsidiary's rights and
obligations under the corresponding Primary Leases in accordance with the
terms of this Agreement (each a "Consent" and collectively, the
"Consents"). Sprint will use its Efforts to obtain each Consent in
substantially the form attached as Exhibit A but any documentation
executed by an applicable Third Party Licensee which reasonably permits
the license of any such Leased Spectrum as contemplated herein will be
effective as a Consent. Each Proposed
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Primary Lease listed on Schedule 3.2 for which a Consent is not obtained
as of the Consent Date will be deemed a "Rejected Primary Lease".
Following the Consent Date, but subject to such Sprint Subsidiary's
obtaining such Consent at a later date as set forth in Section 3.2(c) (i)
any Rejected Primary Lease will no longer be deemed a Primary Lease for
purposes of this Agreement, (ii) the Leased Authorization which is the
subject of any Rejected Primary Lease will no longer be deemed a Leased
Authorization for purposes of this Agreement, and (iii) all of Sprint's
obligations pursuant to Section 2.9 with respect to such Rejected Primary
Lease will terminate with respect to the Proposed Leased Spectrum governed
by such Rejected Primary. Following the Consent Date, Sprint will provide
Operator with a credit against the Monthly Fees in the amount equal to the
sum of (w) all Primary Lease Costs (as defined in Section 6.1) paid by
Operator through the Consent Date pursuant to each Rejected Primary Lease
attributable to a Closed Market, (x) the aggregate of all Monthly Fees
paid to Sprint through The Consent Date with respect to the applicable
Closed Market as set forth in Section 6.4 multiplied by a fraction, the
numerator of which is the MHz Households for the Leased Spectrum subject
to each Rejected Primary Lease and the denominator of which is the MHz
Households for all Spectrum for such Closed Market as of the Effective
Date, (y) a portion of the Initial Fee paid pursuant to Section 6.3
determined by multiplying the Initial Fee by a fraction the numerator of
which is the MHz Households for the Leased Spectrum subject to a Rejected
Primary Lease and the denominator is the MHz Households for all Proposed
Spectrum as of the Effective Date, and (z) the Market Closing Payment for
such Closed Market multiplied by a fraction the numerator of which is the
MHz Households for the Leased Spectrum subject to a Rejected Primary Lease
and the denominator is the MHz Households for all Proposed Spectrum as of
the Effective Date in such Closed Market (the "Rejected Lease Credit"). As
used herein, the amount determined pursuant to clauses (y) and (z) of the
immediately preceding sentence is known as the "Rejected Lease Initial
Fee." The Rejected Lease Credit will be applied against the next
installment(s) of Monthly Fees until the balance of Rejected Lease Credit
is $0. Within 30 days following the Consent Date, Sprint will provide
Operator with the computation of the Rejected Lease Credit which
computation will be conclusive on the Parties unless Operator provides
written notice of its disagreement to such Rejected Lease Credit within 30
days thereafter, in which case the matter will be submitted to the dispute
resolution procedures set forth in Article XIV of this Agreement. From and
after the Consent Date, the Market Closing Payment for each Market which
contains a Rejected Primary Lease will be reduced by an amount equal to
the Market Closing Payment for such Market as set forth in Schedule 6.3
multiplied by a fraction the numerator of which is the MHz Households for
the spectrum subject to the Rejected Primary Lease(s) and the denominator
is the MHz Households for all Proposed Spectrum as of the Effective Date
in such Market then Closing (the "Rejected Lease Fee"). For avoidance of
doubt, Exhibit B sets forth the MHz Households for all Proposed Spectrum
as of the Effective Date as well as the methodology to be employed in
determining MHz Households for any Spectrum pursuant to this Agreement.
Following the Consent Date: (I) Operator will no longer be responsible for
the Primary Lease Costs arising under any Rejected Primary Lease, and (II)
the Monthly Fee otherwise payable to Sprint will be reduced by a
percentage determined by dividing (A)
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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the number of MHz Households for the Leased Spectrum subject to the
Rejected Primary Leases by (B) the number of MHz Households for all
Proposed Spectrum as of the Effective Date. Notwithstanding anything to
the contrary contained herein, the Parties acknowledge that the Third
Party Licensees listed on Schedule 3.2(b) have asserted that their
respective Primary Leases are no longer in effect. If Sprint fails to
obtain a Consent for any such Primary Lease by the Consent Date, the
Rejected Lease Credit with respect to any such Primary Lease listed on
Schedule 3.2(b) will include the Primary Lease Fees paid by Operator with
respect to such Primary Lease.
(c) If following the Consent Date a Sprint Subsidiary obtains a
Consent with respect to any Rejected Primary Lease attributable to a
Closed Market and provides Operator with written notice thereof, then
commencing with the first full calendar month following the date such
Consent is obtained (i) Operator will be responsible for the payment of
all Primary Lease Costs allocable to such Rejected Primary Lease, (ii) the
Monthly Fee will be increased by an amount equal to the Monthly Fee for
such Market as set forth on Schedule 6.4, multiplied by a fraction, the
numerator of which is the number of MHz Households for the Leased Spectrum
subject to such Rejected Primary Leases, and the denominator of which is
the number of MHz Households for all Proposed Spectrum as of the Effective
Date, (iii) such Rejected Primary Lease will thereafter be deemed a
Primary Lease for purposes of this Agreement, the spectrum which is the
subject of any Rejected Primary Lease will be deemed Leased Spectrum for
purposes of this Agreement and the FCC authorization which is the subject
of any Rejected Primary Lease will be deemed a Leased Authorization for
purposes of this Agreement, and (iv) and no later than 30 days following
the date such Consent is obtained, Operator will pay to Sprint an amount
equal to (A), if such Rejected Primary Lease was attributable to a Closed
Market as of the Consent Date, the Rejected Lease Initial Fee for such
Rejected Primary Lease, or (B) if such Rejected Primary Lease was not
attributable to a Closed Market as of the Consent Date, but such Market
becomes a Closed Market prior to delivery of the applicable Consent, the
Rejected Lease Initial Fee and an amount equal to the Rejected Lease Fee
for such Rejected Primary Lease. If following the Consent Date a Sprint
Subsidiary obtains a Consent with respect to any Rejected Primary Lease
attributable to a Market which is not a Closed Market, then upon such
Market becoming a Closed Market, such Rejected Primary Lease will become a
Primary Lease and such spectrum will become Leased Spectrum and Operator
will pay Sprint the Rejected Initial Lease Fee for such Rejected Primary
Lease and the Market Closing Payment with respect to such Market without
giving effect to the Rejected Lease Fee for such Rejected Primary Lease.
(d) On the Initial Closing Date, Operator and each relevant Sprint
Subsidiary will enter into the services agreement in substantially the
form attached hereto as Exhibit C pursuant to which, to the extent
permitted under any applicable Rejected Primary Lease, Operator will
perform such Sprint Subsidiary's obligations to provide programming and
operation of the Third Party Licensees' spectrum pursuant to each Rejected
Primary Lease (the "Transmission Facilities Operation and Maintenance
Agreement"). To the extent any Rejected Primary Lease prohibits such
Sprint Subsidiary from delegating or subcontracting its obligations under
any Rejected Primary Lease as contemplated pursuant to the Transmission
Facilities Operation and
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Maintenance Agreement or Sprint elects to perform the obligations under
such Rejected Primary Lease, Operator will grant such Sprint Subsidiary
limited access to facilities and shared equipment as necessary to enable
such Sprint Subsidiary to perform its obligations under any such Rejected
Primary Lease.
(e) Notwithstanding anything to the contrary contained herein, in
lieu of obtaining a Consent for any Proposed Primary Lease, Sprint may
acquire the underlying Proposed Leased Authorization. If Sprint acquires a
Proposed Leased Authorization as contemplated pursuant to this Section
3.2(e), such Proposed Leased Spectrum will thereafter be considered
Proposed Sprint Spectrum (and Sprint Spectrum upon the applicable Market
becoming a Closed Market) and such Proposed Leased Authorization will be
considered a Proposed Sprint Authorization (and a Sprint Authorization
upon the applicable Market becoming a Closed Market) for purposes of this
Agreement. If Sprint acquires a Proposed Leased Authorization prior to the
Consent Date, the Primary Lease governing the use of such Proposed Leased
Authorization will not be deemed a Rejected Primary Lease and the
adjustments to the applicable Monthly Fees, Initial Fee and Market Closing
Payments set forth in Section 3.2(b) will not apply with respect to such
Primary Lease. If Sprint acquires a Proposed Leased Authorization which is
the subject of a Rejected Primary Lease (e.g., after the Consent Date),
then it will be deemed as if Sprint obtained a Consent for such Rejected
Primary Lease for the purpose of computing the Rejected Initial Lease Fee
and the Rejected Lease Fee as set forth in Section 3.2(c). Sprint will be
solely responsible for all Costs, including the purchase price thereof, it
incurs in connection with the acquisition of any Proposed Leased
Authorization as contemplated pursuant to this Section 3.2(e).
Article IV
PRIMARY LEASE MANAGEMENT
4.1 Primary Lease Performance. Except as set forth herein,
from and after the Initial Closing Date Operator will perform all obligations of
each Sprint Subsidiary under the Primary Leases, including providing all
insurance required under the Primary Leases. Notwithstanding the preceding
sentence, Sprint will perform the obligations set forth on Schedule 4.1 with
respect to the Primary Leases. Not later than 30 days following the Initial
Closing Date, Operator will provide Sprint with a certificate of insurance
evidencing the coverages required pursuant to the Primary Leases for each Closed
Market. Not later than 30 days following each successive Market Closing Date,
Operator will provide Sprint with a certificate of insurance evidencing the
coverages required pursuant to the Primary Leases attributable for each such new
Closed Market. Such certificate will name the relevant Sprint Subsidiary, and
the respective Third Party Licensees as additional insureds or additional loss
payees, as appropriate, and will provide that such insurance may not be
cancelled except upon 60 days written notice from insurer to the relevant Sprint
Subsidiary. On the Initial Closing Date and each Market Closing Date, the
relevant Sprint Subsidiary and Operator will transmit to each Third Party
Licensee which is a party to any Primary Lease attributable to each Closed
Market a notice substantially in the form attached as Exhibit D. To the extent
any request for Consent with respect to any Primary Lease listed on Schedule 3.2
has not been obtained or a request for
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Consent has not been previously requested in writing, on the Initial Closing
Date and each Market Closing Date, the relevant Sprint Subsidiary will transmit
a request for Consent to each Third Party Licensee which is a party to any such
Primary Lease in the Market(s) which are the subject of the Closing. No later
than 3 business days after it becomes aware of any breach or receives any notice
of any breach or alleged breach under any Primary Lease, Operator will provide
Sprint with written notice of such breach or alleged breach. For purposes of the
immediately preceding sentence, Operator will be deemed to be aware of any
breach if any person charged with the administration of the Primary Leases has
knowledge of any circumstances which would cause a reasonable person to conclude
that a breach has occurred. Such notice will set forth in detail the allegations
of any Third Party Licensee with respect to such breach and will set forth in
detail Operator's explanation or plan to cure or otherwise address such breach,
including a timeline for taking any action to cure such breach until such breach
is resolved. Operator will provide Sprint with follow-up notices no less than
every two weeks which set forth the current status of Operator's efforts to
address or cure any material breach. Operator will diligently pursue and take
all such actions necessary to cure any and all breaches of any Primary Lease in
accordance with the default provisions under the Primary Leases.
4.2 Primary Lease Defaults By Third Party Licensees. Subject
to the terms contained in this Section 4.2, Sprint hereby assigns to and grants
to Operator all rights and powers during the Term to enforce all obligations of
each Third Party Licensee under the Primary Leases attributable to each Closed
Market. If any Third Party Licensee fails to perform any obligation under any
Primary Lease, Operator will provide Sprint with prompt written notice of such
failure. Operator will enforce and require strict performance of all material
terms of each Primary Lease; provided, however, that upon the direction of the
relevant Sprint Subsidiary, Operator will waive performance obligations on the
part of Licensee to the extent such waiver does not materially and adversely
affect Operator's ability to use any Leased Spectrum. Notwithstanding the
preceding sentence, to the extent that it does not impair the continuing
enforceability of a Primary Lease, Operator may elect not to enforce specific
terms of a Primary Lease provided, that: (i) Operator reasonably determines that
doing so is in its best business interests, (ii) that Operator and Third Party
Licensee are parties to the other leasing arrangements for spectrum rights, have
common board members or common ownership, or are otherwise parties to a
strategic business agreement and (iii) Operator provides Sprint notice of such
decision within 3 business days following such default. in such event, the
relevant Sprint Subsidiary may, at its sole discretion, elect to directly
enforce the terms of said Primary Lease and Operator will be responsible for all
Costs such Sprint Subsidiary incurs in such enforcement. Operator may not pursue
the termination of any Primary Lease by reason of a default or otherwise without
the relevant Sprint Subsidiary's prior written consent. Operator will provide
the relevant Sprint Subsidiary with timely notice of the resolution or planned
resolution of any defaults occurring under any Primary Lease. Operator will be
responsible for all Costs it and Sprint incur in connection with its enforcement
of the terms and conditions of any Primary Lease; provided, however, that if the
applicable Primary Lease permits the recovery of any Costs from the Third Party
Licensee, Operator will be entitled to recover such Costs from the applicable
Third Party Licensee to the extent Operator incurs such Costs. Notwithstanding
anything to the contrary contained in this Section 4.2, if any Third Party
Licensee fails to perform any obligation under any Primary Lease, which could
result in the loss or revocation of any Authorization or any material rights
under any Authorization, the relevant Sprint Subsidiary,
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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upon notice to Operator, may elect to enforce the terms of the Primary Lease
directly against such Third Party Licensee in lieu of Operator enforcing such
terms. In such event, Operator will be responsible for all Costs such Sprint
Subsidiary incurs in connection therewith, and will be entitled to reimbursement
thereof as provided or allowed in the Primary Lease. Notwithstanding anything to
the contrary contained in this Agreement, no Sprint Subsidiary will have any
liability to Operator or otherwise for any damages which are directly or
indirectly caused by a breach of a Primary Lease by a Third Party Licensee.
4.3 Primary Lease Management
* * *
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
Article V
SPECTRUM MANAGEMENT
5.1 Sprint Authorization Modifications and Coordination
Documents.
(a) Following the Long Term De Facto Transfer Lease Effective Date
with respect to any given Sprint Spectrum and to the extent permitted by
the FCC Rules, Operator may (i) submit to the FCC and prosecute any
applications for modifications to facilities utilizing Sprint Spectrum
licensed to the relevant Sprint Licensee, (ii) withdraw any application
submitted pursuant to the immediately preceding clause, (iii) submit to
the FCC any and all required notices for any new or modified facilities
which utilize the Sprint Spectrum, (iv) submit to the FCC and prosecute
any applications for new or modified facilities utilizing Sprint Spectrum
to be licensed to Operator, (v) submit to the FCC and prosecute any
applications or take such other action as may be necessary for the
issuance of additional spectrum under the BTA authorizations in any Closed
Market, which upon such grant by the FCC becoming a Final Order, such
spectrum will be Sprint Spectrum for purposes of this Agreement, and (vi)
except as set forth in Section 5.3 or Section 5.7, enter into any
Coordination Document with respect to such Sprint Spectrum. Any such
action taken by Operator pursuant to the previous sentence is herein
referred to as a "Unilateral Action". Operator will provide Sprint with at
least 15 business days advance written notice prior to taking any
Unilateral Action. Such notice will set forth with particularity the
proposed Unilateral Action. Operator will not take any Unilateral Action
which (i) would impair the ability of Sprint or Operator to perform any
obligation under any Primary Lease, or (ii) is not principally related to
improving the ability of Operator to use such Sprint Spectrum to provide
the services contemplated under this Agreement If Operator undertakes any
Unilateral Action, it will do so in strict compliance with all laws,
rules, policies, and regulations then in effect and will refrain from
taking any action which could
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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reasonably be expected to result in the imposition of any penalty or
sanction by the FCC or other governmental entity upon any Sprint
Subsidiary or Operator.
(b) To the extent Operator is not permitted by law to exercise the
rights conferred in Section 5.1 (a), upon Operator's request, the relevant
Sprint Licensee will (i) complete and submit to the FCC within 30 days and
thereafter prosecute such applications for any modification to facilities
utilizing any Sprint Spectrum, (ii) execute and, within 30 days, return
any Coordination Document, (iii) withdraw within 30 days any application
submitted to the FCC by any Sprint Licensee, (iv) submit to the FCC within
30 days any notices for new or modified facilities for any Sprint
Spectrum, and (v) take all reasonable action necessary under the FCC Rules
to make any additional spectrum which is available in any Closed Market
and which Sprint may obtain from time to time as the BTA holder, which
upon such grant becoming a Final Order, such spectrum will be Sprint
Spectrum for purposes of this Agreement. Notwithstanding anything to the
contrary contained herein, no Sprint Licensee will be obligated to execute
any Coordination Document or file or implement a modification to any
facilities used in connection with the Sprint Spectrum if (x) such
requested action would impair the ability of Sprint or Operator to perform
any obligations under any Primary Lease, (y) such action is not
principally related to improving the ability of Operator to use such
Sprint Spectrum to provide the services contemplated under this Agreement,
or (z) such action violates the FCC Rules, other applicable laws, or the
terms of any Sprint Authorization or License. Furthermore, in no event
will any Sprint Licensee be required to execute a Coordination Document
which will, in Sprint's reasonable judgment, impair any then existing or
planned operation of ITFS or MDS spectrum by any Sprint Entity in any
markets which are adjacent to Region 1; provided, however, Sprint will
consider in good faith any Coordination Document which is otherwise
requested by Operator. Operator will promptly pay all Costs incurred by
Sprint in connection with this Section 5.1(b) and will pay to Sprint
management fees according to Schedule 5.l(b).
5.2 Leased Authorization Modifications and Coordination
Documents.
(a) Each Sprint Subsidiary hereby assigns to, and grants to
Operator for the duration of the Term all rights and powers to exercise
the right to request and require the Third Party Licensees: (i) to
complete, submit to the FCC and prosecute such applications for any
modification to facilities utilizing such Third Party Licensee's Leased
Spectrum which are permitted by law and the Primary Lease governing the
use of such Leased Spectrum, (ii) to submit to the FCC and prosecute such
applications to effectuate an exchange of one or more of such Leased
Spectrum for the same amount of ITFS or MDS spectrum, provided that such
exchange is permitted by law and the Primary Lease governing the use of
such Leased Spectrum, (iii) to execute and promptly return any
Coordination Document, provided such Coordination Document is permitted by
law and the Primary Lease governing the use of such Leased Spectrum, (iv)
to withdraw any application submitted to the FCC by a Third Party
Licensee, provided that such instruction is permitted by law and the
Primary Lease governing the use of such Leased Spectrum, and (v) to submit
to the FCC any notices for new facilities permitted under the Primary
Lease governing use of such Leased Spectrum.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Operator will provide the relevant Sprint Subsidiary with simultaneous
written notice of any request for a modification made under this Section
5.2(a). Notwithstanding anything to the contrary contained herein,
Operator will not request or require any Third Party Licensee to execute
any Coordination Document or file or implement a modification to any
facilities used in connection with any Leased Spectrum if (i) such action
would impair the ability of Sprint or Operator to perform any obligations
under any Primary Lease or (ii) such action is not principally related to
improving the ability of Operator to use such Leased Spectrum to provide
the services contemplated under this Agreement. Operator will promptly pay
all Costs incurred by Sprint in connection with this Section 5.2(a)
including any and all costs or expenses to be borne by any Sprint
Subsidiary under any Primary Lease.
(b) To the extent Operator is not able to exercise the rights
conferred in Section 5.2(a), at the written request of Operator, the
relevant Sprint Subsidiary will provide written notice instructing any
Third Party Licensee: (i) to complete, submit to the FCC and prosecute
such applications for any modification to facilities utilizing such Third
Party Licensee's Leased Spectrum which are permitted by law and the
Primary Lease governing the use of such Leased Spectrum, (ii) to submit to
the FCC and prosecute such applications to effectuate an exchange of one
or more of such Leased Spectrum for the amount of ITFS or MDS spectrum,
provided that such exchange is permitted by law and the Primary Lease
governing the use of such Leased Spectrum, (iii) to execute and promptly
return any Coordination Document, provided such Coordination Document is
permitted by law and the Primary Lease governing the use of such Leased
Spectrum, (iv) to withdraw any application submitted to the FCC by Third
Party Licensee, provided that such instruction is permitted by law and the
Primary Lease governing the use of such Leased Spectrum, and (v) to submit
to the FCC any notices for new facilities permitted under the Primary
Lease governing use of such Leased Spectrum. Notwithstanding anything to
the contrary contained herein, Sprint will not be obligated to require or
request that any Third Party Licensee file or implement a modification to
any facilities used in connection with the Leased Spectrum if (x) such
action would impair the ability of Sprint or Operator to perform any
obligations under any Primary Lease or (y) such action is not principally
related to improving the ability of Operator to use such Leased Spectrum
to provide the services contemplated under this Agreement. Each Sprint
Subsidiary will use commercially reasonable efforts to cause each Third
Party Licensee to comply with its obligations pursuant to the Primary
Lease governing the use of such Leased Spectrum. Operator will promptly
pay all Costs incurred by Sprint in connection with this Section 5.2(b)
and will pay to Sprint management fees according to Schedule 5.2(b).
5.3 Limitations. Notwithstanding anything to the contrary
contained in this Agreement:
(a) Operator will not construct or operate any new or modified
facility utilizing any Spectrum that would violate the FCC Rules or other
applicable law, violate the terms of any Primary Lease, violate the terms
of any Authorization, or impair the ability of Operator to satisfy any
obligations under any Primary Lease or impair the ability of Sprint to
satisfy any obligation under any Rejected Primary Lease.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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(b) In no event will any Sprint Licensee be required to file or
prosecute any application for or notification with regard to any
facilities or usage of Spectrum which would violate the FCC Rules or other
applicable law, violate the terms of any Primary Lease, violate the terms
of any Authorization, or impair the ability of Sprint to satisfy any
obligation under any Rejected Primary Lease. Furthermore, in no event will
any Sprint Subsidiary be required to file or prosecute any application for
any facilities which violate the terms of any Primary Lease, Sprint
Authorization, Leased Authorization or Rejected Primary Lease.
(c) Unless otherwise consented to in advance by Sprint in writing,
which consent will not be unreasonably denied, withheld or delayed,
Operator will not enter into any Coordination Document, and will use its
Efforts to prevent any Third Party Licensee from entering into any
Coordination Document, that directly or indirectly waives interference
protection to any Spectrum or consents to accept interference to any
Spectrum unless such Coordination Documents provides for the beneficiary
of such waiver or consent to reciprocally waive interference protection or
consent to accept interference from use of the Spectrum.
(d) Operator will not attempt, and will use its Efforts to prevent
any Third Party Licensee from attempting, pursuant to Section 27.53(1)(2)
of the FCC Rules as adopted in the New FCC Order, to force an adjacent
channel licensee to comply with the more restrictive spectral mask
specified in that Section of the FCC Rules unless Operator will have
first: (i) reasonably determined that such election is commercially
reasonable, spectrally efficient and consistent with sound engineering
practice, giving full consideration to the concomitant FCC requirement
that the licensee making such an election comply with the same more
restrictive spectral mask and the possible spectral inefficiencies, costs
and other burdens associated with such compliance; and (ii) provided
Sprint at least 20 business days advance notification prior to such
election, along with an explanation of Operator's rationale for
determining that such election is commercially reasonable, spectrally
efficient and consistent with sound engineering practice.
(e) Operator agrees that: (i) it will not waive, and will use its
Efforts to prevent any Third Party Licensee from waiving, its right to
interference protection from facilities near any Market that exceed the
maximum "height benchmarking" set forth in Section 27.1221 of the FCC
Rules as adopted in the New FCC Order; and (ii) it will not agree, and
will prevent any Third Party Licensee from agreeing, to provide
interference protection to such facilities, unless Operator will have
first: (i) reasonably determined that such action is commercially
reasonable, spectrally efficient and consistent with sound engineering
practice; and (ii) provided Sprint at least 20 business days advance
notification, along with an explanation of Operator's rationale for
determining that such election is commercially reasonable, spectrally
efficient and consistent with sound engineering practice.
5.4 Third Party Licensee Programming Obligations. Commencing
no later than 180 days following the Initial Closing Date, Operator will support
and diligently perform all obligations under the Primary Leases and otherwise
with respect to each Third Party
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Licensee's retained capacity, including: (a) providing and delivering
programming content as required under the Primary Leases, (b) remedying any
adverse impact upon the Third Party Licensee's programming as required under the
Primary Leases; (c) providing transport or transport facilities (such as studio
to transmitter links) as required under the Primary Leases; (d) the
installation, maintenance and repair of any receive site or other equipment as
required under the Primary Leases; and (e) providing data services and receive
sites as required under the Primary Leases. To the extent that point-to-point
microwave facilities licensed by the FCC to any Sprint Subsidiary are used by
any Sprint Subsidiary in a Closed Market as of the Initial Closing Date or
Market Closing Date (as applicable) to satisfy any obligation identified in (c)
above and to the extent permitted by the FCC Rules, Sprint shall make such
facilities available for the continued satisfaction of the applicable Primary
Lease obligation, provided that: (w) Operator will maintain, repair and replace
as needed, at its sole cost and expense, all such facilities in good working
order, reasonable wear and tear excepted, in compliance with the FCC Rules, in
accordance with the terms and conditions of the applicable Primary Lease, and
consistent with sound engineering practices as further detailed in the Equipment
Service Level Requirements set forth in Schedule 7.1(b) as if such facilities
were Transmission Equipment; (x) notwithstanding the foregoing, the applicable
Sprint Subsidiary will exercise such control over the facilities and their
operation and maintenance as is required by the FCC Rules; (y) the applicable
Sprint Subsidiary will have no liability to Operator in the event the FCC
authorization for any such facility is cancelled, forfeited, or not renewed
unless such is the result of gross negligence or willful misconduct on the part
of any Sprint Subsidiary and will have no obligation to seek renewal of any FCC
authorization for such facilities unless requested to do so by Operator in
writing no less than sixty (60) days for any application for renewal is to be
filed pursuant to the FCC Rules; and (z) Operator will be responsible for the
payment of all Costs that any Sprint Subsidiary incurs in connection with its
performance under this Section 5.4. Notwithstanding the foregoing obligations,
Sprint and Operator will enter into a Transition Services Agreement in the form
attached hereto as Exhibit E pursuant to which Sprint will perform such
obligations upon the terms and conditions set forth therein (the "Transition
Services Agreement").
5.5 Additional Spectrum Rights.
* * *
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
(c) Operator will use its Efforts to require that each agreement
pursuant to which Operator is entitled to use any Operator Leased Spectrum
will include (i) the customary terms and conditions which Operator
generally employs in its spectrum leasing agreements, and (ii) will permit
Operator the unrestricted right to assign such agreement to Sprint
Operator will provide Sprint with a true and correct copy of any such
agreements and any and all amendments or other modifications thereto no
later than 30 days following the date on which such document is executed,
or if such agreement is being assigned to Operator by a third party, the
date of such assignment.
5.6 Band Plan. To enable Sprint to support Operator's planned
use of the Spectrum, at least 30 days prior to undertaking any efforts to use
any Spectrum in any Market, Operator will provide Sprint with a detailed
description of Operator's planned use for the Spectrum in such Market (each a
"Band Plan"). The Band Plan will include a description of the type of duplexing
Operator plans to use, the modulation method and a designation of upstream,
downstream and guard band spectrum (as applicable). From time to time during the
Term, Operator will provide Sprint with at least 30 days advance notice of any
proposed changes to any Band Plan. Sprint may make reasonable recommendations to
any initial Band Plan or any proposed revisions thereto; provided, however, that
Operator will not be obligated to accept such recommendations if Operator, in
its reasonable discretion, determines that adopting such recommendations would
not be the most effective and efficient manner to utilize the Spectrum or if
such recommendations would result in substantial additional Costs or obligations
of Operator.
5.7 FCC Transitions.
(a) The Parties acknowledge that Operator may be required to
transition certain Spectrum pursuant to certain provisions of the New FCC Order
(such provisions the "FCC Market Transition Rules") prior to utilizing such
Spectrum hereunder. In serving as a "Proponent" pursuant to the FCC Market
Transition Rules, Operator will not take any action that (i) would impair the
ability of Sprint or Operator to perform any obligation under any Primary Lease
or Rejected Primary Lease, or (ii) is not principally related to improving the
ability of Operator to use such Spectrum to provide the services contemplated
under this Agreement.
(b) If a third party (including a Third Party Licensee) serves as
a Proponent in connection with any Spectrum, Operator will take such steps as
are reasonably necessary to assure that the transition is accomplished in a
manner that (i) would not impair the ability of Sprint or Operator to perform
any obligation under any Primary Lease or Rejected Primary Lease, or (ii) is
principally related to improving the ability of Operator to use such Spectrum to
provide the services contemplated under this Agreement.
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(c) Notwithstanding the provisions of Section 5.7(a), if in
transitioning any Spectrum, Operator is required by the FCC Market Transition
Rules to transition any spectrum licensed to or leased by any Sprint Subsidiary
or any affiliate of a Sprint Subsidiary in any market adjacent to any Closed
Market, Operator will provide Sprint with at least 30 days advance notice before
circulating a Transition Plan pursuant to the FCC Market Transition Rules and
will afford the applicable Sprint Subsidiary or its affiliate the opportunity to
serve as a Co-Proponent and to jointly develop a Transition Plan in conjunction
with Operator. Sprint will notify Operator within 15 business days of receipt of
such notice whether any Sprint Subsidiary or an affiliate of any Sprint
Subsidiary elects to serve as a Co-Proponent and jointly develop a Transition
Plan. In the development of any joint Transition Plan under this Section 5.7(c),
the Co-Proponents will utilize their Efforts to assure that the transition (i)
would not impair the ability of Operator or any Sprint Subsidiary or any Sprint
Entity to perform under any spectrum lease in any Closed Market or any market
adjacent to any Closed Market, including any Primary Lease or Rejected Primary
Lease, and (ii) is principally related to improving the ability of each to use
the spectrum in their respective markets in a manner that is spectrally
efficient and cost efficient, giving due weight to the views of Sprint with
respect to the transition within its markets and to the views of Operator with
respect to the transition within the Closed Markets and any other adjacent
markets operated by Operator.
(d) If in transitioning any spectrum, any Sprint Subsidiary is
required by the FCC Market Transition Rules to transition any spectrum licensed
to or leased by Operator in any market adjacent to any Market, Sprint will
provide Operator with at least 30 days advance notice before circulating a
Transition Plan pursuant to the FCC Market Transition Rules and will afford
Operator the opportunity to serve as a Co-Proponent and to jointly develop a
Transition Plan in conjunction with Sprint Operator will notify Sprint within 15
business days of receipt of such notice whether it elects to serve as a
Co-Proponent and jointly develop a Transition Plan. In the development of any
joint Transition Plan under this Section 5.7(d), the Co-Proponents will utilize
their Efforts to assure that the transition (i) would not impair the ability of
Operator or any Sprint Subsidiary, or any affiliate of any Sprint Subsidiary to
perform under any spectrum lease in any Market or any market adjacent to any
Market, including any Primary Lease or Rejected Primary Lease, and (ii) is
principally related to improving the ability of each to use the spectrum in
their respective markets in a manner that is spectrally efficient and cost
efficient, giving due weight to the views of Sprint with respect to the
transition within its markets and to the views of Operator with respect to the
transition within the Markets and any other adjacent markets operated by
Operator.
(e) Operator will transition each of the Closed Markets pursuant to
the FCC Market Transition Rules no later than the latest date permitted under
the FCC Market Transition Rules without placing any Sprint Authorization or
Leased Authorization at risk of termination, non-renewal or reallocation.
(f) All Costs incurred by any Sprint Subsidiary or an affiliate of
any Sprint Subsidiary in connection with the development of transition plans and
the implementation of transitions under this Section 5.7 will be allocated in
accordance with the FCC Rules then in effect without regard to any Sprint
Subsidiary or an affiliate of any Sprint Subsidiary serving as a Co-Proponent.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Article VI
FEES AND EXPENSES
6.1 Primary Lease Fees and Expenses. Commencing with the
Initial Closing Date and each applicable Market Closing Date, Operator will pay
all monthly fees (monthly minimum payments, revenue sharing and per subscriber
fees), periodic incentive payments and other compensation owed to the Third
Party Licensees under the Primary Leases (the "Primary Lease Fees") attributable
to each Closed Market. Operator's obligation to pay the Primary Lease Costs
prior to the Consent Date is independent of and irrespective of, the granting of
any Consent identified on Schedule 3.2 hereof. Commencing with the Initial
Closing Date and each applicable Market Closing Date, Operator will be
responsible for the payment of all reimbursements and other amounts owed to the
Third Party Licensees under the Primary Leases attributable to each Closed
Market, including any reimbursable regulatory fees incurred by a Third Party
Licensee (the "Primary Lease Reimbursements"). The Primary Lease Fees and
Primary Lease Reimbursements are herein referred to as the "Primary Lease
Costs". Operator will promptly pay the Primary Lease Costs when due and payable
and in accordance with the terms of the respective Primary Leases.
6.2 Regulatory Fees and Expenses. Operator will be responsible
for, and will reimburse Sprint no later than 30 days from the receipt of an
invoice from Sprint for such amounts, all Costs in connection with the Sprint
Licensees' maintenance of the Sprint Spectrum during the Term; provided,
however, any Costs which exceed [***] in any calendar month will be approved by
Operator prior to the time such expense is incurred, which consent will not be
unreasonably withheld, conditioned, or delayed. Operator will be responsible
for, and will pay when due, any and all Costs in connection with its transition
of the Spectrum pursuant to Section 5.7 (including the costs of transitioning
spectrum outside of the Closed Markets when such transition is required by the
FCC Market Transition Rules as a condition to the transition of any Spectrum).
6.3 Initial Fee. Operator has paid Sprint the amount of [***]
(the "Initial Fee"). Subject to Section 2.7(c), the Initial Fee is
non-refundable. On the Initial Closing Date and each subsequent Market Closing
Date, Operator will pay Sprint an amount equal to the sum of all Market Closing
Payments identified in Schedule 6.3 for each Market which becomes a Closed
Market on the Initial Closing Date, or such Market Closing Date, as applicable.
6.4 Monthly Fee. Commencing with the Initial Closing Date and
each Market Closing Date and continuing throughout the Term, Operator will pay
Sprint a monthly spectrum access and aggregation fee (the "Monthly Fee") equal
to the amount set forth in Schedule 6.4 for each Market which becomes a Closed
Market on the Initial Closing Date, or applicable Market Closing Date.
6.5 Payments. The Market Closing Payments will be paid on the
Initial Closing Date and upon the subsequent Market Closing Dates (as
applicable) in the manner directed by Sprint. The Monthly Fee for a given month
will be sent to Sprint at such address as Sprint designates from time to time by
first-class, United States Postal Service mail or, at Sprint's option, by
electronic funds transfer to such account as Sprint designates, no later than 30
days after the last day of the month in question. Except as specified in Section
6.7. all other
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amounts due hereunder from Operator to Sprint will be sent to for delivery to
Sprint on or before when due at such address as Sprint designates from time to
time by first-class, United States Postal Service mail or, at Sprint's option,
by electronic funds transfer to such account as Sprint designates.
6.6 Taxes. Operator will pay all duties, levies, including
regulatory fees and assessments, spectrum usage fees, and taxes, including but
not limited to, sales, property, ad valorem and use taxes, or any tax or fee in
lieu thereof, imposed by any local, state or federal government or governmental
agency during the Term with respect to the Spectrum and Transmission Equipment
(as defined in Section 7.1), and with respect to Operator's use and operation of
such Spectrum and Transmission Equipment, to the extent such amounts relate to
periods included in the Term of this Agreement, excepting only any taxes on or
measured by the income of the Sprint Subsidiaries. Any such items that become
due during the calendar year in which the Term ends will be prorated between the
applicable Sprint Subsidiary and Operator based upon the number of days during
such year that this Agreement is in effect; provided however, that any such
items that are calculated based on the number of subscribers or customers will
be allocated between Sprint and Operator based on their respective number of
subscribers or customers and any such items that are more appropriately based on
the respective activities and operations of Sprint and Operator will be prorated
using a fair and equitable allocation method that considers, among other things,
the basis upon which such amount was assessed. Operator shall pay the cost of
any documentary, stamp, sales, excise, transfer or other similar taxes payable
in respect of its acquisition of any leasehold interests pursuant to this
Agreement and pursuant to Operator's acquisition of any assets pursuant to
Article XVII, except to the extent Article XVII otherwise specifically allocates
such expenses between the Parties.
6.7 Reimbursement and Other Expenses. Where one Party is
required to reimburse the other Party for Costs, such payment will be sent to
such other Party at such address as such other Party designates from time to
time by first-class, United States Postal Service mail, or at the election of
the receiving Party, by electronic funds transfer to such account as such Party
designates, no later than 30 days following receipt of an invoice and such
supporting documentation as the Party paying the reimbursement reasonably
requests.
6.8 Security. Upon the Effective Date, Operator will either
provide to Sprint a letter of credit or establish an escrow account in an amount
equal to [***] to secure Operator's obligations under this Agreement (the
"Security"). Upon each anniversary of the Effective Date, the Security will be
increased or decreased in such amount as to reflect the aggregate Monthly Fees
and Primary Lease Costs payable during the next 12 months; provided, however,
that at any time during the Term, Sprint may, in its reasonable discretion,
require additional Security if any new Primary Lease, amendment to a Primary
Lease, or multiple number of either entered into in a given 12 month period,
results in a total increase in Primary Lease obligations in excess of [***]
Furthermore, Operator will provide Sprint with such documentation as Sprint may
reasonably request evidencing compliance with the Security requirements set
forth in this Agreement The Security will remain in place at least throughout
the first 5 years of the Initial Term. Thereafter, the Security will remain in
place until such date on which Operator has generated Monthly Gross Revenues (as
defined below) in excess of the Revenue Threshold for at least 3 consecutive
months, at which time such Deposit will be released to the extent no claims are
then pending against such amounts. The "Revenue
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Threshold" means an amount equal to (a) [***] years of the Term, (b) [***]
years of the Term, and (c) [***] years of the Term. "Monthly Gross Revenues"
means the gross revenue collected by Operator for any communications services
provided over facilities that (a) utilize the Spectrum or are collocated,
integrated or used in conjunction with any such facilities and (b) utilize MDS
or ITFS channels other than the Spectrum; provided that such gross revenues will
not include (x) equipment, installation and maintenance charges, including
charges for the installation or activation of new equipment or services (to the
extent that such installation or activation charges do not include a
communications service component), charges for equipment sold, recurring lease
fees for rented or leased equipment, and charges for the maintenance or repair
of equipment; or (y) third party pass-through charges (including governmental
taxes, fees or charges), surcharges, universal service fund contributions, and
charges billed on a purely "pass through" basis by Operator to its subscribers
for communications services (such as charges for collect calls or long distance
telephone services) rendered by other entities. On the Initial Closing Date,
Clearwire Corporation ("Guarantor") will execute and deliver a guaranty in the
form attached hereto as Exhibit F (the "Parent Guaranty") which will remain in
place throughout the Term.
6.9 Spectrum Opportunities. Schedule 6.9 attached hereto lists
certain ITFS and MDS spectrum (the "Potential Spectrum") in which Sprint
currently holds certain rights which may permit Sprint to sublease such channels
to Operator pursuant to this Agreement. If Sprint obtains an ITFS or MDS
capacity lease agreement which permits Sprint to sublease any Potential Spectrum
to Operator, such lease agreement will be considered as a Primary Lease for
purposes of this Agreement, such Potential Spectrum will be considered as Leased
Spectrum for purposes of this Agreement and any underlying FCC authorization
will be considered as a Leased Authorization for purposes of this Agreement.
Furthermore, no later than 15 days following the date on which any such new
Primary Lease is fully executed, Operator will pay Sprint an amount equal to the
corresponding value for such Potential Spectrum as indicated on Schedule 6.9.
Furthermore, commencing with the first full calendar month following the date on
which such new Primary Lease is executed and continuing through the Term, the
Monthly Fee set forth in Section 6.4 will be increased by an amount equal to the
corresponding amount for such Potential Spectrum as indicated on Schedule 6.9.
Article VII
EQUIPMENT AND OPERATION OF SPECTRUM
7.1 Transmission Equipment. During the Term, each Sprint
Subsidiary will grant to Operator the right to (a) use all equipment owned by
such Sprint Subsidiary and being used as of the Initial Closing Date and each
applicable Market Closing Date for the operation of the Spectrum, and (b) use
all equipment which such Sprint Subsidiary does not own but is otherwise
permitted to use for the operation of the Spectrum pursuant to any Primary Lease
(collectively, the "Sprint Transmission Equipment"). Schedule 7.1(a) sets forth
a list of the equipment used in connection with the operation of the Proposed
Spectrum as of the Effective Date. Operator will provide, construct and install
all equipment which it desires for the operation of its business or which is
required to comply with the requirements of the Authorizations, as they may be
modified from time to time, to comply with the FCC Rules, or
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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that is otherwise required pursuant to the terms of the Primary Leases (the
"Operator Transmission Equipment"). Operator will keep complete records
identifying the Operator Transmission Equipment and Sprint Transmission
Equipment then being used for the Spectrum. Upon the request of Sprint, Operator
will provide Sprint with such records from time to time during the Term. The
Sprint Transmission Equipment and the Operator Transmission Equipment are
sometimes collectively referred to herein as the "Transmission Equipment".
Operator will maintain, repair and replace as needed, at its sole cost and
expense, all Transmission Equipment in good working order, reasonable wear and
tear excepted, in compliance with the FCC Rules and sound engineering practices
as further detailed in the Equipment Service Level Requirements set forth in
Schedule 7.1(b) and, in the case of Transmission Equipment used in connection
with any Leased Spectrum, in accordance with the terms and conditions of the
Primary Lease governing the use of such Leased Spectrum. If Operator elects to
replace or cease using any Sprint Transmission Equipment, Operator will provide
Sprint with reasonable advance notice of such removal and will dispose of such
equipment, at Operator's sole cost and expense, as Sprint reasonably requests.
Any equipment used to replace Sprint Transmission Equipment will be considered
Operator Transmission Equipment. Upon expiration of the Term, Operator will
surrender all then existing Sprint Transmission Equipment to Sprint in the same
condition as it was received from Sprint, reasonable wear and tear excepted.
Operator will bear the risk of any casualty, damage, or theft to the
Transmission Equipment Operator will assure that all use of the Spectrum during
the Term is in compliance, in all material respects, with all applicable laws,
including the FCC Rules. The appropriate Sprint Licensee will exercise such
supervision and control as is required by the FCC Rules over Operator's
activities under this Section 7.1 with respect to its Sprint Spectrum prior to
the Long Term De Facto Lease Effective Date applicable to such Sprint Spectrum.
Notwithstanding anything to the contrary contained herein, should Operator's
rights to use any Transmission Equipment terminate and Sprint obtains possession
or control of any such Transmission Equipment, such equipment will no longer be
considered Transmission Equipment for purposes of this Agreement, provided,
however, that this sentence will not be construed as a waiver of Sprint's rights
with respect to any obligations of Operator with respect to such equipment
accruing prior to the date on which Operator's rights to use such equipment
terminate and Sprint takes possession or control of such equipment.
7.2 Option to Purchase or Continue to Use Transmission
Equipment. All Transmission Equipment used in connection with any Leased
Spectrum will be subject to any and all purchase options or other rights to use
such Transmission Equipment set forth in the Primary Lease governing the use of
the Leased Spectrum for which such equipment is used, including any option for
the Third Party Licensee to purchase certain equipment used in connection with
the transmission of its video programming for $1.00. Furthermore, to the extent
any Transmission Equipment is used solely in connection with the performance of
any Rejected Primary Lease pursuant to the Spectrum Operation Agreement, such
Transmission Equipment will be subject to any applicable purchase option set
forth in such Rejected Primary Lease. No later than 10 business days after
delivery of a written request by Sprint, Operator will provide Sprint with such
documentation as Sprint reasonably requests to evidence Operator's compliance
with the obligations set forth in this Section 7.2.
7.3 Site Availability. Subject to Article XVI, Operator will
be responsible, at its sole cost and expense, for securing the rooftop,
transmission tower, and
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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equipment room space necessary for the installation of the transmission
facilities that operate on or in connection with any Spectrum. Operator will
ensure that any lease or contractual agreement for rooftop, transmission tower,
or equipment room space for use in connection with the Spectrum will be freely
assignable by Operator to Sprint. Prior to entering into an agreement for the
use of such facilities and space, Operator will consult with Sprint regarding
the availability of facilities owned or leased by a Sprint Entity. In the
development of the advanced high speed wireless data system in Region 1,
Operator will procure tower space, backhaul and other network elements and
services for use in such system from a Sprint Entity when commercially and
competitively reasonable provided that any such Sprint Entity responds to any
such inquiry by Operator in a timely manner.
7.4 Use of Transmission Facilities Following Term of Primary
Lease. Any lease or contractual agreement for rooftop, transmission tower, or
equipment room space for use in connection with the Leased Spectrum will contain
a clause permitting the applicable Third Party Licensee to use such space
following expiration of the Primary Lease if, pursuant to the Primary Lease, the
relevant Sprint Subsidiary would be obligated to include or use efforts to
obtain such a clause if such Sprint Subsidiary were entering into such an
agreement.
7.5 Construction. Operator will, within the time periods
required pursuant to the FCC Rules, Leased Authorizations and Primary Leases,
construct and place into operation all facilities specified under the Primary
Leases and Leased Authorizations, as the same may be amended or modified from
time to time. Operator will timely construct and place into operation all
facilities which are not presently constructed but are required under the
Primary Leases for the relaying of the underlying Third Party Licensee's
programming to its transmission facility and for the transmission of that
programming. Operator will, within the time periods required pursuant to the
Sprint Authorizations and the FCC Rules, construct and place into operation all
facilities required under the Sprint Authorizations and FCC Rules. Operator will
comply in all respects with any "substantial service" or other performance
requirements imposed by the FCC or the FCC Rules with respect to each Sprint
Authorization and Leased Authorization. Schedule 7.5 sets forth a list of all
receive site obligations pursuant to the Primary Leases and Operator agrees to
construct such receive sites in accordance with the terms of the applicable
Primary Leases.
7.6 Insurance. Operator will, at its own cost and expense,
maintain with sound and financially reputable insurers, (a) General Commercial
Liability Insurance covering liability resulting from Operator's operation of
the Transmission Equipment with limits of not less than [***] combined single
limit per occurrence for bodily injury and property damage liability and [***]
aggregate limit, (b) "All Risk" property insurance covering the Transmission
Equipment for its full replacement value, and (c) Worker's
Compensation/Employers' Liability, Business Auto liability and other insurance
required by law. Each Sprint Subsidiary will be named as an additional
insured/loss payee under such insurance policies. No later than 30 days after
the Initial Closing Date, Operator will provide Sprint with a certificate of
insurance of the coverages required to be maintained pursuant to this Section
7.6. Such certificate will name each Sprint Subsidiary as an additional insured
or as an additional loss payee, as appropriate, and will provide that such
insurance may not be cancelled except upon 60 days written notice from the
insurer to Sprint.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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7.7 Obligation to Operate. [***]. Any launch of such a system
and Operator's obligations pursuant to this Section 7.7, but not Operator's
obligations under Section 7.5 hereof, is subject to the availability to Operator
of at least [***]. Operator will be solely responsible for the operation,
marketing and customer service support for its business operations. Operator
will, to the extent required under any Primary Lease, provide any Third Party
Licensee with access to such services as are offered over the Spectrum by
Operator. Nothing contained herein will be construed to restrict Operator to
using the Spectrum for other purposes besides an advanced high speed data system
provided that Operator has complied with the provisions of this Section 7.7.
7.8 Inspection Rights. Sprint will have the right, upon
reasonable advance notice (which may be given telephonically or otherwise), to
inspect any facilities used in connection with the operation of the Spectrum,
including all tower facilities identified in Schedule 16 for the sole purpose of
determining compliance with this Agreement. Notwithstanding anything to the
contrary contained herein, Sprint's right to access and inspect the facilities
hereunder will at a minimum be in accordance with the FCC Rules applicable to a
licensee's access to facilities used in connection with such licensee's FCC
authorizations.
Article VIII
INFORMATION AND REPORTING
8.1 Financial Statements. No later than 45 days following the
end of each calendar quarter during the Term, Operator will deliver to Sprint a
report detailing all Primary Lease Fees, Primary Lease Reimbursements and all
amounts paid under the Tower Subleases and Substitute Tower Leases during such
calendar quarter. No later than April 1 of each year during the Term, Operator
will deliver to Sprint an unaudited balance sheet as of the end of the previous
fiscal year of Guarantor, on a consolidated basis. Within 30 days following
receipt of its audited financial statements Operator will deliver to Sprint an
audited balance sheet of Guarantor on a consolidated basis as of the end of the
most recent year. To the extent there is a material change in the financial
condition of the Guarantor or Operator as reflected in such balance sheet which
reasonably calls into question Operator's ability, or indicates that Operator
may not be able, to fulfill its obligations under this Agreement, Operator will
provide Sprint with such other financial statements and information as
reasonably requested by Sprint to demonstrate the ability of Operator and
Guarantor to satisfy their obligations under this Agreement. No later than
January 31 of each year, Operator will deliver to Sprint a report certifying
that, except as set forth therein, Operator is in compliance with this Agreement
and all Primary Leases, including all construction obligations. Any financial
statements, certificates or other information provided
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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to Sprint pursuant to this Section 8.1 will be Confidential Information of
Operator. Each report required pursuant to this Section 8.1 will be certified by
an officer of Operator as true and correct.
8.2 Spectrum and Operator Controlled Spectrum. During the Term,
Operator will, no later than 30 days following written notice from Sprint,
provide Sprint with access to such records and information concerning the
Spectrum and Operator Controlled Spectrum as are reasonably needed to determine
compliance with the terms of this Agreement or to evaluate whether Sprint should
elect to exercise any of its rights under Sections 17.1 or 17.2. Sprint may
access such records during business hours at Operator's offices or at such other
place, or in such other manner, as mutually agreed upon by the Parties.
Notwithstanding anything to the contrary contained herein, unless Operator is
then in breach of this Agreement, Sprint will not be entitled to review
information with respect to any given Closed Market more than twice during any
calendar year.
Article IX
REPRESENTATIONS AND WARRANTIES
9.1 By Operator. Operator represents and warrants to Sprint
that:
(a) Organization. Operator is duly organized, validly existing and
in good standing under the laws of the state or commonwealth of its
formation, and has full power and authority to carry out all of the
transactions contemplated by this Agreement.
(b) Authorization; Valid and Binding Agreement. Operator has taken
all action necessary to authorize the execution and delivery of this
Agreement. Upon execution and delivery, this Agreement will constitute a
valid and binding agreement of Operator, enforceable in accordance with
its terms. The person signing this Agreement on behalf of Operator is duly
authorized to execute and deliver this Agreement and to legally bind
Operator to all of the terms, covenants and conditions contained in this
Agreement.
(c) No Violation. Except as disclosed in this Agreement, as of the
Effective Date, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated by this Agreement, will
constitute a violation of, be in conflict with, or constitute a default
under, any term or provision of any agreement governing Operator's
formation or other governing instruments, or any agreement or commitment
to which Operator is bound, or any judgment, decree, order, regulation or
rule of any court or governmental authority, or any statute or law. Except
for any consent or approval of any governmental entity which may be
required with respect to Operator's use of the Towers contemplated
pursuant to this Agreement, and except for FCC approval of the long term
de facto transfer leasing of Sprint Spectrum, no consent of any federal,
state or local authority is required, or if required has failed to be
obtained, in connection with the execution and delivery of this Agreement
by Operator or with the performance of the transactions contemplated by
this Agreement by
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Operator. Operator is eligible to serve as a long term de facto transfer lessee
pursuant to the FCC Rules.
(d) Litigation. Except as specifically disclosed herein, as of the
Effective Date there is no action, suit, proceeding or investigation
pending or, to the actual knowledge of Operator, threatened against
Operator before any court, administrative agency or other governmental
body relating in any way to the transactions contemplated by this
Agreement. Except as specifically disclosed herein, as of the Effective
Date no unsatisfied judgment, order, writ, injunction, decree or
assessment of any court or of any federal, state, local or other
governmental department, commission, board, bureau, agency or
instrumentality relating in any way to this Agreement or any other
agreements, certificates or instruments to be executed and delivered
herewith has been entered against and served upon Operator. Except as
specifically disclosed herein, as of the Effective Date, there is no
action, proceeding or investigation pending or, to the best knowledge of
Operator, threatened against Operator which questions or challenges the
validity of or otherwise seeks to prevent the consummation or performance
of this Agreement.
(e) Financial Statements. Operator has delivered to Sprint the
consolidated unaudited balance sheet of Guarantor for the period ending
June 30, 2004 (the "Financial Statements"). The Financial Statements are
the Confidential Information of Operator. The Financial Statements are not
prepared in accordance with GAAP, but are consistent with the books and
records of Guarantor and fairly present the financial condition, assets
and liabilities, and the results of operations of Guarantor and Operator
at the respective dates of, and for the periods referred to in, such
Financial Statements and reflect any adjustments made to the Financial
Statements. The Financial Statements reflect the consistent application of
accounting principles throughout the periods involved.
(f) Financing Commitment. Schedule 9.1(f) sets forth a complete
and accurate summary of the financing commitments Guarantor and Operator
have obtained to enable Operator to perform its obligations under this
Agreement. Attached as Exhibits to Schedule 9.1(f) is a letter from
Clearwire Corporation certifying that Schedule 9.1(f) is true and correct.
9.2 By Sprint. Each Sprint Subsidiary represents and warrants
to Operator that:
(a) Organization. Such Sprint Subsidiary is duly organized,
validly existing and in good standing as a corporation under the laws of
the state or commonwealth of its formation, and has full power and
authority to carry out all of the transactions contemplated by this
Agreement.
(b) Authorization; Valid and Binding Agreement. Such Sprint
Subsidiary has taken all action necessary to authorize the execution and
delivery of this Agreement. Upon execution and delivery, this Agreement
will constitute a valid and binding agreement of such Sprint Subsidiary,
enforceable in accordance with its terms.
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The person signing this Agreement on behalf of such Sprint Subsidiary is
duly authorized to execute and deliver this Agreement and to legally bind
such Sprint Subsidiary to all of the terms, covenants and conditions
contained in this Agreement.
(c) No Violation. Except as disclosed on Schedule 9.2(c), as of the
Effective Date: (i) neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated by this Agreement
will constitute a violation of, be in conflict with, or constitute a
default under, any term or provision of any agreement governing such
Sprint Subsidiary's formation or other governing instruments, or any
agreement or commitment to which such Sprint Subsidiary is bound, or any
judgment, decree, order, regulation or rule of any court or governmental
authority, or any statute or law; and (ii) except for any consent or
approval of any governmental entity which may be required with respect to
Operator's use of the Towers contemplated pursuant to this Agreement, and
except for FCC approval of the long term de facto transfer leasing of
Sprint Spectrum, no consent of any federal, state or local authority is
required, or if required has failed to be obtained, in connection with the
execution and delivery of this Agreement by such Sprint Subsidiary or with
the performance of the transactions contemplated by this Agreement by such
Sprint Subsidiary.
(d) Litigation. Except as disclosed on Schedule 9.2(d), as of the
Effective Date, there is no action, suit, proceeding or investigation
pending or, to the actual knowledge of Sprint, threatened against such
Sprint Subsidiary before any court, administrative agency or other
governmental body relating in any way to the transactions contemplated by
this Agreement. Except as disclosed on Schedule 9.2(d), as of the
Effective Date, no unsatisfied judgment, order, writ, injunction, decree
or assessment of any court or of any federal, state, local or other
governmental department, commission, board, bureau, agency or
instrumentality relating in any way to this Agreement or any other
agreements, certificates or instruments to be executed and delivered
herewith has been entered against and served upon such Sprint Subsidiary.
Except as disclosed on Schedule 9.2(d), as of the Effective Date, there is
no action, proceeding or investigation pending or, to the best knowledge
of such Sprint Subsidiary, threatened against such Sprint Subsidiary which
questions or challenges the validity of, or which otherwise seeks to
prevent the consummation or performance of this Agreement.
(e) FCC Licenses. Solely for the purposes of this Section 9.2(e),
the term "Sprint Authorizations" will mean solely those authorizations set
forth in Schedule R-3, the term "Primary Leases" will mean solely those
channel leases set forth in Schedule R-2, the term "Leased Authorizations"
will mean solely those authorizations set forth on Schedule R-2, the term
"Sprint Spectrum" means solely the spectrum authorized pursuant to the
Sprint Authorizations, and the term "Leased Spectrum" means solely the
spectrum authorized pursuant to the Leased Authorizations, irrespective of
the Initial Closing Date or any Market Closing Date.
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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(i) As of the Effective Date, each Sprint Licensee holds
and is fully qualified and authorized in all respects to hold, the
Sprint Authorizations which have been granted to it by the FCC.
(ii) As of the Effective Date, there is no condition
imposed by the FCC as part of the Sprint Authorizations, or to the
knowledge of such Sprint Subsidiary, as a part of the Leased
Authorizations, that is neither set forth on the face thereof as
issued by the FCC nor contained in the FCC Rules applicable
generally to stations of that type, nature, class or location;
except for actions or proceedings affecting ITFS or MDS facilities
generally, no application, action or proceeding is pending or
threatened (nor is there any basis for) that is reasonably likely to
result in the denial of an application for renewal, the revocation,
modification, non-renewal or suspension of the Sprint
Authorizations, or the issuance of a cease-and-desist order,
forfeitures or other administrative or judicial sanctions relating
to the operation of the Sprint Spectrum. Such Sprint Subsidiary's
operations and activities are now being conducted and, since January
1, 2000 have been conducted in compliance, in all material respects,
with the Communications Act of 1934, as amended, and the FCC Rules.
(iii) Except as disclosed on Schedule 9.2(e)(iii), as of
the Effective Date no application is presently pending before the
FCC proposing any modification to or extension or renewal of any
Sprint Authorization or any Leased Authorization.
(iv) Except as disclosed on Schedule 9.2(e)(iv), each
Sprint Authorization was validly issued in accordance with
procedures that comply with the FCC Rules and other applicable laws,
is issued pursuant to a Final Order and is in full force and effect
as of the Effective Date. To the best knowledge of Sprint, except as
disclosed on Schedule 9.2(e)(iv), each Leased Authorization was
validly issued in accordance with procedures that comply with the
FCC Rules and other applicable laws, is issued pursuant to a Final
Order and is in full force and effect as of the Effective Date. As
used in the immediately preceding sentence, Sprint will only be
deemed to have knowledge of a matter if the event forming the basis
of the inaccuracy or omission in the representation and warranty
herein provided occurred on or after January 1, 2000 and Sprint had
actual knowledge of such event.
(v) Except as set forth on Schedule 9.2(e)(v), as of the
Effective Date, Sprint has not received notice from any Third Party
Licensee of any material breach or default by a Sprint Subsidiary
under any Primary Lease which has not been cured and Sprint does not
know of any matters which exist or are imminent which would
constitute a default by any Sprint Subsidiary under any Primary
Lease.
(vi) Except as set forth on Schedule 9.2(e)(vi), within
the 24 months preceding the Effective Date, Sprint has not received
notice of any material breach or default (including any non-payment)
by a Sprint Subsidiary
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under any Tower Lease which has not been cured and Sprint does not
know of any matters which exist or are imminent which would
constitute a default by any Sprint Subsidiary under any Tower Lease.
(vii) Other than the interference consents set forth on
Schedule 9.2(e)(vii), no Sprint Subsidiary has agreed to accept
electromagnetic interference to the operation of any Sprint Spectrum
within a 35-mile radius of its licensed transmission point from the
operation of other ITFS or MDS stations which are licensed to
transmit from a point which is outside of such 35-mile radius.
(viii) Other than the interference consents set forth on
Schedule 9.2(e)(viii), to the best knowledge of Sprint, no Licensee
has agreed to accept electromagnetic interference to the operation
of any Leased Spectrum within a 35-mile radius of its licensed
transmission point from the operation of other ITFS or MDS stations
which are licensed to transmit from a point which is outside of such
35-mile radius. As used in the immediately preceding sentence,
Sprint will only be deemed to have knowledge of a matter if the
event forming the basis of the inaccuracy or omission in the
representation and warranty herein provided occurred on or after
January 1, 2000 and Sprint had actual knowledge of such event.
9.3 Survival of Representations and Warranties. The
representations and warranties contained in this Agreement (and all annexes
attached hereto) will survive until the [***] of the Initial Closing Date.
Article X
DEFAULTS; TERMINATION
10.1 Termination for Loss of Authorizations or Primary
Leases. Without further liability to either Sprint or Operator (unless the
termination of this Agreement with respect to any Spectrum is due to a breach by
either Party of its obligations under this Agreement or the Primary Lease for
such Spectrum or due to the negligence or willful misconduct of either Party),
this Agreement will terminate with respect to particular Spectrum if: (a) the
Authorization for such Spectrum is terminated, cancelled or a timely-filed
application for renewal of such authorization is dismissed or denied with
prejudice by the FCC; (b) such Spectrum is Sprint Spectrum and Sprint's
authority to lease such Sprint Spectrum to Operator in accordance with the terms
of this Agreement is terminated by the FCC; or (c) such Spectrum is Leased
Spectrum and either (i) the Third Party Licensee's authority to lease such
Leased Spectrum to the respective Sprint Subsidiary in accordance with the
relevant Primary Lease is terminated by the FCC; (ii) Sprint's authority to
permit Operator's use of such Leased Spectrum in accordance with the terms
hereof is terminated by the FCC; or (iii) the Primary Lease regarding such
Leased Spectrum expires by its terms or is terminated.
10.2 Termination by Agreement or for Default. This Agreement
may be terminated without liability to the terminating Party: (a) at any time by
mutual agreement of the Parties; (b) immediately by the terminating Party upon a
material breach by the other Party,
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including the failure to pay the Monthly Fee or any reimbursements due
hereunder, if such material breach is not cured within 30 days (15 business days
if breach is non-payment) after receipt of written notice from the terminating
Party; provided, however, if any breach not involving the payment of money is of
a nature such that it is not capable of being cured within such 30 day period,
this Agreement may not be terminated if the breaching Party commences action to
cure such breach during such 30 day period and thereafter proceeds with due
diligence to fully cure such breach; or (c) immediately by a Party upon
institution of proceedings under the present or future United States Bankruptcy
Code with respect to the other Party, or if a receiver or trustee is appointed
for or ordered to take possession of and/or to dispose of the other Party's
business or property, or if the other Party makes any assignment or conveyance
for the benefit of its creditors (provided that the other Party will have a
period of 60 days to obtain a dismissal of any involuntary proceedings or
procedures brought against it before this Agreement may be terminated as a
result thereof). Termination will be effective upon the later of written notice
of such termination by the terminating Party to the other Party or the
expiration of any available cure period or other time period, as applicable;
provided, however, that neither termination nor expiration of this Agreement
will relieve either Party of liabilities previously accrued hereunder.
Notwithstanding anything to the contrary contained herein, a material breach of
this Agreement will include (a) if the Parent Guaranty or any portion thereof is
or becomes invalid, void, voidable or otherwise unenforceable for any reason
whatsoever, including the insolvency or dissolution of the Guarantor, or (b) the
occurrence of a second or subsequent Construction Default. A "Construction
Default" means (a) the failure to timely construct any facilities required to be
constructed pursuant to any Primary Lease, Leased Authorization or Sprint
Authorization within the applicable time periods specified therein or applied
thereto under the FCC Rules which failure is the basis for the termination
(whether or not such termination actually occurs) of any Primary Lease, Leased
Authorization or Sprint Authorization by Final Order, but taking into effect any
Final Order which extends such time period and which is effective prior to the
expiration of the previously specified time period, or with respect to
contractual obligations pursuant to a Primary Lease to construct, any amendment
to the applicable Primary Lease, or written waiver of the terms of the
applicable Primary Lease, which extends such time period and which is effective
prior to the expiration of the previously specified time period in the Primary
Lease; or (b) the failure to provide "substantial service" or other performance
requirements imposed by the FCC or FCC Rules with respect to each Sprint
Authorization or Leased Authorization, but taking into effect any Final Order
which extends such applicable time period and which is effective prior to the
expiration of any applicable previously specified time period, which failure is
the basis for the FCC to terminate, cancel or forfeit the Sprint Authorization
or Leased Authorization or to take action to: (i) reduce the GSA for any Leased
Authorization or Sprint Authorization (other than a BTA authorization) resulting
in a reduction in excess of ten percent (10%) of the MHz Households authorized
to be serviced by such Sprint Authorization or Leased Authorization, or (ii) in
the case of any BTA authorization that is a Leased Authorization or Sprint
Authorization, reduce the GSA for such Leased Authorization or Sprint
Authorization resulting in a reduction in excess of twenty percent (20%) of the
MHz Households authorized to be serviced pursuant to such BTA authorization,.
The first Construction Default, if any, will be a material breach of this
Agreement for all purposes other than Sprint's ability to terminate this
Agreement and Sprint may exercise any other remedy available pursuant to this
Agreement, at law or in equity, irrespective of any cure periods otherwise set
forth in this Section 10.2.
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10.3 Partial Termination for Default. Upon the election of
Operator, this Agreement will terminate with respect to a particular portion of
the Spectrum if as a direct result of Sprint's breach of its obligations
hereunder: (a) Sprint's authority to operate such Sprint Spectrum is terminated
by the FCC; (b) Sprint's authority to lease, or Licensee's authority to operate
such Spectrum in accordance with the terms of the Primary Lease governing the
use of such Spectrum or this Agreement is terminated by the FCC; or (c) the FCC
terminates Licensee's authority or Sprint's authority to lease such Spectrum in
accordance with the terms and conditions of this Agreement. Upon the termination
of this Agreement with respect to any Spectrum pursuant to the immediately
preceding sentence, (i) Sprint will refund a portion of the Initial Fee and
Market Closing Payments equal to (A) the sum of the Initial Fee and Market
Closing Payments which have been paid, multiplied by (B) a fraction the
numerator of which is the number of MHz Households for the Spectrum subject to
the termination and the denominator of which is the total number of MHz
Households for all Proposed Spectrum as of the Effective Date and (ii) the
Monthly Fees will be reduced by a percentage determined by dividing (A) the
number of MHz Households for the Spectrum subject to the termination, by (B) the
number of MHz Households for all Proposed Spectrum as of the Effective Date.
10.4 Breach of Representations and Warranties. Notwithstanding
anything to the contrary contained herein, with respect to a breach of the
representations and warranties set forth in Section 9.2 herein by Sprint,
Operator's sole remedy will be pursuant to the indemnification provisions set
forth in Section 11.1 below.
10.5 Other Remedies, in the event of a material breach by a
Party under this Agreement, the other Party, in addition to having the right to
terminate this Agreement without liability, may pursue such other remedies as
may be available to it at law or in equity. Furthermore, Sprint may, at its sole
election, cure any breach by Operator under this Agreement (including any breach
under any Primary Lease) and Operator will pay Sprint any Costs which Sprint
incurs in curing such breach. Notwithstanding the preceding sentence, any
election by Sprint to cure a breach by Operator will not operate as a cure on
behalf of Operator and Sprint will retain all of its rights with respect to such
breach, including terminating this Agreement. Each Party has an affirmative duty
to mitigate its damages under this Agreement.
10.6 Expenses. Subject to the Party's arbitration obligations
set forth in Article XIV, if suit is brought because of the breach of any term
or provision contained in this Agreement on the part of Sprint or Operator which
such Party is obligated to keep or perform, the prevailing Party may recover all
expenses incurred therefor, including reasonable attorneys' fees.
Article XI
INDEMNIFICATION
11.1 Indemnification by Sprint. To the extent permitted by
law, each Sprint Subsidiary covenants and agrees to, and will, indemnify, defend
and hold harmless Operator, its members, directors, officers, employees,
affiliates and agents (the "Operator Indemnitee(s)") from and against, and will
reimburse any Operator Indemnitee on demand for, all liabilities, direct losses
or damages (including the loss of use of any Spectrum and any portion of the
Initial Fee and/or Monthly Fee fairly allocable to such Spectrum), claims,
demands,
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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actions, reasonable costs and expenses (including, without limitation,
reasonable court costs and attorneys' fees) which any of the Operator
Indemnitees may suffer, sustain, incur, pay or expend by virtue or as a result
of (a) any material breach or default by such Sprint Subsidiary of any of its
covenants, agreements, duties or obligations under this Agreement; (b) any
material breach or default of, or inaccuracy or omission in, any representation
or warranty of such Sprint Subsidiary contained in this Agreement; (c) any acts,
omissions, negligence or willful misconduct of such Sprint Subsidiary, its
owners, members, directors, officers, employees, affiliates and agents in
connection with the performance of this Agreement; or (d) the operation
construction, maintenance or use of the Spectrum prior to the Effective Date,
including but not limited to claims for infringement of patents arising from
such use of the Spectrum and any claims arising from facts and circumstances
occurring prior to an applicable Closing.
11.2 Indemnification by Operator. To the extent permitted by
law, Operator covenants and agrees to, and will, indemnify, defend and hold
harmless Sprint Subsidiaries, their members, directors, officers, employees,
affiliates and agents (the "Sprint Indemnitee(s)") from and against, and will
reimburse any Sprint Indemnitee on demand for, all liabilities, direct losses or
damages, claims, demands, actions, reasonable costs and expenses (including
without limitation, reasonable court costs and attorneys' fees) which any of the
Sprint Indemnitees may suffer, sustain, incur, pay or expend by virtue or as a
result of (a) any material breach or default by Operator of any of its
covenants, agreements, duties or obligations under this Agreement, including
failure to perform any obligation under any Primary Lease; (b) any material
breach or default of, or inaccuracy or omission in, any representation or
warranty of Operator contained in this Agreement; (c) any acts, omissions,
negligence or willful misconduct of Operator, its owners, members, directors,
officers, employees, affiliates and agents in connection with the performance of
this Agreement; (d) claims by customers of Operator or by subscribers to
Operator's services; (e) actions by the FCC or other federal, state or local
governmental authorities regarding the Transmission Equipment, towers and other
facilities or the use of the Spectrum; (f) Operator's construction, operation,
maintenance and repair of the Transmission Equipment, towers and other
facilities; (g) claims of libel, slander or the infringement of copyright or the
unauthorized use of any trademark, trade name or service mark or claims that the
content of any material transmitted over the Spectrum violates any pornography,
obscenity laws, or infringes privacy rights or any other claimed harm or
unlawfulness arising from any transmission; and (h) claims for infringement of
patents arising from Operator's use of the Spectrum.
11.3 Claims for Indemnification. Where indemnification under
this Article XI is sought by a Party (the "Claiming Party"): (a) it will notify
in writing the other Party (the "Indemnifying Party") promptly of any claim or
litigation or threatened claim to which the Indemnification relates; (b) upon
the Indemnifying Party's written acknowledgment of its obligation to indemnify
in such instance, in form and substance satisfactory to the Claiming Party, the
Claiming Party will afford the Indemnifying Party an opportunity to participate
in and, at the option of the Indemnifying Party, control, compromise, settle,
defend or otherwise resolve the claim or litigation (and the Claiming Party will
not effect any such compromise or settlement without the prior written consent
of the Indemnifying Party); and (c) the Claiming Party will cooperate with the
Indemnifying Party in its above-described participation in any compromise,
settlement, defense or resolution of such claim or litigation. If the
Indemnifying Party does not
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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so acknowledge its indemnification responsibility, the Claiming Party may
proceed directly to enforce its indemnification rights.
Article XII
ASSIGNMENT
Each Sprint Subsidiary has the absolute right to assign any of its
rights and obligations under this Agreement provided that such Sprint Subsidiary
also assigns its rights and obligations to the Primary Leases and the Sprint
Authorizations to the same party or an affiliate of such party. Except as
expressly set forth in this Article XII, Operator may not assign, pledge,
hypothecate, sublease, or transfer in any manner whatsoever, any of its rights
and/or obligations under this Agreement, other than to an Operator Affiliate,
without Sprint's prior written consent, which will not be unreasonably withheld,
conditioned or delayed. Furthermore, Operator will not, through merger, sale or
any other transaction, change its ownership structure in any manner so that any
person(s) or entity(ies) which do not currently own at least 49% of the voting
securities of the Operator, have the right to vote more man 49% of Operator
equity units or elect more than 49% of the members of Operator's or Guarantor's
board of directors or similar governing body after such transaction (a "Change
in Control"), unless Operator has obtained Sprint's prior written consent which
will not be unreasonably withheld, conditioned or delayed; provided, however,
that Sprint's consent will not be required in any such transaction where either
(a) Operator provides at least 30 days prior written notice of the transaction
and the surviving or acquiring entity (or Guarantor in the event of a
restructuring event as described above) has sufficient resources to perform its
obligations under this Agreement, as determined in Sprint's reasonable
discretion, or (b) if such transaction occurs after substantially all of the
Markets are built and Operator is providing services in such Markets.
Notwithstanding anything to the contrary contained herein, Operator will not
assign, pledge, hypothecate, sublease or transfer in any manner whatsoever, its
rights and/or obligations under this Agreement to any Prohibited Entity (as
defined below) without Sprint's prior written consent, which may be withheld in
Sprint's sole discretion. As used herein, a "Prohibited Entity" means any entity
which, and any now hereafter subsidiary or affiliate of such entity (or
successor entity) operates under the name [***] Any assignment, pledge,
hypothecation, sublease or transfer in any manner whatsoever which violates this
Article XII will be null and void. Any Change in Control in violation of this
Article XII will be a material breach of this Agreement. Provided that Operator
provides Sprint with 15 days advance written notice thereof, Operator may pledge
its rights under this Agreement and its rights to the Transmission Equipment for
any financing it may incur in connection with the development of Region 1,
provided, however, that any such financing and/or pledge will be subject to the
rights of Sprint hereunder and the Licensees under the Primary Leases,
including, but not limited to, such Licensee's rights to purchase any
Transmission Equipment as set forth in the Primary Leases. If either Party
completes an assignment pursuant to this Article XII, the Party making or
completing any such assignment will, give written notice to the other Party of
the name and address of any such assignee within 30 days following the
completion of such assignment. Following the 5th anniversary of the Effective
Date, Operator may permit a third party to have exclusive use of up to 48 MHz of
the Spectrum in each Market without obtaining Sprint's prior consent, provided
that: (a) Operator provides Sprint with at least 30 days advance written notice
of the specific terms and conditions
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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of such sublease, (b) the person or entity using such Spectrum agrees in writing
to be bound to all of the restrictions and obligations contained herein with
respect to such Spectrum, (c) Operator remains primarily liable for the complete
performance of the terms of this Agreement with respect to such Spectrum, (d)
the person or entity using such Spectrum agrees in writing to provide periodic
certifications, as Sprint reasonably requests, evidencing its compliance with
build out and construction obligations with respect to such Spectrum, and (e)
Sprint may, in its reasonable discretion, require additional Security for
performance of the obligations with respect to such Spectrum. Notwithstanding
anything to the contrary contained herein, if there occurs a Change in Control
which results in any Prohibited Entity having the right to vote more than 49% of
Guarantor's or Operator's equity units or elect more than 49% of the members of
Guarantor's or Operator's board of directors, or similar governing body, the
Monthly Fee otherwise payable pursuant to Section 6.4 will, on a going forward
basis, be increased by [***] of such amount otherwise payable. Notwithstanding
anything to the contrary contained in this Article XII, Operator's rights under
this Article XII are subject to Operator obtaining any necessary consent of any
Third Party Licensee to the extent required under any Primary Lease.
Article XIII
CONFIDENTIALITY; [***]
13.1 Confidentiality. The Parties acknowledge that
Confidential Information (as such term is defined below) may be made available
to them pursuant to this Agreement, and that such Confidential Information has
been and will be developed by the other Party at considerable effort and expense
and represents special, unique and valuable proprietary assets of such Party
that is not ordinarily disclosed to the public, the value of which may be
destroyed by unauthorized dissemination. Each Party acknowledges and agrees that
it will become privy to Confidential Information of the other Party which could
be used in a manner harmful to the Party owning such Confidential Information.
Therefore, each Party agrees it will not use any Confidential Information of the
other Party in the development, operations, planning, marketing, or distributing
of any products or services which compete with those offered by the other Party.
Furthermore, except as may be required for the performance of this Agreement, or
compliance with any applicable law, during the Term and for a [***] neither
Party nor any of its employees, representatives, agents or affiliates will make
use of, disseminate, or in any way disclose any Confidential Information to any
third person, firm, corporation or other entity for any reason whatsoever, said
undertaking to be enforceable by injunctive or other equitable relief to prevent
any violation or threatened violation thereof. Each Party will exercise
reasonable care to protect the Confidential Information and will disclose
Confidential Information only to those of its employees, representatives, agents
or affiliates who need to know such information in connection with performance
of this Agreement. Either Party may disclose Confidential Information if
required by any judicial or governmental request, requirement or order, provided
that such Party will take reasonable steps to give the other Party sufficient
prior notice in order to contest such request, requirement or order by notifying
the other Party of such request. As used herein, the term "Confidential
Information" means all technical, business, financial and other confidential or
proprietary information of a Party, any information or material that has been
created, discovered, developed or otherwise become known to a Party (including,
without limitation, information created, discovered, developed or made known to
such Party by third parties) which has commercial value in the
telecommunications
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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business and which is designated in writing by the other Party as confidential.
Notwithstanding the lack of any designation by either Party of any information
as confidential, any engineering design, manufacturing processes or source code,
non-public financial information regarding such Party, information relating to
research and development, new product pricing and marketing plans of such Party,
and non-public information relating to such Party's operations, revenues, trade
secrets or management practices will be Confidential Information. "Confidential
Information" will not include information of a Party which: (a) has been or
becomes published or is now or is in the future in the public domain through no
action of the Party receiving such information pursuant to this Agreement; (b)
prior to disclosure hereunder, is within the legitimate possession of a Party as
evidenced by competent written proof of such legitimate possession; (c)
subsequent to disclosure hereunder, is lawfully received from a third party
having rights therein without restriction of the third party's rights to
disseminate the information and without notice of any restriction against its
further disclosure; or (d) is independently developed or acquired by a Party
through persons who have not had, either directly or indirectly, access to or
knowledge of such Confidential Information.
13.2 No Publicity Without Consent. Except as may be required
by applicable law, neither Party will disclose any of the terms and conditions
set forth herein to any non-affiliated party, without prior coordination with
and advance written approval by the other Party, which may be granted or
withheld at the other Party's sole discretion. Notwithstanding the foregoing,
either Party may disclose the terms and conditions of this Agreement to its
legal and financial advisors, investors and/or lenders, provided, however that
any person receiving such information will agree to be subject to the terms of
Section 13.1. Unless otherwise agreed to by Sprint, Operator may not use
Sprint's name or logo or any other trade name or logo which is owned or
controlled by any Sprint Entity. Unless otherwise agreed to by Operator, no
Sprint Subsidiary may use Operator's name or logo or any other trade name or
logo which is owned or controlled by Operator or its affiliates. Either Party
may disclose the existence of this Agreement provided that such disclosing Party
gives the other Party advance written notice of its intent to make such
disclosure.
[***]
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Article XIV
DISPUTES
14.1 Dispute Resolution Through Arbitration. Unless otherwise
specifically provided for herein, the Parties will utilize good faith efforts to
resolve any disputes arising out of or relating to the negotiation, execution,
interpretation, performance or nonperformance of this Agreement through amicable
settlement discussions to be commenced by the giving of a written notice of
dispute by the Party claiming to be aggrieved. The notice of dispute will state
with specificity the matters in dispute, the position of the Party giving the
notice of dispute and the rationale for that position. If the Parties fail to
resolve the dispute by amicable settlement within 15 business days from the date
the notice of dispute is given, then either Party may then request the final
settlement of such dispute through arbitration in Kansas City, Missouri, under
the Commercial Arbitration Rules (the "Rules") of the American Arbitration
Association (the "AAA") by notifying the other Party and the AAA in accordance
with the Rules. The arbitration will be conducted by three (3) arbitrators
appointed in accordance with the Rules and will be conducted pursuant to
expedited and accelerated procedures. The arbitrators will decide the issues
submitted to them in accordance with the provisions and commercial purposes of
this Agreement. The Parties agree that the award of the arbitrators will be
final and waive any right to trial by jury or to challenge the arbitrators'
award. However, any Party aggrieved by a default by the other may seek immediate
injunctive relief before any court of competent jurisdiction and agree that such
relief will not be sought to avoid or stay the arbitration. Judgment on the
award of the arbitrators may be entered in any court having jurisdiction over
the Party against whom enforcement of the award is being sought, and the Parties
hereby irrevocably consent to the jurisdiction of any such court for the purpose
of enforcing any such award. In their final award, the arbitrators will require
that the losing Party to the arbitration pay all reasonable costs (including
without limitation reasonable fees of counsel) incurred in conducting the
arbitration. The Parties will facilitate the arbitration by (a) making available
to one another and to the arbitrators for examination, inspection and
extraction, all documents, books, records and personnel under their control if
determined by the arbitrators to be relevant to the dispute and not otherwise
privileged from disclosure, subject to written agreement by the arbitrators to
hold all Confidential Information so disclosed in confidence, and (b) observing
strictly the time periods established by the rules or by the arbitrators for
submission of evidence or briefs. The Parties acknowledge and agree that time is
of the essence in resolving any dispute submitted to arbitration.
Notwithstanding anything in this Section 14.1 to the contrary, with respect to
any dispute regarding Sprint's obligations pursuant to Section 17.1(d), (a
"Spectrum Grouping Dispute"), the parties will submit the dispute to a mutually
agreeable independent qualified industry engineering consultant (an "Engineering
Arbitrator") who will serve as the arbitrator for such dispute in the manner set
forth in this Section 14.1. If the parties are unable to agree to a single
Engineering Arbitrator, each Party will select one independent qualified
engineering consultant who will serve as an Engineering Arbitrator; and each
Party will submit the names of no more than three additional independent
qualified industry engineering consultants to the two Engineering Arbitrators
selected by Sprint and Operator who will then select a third Engineering
Arbitrator from the combined lists submitted by Sprint and Operator. In such
event, the three Engineering Arbitrators so selected will serve as a panel of
arbitrators to decide the dispute pursuant to the terms set forth in this
Section 14.1.
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14.2 Specific Performance. Each of the Parties acknowledges
and agrees that the rights reserved to the other are of a special, unique,
unusual and extraordinary character, which gives them peculiar value, the loss
of which cannot be reasonably or adequately compensated for in damages in an
action at law and the breach by either Party of any of the provisions hereof
(other than provisions calling for the payment of money) will cause the other
irreparable damage and injury. In such event, the non-defaulting Party will be
entitled, as a matter of right, without further notice, to require of the other
Party specific performance of all of the acts, services and undertakings
required under this Agreement, including the obtaining of all requisite
authorizations to execute or perform this Agreement, and to obtain injunctive
and other equitable relief in any court of competent jurisdiction to prevent the
violation or threatened violation of any of the provisions of this Agreement.
Neither this provision nor any exercise by any Party of rights to equitable
relief or to specific performance herein granted will constitute a waiver of any
other rights which the non defaulting Party may have to damages or otherwise.
14.3 Jurisdiction and Venue. Subject to the provisions of
Section 14.1, any suit brought with respect to this Agreement will be brought in
the state or federal district court located in Kansas City, Missouri. For any
and all such purposes, the Parties hereby irrevocably submit to the jurisdiction
of such courts, waive all objections thereto (on the grounds of improper venue,
forum non conveniens or otherwise), and agree that service of process upon each
as provided in Section 14.1 will be effective to establish personal jurisdiction
over it in such courts.
Article XV
COVENANTS
15.1 Compliance with Law. Each of the Parties will comply with
the Communication Act of 1934, as amended, and the FCC Rules, will timely file
all reports, schedules and/or forms required by the FCC to be filed by it, and
will timely pay all fees required by the FCC to be paid by it, excepting only
the obligation of Sprint to pay certain fees which is otherwise assigned to
Operator herein.
15.2 [***] Pricing. Any Sprint Entity will have the right to
purchase, [***], products and services offered by Operator, or any Operator
Affiliate, within [***]. These products and services may include roaming
services for customers of any Sprint Entity. Operator will offer and provide any
such products and services to any Sprint Entity [***] on commercially reasonable
terms (including pricing) and if applicable, those terms that are generally made
available to Operator's other [***] customers purchasing comparable services
within [***]. Notwithstanding anything to the contrary contained herein, each
Sprint Entity will receive pricing for any products and services offered by
Operator or Operator Affiliate equal to the lesser of the following: [***]
Furthermore, Operator will negotiate in good faith to execute a roaming services
agreement with any Sprint Entity containing commercially reasonable roaming
rates, feature functionality and other terms necessary to
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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provide the broadband wireless services which are available from time to time
on Operator's network in Region 1 to the customers of any Sprint Entity.
15.3 Other Relationships. It is recognized that from time to
time the Parties may have other opportunities with respect to excess spectrum
capacity on MDS and ITFS frequencies in areas outside of Region 1 and that the
Parties may be interested in pursuing an ability to lease such excess spectrum
capacity or to exchange certain spectrum assets. If a Party desires such a
relationship, the other Party will make available representatives for a
reasonable time via telephone or in person to discuss such possible
relationship. Furthermore, it is recognized that Sprint may desire to implement
an affiliate type relationship with Operator within Region 1 and that Operator
may be interested in pursuing such relationship. If Sprint desires such a
relationship, Operator will make available for a reasonable time representatives
via telephone or in person to discuss such possible relationship.
Notwithstanding anything to the contrary contained herein, this Section 15.3
will not be construed as placing an obligation for a Party to actually negotiate
or otherwise consider in good faith any offers or proposals made by the other
Party, it being agreed that the intent of this Section 15.3 is to provide the
Parties with a means by which to facilitate communications with each other with
respect to business opportunities and for no other purpose. In no event will
either Party be obligated to perform under this Section 15.3 if it reasonably
believes that receipt of any information from the other Party may have an
adverse impact upon its ability to pursue any business interest or opportunity
or that receipt of such information could create any liability to any third
party. Nothing contained in this Section 15.3 will be construed as a material
obligation of either Party.
Article XVI
SPRINT'S TOWER FACILITIES
Attached hereto as Schedule 16 is a list of tower locations
("Towers") in Region 1 and Sprint's contractual agreements to use space on the
Towers ("Tower Leases"). On the Initial Closing Date and each Market Closing
Date, Operator will enter into a Tower Sublease Agreement with the applicable
Sprint Subsidiary, in a form mutually agreed upon by the Parties, for each Tower
Lease (each a "Tower Sublease" and collectively the "Tower Subleases") for each
Market then Closing. To the extent landlord's consent is required to enter into
any Tower Sublease ("Tower Sublease Consent"), Sprint will use Efforts to obtain
such consent as specified in Section 2.8. From and after the Effective Date,
Operator will timely pay all Costs under each Tower Lease. Any material breach
or default by Operator under any Tower Sublease which results in the termination
of such Tower Sublease will be a material default under this Agreement,
provided, however that Sprint will not terminate this Agreement as a result of
such default if (a) Operator has obtained other tower space for the operation of
the Spectrum in the Market applicable to the defaulted Tower Sublease, which is
freely assignable to Sprint, (b) no other Tower Sublease has been terminated as
a result of a breach of a Tower Lease by Operator, and (c) such termination of
the Tower Sublease does not result in the termination of any Primary Lease,
Rejected Primary Lease, Leased Authorization or Sprint Authorization. To the
extent permitted under the Tower Leases and as may be required under any
Rejected Primary Lease, Operator will permit the underlying channel lessor of
such Rejected Primary Lease continuing access to such facilities.
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Article XVII
SPRINT'S RIGHT TO RECAPTURE MARKET
17.1 Recapture Right.
(a) Pursuant to the terms of this Section 17.1, during the [***] Sprint
may elect to terminate a portion of this Agreement as it relates to certain
Spectrum and, subject to the receipt of any required consents or other
contractual obligations of Operator with respect to any Operator Controlled
Spectrum, to acquire certain Operator Controlled Spectrum in Closed Markets. As
used herein, the term "recapture" refers to Sprint's right to terminate this
Agreement as to such Spectrum and, subject to the receipt of any required
consents or other contractual obligations of Operator with respect to any
Operator Controlled Spectrum to acquire such Operator Controlled Spectrum. At
any time during the [***] Sprint may from time to time, by providing written
notice of Sprint's intent to exercise its recapture rights with respect to a
closed Market (a "Recapture Notice"), elect to recapture up to approximately
[***] of the total Spectrum and Operator Controlled Spectrum, excluding any
Operator Controlled Spectrum that Sprint has elected to exclude pursuant to
Section 17.l(h)(iv), in each Closed Market as of the Closing of such Closed
Market plus any additional Spectrum or Operator Controlled Spectrum in such
Closed Market which after such Closing became subject to this Agreement, less
any Spectrum or Operator Controlled Spectrum which is no longer subject to this
Agreement pursuant to the terms of this Agreement (other than any Spectrum or
Operator Controlled Spectrum which has been the subject to the exercise of the
recapture rights, Put Option or Call Option prior to any such election by
Sprint). As used herein, "Eligible Spectrum" means, subject to Section
17.1(h)(iv) and obtaining the necessary consents to transfer any Operator
Controlled Spectrum, all Spectrum and Operator Controlled Spectrum in a given
Closed Market then subject to the terms of this Agreement. Following the [***]
of the Initial Closing Date, Sprint may only recapture Unincorporated Spectrum.
"Unincorporated Spectrum" means any Spectrum or Operator Controlled Spectrum in
a Closed Market which (i) is not then being used by Operator, (ii) has not been
sublet by Operator to an unaffiliated third party as permitted pursuant to
Article XII, (iii) is not part of Operator's then current plan for deployment of
additional spectrum or services within the Term, or (iv) is capable of being
exchanged for other Spectrum or Operator Controlled Spectrum without material
interference to Operator's existing commercial operations. Each Recapture Notice
will identify the amount of Eligible Spectrum or Unincorporated Spectrum that
Sprint intends to recapture for such Closed Market. The amount of Eligible
Spectrum or Unincorporated Spectrum will be determined as of the date of such
Recapture Notice and on a MHz Household basis in accordance with the methodology
set forth on Exhibit B. The Eligible Spectrum or Unincorporated Spectrum, as
applicable, for a given Closed Market which Sprint will recapture pursuant to
this Section 17.1 is herein referred to as "Recaptured Spectrum". If Operator
assigns, pledges, hypothecates, subleases or transfers in any manner whatsoever,
any of its rights and/or obligations under this Agreement or should a Change in
Control occur after the Initial Term has expired, Sprint may exercise its rights
with respect to any Unincorporated Spectrum (not to exceed an amount which is
approximately [***] of all Eligible Spectrum in such Closed Market less any
amount
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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of Eligible Spectrum in such Closed Market for which recapture rights, Put
Option and/or Call Option have been previously exercised in any Closed Market)
under this Section 17.1 in the same manner in which Sprint is permitted to
exercise such rights after the [***] of the Initial Closing Date.
(b) For a period not to exceed 30 days following the Recapture Notice, the
Parties will negotiate in good faith to determine the identity of the Eligible
Spectrum or Unincorporated Spectrum which will be Recaptured Spectrum.
(c) If the Parties do not reach agreement as to the identity of the
Recaptured Spectrum pursuant to Section 17.1(b), then:
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(d) In creating the Spectrum Groupings as set forth in Section 17.1(c),
Sprint will:
(i) Configure the Spectrum Groupings so that Operator may select a
Spectrum Grouping which enables it to continue its operations.
(ii) Use good faith efforts to create Spectrum Groupings which are
conducive to the continued operation of Spectrum and Operator Controlled
Spectrum.
(iii) Use reasonable efforts to configure the Spectrum Groupings in
a manner so as to minimize disruption of Operator's commercial operations.
(iv) Configure the Spectrum Groupings in a manner which gives the
Operator the opportunity to select a Spectrum Grouping, or Spectrum
Groupings, containing at least [***] of contiguous spectrum.
If Operator disagrees that Sprint has created the Spectrum Groupings in
accordance with the requirements set forth in this Section 17.1(d) ("Spectrum
Groupings Criteria"), then such matter will be a Spectrum Grouping Dispute and
will be submitted to dispute resolution pursuant to Section 14.1.
(e) No later than 30 days following the later of (A) the date on which the
identity of the Recaptured Spectrum is determined pursuant to Section 17.1(a),
(b) and (c) or (B) the Spectrum Grouping Dispute is resolved pursuant to Section
14.1:
(i) Sprint and Operator will prepare all application forms and
related exhibits, certifications and other documents necessary to secure
the FCC's consent to an assignment of the authorizations to Sprint for any
Recaptured Spectrum which is Operator Owned Spectrum (each, an "Owned
Spectrum Assignment Application"). Subsequently, Sprint and Operator each
will promptly and diligently prepare, file and prosecute all necessary
amendments, briefs, pleadings, petitions for reconsideration, applications
for review, waiver requests, documents and supporting data, and take all
such actions and give all such notices as may be required or requested by
the FCC or as may be appropriate to expedite the grant of any Owned
Spectrum Assignment Application without conditions materially adverse to
Sprint or Operator. If any person petitions the FCC to deny any Owned
Spectrum Assignment Application, or if the FCC grants any Owned Spectrum
Assignment Application and any person petitions for reconsideration or
review of such grant before the FCC or appeals or applies for review in
any judicial proceeding, then Sprint and Operator will use their Efforts
to oppose such
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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petition before the FCC or defend such grant by the FCC. If the FCC denies
any Owned Spectrum Assignment Application or grants any Owned Spectrum
Assignment Application with conditions materially adverse to Operator or
Sprint, then if requested to do so by such adversely affected Party, such
Party and the other relevant Party will use their Efforts to secure
reconsideration or review of such action. Sprint will be responsible for
the payment of all Costs that the Parties incur in connection with their
performance under this Section 17.1(e)(i), including all application fees
imposed by the FCC on the filing of any Owned Spectrum Assignment
Application and all legal fees incurred in the preparation and prosecution
of any Owned Spectrum Assignment Application.
(ii) To the extent that FCC consent is required for the assignment
of any leases of any Recaptured Spectrum which is Operator Leased
Spectrum, Sprint and Operator will prepare all application forms and
related exhibits, certifications and other documents necessary to secure
the FCC's consent to an assignment of the leases of any Recaptured
Spectrum which is Operator Leased Spectrum (a "Recaptured Lease Assignment
Application"). Subsequently, Sprint and Operator each will promptly and
diligently prepare, file and prosecute all necessary amendments, briefs,
pleadings, petitions for reconsideration, applications for review, waiver
requests, documents and supporting data, and take all such actions and
give all such notices as may be required or requested by the FCC or as may
be appropriate to expedite the grant of any Recaptured Lease Assignment
Application without conditions materially adverse to Sprint or Operator.
If any person petitions the FCC to deny any Recaptured Lease Assignment
Application, or if the FCC grants any Recaptured Lease Assignment
Application and any person petitions for reconsideration or review of such
grant before the FCC or appeals or applies for review in any judicial
proceeding, then Sprint and Operator will use their Efforts to oppose such
petition before the FCC or defend such grant by the FCC. If the FCC denies
any Recaptured Lease Assignment Application or grants any Recaptured Lease
Assignment Application with conditions materially adverse to Operator or
Sprint, then if requested to do so by such adversely affected Party, such
Party and the other relevant Party will use their Efforts to secure
reconsideration or review of such action. Sprint will be responsible for
the payment of all Costs that the Parties incur in connection with their
performance under this Section 17.1(e)(ii), including all application fees
imposed by the FCC on the filing of any Recaptured Lease Assignment
Application and all legal fees incurred in the preparation and prosecution
of the applications.
(iii) To the extent that notice to the FCC is required prior to the
assignment of any lease of any Recaptured Spectrum which is Operator
Leased Spectrum, Sprint and Operator will prepare and timely file all
notification forms and related exhibits, certifications and other
documents necessary to notify the FCC in advance of the assignment of the
lease of Recaptured Spectrum which is Operator Leased Spectrum (a
"Recaptured Lease Assignment Notification"). Subsequently, Sprint and
Operator each will promptly and diligently prepare, file and prosecute all
necessary amendments, briefs, pleadings, petitions for
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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reconsideration, applications for review, waiver requests, documents and
supporting data, and take all such actions and give all such notices as
may be required or requested by the FCC or as may be appropriate to
respond to any FCC inquiry or any third party petition or complaint
regarding the assignment of the lease of such Operator Leased Spectrum in
support of such assignment without conditions materially adverse to Sprint
or Operator. If any person petitions for reconsideration or review of an
FCC decision affirming such assignment before the FCC or appeals or
applies for review in any judicial proceeding, then Sprint and Operator
will use their Efforts to oppose such petition before the FCC or defend
such grant by the FCC. If the FCC rejects any assignment of the lease of
Operator Leased Spectrum that is the subject of a Recaptured Lease
Assignment Notification or imposes conditions materially adverse to
Operator or Sprint, then if requested to do so by such adversely affected
Party, such Party and the other relevant Party will use their Efforts to
secure reconsideration or review of such action. Sprint will be
responsible for the payment of all Costs that the Parties incur in
connection with their performance under this Section 17.1(e), including
all application fees imposed by the FCC on the filing of any Recaptured
Lease Assignment Notification and all legal fees incurred in the
preparation and prosecution of the notification.
(f) From and after the Recapture Notice through the date on which the
Parties determine the identity of the Recaptured Spectrum as set forth above,
Operator will not, without Sprint's prior consent, which will not be
unreasonably withheld, conditioned or delayed, make any material modifications
or changes in the operation of the Eligible Spectrum or enter into, or permit
any Third Party Licensee to enter into, any Coordination Documents with respect
to the Eligible Spectrum unless such modifications are required by contractual
or regulatory deadlines. From and after the Recapture Notice until the date on
which the Parties consummate the recapture transaction for a given Closed Market
(the "Recapture Closing"), Operator will not, without Sprint's prior consent,
not to be unreasonably withheld, conditioned or delayed, make any material
modifications or changes in the operation of the Recaptured Spectrum or enter
into, or permit any Third Party Licensee to enter into, any Coordination
Documents with respect to the Recaptured Spectrum.
(g) Each Recapture Closing for any Recaptured Spectrum which does not
require the FCC's consent for the transfer contemplated pursuant to the
recapture set forth herein will take place on the date which is 30 days
following the date that the identity of such Recaptured Spectrum is determined
pursuant to Sections 17.1(a), (b), and (c); provided, however, that to the
extent prior notification to the FCC is required before the assignment of a
lease for Operator Leased Spectrum to Sprint, the Recapture Closing will not
occur until the prior notification period established by the FCC Rules will have
run and, at Sprint's sole option, if the FCC initiates an inquiry or any person
submits a complaint or petition challenging the lease assignment, the FCC will
have affirmed the lease assignment by Final Order. The Recapture Closing for any
given Closed Market with respect to any Operator Controlled Spectrum which is
the subject of an Owned Spectrum Assignment Application or a De Facto Lease
Assignment
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Application, will take place not later than 30 days following the FCC's grant of
such application and such grant becoming a Final Order.
(h)
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* * *
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* * *
(ii) At the Recapture Closing (A) Operator will assign, and cause
any applicable Operator Affiliate to assign, all right, title and interest
in the Recaptured Spectrum that is Operator Controlled Spectrum to Sprint,
(B) this Agreement will terminate with respect to any Recaptured Spectrum,
and (C) Sprint will pay Operator the Recapture Price for each Closed
Market which is subject to the Recapture Closing.
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(iii) No later than 15 days following the determination of the
identity of the Recaptured Spectrum, Operator will provide Sprint with a
written estimate of the Transition Costs. Prior to incurring any expense
in transitioning its use of the Recaptured Spectrum which in the aggregate
exceeds Operator's written estimate, Operator will provide Sprint with
written notice of such expenses and will, at Sprint's request, meet in
person or telephonically to discuss the possibility of reducing such
expenses. At Sprint's request, Operator will provide Sprint with access to
detailed records that support Operator's calculation of the Acquisition
Costs, Investment Costs or Transition Costs. If Sprint objects to
Operator's calculation of the Acquisition Costs, Investment Costs or
Transition Costs and the Parties are unable to resolve the dispute, Sprint
may submit the matter to arbitration pursuant to Section 14.1.
(iv) Notwithstanding anything to the contrary contained herein,
Sprint may elect to exclude all Operator Controlled Spectrum in a
particular Closed Market from the recapture right set forth herein by
stating so in the Recapture Notice. In such event, the Operator Controlled
Spectrum in such Closed Market will not be considered as Eligible Spectrum
for purposes of this Agreement.
(i) Effective as of the Recapture Closing with respect to any Recaptured
Spectrum, (i) Operator will cease use of all such Recaptured Spectrum and such
Recaptured Spectrum will thereafter no longer be considered Spectrum or Operator
Controlled Spectrum (as applicable) for purposes of this Agreement, and (ii) any
Primary Lease which governs the use of any such Recaptured Spectrum will no
longer be a Primary Lease for purposes of this Agreement. Effective as of the
Recapture Closing with respect to any Recaptured Spectrum, on a going forward
basis the Monthly Fee will be reduced by an amount equal to the then current
Monthly Fee multiplied by a fraction, the numerator of which is the MHz
Households for the Recaptured Spectrum (but excluding Operator Controlled
Spectrum) subject to the Recapture Closing, and the denominator of which is the
MHz Households for all Proposed Spectrum as of the date of the Effective Date.
(j) Following the Recapture Closing with respect to any Recaptured
Spectrum, Operator and Sprint will provide the FCC with such notification forms
and related exhibits, certifications and other documents as are required by the
FCC Rules within the time period afforded by the FCC Rules. Subsequently, Sprint
and Operator each will promptly and diligently prepare, file and prosecute all
necessary amendments, briefs, pleadings, petitions for reconsideration,
applications for review, waiver requests, documents and supporting data, and
take all such actions and give all such additional notices as may be required or
requested by the FCC or as may be appropriate to respond to any post-Recapture
Closing FCC inquiry or any third party petition or complaint regarding the
transfer of such Recaptured Spectrum in support of such transfer without
conditions materially adverse to Sprint or Operator. If any person petitions for
reconsideration or review of an FCC decision affirming such transfer before the
FCC or appeals or applies for review in any judicial proceeding, then Sprint and
Operator will use their Efforts to oppose such petition before the FCC or defend
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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such grant by the FCC. If the FCC rejects any transfer of Recaptured Spectrum or
imposes conditions materially adverse to Operator or Sprint, then if requested
to do so by such adversely affected Party, such Party and the other relevant
Party will use their Efforts to secure reconsideration or review of such action.
Sprint will be responsible for the payment all of the Costs that the Parties
incur in connection with their performance under this Section 17.1(j), including
all fees imposed by the FCC on the filing of any notification and all legal fees
incurred in the preparation and prosecution of the notification.
(k) Until the Recapture Closing with respect to any Recaptured Spectrum,
Operator will, as required by contractual or regulatory obligations continue to
operate all facilities being used in connection with the operation of such
Recaptured Spectrum and will continue to perform all obligations under all
Primary Leases and any leases with respect to any Operator Leased Spectrum which
govern the use of the Recaptured Spectrum. Upon the Recapture Closing with
respect to any Recaptured Spectrum (i) Operator will immediately cease use of
all Sprint Transmission Equipment which is used solely in the operation of such
Recaptured Spectrum and such equipment will thereafter no longer be Transmission
Equipment for purposes of this Agreement, (ii) for a period not to exceed 6
months, Sprint will have the right to use any other equipment, including any
shared equipment, used in connection with such Recaptured Spectrum to the extent
reasonably necessary to satisfy its obligations under any Primary Lease,
Rejected Primary Lease or to comply with any Sprint Authorization, at a lease
cost of the fair market rental value of such equipment, (iii) Sprint will have
an option to buy, at greater of the fair market value or Operator's depreciated
costs, as determined pursuant to Section 17.4, any equipment owned by Operator
and used solely in the operation of such Recaptured Spectrum, that is not or
could not be redeployed by Operator in the operation of other spectrum, (iv)
Sprint will have access to all tower and other facilities used in connection
with the operation of the Recaptured Spectrum as of the date of the Recapture
Notice, and (v) Sprint will pay Operator on a monthly basis Sprint's Pro Rata
Share (as defined below) attributable to Sprint's use of any such tower and
other facilities. "Sprint's Pro Rata Share" means the sum of the tower and
facility lease fees paid by Operator to an unaffiliated third party for any
facilities which Sprint elects to utilize pursuant to the previous sentence and
the recurring utility charges and maintenance costs actually paid by Operator
with respect to any facilities which Sprint utilizes for the operation of any
Recaptured Spectrum, multiplied by a fraction, the numerator of which is the
amount of Recaptured Spectrum (in MHz) operating from such facilities and the
denominator of which is the total ITFS and MDS spectrum (in MHz) operated by
Operator from such facility.
17.2 Put Option.
(a) At any time prior to the [***] of the Initial Closing Date, Sprint may
from time to time elect to put any or all of the Spectrum to Operator by
providing notice (a "Put Notice") to Operator informing Operator of Sprint's
intent to exercise its put rights and identifying the amount of Spectrum to be
transferred. The price paid by Operator to Sprint upon the closing of such put
option (the "Put Price") will be (i) if the Put Notice is sent prior to the
[***] of the Initial Closing
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Date, [***] multiplied by the number of MHz Households covered by the Put
Spectrum, or (ii) if the Put Notice is after the [***] of the Initial Closing
Date an amount equal to (A) [***] multiplied by the number of MHz Households
covered by the Put Spectrum, less (B) the sum, after taking into effect any
credits which Operation has received with respect to such Put Spectrum, of the
Monthly Fees attributable to such Put Spectrum, the Primary Lease Fees
attributable to such Put Spectrum, that proportion of the Initial Fee
attributable to such Put Spectrum, and Market Closing Payments paid with respect
to the Put Spectrum. An example of the computation of the Put Price after the
[***] of the Initial Closing Date is set forth as Schedule 17.2(a). Each Put
Notice will identify the amount of Spectrum that Sprint intends to put for such
Closed Market. The amount of Spectrum which Sprint will put pursuant to this
Section 17.2 will be determined as of the date of such Put Notice and on a MHz
Household basis in accordance with the methodology set forth on Exhibit B. The
Spectrum for a given market which Sprint will put to Operator pursuant to this
Section 17.2 is herein referred to as "Put Spectrum". If the Put Notice occurs
after the [***] of the Initial Closing Date, Sprint may not put any Spectrum to
Operator that is subject to a Primary Lease unless at least one year is
remaining of the last term (including any renewals) of the Primary Lease.
(b) If Sprint elects to put less than all of the Spectrum in a given
Closed Market, for a period not to exceed 30 days following the Put Notice, the
Parties will negotiate in good faith to determine the identity of the Spectrum
which will be Put Spectrum.
(c) If the Parties do not reach agreement as to the identity of the Put
Spectrum pursuant to Section 17.2(b), then (i) Sprint will divide the Spectrum
for such Closed Market into no more than [***] with each containing
approximately (within plus or minus 2% of an equal amount) an equal amount of
Spectrum (on a MHz Household basis) and will send Operator notice of the
Spectrum Groupings, and (ii) no later than 30 days after receipt of such notice,
representatives of Operator and Sprint will meet at a mutually agreed upon
location or telephonically and the parties will alternately select (with
Operator selecting first) Spectrum Groupings until Sprint has selected the
amount of Spectrum identified in the Put Notice, and such Spectrum selected by
Sprint will constitute the Put Spectrum. The Parties acknowledge the difficulty
in dividing the Spectrum in any given Closed Market in a manner that creates
equal Spectrum Groupings and recognize that it is likely Spectrum Groupings will
not be exactly equal in terms of MHz Households.
(d) Following the Put Notice, Sprint and Operator will negotiate in good
faith to reach agreement as to the transaction documents based substantially
upon the terms and conditions specified in the term sheet (the "Put/Call Term
Sheet") attached as Exhibit G. No later than 10 days following the date on which
the identity of the Put Spectrum is determined pursuant to Section 17.2 (a), (b)
and (c):
(i) Sprint and Operator will prepare all application forms and
related exhibits, certifications and other documents necessary to secure
the FCC's
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consent to an assignment of the Sprint Authorizations to Operator for any
Put Spectrum (each, a "Put Assignment Application"). Subsequently, Sprint
and Operator each will promptly and diligently prepare, file and prosecute
all necessary amendments, briefs, pleadings, petitions for
reconsideration, applications for review, waiver requests, documents and
supporting data, and take all such actions and give all such notices as
may be required or requested by the FCC or as may be appropriate to
expedite the grant of any Put Assignment Application without conditions
materially adverse to Sprint or Operator. If any person petitions the FCC
to deny any Put Assignment Application, or if the FCC grants any Put
Assignment Application and any person petitions for reconsideration or
review of such grant before the FCC or appeals or applies for review in
any judicial proceeding, then Sprint and Operator will use their Efforts
to oppose such petition before the FCC or defend such grant by the FCC. If
the FCC denies any Put Assignment Application or grants any Put Assignment
Application with conditions materially adverse to Operator or Sprint, then
if requested to do so by such adversely affected Party, such Party and the
other relevant Party will use their Efforts to secure reconsideration or
review of such action. Each Party will be responsible for the payment of
one-half of all Costs that the Parties incur in connection with their
performance under this Section 17.2(d)(i), including all application fees
imposed by the FCC on the filing of any Put Assignment Application and all
legal fees incurred in the preparation and prosecution of any Put
Assignment Application.
(ii) To the extent that FCC consent is required for the assignment
of any leases of any Put Spectrum which is Leased Spectrum, Sprint and
Operator will prepare all application forms and related exhibits,
certifications and other documents necessary to secure the FCC's consent
to an assignment of the Primary Leases of any Put Spectrum which is Leased
Spectrum (a "Put Leased Spectrum Assignment Application"). Subsequently,
Sprint and Operator each will promptly and diligently prepare, file and
prosecute all necessary amendments, briefs, pleadings, petitions for
reconsideration, applications for review, waiver requests, documents and
supporting data, and take all such actions and give all such notices as
may be required or requested by the FCC or as may be appropriate to
expedite the grant of any Put Leased Spectrum Assignment Application
without conditions materially adverse to Sprint or Operator, If any person
petitions the FCC to deny any Put Leased Spectrum Assignment Application,
or if the FCC grants any Put Leased Spectrum Assignment Application and
any person petitions for reconsideration or review of such grant before
the FCC or appeals or applies for review in any judicial proceeding, then
Sprint and Operator will use their Efforts to oppose such petition before
the FCC or defend such grant by the FCC. If the FCC denies any Put Leased
Spectrum Assignment Application or grants any Put Leased Spectrum
Assignment Application with conditions materially adverse to Operator or
Sprint, then if requested to do so by such adversely affected Party, such
Party and the other relevant Party will use their Efforts to secure
reconsideration or review of such action. Each Party will be responsible
for the payment of one-half of all Costs that the Parties incur in
connection with their performance under this Section
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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17.2(d)(ii), including all application fees imposed by the FCC on the
filing of any Put Leased Spectrum Assignment Application and all legal
fees incurred in the preparation and prosecution of the applications.
(iii) To the extent that notice to the FCC is required prior to the
assignment of any Primary Lease for any Put Spectrum which is Leased
Spectrum, Sprint and Operator will prepare and timely file all
notification forms and related exhibits, certifications and other
documents necessary to notify the FCC in advance of the assignment of the
Primary Lease for Put Spectrum (a "Put Leased Spectrum Assignment
Notification"). Subsequently, Sprint and Operator each will promptly and
diligently prepare, file and prosecute all necessary amendments, briefs,
pleadings, petitions for reconsideration, applications for review, waiver
requests, documents and supporting data, and take all such actions and
give all such notices as may be required or requested by the FCC or as may
be appropriate to respond to any FCC inquiry or any third party petition
or complaint regarding the assignment of the lease of such Leased Spectrum
in support of such assignment without conditions materially adverse to
Sprint or Operator. If any person petitions for reconsideration or review
of an FCC decision affirming such assignment before the FCC or appeals or
applies for review in any judicial proceeding, then Sprint and Operator
will use their Efforts to oppose such petition before the FCC or defend
such grant by the FCC. If the FCC rejects any assignment of the Primary
Lease for any Leased Spectrum that is the subject of a Put Leased Spectrum
Assignment Notification or imposes conditions materially adverse to
Operator or Sprint, then if requested to do so by such adversely affected
Party, such Party and the other relevant Party will use their Efforts to
secure reconsideration or review of such action. Each Party will be
responsible for the payment of one-half of all Costs that the Parties
incur in connection with their performance under this Section 17.2(d),
including all application fees imposed by the FCC on the filing of any Put
Leased Spectrum Assignment Notification and all legal fees incurred in the
preparation and prosecution of the notification.
(e) If Sprint elects to put less than all of the Spectrum in a given
Closed Market, from and after the Put Notice through the date on which the
Parties determine the identity of the Put Spectrum as set forth above, Operator
will not, without Sprint's prior consent, make any material modifications or
changes in the operation of the Spectrum in a Closed Market which is the subject
of a Put Notice or enter into, or permit any Third Party Licensee to enter into,
any Coordination Documents with respect to such Spectrum unless such
modifications are required by contractual or regulatory deadlines. If Sprint
elects to put less than all of the Spectrum in a given Closed Market, from and
after the Put Notice until the date on which the Parties close the put (the "Put
Closing"), Operator will not, without Sprint's prior consent, not to be
unreasonably withheld, conditioned or delayed, make any material modifications
or changes in the operation of the Put Spectrum or enter into, or permit any
Third Party Licensee to enter into, any Coordination Documents with respect to
the Put Spectrum.
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(f) The Put Closing for any given Closed Market with respect to any Put
Spectrum which does not require the FCC's consent for the transfer contemplated
herein will take place on the date which is 30 days following the date on which
the identity of the Put Spectrum is determined pursuant to Sections 17.2(a),
(b), and (c); provided, however, that to the extent prior notification to the
FCC is required before the assignment of a Primary Lease, the Put Closing will
not occur until the prior notification period established by the FCC Rules will
have run and, at Sprint's sole option, if the FCC initiates an inquiry or any
person submits a complaint or petition challenging the lease assignment, the FCC
will have affirmed the lease assignment by Final Order. The Put Closing for any
given Closed Market with respect to any Put Spectrum which is the subject of a
Put Assignment Application or a Put Lease Assignment Application, will take
place not later than 30 days following the FCC's grant of such application and
such grant becoming a Final Order.
(g) At the Put Closing, Sprint will assign all of its right, title and
interest in the Sprint Authorizations and Primary Leases (as applicable) for the
Put Spectrum to Operator and Operator will pay Sprint the Put Price in
immediately available funds. Operator will have the option to buy any Sprint
Transmission Equipment which is owned by Sprint and is used solely in connection
with the Put Spectrum for its fair market value as determined pursuant to
Section 17.4. Operator may exercise such option by providing written notice of
its intent to do so no later than 20 days following the Put Notice. If Operator
elects to exercise such option, at the Put Closing, Operator will pay Sprint the
fair market value of such Sprint Transmission Equipment and Sprint will deliver
to Operator a bill of sale, without warranty, delivering title to such Sprint
Transmission Equipment to Operator. Notwithstanding anything to the contrary
contained herein, to the extent that any Put Closing applies to all Spectrum in
a given Closed Market, the applicable Tower Sublease for such Closed Market will
remain in effect notwithstanding any provision set forth therein stating that
such Tower Sublease will terminate upon termination of this Agreement.
(h) Effective as of the Put Closing with respect to any Put Spectrum, (i)
such Put Spectrum will no longer be considered Spectrum for purposes of this
Agreement, and (ii) any Primary Lease which governs the use of any such Put
Spectrum will no longer be a Primary Lease for purposes of this Agreement.
Effective as of the Put Closing with respect to any Put Spectrum, on a going
forward basis the Monthly Fee will be reduced by an amount equal to the then
current Monthly Fee multiplied by a fraction, the numerator of which is the MHz
Households for the Put Spectrum as of the date of the Put Closing, and the
denominator of which is the MHz Households for all Proposed Spectrum as of the
Effective Date.
(i) Following the Put Closing with respect to any Put Spectrum, Operator
and Sprint will provide the FCC with such notification forms and related
exhibits, certifications and other documents as are required by the FCC Rules
within the time period afforded by the FCC Rules. Subsequently, Sprint and
Operator each will promptly and diligently prepare, file and prosecute all
necessary amendments, briefs, pleadings, petitions for reconsideration,
applications for review, waiver requests, documents and supporting data, and
take all such actions and give all such additional
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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notices as may be required or requested by the FCC or as may be appropriate to
respond to any post-Put Closing FCC inquiry or any third party petition or
complaint regarding the transfer of such Put Spectrum in support of such
transfer without conditions materially adverse to Sprint or Operator. If any
person petitions for reconsideration or review of an FCC decision affirming such
transfer before the FCC or appeals or applies for review in any judicial
proceeding, then Sprint and Operator will use their Efforts to oppose such
petition before the FCC or defend such grant by the FCC. If the FCC rejects any
transfer of Put Spectrum or imposes conditions materially adverse to Operator or
Sprint, then if requested to do so by such adversely affected Party, such Party
and the other relevant Party will use their Efforts to secure reconsideration or
review of such action. Each Party will be responsible for the payment of
one-half of all Costs that the Parties incur in connection with their
performance under this Section 17.2(i), including all fees imposed by the FCC on
the filing of any notification and all legal fees incurred in the preparation
and prosecution of the notification.
17.3 Purchase Option.
(a) For a period of [***] of the Initial Closing Date, Operator will have
the option (the "Call Option") to acquire up to [***] of the Spectrum in each
Closed Market as of the Closing of such Market plus any additional Spectrum in
such Closed Market which after such Closing became subject to this Agreement
less any Spectrum which is no longer subject to this Agreement pursuant to the
terms of this Agreement (other than any Spectrum which has been the subject to
the exercise of the recapture rights, Put Option or Call Option prior to the
exercise of the Call Option by Operator) by providing notice (a "Call Notice")
to Sprint informing Sprint of Operator's intent to exercise the Call Option and
identifying the amount of Spectrum to be transferred. The price paid by Operator
to Sprint upon the closing of such Call Option (the "Call Price") will be [***]
multiplied by the number of MHz Households covered by such Spectrum. The Call
Notice will identify the amount of Spectrum that Operator intends to acquire.
The amount of Spectrum which Operator may acquire pursuant to this Section 17.3
will be determined as of the date of such Call Notice and on a MHz Household
basis in accordance with the methodology set forth on Exhibit B. The Spectrum
for a given Closed Market which Operator will acquire pursuant to this Section
17.3 is herein referred to as "Call Spectrum".
(b) For a period not to exceed 60 days following the Call Notice ("Call
Waiting Period"), the parties will negotiate in good faith to determine the
identity of the Spectrum which will be the Call Spectrum. Such determination
should be made without regard to whether Sprint intends to exercise its
recapture rights following the Call Waiting Period. If Sprint intends to
exercise its Put Option with regard to the remaining Spectrum (after giving
effect to the Call Option exercise) in any such Closed Market for which Operator
has exercised its Call Option, then Sprint will provide its Put Notice during
the Call Waiting Period. Sprint may not exercise its recapture rights set forth
in Section 17.1 during the 180 day period during which the Call Option may be
exercised; provided that with respect to a Closed Market in which Operator has
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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provided its Call Notice, Sprint may provide a Recapture Notice with regard to
the Operator Controlled Spectrum and any Spectrum other than the Call Spectrum
during the 15 day period following the later of (a) determination of the Call
Spectrum or (b) the expiration of the Call Waiting Period. If Sprint provides a
Put Notice with respect to any Closed Market which is subject to a Call Notice
prior to the expiration of the Call Waiting Period, to the extent such Put
Notice does not put the remainder of the Spectrum in any such Closed Market
(taking into account the amount of Spectrum which is the subject of the Call
Notice), then the Parties will, for a period not to exceed 30 days, negotiate in
good faith to determine the identity of the Put Spectrum and Call Spectrum. If
the Parties are unable to determine the identity of the Put Spectrum and Call
Spectrum, the Parties will follow the procedures set forth in Section 17.3(c)
until Operator has selected the amount of Spectrum identified in the Call Notice
and Put Notice for such Closed Market.
(c) If the Parties do not reach agreement as to the identity of the Call
Spectrum pursuant to Section 17.3(b), then (i) Sprint will divide the Spectrum
in each Closed Market into no more than [***] with each containing approximately
(within plus or minus [***] of an equal amount) an equal amount of Spectrum (on
a MHz Household basis) and will send Operator notice of the Spectrum Groupings,
and (ii) no later than 30 days after receipt of such notice, representatives of
Operator and Sprint will meet at a mutually agreed upon location or
telephonically and the parties will alternately select (with Operator selecting
first) Spectrum Groupings until Operator has selected the amount of Spectrum
identified in the Call Notice, and such Spectrum selected by Operator will
constitute the Call Spectrum. The Parties acknowledge the difficulty in dividing
the Spectrum in any given Closed Market in a manner that creates equal Spectrum
Groupings for such Closed Market and recognize that it is likely Spectrum
Groupings will not be exactly equal in terms MHz Households.
(d) Following the Call Notice, Sprint and Operator will negotiate in good
faith to reach agreement as to the transaction documents based substantially
upon the terms and conditions specified the Put/Call Term Sheet. No later than
10 days following the date on which the identity of the Call Spectrum is
determined pursuant to Section 17.3 (a), (b) and (c):
(i) Sprint and Operator will prepare all application forms and
related exhibits, certifications and other documents necessary to secure
the FCC's consent to an assignment of the Sprint Authorizations to
Operator for any Call Spectrum (each, an "Call Assignment Application").
Subsequently, Sprint and Operator each will promptly and diligently
prepare, file and prosecute all necessary amendments, briefs, pleadings,
petitions for reconsideration, applications for review, waiver requests,
documents and supporting data, and take all such actions and give all such
notices as may be required or requested by the FCC or as may be
appropriate to expedite the grant of any Call Assignment Application
without conditions materially adverse to Sprint or Operator. If any person
petitions the FCC to deny any Call Assignment Application, or if the FCC
grants any Call Assignment Application and any person petitions for
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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reconsideration or review of such grant before the FCC or appeals or
applies for review in any judicial proceeding, then Sprint and Operator
will use their Efforts to oppose such petition before the FCC or defend
such grant by the FCC. If the FCC denies any Call Assignment Application
or grants any Call Assignment Application with conditions materially
adverse to Operator or Sprint, then if requested to do so by such
adversely affected Party, such Party and the other relevant Party will use
their Efforts to secure reconsideration or review of such action. Each
Party will be responsible for the payment of one-half of all Costs that
the Parties incur in connection with their performance under this Section
17.3(d)(i), including all application fees imposed by the FCC on the
filing of any Call Assignment Application and all legal fees incurred in
the preparation and prosecution of any Call Assignment Application.
(ii) To the extent that FCC consent is required for the assignment
of any leases of any Call Spectrum which is Leased Spectrum, Sprint and
Operator will prepare all application forms and related exhibits,
certifications and other documents necessary to secure the FCC's consent
to an assignment of the Primary Leases of any Call Spectrum which is
Leased Spectrum (a "Call Leased Spectrum Assignment Application").
Subsequently, Sprint and Operator each will promptly and diligently
prepare, file and prosecute all necessary amendments, briefs, pleadings,
petitions for reconsideration, applications for review, waiver requests,
documents and supporting data, and take all such actions and give all such
notices as may be required or requested by the FCC or as may be
appropriate to expedite the grant of any Call Leased Spectrum Assignment
Application without conditions materially adverse to Sprint or Operator.
If any person petitions the FCC to deny any Call Leased Spectrum
Assignment Application, or if the FCC grants any Call Leased Spectrum
Assignment Application and any person petitions for reconsideration or
review of such grant before the FCC or appeals or applies for review in
any judicial proceeding, then Sprint and Operator will use then Efforts to
oppose such petition before the FCC or defend such grant by the FCC. If
the FCC denies any Call Leased Spectrum Assignment Application or grants
any Call Leased Spectrum Assignment Application with conditions materially
adverse to Operator or Sprint, then if requested to do so by such
adversely affected Party, such Party and the other relevant Party will use
then Efforts to secure reconsideration or review of such action. Each
Party will be responsible for the payment of one-half of all Costs that
the Parties incur in connection with their performance under this Section
17.2(d)(ii), including all application fees imposed by the FCC on the
filing of any Call Leased Spectrum Assignment Application and all legal
fees incurred in the preparation and prosecution of the applications.
(iii) To the extent that notice to the FCC is required prior to the
assignment of any Primary Lease for any Call Spectrum which is Leased
Spectrum, Sprint and Operator will prepare and timely file all
notification forms and related exhibits, certifications and other
documents necessary to notify the FCC in advance of the assignment of the
Primary Lease for Call Spectrum (a "Call Leased Spectrum Assignment
Notification"). Subsequently, Sprint and
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Operator each will promptly and diligently prepare, file and prosecute all
necessary amendments, briefs, pleadings, petitions for reconsideration,
applications for review, waiver requests, documents and supporting data,
and take all such actions and give all such notices as may be required or
requested by the FCC or as may be appropriate to respond to any FCC
inquiry or any third party petition or complaint regarding the assignment
of the lease of such Leased Spectrum in support of such assignment without
conditions materially adverse to Sprint or Operator. If any person
petitions for reconsideration or review of an FCC decision affirming such
assignment before the FCC or appeals or applies for review in any judicial
proceeding, then Sprint and Operator will use their Efforts to oppose such
petition before the FCC or defend such grant by the FCC. If the FCC
rejects any assignment of the Primary Lease for any Leased Spectrum that
is the subject of a Call Leased Spectrum Assignment Notification or
imposes conditions materially adverse to Operator or Sprint, then if
requested to do so by such adversely affected Party, such Party and the
other relevant Party will use their Efforts to secure reconsideration or
review of such action. Each Party will be responsible for the payment of
one-half of all Costs that the Parties incur in connection with their
performance under this Section 17.3(d), including all application fees
imposed by the FCC on the filing of any Call Leased Spectrum Assignment
Notification and all legal fees incurred in the preparation and
prosecution of the notification.
(e) The closing for any Call Spectrum the ("Call Closing") which does not
require the FCC's consent for the transfer contemplated pursuant to the
recapture set forth herein will take place on the date which is 30 days
following the date on which the identity of the Call Spectrum is determined
pursuant to Sections 17.3(a), (b), and (c); provided, however, that to the
extent prior notification to the FCC is required before the assignment of a
Primary Lease, the Call Closing will not occur until the prior notification
period established by the FCC Rules will have run and, at Operator's sole
option, if the FCC initiates an inquiry or any person submits a complaint or
petition challenging the lease assignment, the FCC will have affirmed the lease
assignment by Final Order. The Call Closing with respect to any Call Spectrum
which is the subject of a Call Assignment Application or a Call Lease Assignment
Application, will take place not later than 30 days following the FCC's grant of
such application and such grant becoming a Final Order.
(f) At the Call Closing, Sprint will assign all of its right, title and
interest in the Sprint Authorizations and Primary Leases (as applicable) for the
Call Spectrum to Operator and Operator will pay Sprint the Call Price.
(g) Effective as of the Call Closing with respect to any Call Spectrum,
(i) such Call Spectrum will no longer be considered Spectrum for purposes of
this Agreement, and (ii) any Primary Lease which governs the use of any such
Call Spectrum will no longer be a Primary Lease for purposes of this Agreement.
Effective as of the Call Closing with respect to any Call Spectrum, on a going
forward basis the Monthly Fee will be reduced by an amount equal to the then
current Monthly Fee multiplied by a fraction, the numerator of which is the MHz
Households for the Call
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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Spectrum as of the date of the Call Closing, and the denominator of which
is the MHz Households for all Proposed Spectrum as of the Effective Date.
(h) Following the Call Closing with respect to any Call Spectrum,
Operator and Sprint will provide the FCC with such notification forms and
related exhibits, certifications and other documents as are required by
the FCC Rules within the time period afforded by the FCC Rules.
Subsequently, Sprint and Operator each will promptly and diligently
prepare, file and prosecute all necessary amendments, briefs, pleadings,
petitions for reconsideration, applications for review, waiver requests,
documents and supporting data, and take all such actions and give all such
additional notices as may be required or requested by the FCC or as may be
appropriate to respond to any post-Call Closing FCC inquiry or any third
party petition or complaint regarding the transfer of such Call Spectrum
in support of such transfer without conditions materially adverse to
Sprint or Operator. If any person petitions for reconsideration or review
of an FCC decision affirming such transfer before the FCC or appeals or
applies for review in any judicial proceeding, then Sprint and Operator
will use their Efforts to oppose such petition before the FCC or defend
such grant by the FCC. If the FCC rejects any transfer of Call Spectrum or
imposes conditions materially adverse to Operator or Sprint, then if
requested to do so by such adversely affected Party, such Party and the
other relevant Party will use their Efforts to secure reconsideration or
review of such action. Each Party will be responsible for the payment of
one-half of all Costs that the Parties incur in connection with their
performance under this Section 17.3(h), including all fees imposed by the
FCC on the filing of any notification and all legal fees incurred in the
preparation and prosecution of the notification.
17.4 Fair Market Value Determination. Where this Agreement specifies
that a Party will have the option to purchase any Transmission Equipment for its
fair market value, this Section 17.4 will govern such determination. The Party
selling such Transmission Equipment will provide the other Party with notice of
its determination of fair market value of the equipment to be purchased pursuant
to the relevant Section of this Agreement. The Parties will negotiate in good
faith for a period of 10 days following such notice of the determination of fair
market value of such equipment. If the Parties are unable to reach agreement as
to fair market value of such within such 10 day period, then the fair market
value will be conclusively determined by two qualified independent appraisers
with experience and expertise in valuation of assets such as the equipment in
question, one retained and paid by each of the Parties. The Parties will
promptly notify each other of their respective selections; provided, however, if
either Party fails to deliver notice to the other of its selection of an
appraiser within 15 business days after notice by the other Party that it has
selected an appraiser (which notice will identify such appraiser), the
determination will be rendered by the single appraiser so selected (whose fees,
in such case, will be borne equally by the Parties). The appraisers selected in
accordance with the foregoing procedure will each determine the fair market
value of the equipment (each of which value will be an amount that, on the basis
of market and other conditions prevailing at such time could reasonably be
expected to be paid for such equipment by a third party in an arm's length
transaction, assuming that the buyer and seller are under no compulsion to buy
or sell) and submit their determinations of such value to the Parties within 15
business days of their selection. The fair market value will be the amount equal
to the sum of such fair market values
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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for the equipment determined by each appraiser divided by two, except that if
there is more than a [***] difference between such values and the higher of such
two values exceeds the sum of [***] a third independent appraiser with
recognized experience and expertise in valuation of assets such as the
equipment, selected by the first two appraisers within 10 business days of such
appraiser's determination of fair market value (and, if the first two appraisers
are unable to select the third within such time frame, then the parties will,
within 5 business days of such inability, request the ranking executive officer
of the American Arbitration Association's Regional Office in Kansas City,
Missouri, or his or her designee to select the third appraiser and the parties
will direct that such selection be made within 15 business days of such
request), and such third appraiser will determine such fair market value (which
in no event will be outside the range created by the values determined by the
first two appraisers). The cost of such third appraiser will be borne one-half
by each Party.
Article XVIII
INTERPRETATION AND CONTRACT ADMINISTRATION
18.1 Notices. All notices and other communications given or made
pursuant to this Agreement will be in writing and will be deemed received as of
the first weekday (excluding Federal holidays) after being sent for next-day
delivery by United States Postal Service Express Mail, return receipt requested,
or by Federal Express, signature required, to the other person at the following
address:
If to Operator:
Fixed Wireless Holdings, LLC
10210 NE Points Road, Suite 210
Kirkland, WA 98033
Attention: Benjamin G. Wolff
Facsimile: (425) 828-8061
With a copy to:
Davis Wright Tremaine LLP
2600 Century Square
1501 Fourth Avenue
Seattle, Washington 98101-1688
Attention: Julie Weston, Esq.
Facsimile: (206) 628-7699
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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If to Sprint, or any Sprint Subsidiary:
Sprint Spectrum Management
[***]
With copy to:
[***]
Sprint Spectrum Management
A Party may change the address at which notices are to be given to it by giving
notice of such change to the other Party in the manner hereinabove provided for
the giving of notices. Notwithstanding anything to the contrary contained
herein, in the case of any notice given pursuant to Article XI or in any manner
alleging or pertaining to a breach of an obligation on the part of a Party
hereto, the notice will not be effective unless such notice is also sent via
facsimile to the other Party and to the copy addressees at the facsimile numbers
provided hereinabove. Furthermore, in the case of any notice contemplated by the
preceding sentence given by Operator, a copy of such notice will be sent
contemporaneously with the notice to the addressees listed hereinabove, and in
the manner provided hereinabove, to:
[***]
18.2 Interpretation and Construction. The headings and captions of
this Agreement are inserted for convenience and identification only and are in
no way intended to define, limit or expand the scope and intent of this
Agreement or any provision of this Agreement. Where the context so requires, the
singular will include the plural. The references contained in this Agreement to
"Sections" and "Articles" are to sections and articles of this Agreement unless
the context clearly requires otherwise. As used herein, the term "Agreement"
means this Agreement and all annexes, schedules and exhibits attached hereto. If
this Agreement requires interpretation or construction, this Agreement will not
be interpreted or construed more strictly against any one Party by reason of any
rule of interpretation or construction under which a document is to be construed
more strictly against the drafting party.
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18.3 Amendment and Waiver. Unless otherwise provided herein, this
Agreement may be amended or terminated only by an instrument in writing duly
executed by the Parties. Any waiver by any Party of any breach of or failure to
comply with any provision of this Agreement by the other Party will not be
construed as or constitute a continuing waiver of such provision, or a waiver of
any other provision hereof.
18.4 Third Parties. This Agreement will be binding upon and inure to
the benefit of the Parties hereto and their respective successors and assigns
(as permitted hereunder). It is not the intent of the Parties that there be any
third party beneficiaries of this Agreement, and this Agreement is exclusively
for the benefit of the Parties hereto and their respective successors and
assigns (as permitted hereunder).
18.5 Entire Understanding. THIS AGREEMENT SETS FORTH THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER CONTAINED IN
THIS AGREEMENT AND SUPERSEDES ALL PRIOR AGREEMENTS AND COLLATERAL COVENANTS,
ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR
WRITTEN, BY EITHER PARTY (OR ANY OWNER, MEMBER, OFFICER, DIRECTOR, PARTNER
EMPLOYEE OR REPRESENTATIVE OF EITHER PARTY) WITH RESPECT TO THE SUBJECT MATTER
OF THIS AGREEMENT.
18.6 Severability. If any provision or provisions of this Agreement
are determined to be invalid or contrary to any existing or future law, statute
or ordinance of any jurisdiction or any order, rule or regulation of a court or
regulatory or other governmental authority of competent jurisdiction, such
invalidity will not impair the operation of or affect those provisions in any
other jurisdiction or any other provisions of this Agreement which are valid,
and the invalid provisions will be construed in such manner that they will be as
similar in terms to such invalid provisions as may be possible, consistent with
applicable law; provided, however, that if a provision cannot be severed without
substantially diminishing the economic value of this Agreement to a Party, that
Party, notwithstanding anything to the contrary herein, may terminate this
Agreement on 90 days' written notice to the other Party.
18.7 Further Assistance. From time to time after the date of
execution, the Parties will utilize Efforts to take such further action and
execute such further documents, assurances and certificates as either Party may
reasonably request of the other in order to effectuate the purpose of this
Agreement. Notwithstanding the foregoing, and for the avoidance of doubt, the
Parties acknowledge that the FCC Rules governing the Spectrum and the leasing
thereof may be modified during the Term. If any such modification occurs which
results in any material provision of this Agreement being invalid, illegal,
incapable of being enforced, or incapable of being performed without a
materially adverse effect upon the Party responsible for such performance, the
Parties will negotiate in good faith to modify this Agreement to both comply
with the modified FCC Rules and to effect the original intentions of the Parties
as closely as possible in an acceptable manner to the end that the relationships
among the Parties with respect to the Spectrum contemplated hereby are fulfilled
to the maximum extent possible. In addition, each Party agrees that it will not
take any action that would adversely affect the rights granted by it to the
other Party hereunder.
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18.8 Force Majeure. Notwithstanding anything contained in this
Agreement to the contrary, neither Party will be liable to the other for failure
to perform any obligation under this Agreement other than for the payment of
money if prevented from doing so by reason of fires, strikes, labor unrest,
embargoes, civil commotion, rationing or other orders or requirements, acts of
civil or military authorities, acts of God or other contingencies beyond the
reasonable control of the Party responsible for such performance, and all
requirements as to notice and other performance required under this Agreement
within a specified period will be automatically extended to accommodate the
duration of any such contingency which interferes with such performance. This
Section 18.8 will not apply to excuse Operator from any Construction Default.
18.9 Counterparts. This Agreement may be signed in any number
of counterparts, each of which will be an original for all purposes, but all of
which together constitute one agreement.
18.10 Word Meanings. As used in this Agreement, the term
"including" is deemed to mean "including, without limiting the generality of the
foregoing." All pronouns and any variations therefor are deemed to refer to the
masculine, feminine, neuter, singular or plural as the context may require. All
references to "herein" means a reference to this Agreement. Unless another time
requirement is specifically provided, any consent of either Party or response to
a requested consent, as required hereunder will be given within 45 days from the
date of any such request, provided, however, that if Operator's launch of
commercial operations in a Closed Market is dependent upon obtaining Sprint's
consent sooner than 45 days, Operator's request for such consent will so state
and Sprint will either provide its consent or a response within 30 days of any
such request.
18.11 Reliance. It is understood that Operator's ability to
comply with certain obligations under this Agreement is subject to the
availability of accurate information from various sources, including Sprint,
Third Party Licensees and the FCC data base. Provided that Operator does not
have actual knowledge of any information which conflicts with information from
another source (regardless of whether provided by Sprint, a Third Party Licensee
or the FCC), Operator will be entitled to rely on information that is: (a)
provided by Sprint in that certain CD ROM previously delivered to Operator which
contains substantially all of the copies of the Sprint Authorizations, Primary
Leases and Leased Authorizations, as the same may be supplemented from time to
time, (b) provided by a Third Party Licensee in writing or other documented
format, or (c) contained in the FCC data base as long as such information is
confirmed as accurate by referencing information provided by Sprint. Subject to
the terms of this Section 18.11, Operator's obligations with respect to
maintenance of the Spectrum and construction of facilities under this Agreement
will be subject to such reasonable reliance by Operator. Upon the request of
Operator, Sprint will provide Operator with copies of any interference consents
identified in Schedule 9.2(e)(vii) or Schedule 9.2(e)(viii).
18.12 Survival of Obligations. All obligations of Operator or
Sprint which by their nature involve performance, in any particular, after the
end of the Term or after the end of Operator's right to use any given Spectrum,
or which cannot be ascertained to have been fully performed until after the end
of the Term or after the end of Operator's right to use
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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any given Spectrum, will survive the expiration or sooner termination of the
Term or Operator's right to use that given Spectrum.
18.13 Relationship of the Parties. This Agreement does not
constitute either Party as a joint venturer, partner or employee of the other
Party or an agent or representative of the other Party. Neither Party has the
right, power or authority, nor will it hold itself out as having the right,
power or authority, to create any contract or obligation, express or implied,
binding the other Party. The Parties agree that any and all contracts entered
into between Operator and its customers or any other entity will be for the sole
benefit of the parties thereto and will not be interpreted or construed in any
manner as obligating Sprint to perform for the benefit of such customers. Sprint
will not be liable to Operator's customers by virtue of leasing the Spectrum
capacity under this Agreement. Except as otherwise expressly stated herein, each
Party hereto is responsible for its own expenses incurred in connection with the
negotiation and performance of this Agreement.
18.14 Governing Law. This Agreement is governed by and is to
be construed and enforced in accordance with the Communications Act of 1934, as
amended, the FCC Rules, the laws of the State of Kansas and, with respect to
arbitration, the Federal Arbitration Act.
18.15 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, NO PARTY WILL BE LIABLE TO THE OTHER PARTY FOR
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR
LOSS OF PROFITS, ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF
BUSINESS UNDER, OR BREACH OF, THIS AGREEMENT, EXCEPT WHEN SUCH DAMAGES OR LOSS
OF PROFITS ARE CLAIMED BY OR AWARDED TO A THIRD PARTY (WHICH FOR PURPOSES OF
THIS SECTION 18.15 EXCLUDES ANY SPRINT INDEMNITEE OR OPERATOR INDEMNITEE) IN A
CLAIM OR ACTION AGAINST SUCH THIRD PARTY FOR WHICH A PARTY TO THIS AGREEMENT HAS
A SPECIFIC OBLIGATION TO INDEMNIFY ANOTHER PARTY TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the day and year first above written.
OPERATOR:
FIXED WIRELESS HOLDINGS, LLC
By: /s/ Benjamin G. Wolff
---------------------------------
Benjamin G. Wolff
Executive Vice President
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
78
SPRINT:
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
President
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
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* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
President
* * *
By: /s/ Todd A. Rowley
---------------------------------
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION EXECUTION VERSION
83
EXHIBIT A
CONSENT AND AGREEMENT
This Consent and Agreement ("Consent") is entered into effective ________,
2004 by and among ___________________ ("Licensee"), ___________________
("[Sprint Subsidiary]"), and Fixed Wireless Holdings, LLC ("Operator").
PRELIMINARY STATEMENTS
Licensee and [Sprint Subsidiary] are parties to that certain [IDENTIFY
ITFS/MDS LEASE] dated as of _________ ______, _____ (the "Lease") pursuant to
which [Sprint Subsidiary] leases from Licensee certain excess capacity spectrum
rights on the ____ channels in the ________, _______ market, call sign
_______________(the "Leased Spectrum").
Licensee understands that [Sprint Subsidiary] intends to grant Operator
rights to utilize the Leased Spectrum to construct and commence operation of a
wireless telecommunications system.
AGREEMENT
1. Licensee hereby consents to Sprint's grant of its rights to use the Leased
Spectrum to Operator and any affiliates of Operator, and further agrees
that, until notified otherwise by [Sprint Subsidiary], Operator will have
all of the rights and benefits of [Sprint Subsidiary] under the Lease.
Licensee agrees to accept performance of [Sprint Subsidiary]'s obligations
under the Lease directly from Operator. Licensee furthermore consents to
any future assignment of Sprint's rights under the Lease to Operator.
Sprint will remain liable as a surety for performance of the Lease.
2. Operator's use of the Leased Spectrum will at all times be subject to the
terms and conditions of the Lease, as the same may be amended from time to
time.
3. The notice provisions set forth in the Lease are hereby deleted in the
entirety and replaced with the provisions set forth on Exhibit A attached
hereto.
4. Except as otherwise set forth herein, all of the terms and conditions of
the Lease will remain in full force and effect.
5. Licensee certifies that, except as set forth on Exhibit B, (a) the Lease
is in full force and effect on the date hereof and that [Sprint
Subsidiary] and Licensee are in compliance with all material terms and
conditions thereof, without any default on the part of [Sprint Subsidiary]
or Licensee, (b) to the best of its knowledge, no breaches or defaults
exist under the Lease on the part of [Sprint Subsidiary] which have not
been fully cured within the time frames set forth in the Lease, (c) to the
best of its knowledge, there are no events or circumstances that, but for
the passage of time or giving of notice, would be a default under the
Lease, (d) no amounts are past due from [Sprint Subsidiary] under the
Lease, (e) the Lease constitutes the entire agreement between the Licensee
and [Sprint Subsidiary], and (f) the license granted by the FCC for the
Leased Spectrum was validly issued in accordance with procedures that
comply with the rules and regulations of the
SPRINT PROPRIETARY INFORMATION
EXHIBIT A - Consent and Agreement
A-1
FCC and other applicable laws, is issued pursuant to a final
non-appealable order and is in full force and effect as of the date of
this Consent.
6. The provisions of this Consent are irrevocable and will remain in full
force and effect until termination of the Lease as provided by its terms.
7. This Consent may be executed in any number of counterparts, each of which
will be deemed an original, but which together will constitute a single
instrument.
[remainder of page intentionally left blank]
SPRINT PROPRIETARY INFORMATION
EXHIBIT A - Consent and Agreement
A-2
IN WITNESS WHEREOF, the undersigned have executed this Consent effective
as of the dated first written above.
LICENSEE:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
[SPRINT SUBSIDIARY]:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
[OPERATOR]:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
SPRINT PROPRIETARY INFORMATION
EXHIBIT A - Consent and Agreement
A-3
EXHIBIT A
Notices
All notices and other communications given or made pursuant to the Lease will be
in writing and will be deemed received as of the first weekday (excluding
Federal holidays) after being sent for next-day delivery by United States Postal
Service Express Mail, return receipt requested, or by Federal Express, signature
required, to the other person at the following address:
If to Operator:
Fixed Wireless Holdings, LLC
Attn: Benjamin G. Wolff
10210 NE Points Road, Suite 210
Kirkland, WA 98033
Facsimile No. 425.828.8061
With a copy to:
Davis Wright Tremaine LLP
Attn: Julie Weston, Esq.
1501 Fourth Avenue
Seattle, WA 98101-1688
Facsimile No. 206.628.7698
If to Licensee:
__________________
__________________
__________________
With a copy to:
__________________
__________________
__________________
If to Sprint:
Sprint
[***]
SPRINT PROPRIETARY INFORMATION
EXHIBIT A - Consent and Agreement
A-4
With copy to:
Sprint
[***]
A party may change the address at which notices are to be given to it by
giving notice of such change to the other party in the manner hereinabove
provided for the giving of notices. Notwithstanding anything to the contrary
contained herein, in the case of any notice given which alleges or pertains to a
breach of an obligation on the part of a party hereto, the notice will not be
effective unless such notice is also sent via facsimile to the other party and
to the copy addressees at the facsimile numbers provided hereinabove.
Furthermore, in the case of any notice contemplated by the preceding sentence
given by Operator or Licensee to Sprint, a copy of such notice will be sent
contemporaneously with the notice to the addressees listed hereinabove, and in
the manner provided hereinabove, to:
[***]
SPRINT PROPRIETARY INFORMATION
EXHIBIT A - Consent and Agreement
A-5
EXHIBIT B
Estoppel Matters
List any matters which are responsive to Section 5:
SPRINT PROPRIETARY INFORMATION
EXHIBIT A - Consent and Agreement
A-6
EXHIBIT B
COMPUTATION OF MHZ HOUSEHOLDS
The table below represents, by Market, the cumulative MHz Households for all
Proposed Spectrum as of the Effective Date and includes the MHz Households for
all incumbent GSAs for such Proposed Spectrum with a centroid located in a
Market. The MHz Household count provided below also includes the MHz Households
for all channels licensed to the BTA authorization in the Markets where Sprint
is the holder of the BTA authorization. For any individual GSA for spectrum
(whether or not Proposed Spectrum), the number of MHz Households will be
determined in accordance with the terms set forth in this Exhibit B and will
equal the MHz for the applicable spectrum multiplied by the Households for the
applicable spectrum; provided, however that for the purposes of this Agreement
the MHz Households for any Spectrum included as Proposed Spectrum (as of the
Effective Date) will equal the MHz Households for such GSA as of the Effective
Date.
The MHz for the applicable spectrum means the total amount of spectrum, measured
in megahertz, which is authorized by the FCC from time to time pursuant to the
licenses for such spectrum.
The number of Households for any GSA which is not included in the computation of
the MHz Households set forth in the table below, will be determined using the
CelSpectrum application. If the CelSpectrum application is no longer available,
the determination of MHz Households will be determined using the methods and
procedures employed by the CelSpectrum application, or if not available, the
most similar application available.
The CelSpectrum application stores the FCC ULS database information to determine
the GSA license center. Changes to the database from the previous month are
determined and applied to the GSA drawing repository also contained on the
server housing the CelSpectrum application at CelPlan Technologies in Reston,
VA. The application looks at the PSA centroid coordinates and draws the 35mi PSA
boundary and then intersects that with all other PSAs of the same channel to
form GSAs (Geographical Service Areas). These GSAs are specified as the midline
intersection of the overlapping area between two PSAs. When multiple PSAs
overlap the same area the area is divided between the GSAs by extending the
midlines to ensure no gaps or overlaps in the territory that could be claimed by
any party. The algorithms used to draw these lines incorporate the Great Earth
Curvature as the line if actually drawn straight would allow gaps and overlaps.
This procedure allows for the fact that the shortest distance between two points
at the edges of the intersection is a slight curve. The GSAs are drawn on a per
channel basis. Monthly the entire nation's GSAs are pre-computed and stored for
quick reference and map retrieval.
The CelSpectrum application also contains two household database numbers. One
internally to CelPlan based on Census data and one embedded that is supplied as
an update from data supplied by SRC. This database is updated yearly with a
projection of the actual household count based on research conducted by SRC and
loaded into very small bins that the application uses the
SPRINT PROPRIETARY INFORMATION
EXHIBIT B - Computation of MHz Households
B-1
resulting GSAs to overlay against. The SRC database is the corporate standard
demographic analysis tool used by many top companies.
As of the Effective Date, the MHz Households for the following GSAs are as
follows:
* * *
SPRINT PROPRIETARY INFORMATION
EXHIBIT B - Computation of MHz Households
B-2
EXHIBIT C
TRANSMISSION FACILITIES OPERATION AND MAINTENANCE AGREEMENT
This Transmission Facilities Operation and Management Agreement (the
"AGREEMENT") is made effective as of October___, 2004 (the "EFFECTIVE DATE"),
and is executed by and between the undersigned wholly owned subsidiaries of
Sprint Corporation (each, a "SPRINT SUBSIDIARY" and collectively "SPRINT"), and
FIXED WIRELESS HOLDINGS, LLC, a Delaware limited liability company ("OPERATOR").
PRELIMINARY STATEMENTS
Each Sprint Subsidiary is a party to one or more spectrum lease agreements
(each, a "PRIMARY LEASE") with various third parties (each, a "THIRD PARTY
LICENSEE") pursuant to which such Sprint Subsidiary agreed, among other things,
to operate the Third Party Licensee's channels.
During the term of this Agreement, Sprint desires for Operator to operate
certain of the channels which are subject to the Primary Leases as requested in
writing from time to time by Sprint.
Sprint and Operator desire to enter into this Agreement to memorialize
their agreement with respect to Operator's operation of the certain channels
subject to the Primary Leases on behalf of Sprint using the Transmission
Equipment (as defined below).
AGREEMENT
In consideration of the foregoing and of the mutual promises and covenants
herein contained, Sprint and Operator hereby agree as follows:
1. Term. The term of this Agreement will commence on the Effective Date and
extend through the earlier of (i) the termination of the Market Operation,
Spectrum Lease and Sublicense Agreement dated October ____, 2004 by and
between Operator and certain wholly owned subsidiaries of Sprint
Corporation ("Region 1 Agreement") or (ii) 10th anniversary thereof. A
party may terminate this Agreement upon 30 days written notice to the
other party if the other party is in default and fails within such 30 day
period to cure such default. A party will be deemed to be in default under
this Agreement if it fails to comply with any material obligation, term or
covenant under this Agreement. Termination of this Agreement will not
affect or diminish the rights or claims or remedies available to the
non-defaulting party arising by reason of any default.
2. Channels. This Agreement will apply to the operation of those certain
channels subject to a Primary Lease which Sprint may from time to time
identify to Operator in a written notice (each, an "OPERATION NOTICE").
Each Operation Notice will include a statement that the services to be
provided by Operator are permitted under the Primary Lease, and that
Sprint has secured all rights of access and permissions needed by Operator
to perform its obligations hereunder. Effective no later than thirty (30)
days following delivery of an Operation Notice (each, an "OPERATION
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-1
COMMENCEMENT DATE"), any channels designated therein will be considered as
"Channels" for purposes of this Agreement. From tune to time during the
term of this Agreement, Sprint may elect to terminate this Agreement with
respect to specific Channels by providing written notice (each, a
"TERMINATION NOTICE") identifying such Channels. Effective as of the tenth
(10th) day following the Termination Notice (the "OPERATION TERMINATION
DATE"), such Channels will no longer be considered Channels for purposes
of this Agreement.
3. Fees. No later than the 10th day of each calendar month during the term,
Sprint will pay Operator an "Operation and Maintenance Fee" pursuant to
the terms set forth on Schedule 3. For any partial calendar month during
the term of this Agreement, Sprint will pay Operator a pro-rata share of
the amount stated above. Such pro-rata fee will be due and payable within
10 days of the expiration of such partial calendar month. Except as set
forth in the Region 1 Agreement dated as of the date hereof between Sprint
and Operator, Sprint will be responsible for the payment of all fees,
royalties, expenses and other costs arising under the Primary Leases and
shall indemnify and hold Operator harmless from the payment of any such
amounts. In addition, Sprint will reimburse Operator for any out-of-pocket
costs or expenses incurred by Operator in the performance of the services
as set forth under this Agreement, provided, that to the extent any such
costs and expenses exceed [***] for any calendar month, Sprint has
approved such costs and expenses. Notwithstanding anything to the contrary
set forth herein, Operator will not be obligated to perform any services
hereunder if Sprint has not agreed to reimburse Operator for the costs and
expenses related to such services which are otherwise reimbursable
pursuant to this Agreement; provided that Sprint has not suggested or
provided a lower cost alternative for the provision of such services. Any
amount not paid hereunder when due will bear interest at the rate of [***]
per annum from the date due until such amount, along with all accrued
interest thereon, is paid in full.
4. Utilities. During the term of this Agreement, Operator will provide the
utilities necessary for the transmission over the Channels as required
pursuant to the terms of this Agreement.
5. Equipment. Each Operation Notice will include a detailed description of
all equipment which is then currently used in connection with the
transmission of the Channels identified in such Operation Notice, and
following the Operation Commencement Date such equipment will be
considered as "Transmission Equipment" for purposes of this Agreement.
From and after the Operation Termination Date for any Channels, the
Transmission Equipment being used in connection with such Channels will no
longer be considered Transmission Equipment for purposes of this
Agreement.
6. Operation of the Channel(s). During the term of this Agreement and subject
to the terms set forth herein, Operator will operate the Channels on
behalf of the applicable Sprint Subsidiary, using the Transmission
Equipment and, to the extent necessary and proper, other equipment owned
by Operator and others, in accordance with Sprint's instructions to
satisfy the terms of the Primary Lease governing such Channels and in
accordance with any other written instructions of Sprint. Sprint will
provide operational instructions to Operator with respect to the
operations of the channels and
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-2
compliance with the Primary Lease. Subject to reimbursement by Sprint of
Operator's costs in connection with such access rights, the applicable
Third Party Licensee and Sprint will have access to the transmission
facilities used in the transmission of any applicable Third Party
Licensee's Channels no later than the earlier of (a) any time period for
such access as specified in such applicable Primary Lease, (b) any time
period required under the FCC Rules or by the FCC, or (c) 72 hours
following written notice to Operator. Notwithstanding anything to the
contrary contained herein, Sprint may, in its sole discretion, elect to
perform any obligations under any Primary Lease, including without
limitation, any construction obligations thereunder, without reduction of
the fees payable to Operator in accordance with this Agreement.
7. Programming and Delivery of Content. Throughout the term of this
Agreement, Operator will, pursuant to Sprint's instructions, provide the
minimum amount of programming for transmission using the Channels as
required under each applicable Primary Lease; provided, however that the
content of such programming shall be provided by Sprint or by the Third
Party Licensee to Operator in a timely manner. To the extent any equipment
and facilities utilized as of the Effective Date to deliver content for
transmission over any Third Party Licensee's Channels is controlled by
Operator pursuant to the terms of the Region 1 Agreement, Operator will
provide Sprint and any Third Party Licensee access to such equipment and
facilities as necessary to satisfy their respective obligations to provide
programming content as set forth in this Section 7.
8. Maintenance. Operator will provide routine maintenance as needed, and
pursuant to any written instructions from Sprint, to the Transmission
Equipment. Should any of the Transmission Equipment require repair other
than routine maintenance or replacement, as determined in Operator's
reasonable discretion or pursuant to written instructions from Sprint,
Sprint will reimburse Operator for the cost of such repairs, replacement,
and any parts, equipment and expenses incurred by Operator with regard to
such repair or replacement. Upon installation, any replacement equipment
will become Transmission Equipment. Upon payment to Operator, any such
replacement equipment will become the property of Sprint. Furthermore,
Sprint will reimburse Operator for such expenses incurred by Operator in
making any upgrades, modifications, or improvements in connection with the
operation of the Channels as agreed to by the parties. Sprint will
reimburse Operator for any such costs and expenses no later than 30 days
following Operator's delivery of an invoice for such expenses.
9. Regulatory Compliance. Each of the parties hereto will take all reasonable
steps to comply with the Communications Act of 1934, as amended, and the
rules and regulations of the FCC. Notwithstanding anything to the contrary
contained herein, the Third Party Licensee will at all times retain such
responsibility for the operation and control of the facilities licensed to
it as is required by the FCC's rules and policies.
10. Insurance. At its expense, Operator will secure and maintain with
financially reputable insurers "All Risk" property insurance covering the
Transmission Equipment for its replacement value. A certificate of
insurance will be delivered to
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-3
Sprint within 30 days of the Effective Date evidencing that the above
coverage is in effect and will not be canceled or materially altered
without first giving Sprint 30 days' prior written notice. Renewal
certificates will be delivered prior to the expiration of the term
thereof. Sprint will be named as an additional insured on the above
referenced policy of insurance.
11. Indemnification. Sprint will indemnify, defend (with legal counsel
reasonably acceptable to Operator) and hold Operator and its respective
affiliates, managers, officers, directors, employees, agents, attorneys,
representatives, successors and assigns (the "Operator Indemnitees")
harmless from and against any and all liabilities, claims, judgments,
orders, governmental directives, direct damages and losses, fines,
penalties, expenses (including without limitation reasonable consultants',
experts' and attorneys' fees), and costs which arise from the operation of
the Channels pursuant to Sprint's instruction as set forth in this
Agreement, programming provided by Sprint or the Third Party Licensee, and
the acts, omissions, negligence or willful misconduct of Sprint, its
officers, employees or agents in connection with Sprint's operation of the
Channels.
12. Notice. All notices and other communications given or made pursuant to
this Agreement will be in writing and will be deemed received as of the
first weekday (excluding Federal holidays) after being sent for next-day
delivery by United States Postal Service Express Mail, return receipt
requested, or by Federal Express, signature required, to the other party
at the following address:
If to Operator:
Fixed Wireless Holdings, LLC
Attn: Benjamin G. Wolff
10210 NE Points Road, Suite 210
Kirkland, WA 98033
Facsimile No. 425.828.8061
With a copy to:
Davis Wright Tremaine LLP
Attn: Julie Weston, Esq.
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101-1688
Facsimile No. 206.628.7699
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-4
If to Sprint:
Sprint
[***]
With copy to: Sprint
Sprint
[***]
A party may change the address at which notices are to be given to it by giving
notice of such change to the other party in the manner hereinabove provided for
the giving of notices. Notwithstanding anything to the contrary contained
herein, in the case of any notice which in any manner alleges or pertains to a
breach of an obligation on the part of a party hereto, the notice will not be
effective unless such notice is also sent via facsimile to the other party and
to the copy addressees at the facsimile numbers provided hereinabove.
Furthermore, in the case of any notice contemplated by the preceding sentence
given by Operator, a copy of such notice will be sent contemporaneously with the
notice to the addressees listed hereinabove, and in the manner provided
hereinabove, to:
[***]
13. Assignment. This Agreement may not be assigned by Operator in whole or in
part, without the prior written consent of Sprint which may be withheld by
Sprint in its sole discretion; provided, however that this agreement may
be assigned without Sprint's consent in connection with the permitted
assignment of the Region 1 Agreement. Sprint has the absolute right to
assign or otherwise transfer its rights and obligations under this
Agreement, provided, however, that any such assignment shall not relieve
Sprint of its obligations under this Agreement.
14. Not A Lease. This Agreement and Operator's rights hereunder will not be
construed as a sublease, assignment, transfer or the granting of any
rights to use the Channels by Operator and Operator will have no right to
utilize the Channels for the transmission of content of Operator's
choosing, other than as required pursuant to paragraph 7. It is expressly
agreed that this Agreement is a contract for services.
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-5
15. Force Majeure. If by reason of act of God, acts of public enemies, orders
of any branch of the government of the United States of America, any state
or any political subdivision thereof which are not the result of a breach
of or default under this Agreement, orders of any military authority,
insurrections, riots, epidemics, fires, civil disturbances, explosions, or
any other similar cause or event not reasonably within the control of
Operator, Operator is unable in whole or in part to perform its
obligations hereunder, Operator will not be deemed in violation or default
of this Agreement during the period of such inability.
16. No Waivers. The failure on the part of either party to exercise, or any
delay in exercising, any right or remedy hereunder will not operate as a
waiver of such right or remedy. Any single or partial exercise by either
party of any right or remedy hereunder will not preclude the exercise of
any other right or remedy or the further exercise of such right or remedy.
17. Relationship. The performance by each party of its duties and obligations
under this Agreement will be that of an independent contractor and nothing
herein will create or imply an agency relationship between the parties,
nor will this Agreement be deemed to constitute a joint venture or
partnership between the parties.
18. Governing Law. This Agreement will be governed by and construed in
accordance with the Communications Act of 1934, as amended, the FCC's
rules and policies, and the laws of the State of Kansas, without giving
effect to the conflicts of laws principles thereof.
19. Entire Understanding. Except for the Region 1 Agreement and the other
agreements referenced therein, this Agreement represents the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous writings, correspondence and
memoranda with respect thereto.
20. Amendments. This Agreement may be modified or amended only by a written
amendment executed by all parties.
21. Severability. If any provision of this Agreement is determined by any
court, the FCC or any other governmental authority to be invalid, illegal
or incapable of being enforced, all other provisions will nevertheless
remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
22. Interpretation and Construction. The headings contained in this Agreement
are for convenience of reference only and do not affect in any way the
meaning or interpretations of this Agreement. If this Agreement requires
interpretation or construction, this Agreement will not be interpreted or
construed more strictly against any one party by reason of any rule of
interpretation or construction under which a document is to be construed
more strictly against the drafting party. As used in this Agreement, the
term "including" is deemed to mean "including, without limiting the
generality of the foregoing."
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-6
23. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, but all of which will constitute one and
the same instrument
[Remainder of page intentionally left blank; signature page(s) follow]
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
OPERATOR:
FIXED WIRELESS HOLDINGS, LLC
By:__________________________________________
Benjamin G. Wolff
Executive Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-8
SPRINT:
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-9
* * *
By:__________________________________________
Todd A. Rowley
President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-10
* * *
BY:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-11
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
President
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-12
* * *
By:__________________________________________
Todd A. Rowley
Vice President
* * *
By:__________________________________________
Todd A. Rowley
President
* * *
By:__________________________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
C-13
SCHEDULE 3
Fees
[ATTACHED]
SPRINT PROPRIETARY INFORMATION
EXHIBIT C - Transmission Facilities Operation and Maintenance Agreement
EXHIBIT D
[Date]
[Address]
Re: [Identify Lease Agreement] dated _________, ______ between _________
and _________________ ("Primary Lease"); Market Operation and
Sublicense Agreement dated ___________, 2004 among various
subsidiaries of Sprint Corporation and Fixed Wireless Holdings, LLC,
a wholly owned subsidiary of Clearwire Corporation.
Dear [Name]:
We are pleased to announce that various subsidiaries of Sprint Corporation
(collectively, "Sprint") have entered into the above referenced Market Operation
and Sublicense Agreement ("Market Operation Agreement") with Fixed Wireless
Holdings, a wholly owned subsidiary of Clearwire Corporation ("Clearwire").
While Sprint will remain actively involved in developing technology and
infrastructure for delivery of advanced "4G" mobile and portable broadband
wireless services, Sprint has entered into this Agreement in an effort to hasten
the deployment of commercially available broadband and wireless services in
certain small and midsize markets by leasing and subleasing Sprint's MMDS and
ITFS spectrum to Clearwire.
Sprint selected Clearwire to develop and operate the market because of
Clearwire's commitment to delivering broadband wireless services in markets
throughout the United States including the licensed area covered by your
spectrum. Clearwire currently offers self-installed broadband Internet access
with download speeds of up to 1.5 Mbps. Clearwire provides it service over MMDS
and ITFS spectrum, and has acquired such spectrum in numerous markets throughout
the United States. Clearwire is currently providing its services to customers in
Jacksonville, Florida, and intends to launch its services in several additional
markets by the end of 2004 and throughout 2005. Clearwire's management is a team
of telecommunications industry professionals led by Craig McCaw, who serves as
Clearwire's Chief Executive Officer. Mr. McCaw has been an active entrepreneur
and investor in the communications industry for over 35 years.
Pursuant to the Market Operation Agreement, Sprint has granted to Clearwire the
right to use your channels in the deployment of a wireless service. In return,
following a transition period, Clearwire will step into Sprint's shoes and
perform all obligations previously performed by Sprint under the Primary Lease.
Therefore, upon completion of the transition period, Clearwire will, to the
extent required under the Primary Lease:
1. operate and maintain all equipment used in connection with the
operation of your channels;
SPRINT PROPRIETARY INFORMATION
EXHIBIT D - Form of Notice
D-1
2. maintain, repair and replace your ITFS receive site facilities(1/);
3. fulfill any obligations under the Primary Lease to provide
programming content for your use in satisfaction of the FCC's
minimum educational use requirements(2/);
4. directly pay to you all payments and reimbursements due under the
Primary Lease. [Determination of the revenue sharing component of
your compensation under the Primary Lease will be based upon the
revenues collected by Clearwire from its customers](3/); and
5. be responsible to ameliorate any materially adverse effect to your
programming(4/).
Furthermore, effective as of ______________, Sprint has granted Clearwire the
right to enforce the Primary Lease, including the right to modify the facilities
used in connection with your channels and request interference consents as
permitted under the Primary Lease. Therefore, unless notified otherwise by
Sprint, you should comply with all of Clearwire's instructions to the extent
consistent with the Primary Lease.
Please note that Clearwire has agreed to comply with all terms of the Primary
Lease, including restrictions on content, in connection with its use of your
channels. As Clearwire will have certain rights under and will perform all
obligations under the Primary Lease, all future notices under the Primary Lease
from you must be provided to Clearwire with a copy to Sprint. Exhibit A to this
letter provides the correct notice address for your use in the future.
This letter serves as Sprint's notice to you of the transfer of certain rights
held by Sprint pursuant to the Primary Lease. We look forward to your
cooperation in the transition of the operation of your channels to Clearwire. If
you have any questions regarding the Market Operation Agreement and the
continued lease of your channels by Sprint, please do not hesitate to contact
[INSERT LRD].
----------
(1/) Only applicable to ITFS leases.
(2/) Only applicable to ITFS leases.
(3/) Only applicable if Primary Lease has revenue share component.
(4/) Only applicable to ITFS leases.
SPRINT PROPRIETARY INFORMATION
EXHIBIT D - Form of Notice
D-2
EXHIBIT E
TRANSITION SERVICES AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is entered into as of the ___ day
of _, 2004 by and among each of the undersigned wholly owned subsidiaries of
Sprint Corporation (collectively, "SPRINT"), and Fixed Wireless Holdings, LLC, a
Delaware limited liability company ("OPERATOR").
PRELIMINARY STATEMENTS
Pursuant to that certain Market Operation, Spectrum Lease and
Sublicense Agreement dated as of the date hereof among Sprint and Operator (the
"MARKET OPERATION AGREEMENT"), Sprint granted to Operator the right to use the
Spectrum, Sprint Equipment and Towers (as defined in the Market Operation
Agreement).
In order to facilitate the transition of the operation of the
Spectrum from Sprint to Operator, including performance of functions
traditionally associated with the maintenance of the Leased Spectrum (as defined
in the Market Operation Agreement), the parties desire to enter into this
Agreement.
AGREEMENT
In consideration of the agreements set forth herein and the
agreements between Sprint and Operator in the Market Operation Agreement, Sprint
and Operator hereby agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms not otherwise defined herein will have the
meanings assigned to such terms in the Market Operation Agreement.
ARTICLE 2
PLANNING AND SERVICES
2.1 Transition Meetings. No later than 60 days following the date
hereof, operations management representatives of Operator will meet with
Sprint's spectrum management, lease portfolio management, and network operations
representatives at Sprint's corporate headquarters in Overland Park, Kansas. At
such meeting Operator will present to Sprint Operator's transition plan setting
forth with detail, including project completion dates, the steps necessary to
transition operation and management of the Spectrum, Sprint Equipment, Primary
Leases and Towers from Sprint to Operator. Sprint and Operator will mutually
revise such plan as the parties deem necessary and appropriate. No later than 90
days following the Effective Date, operations management representatives of
Sprint and Operator will meet at Operator's Kirkland, Washington corporate
headquarters. At such meeting, Operator will explain to Sprint and/or
demonstrate the controls and procedures which it will use in management of the
Spectrum, Primary Leases, Sprint
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-1
Equipment and Towers. Sprint will have the right to be present and observe
Operator's initial payments to Third Party Licensees following the Initial
Closing Date.
2.2 Transition Services. During each Market Term (as defined in
Article 5) with respect to such applicable Closed Market, Sprint will provide to
Operator those services described in Exhibit A to this Agreement (collectively,
the "SERVICES") in accordance with the terms set forth herein.
2.3 Additional Services. Operator may request that services other
than those set forth on Exhibit A (the "ADDITIONAL SERVICES") be provided by
Sprint. Sprint agrees to provide Additional Services which are necessary to
maintain the Primary Leases, Leased Spectrum and Sprint Authorizations, as
reasonably requested by Operator during the Term.
ARTICLE 3
FEES FOR SERVICES
3.1 Fees for Services.
(a) Reimbursement for Expenses. In addition to the fees set
forth in Sections 3.1(b) and 3.1(c), Operator will reimburse Sprint for
purchases of supplies, travel and other items necessary for performance
of the Services and Additional Services and all other reasonable costs
and expenses, including engineering and legal services, incurred by
Sprint in connection with the performance of the Services and Additional
Services; provided that such costs and expenses have not been otherwise
reimbursed or paid under the Market Operation Agreement or otherwise and,
to the extent any such costs and expenses exceed [***] for any calendar
month, Clearwire has approved such costs and expenses. Notwithstanding
anything to the contrary set forth herein, Sprint will not be obligated
to perform any Services or Additional Services if Operator has not agreed
to reimburse Sprint for the costs and expenses related to such Services
or Additional Services which otherwise are reimbursable pursuant to this
Agreement; provided that Operator has not suggested or provided a lower
cost alternative for the provision of such Services or Additional
Services.
(b) Additional Services. Operator will pay Sprint for the
Additional Services requested by Operator pursuant to Section 2.3
according to the rates and terms set forth in Exhibit B.
(c) Services Provided After Expiration of any Market Term. If,
for any reason, Sprint provides Services to Operator attributable to a
Closed Market following expiration of the applicable Market Term, in
addition to reimbursement of costs and expenses set forth in Section
3.l(a). Operator will pay Sprint according to the rates and terms as set
forth on Exhibit B attached hereto. Notwithstanding anything to the
contrary contained herein, in no event shall this Section be construed as
a waiver of any event of default or breach by Operator of the terms of the
Market Operation Agreement, it being understood and agreed that Sprint
rights pursuant to this Section 3.1(c) are independent and in addition to
any other rights Sprint has under the Market Operation Agreement.
3.2 Payment of Fees and Reimbursements. Sprint will deliver to
Operator, on a monthly basis, an invoice reflecting the total amount of the fees
for Additional Services and, as
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-2
applicable, Services provided by it during the prior month, along with costs and
expenses and copies of invoices to support reimbursement requests. For
avoidance of doubt, this Section 3.2 governs Operator's obligations to reimburse
Sprint for any costs and expenses which Operator has assumed pursuant to the
Market Operation Agreement to the extent such amounts are paid by Sprint on
behalf of Operator hereunder. Operator will pay the fees and charges reflected
on such invoices by wire transfer in immediately available funds no later than
10 days after receipt of any invoice. Any amount not paid hereunder when due
will bear interest at the rate of 13.5% per annum from the date due until such
amount, along with all accrued interest thereon, is paid in full.
3.3 Examination Right. Operator will be entitled to have its
authorized representative or independent accountants examine Sprint's records
pertaining to the respective fees and charges referenced in this Article 3. No
later than 20 days following written notice from Operator, not to be given more
than twice during the Term, Sprint will make such records available to Operator
by furnishing access to such information at Sprint's offices or, upon the
election of Sprint, by delivering copies of such records to Operator.
ARTICLE 4
STANDARD OF CARE
Sprint agrees to perform the Services with the same level of due
care with which such Services were performed prior to execution of the Market
Operation Agreement. At a minimum, Sprint will perform the Services in a
competent and workman-like manner using its commercially reasonable efforts and
in a manner which is consistent with the manner in which such Services were
performed immediately prior to execution of the Market Operation Agreement.
ARTICLE 5
TERM; TERMINATION
With respect to any Closed Market, the term of this Agreement will
commence on the Initial Closing Date or applicable Market Closing Date for such
Closed Market and will continue for a period of 90 days thereafter unless
otherwise agreed to in writing by the parties (each, a "MARKET TERM"). This
Agreement will expire on the earlier to occur of (a) the date on which the last
Market Term expires, or (b) 24 months following the Effective Date (such period
this Agreement is in effect, the "TERM"). Operator may terminate all of the
Services of a particular type which it is then receiving for all Closed Markets
by providing notice to Sprint specifying the effective date of such termination,
no later than 10 days prior to the effective date of such termination.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Force Majeure. If by reason of act of God, acts of public
enemies, orders of any branch of the government of the United States of America,
any state or any political subdivision thereof which are not the result of a
breach of or default under this Agreement, orders of any military authority,
insurrections, riots, epidemics, fires, civil disturbances, explosions, or any
other similar cause or event not reasonably within the control of Sprint, Sprint
is unable in whole or in part to
SPRINT PROPRIETARY INFORMATION
EXHIBIT E- Transition Services Agreement
E-3
perform its obligations hereunder, Sprint will not be deemed in violation or
default of this Agreement during the period of such inability.
6.2 No Waivers. The failure on the part of either party to exercise,
or any delay in exercising, any right or remedy hereunder will not operate as a
waiver of such right or remedy. Any single or partial exercise by either party
of any right or remedy hereunder will not preclude the exercise of any other
right or remedy or the further exercise of such right or remedy.
6.3 Notices. All notices and other communications given or made
pursuant to this Agreement will be in writing and will be deemed received as of
the first weekday (excluding Federal holidays) after being sent for next-day
delivery by United States Postal Service Express Mail, return receipt requested,
or by Federal Express, signature required, to the other party at the following
address:
If to Operator:
Fixed Wireless Holdings, LLC
Attn: Benjamin G. Wolff
10210 NE Points Road, Suite 210
Kirkland, WA 98033
Facsimile No. 425.828.8061
With a copy to:
Davis Wright Tremaine LLP
Attn: Julie Weston, Esq.
1501 Fourth Avenue
Seattle, WA 98101-1688
Facsimile No. 206.628.7698
If to Sprint:
Sprint
[***]
With copy to:
Sprint
[***]
A party may change the address at which notices are to be given to it by giving
notice of such change to the other party in the manner hereinabove provided for
the giving of notices. Notwithstanding
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-4
anything to the contrary contained herein, in the case of any notice which in
any manner alleges or pertains to a breach of an obligation on the part of a
party hereto, the notice will not be effective unless such notice is also sent
via facsimile to the other party and to the copy addressees at the facsimile
numbers provided hereinabove. Furthermore, in the case of any notice
contemplated by the preceding sentence given by Operator, a copy of such notice
will be sent contemporaneously with the notice to the addressees listed
hereinabove, and in the manner provided hereinabove, to:
[***]
6.4 Relationship. The performance by each party of its duties and
obligations under this Agreement will be that of an independent contractor and
nothing herein will create or imply an agency relationship between the parties,
nor will this Agreement be deemed to constitute a joint venture or partnership
between the parties.
6.5 Governing Law. This Agreement will be governed by and construed
in accordance with the Communications Act of 1934, as amended, the FCC's rules
and policies, and the laws of the State of Kansas, without giving effect to the
conflicts of laws principles thereof.
6.6 Covenant of Further Assurances. The parties covenant and agree
that, subsequent to the execution and delivery of this Agreement and without any
additional consideration, each of the parties will execute and deliver, or cause
appropriate affiliates to execute and deliver, any further legal instruments and
will perform any acts which are or may become reasonably necessary to effect the
purposes of this Agreement.
6.7 Assignment. Neither party may assign any of its rights under
this Agreement without the prior written consent of the other parties which such
consent will not be unreasonably conditioned, withheld, or delayed, except that
either party may assign any of its rights under this Agreement to (i) any parent
company or subsidiary of the assigning party, or to any entity under common
ownership with the assigning party, provided that such assignee, or assignees,
have the resources and ability to perform the obligations of the assigning party
under this Agreement, (ii) any entity which acquires the assigning party's
interests under the Market Operation Agreement, or (iii) any entity which
acquires the assigning party or substantially all of the assets of the assigning
party, provided, however, that any such assignment shall not relieve the
assigning party of its obligations under this Agreement. Subject to the
preceding sentence, this Agreement will apply to, be binding in all respects
upon, and inure to the benefit of the successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement will be construed to
give any Person other than Sprint and Operator any legal or equitable right,
remedy, or claim under or with respect to this Agreement or any provision of
this Agreement. This Agreement and all of its provisions and conditions are for
the sole and exclusive benefit of the parties to this Agreement, and their
respective permitted successors and assigns.
6.8 Entire Understanding. Except for the Market Operation Agreement
and other agreements referenced therein, this Agreement represents the entire
understanding of the parties with
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-5
respect to the subject matter hereof and supersedes all prior or contemporaneous
writings, correspondence and memoranda with respect thereto.
6.9 Interpretation and Construction. The headings contained in this
Agreement are for convenience of reference only and do not affect in any way the
meaning or interpretations of this Agreement. If this Agreement requires
interpretation or construction, this Agreement will not be interpreted or
construed more strictly against any one party by reason of any rule of
interpretation or construction under which a document is to be construed more
strictly against the drafting party. As used in this Agreement, the term
"including" is deemed to mean "including, without limiting the generality of the
foregoing."
6.10 Amendments. This Agreement may be modified or amended only by a
written amendment executed by all parties.
6.11 Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers effective as of the day and year
first above written.
OPERATOR:
FIXED WIRELESS HOLDINGS, LLC
By: _____________________________
Benjamin G. Wolff
Executive Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-6
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-7
* * *
By: _____________________________
Todd A. Rowley
President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-8
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-9
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
President
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-10
* * *
By: _____________________________
Todd A. Rowley
Vice President
* * *
By: _____________________________
Todd A. Rowley
President
* * *
By: _____________________________
Todd A. Rowley
Vice President
SPRINT PROPRIETARY INFORMATION
EXHIBIT E- Transition Services Agreement
E-l1
EXHIBIT A
TRANSITION SERVICES
Subject to Operator's reimbursement and payment obligations set forth in
Sections 3.1 and 3.2, Sprint will perform the following Services:
1. Maintenance of Sprint Equipment. Sprint will maintain all Sprint Equipment
and other equipment used in connection with the operation of the Spectrum in a
given Closed Market as of the applicable Initial Closing Date or Market Closing
Date to the extent necessary to operate the Spectrum in the subject Closed
Market. Furthermore, Sprint will repair or replace any non-operational Sprint
Equipment to the extent necessary to operate the Spectrum in the subject Closed
Market.
2. Primary Lease Maintenance.
a. Payment Services. Sprint will pay each Licensee any and all amounts due
and owed under the applicable Primary Leases.
b. Receive Site Equipment Services. Sprint will maintain, and to the
extent necessary, repair and replace, all ITFS receive site equipment
where required pursuant to applicable Primary Leases.
c. Enforcement Services. Sprint will monitor and demand compliance by the
Third Party Licensees with all material terms of the Primary Leases.
3. Programming/Operation Services.
a. ITFS Channels. Sprint will continue to provide the video programming
utilized by Licensees in compliance with the Primary Leases.
b. MDS Channels. Sprint will continue to provide programming over the MDS
Channels as Sprint provides as of the Initial Closing Date, or applicable
Market Closing Date.
4. Regulatory Compliance Services. Sprint will file all reports and other
materials required by the FCC with respect to the Sprint Spectrum. Furthermore,
Sprint will assist each Licensee with the filing of all reports and other
materials required by the FCC with respect to the Leased Spectrum.
5. Other Payment Services. During the applicable Market Term with respect to any
given Closed Market, Sprint will pay on behalf of Operator (subject to
reimbursement) monthly tower rent, utility fees and charges, taxes and licensing
fees, and such other payment obligations to third parties assumed by Operator
pursuant to the terms of the Market Operation Agreement.
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-12
EXHIBIT B
FEES
Operator will pay Sprint for the Services and Additional Services at the hourly
rates set forth below for each hour of time that any Sprint employee or
contractor spends in delivering the Services or Additional Services. [***]
[Enlarge/Download Table]
Hourly Rate for Additional
Period Services Hourly Rate for Services
--------------------------------------- ---------------------------- ------------------------
1st through 60th days of Market Term [***] N/A
61st through 90th days of Market Term [***] N/A
Following the Market Term [***] [***]
SPRINT PROPRIETARY INFORMATION
EXHIBIT E - Transition Services Agreement
E-13
EXHIBIT F
GUARANTY AND COVENANT AGREEMENT
This Guaranty and Covenant Agreement ("Guaranty") is executed and
delivered this_____day of__________, 2004 by Guarantor (as defined below), in
favor of Sprint (as defined below).
As used herein, the following terms will have the meanings set forth
below:
"Guarantor" means Clearwire Corporation, a Delaware corporation, and its
successors and assigns.
"Market Operation Agreement" means that certain Market Operation, Spectrum
Lease and Sublicense Agreement dated as of October_____, 2004 among Operator and
Sprint.
"Operator" means Fixed Wireless Holdings, LLC, a Delaware limited
liability company, and its successors and assigns.
"Sprint" means collectively the parties to the Market Operation Agreement
which are collectively referred to therein as Sprint, and each of their
successors and assigns.
Guarantor acknowledges that its execution and delivery of this Guaranty is
a condition to Sprint's agreement to the terms of the Market Operation
Agreement. Furthermore, Guarantor acknowledges that Operator is a wholly owned
subsidiary of Guarantor and that Guarantor will derive substantial benefit from
the Market Operation Agreement.
For value received, Guarantor does hereby unconditionally and irrevocably
guarantee, as primary obligor and not merely as surety, to Sprint, the accuracy
of each representation and warranty made by and the due and punctual
performance, observance and discharge of each term, provision, duty, covenant
and agreement of Operator contained in, and the due and punctual payment (when
and as the same may become due and payable) of each amount which the Operator is
or may become obligated to pay under or pursuant to, the Market Operation
Agreement and all other agreements executed in connection therewith
(collectively referred to herein as the "Guaranteed Obligations").
The Guarantor hereby waives promptness, diligence and notice as to the
obligations and covenants contained herein and acceptance of this Guaranty, and
waives any other circumstance which might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety, or that might
otherwise limit the obligations of the Guarantor hereunder, including without
limitation the failure of any security or the failure of any Person to perfect
any security interest. The Guarantor hereby agrees that it will not be entitled
to consent to, or receive any notice of, any amendment or modification of, or
waiver, release, consent or extension with respect to, or assignment of any
agreement giving rise to a Guaranteed Obligation that may be made or given as
provided therein. Except as expressly provided below, the Guarantor will have no
right to terminate this Guaranty or to be released or discharged from its
obligations hereunder for any reason whatsoever, including, without limitation,
any such
SPRINT PROPRIETARY INFORMATION
EXHIBIT F - Guaranty and Covenant Agreement
F-1
amendment, or modification of, or waiver, release, consent or extension, any
merger, consolidation, sale of assets or change in the ownership of any shares
of capital stock of the Operator or the assignment by the Operator of its rights
in any agreement giving rise to a Guaranteed Obligation or any insolvency,
bankruptcy, liquidation, reorganization or cessation of existence of the
Operator, unless and until all Guaranteed Obligations have been performed or
discharged in full. The Guarantor agrees to pay any reasonable costs and
expenses including but not limited to litigation expenses and reasonable
attorneys' fees in connection with the enforcement of this Guaranty.
The Guarantor agrees that this Guaranty will automatically be reinstated
if and to the extent that for any reason any payment by or on behalf of the
Operator is rescinded or must be otherwise restored, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise.
This Guaranty can be terminated (a) only with respect to obligations not
yet incurred; and (b) only by actual receipt by Sprint of written notice of
Guarantor's intent to terminate; plus (c) a reasonable lapse of time for Sprint
to act on such notice. This Guaranty cannot be terminated with respect to any
Obligations committed to or contracted for or outstanding at the time such
notice is received. For purposes of clarity, Guarantor acknowledges and agrees
that the contractual obligations under the Market Operation Agreement as it
exists on the date of this Guaranty are obligations which have been incurred.
Reference is made to Section 9.03 of that certain Amended and Restated
Stockholders Agreement dated March 16, 2004 ("Stockholders Agreement") among
Guarantor and the stockholders of Guarantor, pursuant to which Flux Fixed
Wireless, LLC and the McCaw Entities (as defined in section 9.03 of the
Stockholders Agreement) have agreed that Guarantor and its subsidiaries shall be
the McCaw Entities sole entities through which Craig O. McCaw acquires any right
to own or lease Multipoint Distribution Service ("MDS"), Multichannel Multipoint
Distribution Service ("MMDS") or Instructional Television Fixed Service ("ITFS")
spectrum in the United States for the purpose of providing wireless
point-to-multipoint fixed communications services (the "Non-Competition
Provisions"). Guarantor agrees that it will enforce the Non-Competition
Provisions as set forth in the Stockholders Agreement with respect to the Region
1 (as defined in the Market Operation Agreement). Guarantor further agrees that
it will not amend the provisions of the Non-Competition Provisions in any manner
which would permit the McCaw Entities greater rights to acquire ITFS, MMDS or
MDS spectrum than the McCaw Entities are currently permitted pursuant to the
Non-Competition Provisions without the prior written consent of Sprint, which
consent will not be unreasonably conditioned, delayed or withheld. During such
time as the Non-Competition Provisions may be enforced under the Stockholders
Agreement, and to the extent that Guarantor has actual knowledge of any such
lease or purchase, Guarantor will provide Sprint with prompt notice if any of
the McCaw Entities, other than Guarantor or its Subsidiaries, acquire or lease
any ITFS, MMDS or MDS spectrum within Region 1. Guarantor agrees that it will
comply with the terms and conditions set forth in Sections 5.5, 13.3 and 17.1 of
the Market Operation Agreement as an Operator Affiliate (as defined in the
Market Operation Agreement). Guarantor acknowledges and agrees that Sprint's
remedy at law for a breach or threatened breach of any of the provisions of this
paragraph would be inadequate and, in recognition of that fact, in the event of
a breach or threatened breach by Guarantor of the provisions of this paragraph,
it is agrees that, in addition to
SPRINT PROPRIETARY INFORMATION
EXHIBIT F - Guaranty and Covenant Agreement
F-2
its remedy at law, Sprint shall be entitled to equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available. Nothing
herein contained shall be construed as prohibiting Sprint from pursuing any
other remedies available to it for such breach or threatened breach.
The Guarantor represents and warrants to Sprint that:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
authority to enter into and perform its obligations under this Guaranty;
(b) This Guaranty has been duly authorized by all necessary corporate
action on its part, and has been duly executed and delivered by it, and neither
the execution or delivery hereof, nor the consummation of the transactions
contemplated hereby, nor compliance by it with any of the terms and provisions
hereof (i) requires any approval of its stockholders or approval or consent of
any trustee or holder of any of its indebtedness or obligations, (ii)
contravenes any existing law, judgment, governmental rule, regulation or order
applicable to or binding on it, or (iii) contravenes or results in any breach of
or constitutes any default under any indenture, mortgage, chattel mortgage, deed
of trust, conditional sales contract, bank loan or credit agreement, corporate
charter, bylaw or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound or affected;
(c) Neither the execution and delivery by it of this Guaranty nor the
consummation of any of the transactions on its part contemplated hereby,
requires the consent, approval or authorization of, the filing or notice to, or
the registration with, the recording or filing of any document with, or the
taking of any other action in respect of, any governmental body, except for such
of the foregoing as have been obtained, given or done; and
(d) This Guaranty constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
This Guaranty is a guaranty of payment, performance and compliance and not
of collection and the Guarantor waives any right to require that any action be
brought against the Operator or to require that resort be made to any security.
This Guaranty will be binding upon the successors and assigns of the Guarantor
and will be governed, construed, applied and enforced in accordance with the
laws of the State of Kansas (disregarding any conflict of laws rule which might
result in the application of the laws of any other jurisdiction), including all
matters of construction, validity and performance.
All notices and other communications given or made pursuant to this
Guaranty will be in writing after being sent for next-day delivery by United
States Postal Service Express Mail, return receipt requested, or by Federal
Express, signature required, to the other person at the following address:
SPRINT PROPRIETARY INFORMATION
EXHIBIT F - Guaranty and Covenant Agreement
F-3
If to Guarantor:
Clearwire Corporation
10210 NE Points Road, Suite 210
Kirkland, WA 98033
Attention: Benjamin G. Wolff
Facsimile No. (425)828-8061
With a copy to:
Davis Wright Tremaine, LLP
2600 Century Square
1501 Fourth Avenue
Seattle, WA 98101
Attention: Julie Weston
Facsimile No. (206)628-7699
If to Sprint:
[***]
With a copy to:
[***]
Either party may change the address at which notices are to be given to it by
giving notice of such change to the other Party in the manner hereinabove
provided for the giving of notices.
[SIGNATURE PAGE FOLLOWS]
SPRINT PROPRIETARY INFORMATION
EXHIBIT F - Guaranty and Covenant Agreement
F-4
This Guaranty is executed effective as of the date first above written.
GUARANTOR
CLEARWIRE CORPORATION,
a Delaware corporation
By: _______________________________
Benjamin G. Wolff
Executive Vice President,
Corporate Affairs
SPRINT PROPRIETARY INFORMATION
EXHIBIT F - Guaranty and Covenant Agreement
F-5
EXHIBIT G
PUT/CALL TERM SHEET
Upon the determination of the identity of the Put Spectrum or Call
Spectrum, as the case may be, the Parties will negotiate and execute a Purchase
and Sale Agreement (the "Purchase Agreement") incorporating the concepts and
business terms identified in Section 17.2 or 17.3 as applicable, along with
customary provisions in similar agreements, including without limitation the
following terms and conditions:
1. Representations and Warranties. Operator will make representations and
warranties in substantially the form as set forth in Section 9.1 of the
Agreement Sprint will make representations and warranties in substantially the
form set forth in Section 9.2 of the Agreement, provided, however, that Sprint
will not be required to make any representations and warranties with respect to
any matters concerning the Primary Leases, Sprint Authorizations, Leased
Authorizations, Sprint Spectrum or Leased Spectrum, of which Operator is in a
better position to be aware of vis-a-vie Sprint as a result of its
administration of the Agreement (i.e. those events or circumstances occurring
during the Term).
2. Covenants Pending Closing. Through the date of any Put Closing or Call
Closing, as applicable:
(a) Each Party will use its Efforts to take and cause to be taken all
things necessary and proper and consistent with applicable law to
consummate the transaction in a reasonably timely manner;
(b) Each Party will use its Efforts to obtain all necessary consents to
the proposed transaction;
(c) Each Party will provide the other with notice of any fact or
circumstance which is reasonably likely to prevent, delay or
otherwise impair the consummation of the transaction;
(d) Each Party will execute and deliver such further documents and take
such further actions as are reasonably necessary to consummate the
transaction;
(e) Each Party will continue to perform all applicable obligations under
this Agreement.
3. Conditions to Closing.
(a) Conditions to Closing Applicable to Both Parties. Each Party's
obligations to consummate the transaction are subject to the
satisfaction or waiver of the following:
SPRINT PROPRIETARY INFORMATION
EXHIBIT G - Put/Call Term Sheet
G-1
(i) The FCC will have approved any assignment applications or
assignment notices as contemplated pursuant to Section 17.2 or
17.3 as applicable, of this Agreement;
(ii) There shall be no preliminary or permanent injunction or other
order, decree or ruling issued by any governmental authority
nor any law promulgated or enacted by any governmental
authority which shall be in effect that would impose material
limitations on the ability of either party to consummate the
transactions.
(b) Conditions of Closing Applicable to Sprint. Sprint's obligations to
consummate the transactions are subject to the Operator delivering
to Sprint the Purchase Price and all representations and warranties
of Operator given in the Purchase Agreement being true and correct
in all material respects as of the applicable closing date.
(c) Conditions to Closing Applicable to Operator. Operator's obligations
to consummate the transactions are subject to the satisfaction or
waiver on or prior to the applicable closing date of each of the
following:
(i) The representations and warranties of Sprint will be true and
correct in all material respects;
(ii) Any covenants and/or agreements of Sprint to be performed
under the Purchase Agreement at or prior to the applicable
closing will have been duly performed in all material
respects;
(iii) Sprint will have executed and delivered to Operator an
assignment of the Licensed Authorizations; assignment of the
Primary Leases, and a bill of sale for any Sprint Equipment
which Operator elects to purchase in a form reasonably
acceptable to Operator.
4. Post Closing Covenants. Operator will perform all obligations under each
Primary Lease and will indemnify and hold Sprint harmless for any breach of its
obligations to do so.
5. Indemnity. The Purchase Agreement will provide for customary indemnity
obligations of each Party. The representations and warranties of each Party will
survive for a period of one year following the applicable closing date.
Operator's obligations to indemnify Sprint for the breach of any obligation
under a Primary Lease will survive indefinitely. No party will be allowed or
entitled to an award of consequential damages.
SPRINT PROPRIETARY INFORMATION
EXHIBIT G - Put/Call Term Sheet
G-2
SCHEDULE R-1
SPRINT SUBSIDIARIES
[***]
[*** Confidential Treatment Requested]
SCHEDULE R-2
MARKETS, PRIMARY LEASES,
LICENSES AND LEASED AUTHORIZATIONS
[***]
[*** Confidential Treatment Requested]
SCHEDULE R-3
SPRINT AUTHORIZATIONS
[***]
[*** Confidential Treatment Requested]
SCHEDULE R-4
MARKETS
[***]
[*** Confidential Treatment Requested]
SCHEDULE 3.2 PRIMARY LEASE CONSENTS
[***]
[*** Confidential Treatment Requested]
SCHEDULE 3.2(B)
DISPUTED PRIMARY LEASES
[Download Table]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[*** Confidential Treatment Requested]
SCHEDULE 4.1
SPRINT PRIMARY LEASE DUTIES
I. [***]
Pursuant to that certain Amended and Restated ITFS Lease Agreement dated as of
October 24, 2001 (as amended, the [***] Lease Agreement"), by and among the
[***] and American Telecasting, Inc., a Sprint Subsidiary, American Telecasting,
Inc. leases certain ITFS spectrum rights in the [***] Market Area and the [***]
Market Area (both as defined in the [***] Lease Agreement) from the [***]
Licensees. Unless otherwise noted, the meaning of all capitalized terms used in
this Section I of this Schedule 4.1 but not defined in this Agreement shall be
as defined in the [***] Lease Agreement.
Operator intends to sublease and operate the ITFS spectrum leased from the [***]
Licensees in the [***] Market Area only. Therefore, through this Agreement,
Operator assumes all of Sprint's obligations under the [***] Lease Agreement,
except to the extent such obligations relate to the [***] Market Area.
Accordingly, Sprint shall be responsible for the obligations under the [***]
Lease Agreement as it relates to the [***] Market Area, including the following
items pursuant to the [***] Lease Agreement: (i) payment of the Monthly Fee (as
defined in the [***] Lease Agreement) but only to the extent attributable to a
[***] Channel Group; (ii) maintenance of the Provided Transmission Equipment and
other equipment used in the [***] Market Area; (iii) installation of Internet
Access Sites in the [***] Market Area; (iv) installation and maintenance of
Additional ITFS Receive Sites in the [***] Market Area; (v) transmission of NTSC
formatted television signals over the Retained Capacity in the [***] Market
Area; and (vi) reimbursement of the [***] Licensee's reimbursable expenses
relating to the [***] Market Area.
In interpreting this Agreement with respect to the sublease and market operation
of the [***] Market Area, the [***] Lease Agreement will be interpreted broadly
such that any provision that could relate to the [***] Market Area alone
(including, but not limited to, provisions regarding FCC licenses,
modifications, equipment, facilities, and maintenance) shall apply to the
Operator.
With respect to the STL Facilities constructed and maintained for the [***]
Licensees by American Telecasting, Inc. to operate a point-to-point microwave
link system described in Section 4.3 of the [***] Lease Agreement, Operator and
Sprint will negotiate in good faith to enter into an agreement pursuant to which
Sprint and Operator will jointly undertake the obligation to maintain the STL
Facilities as required under Section 4.3 of the [***] Lease Agreement. Until
such agreement is executed by the parties Sprint will continue to maintain the
STL Facilities as required under Section 4.3 of the [***] Lease Agreement. It is
the intent of the Parties to execute such an agreement on or prior to the date
on which the [***] Market becomes a Closed Market.
[*** Confidential Treatment Requested]
SCHEDULE 4.3(B)
SPRINT LEASES--NON FLEX USE
LICENSES AND LEASED AUTHORIZATIONS
[Download Table]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[*** Confidential Treatment Requested]
SCHEDULE 5.1(B)
SPECTRUM MANAGEMENT FEES
Operator will pay Sprint for the spectrum management services referenced in
Section 5.1(b) at the rate of [***] per each hour of time that any Sprint
employee spends in delivering such spectrum management services. All time will
be billed in quarter hour increments.
[*** Confidential Treatment Requested]
SCHEDULE 5.2(B)
SPRINT MANAGEMENT FEES FOR LEASED SPECTRUM
Operator will pay Sprint for the spectrum management services referenced in
Section 5.2(b) at the rate of [***] per each hour of time that any Sprint
employee spends in delivering such spectrum management services for leased
spectrum. All time will be billed in quarter hour increments.
[*** Confidential Treatment Requested]
SCHEDULE 5.5
EXISTING OPERATOR CONTROLLED SPECTRUM
The following are markets/channels which Operator is licensed to operate:
[Download Table]
Article I MARKET Article II CALL SIGN & CHANNELS
---------------- -------------------------------
[***] [***]
[*** Confidential Treatment Requested]
SCHEDULE 6.3
MARKET CLOSING PAYMENTS
Upon the Closing of each of the Markets set forth below, Operator will make
to Sprint the corresponding Market Closing Payment:
[Download Table]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[*** Confidential Treatment Requested]
[Download Table]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[*** Confidential Treatment Requested]
SCHEDULE 6.4
MONTHLY FEE BY MARKET
Upon the Closing of each of the Markets set forth below, the Monthly Fee
allocable to such Market will be the corresponding amounts set forth below:
[Download Table]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[*** Confidential Treatment Requested]
[Download Table]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[*** Confidential Treatment Requested]
SCHEDULE 6.9
SPECTRUM OPPORTUNITIES
[***]
[*** Confidential Treatment Requested]
SCHEDULE 7.1(A)
SPRINT TRANSMISSION EQUIPMENT
(SEE INDIVIDUAL MARKET SHEETS)
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
[***]tenna
(transmit) directional - omni Andrew HMD12VX N/A 1 Transmit Site active
Coax 120' Andrew HJ7-50A N/A Transmit Site
Coax 130" Andrew HJ7-50A N/A Transmit Site
Combiner A-group combiner Microwave Filter Co 119545-A 9604018 1 Transmit Site
Combiner B-group combiner Microwave Filter Co 119545-B 9512029 1 Transmit Site
Combiner C-group combiner Microwave Filter Co 119545-C 9512030 1 Transmit Site
Combiner D-group combiner Microwave Filter Co 119545-D 9512031 1 Transmit Site
Combiner F-group combiner Microwave Filter Co 119545-F 9512032 1 Transmit Site
Combiner G-group combiner Microwave Filter Co 119545-G 9512033 1 Transmit Site
Combiner H-group combiner Microwave Filter Co 119545-H 9602005 1 Transmit Site
Combiner mds2 Microwave Filter Co 11951-mds 9605011 1 Transmit Site [***]
transmitter 20 watt EMCEE TTSOHS 144 1 [***]
transmitter 20 watt EMCEE TTS20HSX 145 1 [***]
transmitter 20 watt EMCEE TTOHS 146 1 [***]
transmitter 20 watt EMCEE TTOHS 147 1 [***]
transmitter 20 watt EMCEE TTS20HS 743 1 [***]
transmitter 20 watt EMCEE TTS20HS 744 1 [***]
transmitter 20 watt EMCEE TTS20HS 745 1 [***]
transmitter 20 watt EMCEE TTS20HS 746 1 [***]
transmitter 20 watt EMCEE TTS20HSX 126 1 [***]
transmitter 20 watt EMCEE TTS20HSX 127 1 [***]
transmitter 20 watt EMCEE TTS20HSX 128 1 [***]
transmitter 20 watt EMCEE TTS20HSX 129 1 [***]
transmitter 20 watt EMCEE TTS20HS 552 1 [***]
transmitter 20 watt EMCEE TTS20HS 475 1 [***]
transmitter EMCEE DIGACOM 200FB 1 [***]
transmitter 20 watt EMCEE TTH20HS 553 1 [***]
transmitter 20 watt EMCEE TTH20HSX 134 1 [***]
transmitter 20 watt EMCEE TTS20HSX 135 1 [***]
transmitter 20 watt EMCEE TTS20HSX 136 1 [***]
transmitter 20 watt EMCEE TTS20HSX 137 1 [***]
transmitter 20 watt EMCEE TTS20HSX 130 1 [***]
transmitter 20 watt EMCEE TTS20HSX 131 1 [***]
transmitter 20 watt EMCEE TTS20HSX 132 1 [***]
transmitter 20 watt EMCEE TTS20HSX 126 1 [***]
transmitter EMCEE DIGACOM 113 1 [***]
power amp EMCEE 501 1 [***]
up converter EMCEE 501 1 [***]
transmitter 20 watt EMCEE TTS20EB 149EB 1 [***]
transmitter 20 watt EMCEE TTS20HSX 141 1
transmitter 20 watt EMCEE TTS20HSX 142 1
transmitter 20 watt EMCEE TTS20HSX 143 1
transmitter 20 watt EMCEE TTS20HSX 1
Modulator EMCEE EMI 5160216 1 Transmit Site
Modulator EMCEE EMI 7660341 1 Transmit Site
Modulator EMCEE EMI 5160236 1 Transmit Site
Modulator EMCEE EMI 5160246 1 Transmit Site
Modulator EMCEE EMI 5160239 1 Transmit Site
Modulator EMCEE EMI 7660342 1 Transmit Site
Modulator EMCEE EMI 6760294 1 Transmit Site
Modulator EMCEE EMI 6760293 1 Transmit Site
Modulator EMCEE EMI 7660321 1 Transmit Site
Modulator EMCEE EMI 5160242 1 Transmit Site
Modulator EMCEE EMI 5160241 1 Transmit Site
Modulator EMCEE EMI 6760260 1 Transmit Site
Modulator EMCEE EMI 3460143 1 Transmit Site
Modulator EMCEE EMI 8950280 1 Transmit Site
Modulator EMCEE EMI 5160226 1 Transmit Site
Modulator EMCEE EMI 5160225 1 Transmit Site
Modulator EMCEE EMI 7660319 i Transmit Site
Modulator EMCEE EMI 5160215 1 Transmit Site
Modulator EMCEE EMI 5160228 1 Transmit Site
Modulator EMCEE EMI 5160227 1 Transmit Site
Modulator EMCEE EMI 6760270 1 Transmit Site
Modulator EMCEE EMI 3460144 1 Transmit Site
Modulator EMCEE EMI 6760269 1 Transmit Site
Modulator EMCEE EMI 6760259 1 Transmit Site
Modulator EMCEE EMI 5160235 1 Transmit Site
Modulator EMCEE EMI 5160245 1 Transmit Site
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
Demodulator Cadco 375 C2475 1 Transmit Site
Demodulator Cadco 375 C2473 1 Transmit Site
Demodulator Cadco 375 C2471 1 Transmit Site
Demodulator Cadco 375 D3076 1 Transmit Site [***]
receiver EMCEE RSVA2 141 1 [***]
receiver EMCEE RSVA2 135 1 [***]
receiver EMCEE RSVA2 1 [***]
receiver EMCEE RSVA2 1 [***]
receiver EMCEE RSVA2 144 1 [***]
receiver EMCEE RSVA2 134 1 [***]
receiver EMCEE RSVA2 136 1 [***]
receiver EMCEE RSVA2 204R 1 [***]
receiver EMCEE RSVA2 1654 1 [***]
receiver EMCEE RSVA2 130 1 [***]
receiver EMCEE RSVA2 132 1 [***]
receiver EMCEE RSVA2 127 1 [***]
receiver EMCEE RSVA2 164R 1 [***]
receiver EMCEE RSVA2 1594 1 [***]
receiver EMCEE RSVA2 133 1 [***]
receiver EMCEE RSVA2 161R 1 [***]
receiver EMCEE RSVA2 143 1 [***]
receiver EMCEE RSVA2 166R 1 [***]
receiver EMCEE RSVA2 160R 1 [***]
receiver EMCEE RSVA2 1629 1 [***]
receiver EMCEE RSVA2 137 1 [***]
receiver EMCEE RSVA2 131 1 [***]
receiver EMCEE RSVA2 128 1 [***]
receiver EMCEE RSVA2 126 1 [***]
Combiner RF CUSTOM
Communications 18 flGHz) N/A 2 Transmit Site [***]
Demodulator G.I. 5890D 1 Transmit Site [***]
Demodulator AGILE CATEL D-950 1 Transmit Site [***]
Modulator S.A. 6340 1 Transmit Site [***]
Demodulator AGILE CATEL D-950 1 Transmit Site [***]
Demodulator G.I. 1 Transmit Site [***]
Modulator S.A. 6340 1 Transmit Site
Demodulator G.I. 1 Transmit Site
Modulator S.A. 6340 1 Transmit Site
Modulator S.A. 6340 1 Transmit Site
Demodulator AGILE CATEL D-950 1 Transmit Site
Modulator S.A. 6340 1 Transmit Site
Demodulator G.I. 1 Transmit Site
Modulator S.A. 6340 1 Transmit Site
Demodulator G.I. 1 Transmit Site
Modulator S.A. 6340 1 Transmit Site
Modulator EMCEE EMI 7660344 1 Transmit Site
Dehydrator Andrew MT-3100 1 Transmit Site
Rack 72" N/A. N/A N/A 7 Transmit Site
Alarm System Phonetics 1104 1 Transmit Site
Generator 60 KW Olympian CG070 2025111 1 Transmit Site
A/C Bard WA602-AOZEPXXXS 153A960975342-02 2 Transmit Site
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------- ------------- ------------- ------------------------- ----- -------- -------
Transmit Omni Andrews HMD12HO N/A 1 N/A Headend All
Hardline 470' ANDREW 1 5/8" N/A 1 N/A Headend N/A
Combiner A Axcera(ITS-AD ITS-68SE N/A 1 N/A Headend [***]
Combiner B Axcera(ITS-AD ITS-685E N/A 1 N/A Headend [***]
Combiner F Axcera(ITS-AD ITS-685E N/A 1 N/A Headend [***]
Combiner G Axcera(ITS-AD ITS-685E N/A 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831903 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831902 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831901 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831900 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831899 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 215900914 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831897 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831896 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831888 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831889 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831890 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831891 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831892 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831893 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831894 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831895 1 N/A Headend [***]
Transmitter 50watts Comwave SB4x10 S3015 1 N/A Headend [***]
Transmitter 50watts Comwave SB4x10 S3015 1 N/A Headend [***]
Transmitter 50watts Comwave SB4x10 S3015 1 N/A Headend [***]
Transmitter 50watts Comwave SB4x10 S3015 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210831886 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 215900913 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210837387 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 210837386 1 N/A Headend [***]
Receiver Dish 1000 R0023531529/S000483470203 1 N/A Headend [***]
Racks 72" unknow 21" wide N/A 4 N/A Headend [***]
A/C 10 Wall Site Owned Unknown 3 N/A Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------ -------------------- -------------- -------- ----- -------- -------
Antenna (Tra Directional - Andrew HMD 24HC N/A 1 N/A Headend
Antenna (Tra Directional - Andrew HMD 24HC N/A 1 N/A Headend
Antenna (Tra Directional - Bogner N/A 1 N/A Headend
Waveguide 90' Andrew HJ7-50A N/A 1 N/A Headend
Waveguide 85' Andrew HJ7-50A N/A 1 N/A Headend
Waveguide 60' Andrew HJ7-50A N/A 1 N/A Headend
Heliax 10' 7/8" Foam N/A 1 N/A Headend
Heliax 12' 7/8" Foam N/A 1 N/A Headend
Heliax 12' 1/2" Superflex N/A 1 N/A Headend [***]
Combiner Axcer(ITS) 1694 8102056 1 N/A Headend [***]
Combiner Microwave Filter Co. 9004S 9162012 1 N/A Headend [***]
Combiner Microwave Filter Co. 9004S N/A 1 N/A Headend [***]
Combiner Axcer(lTS) 1694 8103056 1 N/A Headend [***]
Combiner Microwave Filter Co. 9004S 9409021 1 N/A Headend [***]
Combiner Microwave Filter Co. 9004S N/A 1 N/A Headend [***]
Combiner Microwave Filter Co. 9004S N/A 1 N/A Headend [***]
Combiner Axcer(ITS) 1693D 3761101 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 8097056 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 8098056 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 8099056 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 8100056 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E M0048033 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 8101056 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 8104956 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 81050056 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E 3795101 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E M0518093 1 N/A Headend [***]
Diplexer Axcera(ITS-ADC) 658E M0519093 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4763 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1750C 8092056 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1750C 8093056 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1750C 8094056 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1750C 8095056 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 11714 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 11715 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 11716 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 11717 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4739 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4740 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4741 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4742 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1615E M0037033 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1750C 8096056 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1615E M0038033 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1615E M0039033 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10172 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10173 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10174 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10178 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10175 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10176 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10177 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B 10179 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4743 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4744 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4745 1 N/A Headend [***]
Transmitter 50 Watt Exc Comwave SB050B S4746 1 N/A Headend [***]
Transmitter 50 Watt Exc Emcee TTS10EB 502EBA 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1610E M0516093 1 N/A Headend [***]
Transmitter 50 Watt Exc ITS (AXCERA) 1610E M0517093 1 N/A Headend [***]
Transmitter 50 Watt Up Emcee TTS50EB 502EBA 1 N/A Headend [***]
Transmitter 50 Watt Up ITS (AXCERA) 1658E 9155096 1 N/A Headend [***]
Transmitter 50 Watt Up ITS (AXCERA) 1658E 9156096 1 N/A Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ---------- ------------ ------------- -------- ----- -------- -------
Refemce Tray Comwave S4764 1 N/A
IF Modulator A/V Output Comwave TVM 102 11715 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 11714 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 11717 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 11716 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 2078 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 S4739 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 S4740 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 S4741 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 S4742 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10172 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10173 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10174 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10178 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10175 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10176 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10177 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10179 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10146 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10144 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10145 1 N/A Headend [***]
IF Modulator A/V Output Comwave TVM 102 10143 1 N/A Headend [***]
IF Modulator A/V Output EMCEE EM1 1 N/A Headend [***]
Demodulator CATV BT AD1 60845 1 N/A Headend [***]
Demodulator CATV BT AD1 18940 1 N/A Headend [***]
Demodulator CATV BT AD1 8300 1 N/A Headend [***]
Demodulator CATV Holland HMD 1 N/A Headend [***]
Demodulator CATV Holland HMD 1 N/A Headend [***]
Demodulator CATV BT AD1 39737 1 N/A Headend [***]
Demodulator CATV BT AD1 8294 1 N/A Headend [***]
Demodulator CATV Holland HMD 1 N/A Headend [***]
Demodulator CATV Holland HMD 1 N/A Headend [***]
Demodulator CATV BT AD1 31755 1 N/A Headend [***]
Demodulator CATV BT AD1 3660 1 N/A Headend [***]
Demodulator CATV BT AD1 12650 1 N/A Headend [***]
Demodulator CATV BT AD1 3780 1 N/A Headend [***]
Demodulator CATV BT AD1 60825 1 N/A Headend [***]
Demodulator CATV BT AD1 1 N/A Headend [***]
Demodulator CATV BT AD1 60816 1 N/A Headend [***]
Demodulator CATV BT AD1 22935 1 N/A Headend [***]
Demodulator CATV BT AD1 3746 1 N/A Headend [***]
Demodulator CATV BT AD1 8469 1 N/A Headend [***]
Demodulator CATV BT AD1 8201 1 N/A Headend [***]
Demodulator CATV Gl S890D 4034103 1 N/A Headend [***]
Demodulator CATV BT AD1 39762 1 N/A Headend [***]
Demodulator CATV BT AD1 5143 1 N/A Headend [***]
Demodulator CATV BT AD1 10938 1 N/A Headend [***]
Demodulator CATV BT AD1 3839 1 N/A Headend [***]
Demodulator CATV BT AD1 31687 1 N/A Headend [***]
Demodulator CATV BT AD1 22932 1 N/A Headend [***]
Demodulator CATV BT AD1 22933 1 N/A Headend [***]
Demodulator CATV BT AD1 39804 1 N/A Headend [***]
Demodulator CATV BT AD1 32926 1 N/A Headend [***]
Demodulator CATV BT AD1 8298 1 N/A Headend [***]
Dehydrator Andrew MT 300 9303MT32 1 N/A Headend [***]
Rack 72" ITS N/A N/A 8 N/A Headend [***]
Rack 96" N/A N/A N/A 2 N/A Headend [***]
Modulator CATV Standard TVM 450 56U540159 1 N/A Headend [***]
Modulator CATV Standard TVM 450 43U430083 1 N/A Headend [***]
Antenna (ST 6' N/A 1 N/A Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------- -------------------- ------------- -------------- ----- -------- -------
Antenna (Transmit) Andrew HMD16VC-W N/A 2 Headend [***]
Antenna (Transmit) MDS2A-Data Andrew HMD16VC-WNQ N/A 1 Headend [***]
Antenna (Transmit) MDS1 Andrew HMD16VC-WNQ N/A 1 Headend [***]
Waveguide 40' ANDREW EW-20 N/A 1 Headend [***]
Waveguide 40' ANDREW EW-20 N/A 1 Headend [***]
Transition Jumpers 10' ANDREW 7/8" N/A 4 Headend [***]
Connectors EW20 to EIA 7/8" Andrew E20NB-014 N/A 4 Headend [***]
Combiner A-Group Combiner ITS 1694-D M0250063 Headend [***]
Combiner B-Group Combiner ITS 1694-D 6039075 Headend [***]
Combiner C-Group Combiner ITS 1694-D M0362073 Headend [***]
Combiner D-Group Combiner ITS 1694-D 6040075 Headend [***]
Combiner E-Group Combiner ITS 1694-D 3622071 Headend [***]
Combiner F-Group Combiner ITS 1694-D 3632071 Headend [***]
Combiner G-Group Combiner ITS 1694-D M0365073 Headend [***]
Combiner H-Group Combiner ITS 1694-D 3597071 Headend [***]
Diplexer MDS1 Diplexer ITS 6830036 Headend [***]
Diplexer A-1 Diplexer rrs M02476063 Headend [***]
Diplexer A-2 Diplexer ITS M0247063 Headend [***]
Diplexer A-3 Diplexer ITS M0248063 Headend [***]
Diplexer A-4 Diplexer ITS M0249063 Headend [***]
Diplexer B-1 Diplexer ITS 6041075 Headend [***]
Diplexer B-2 Diplexer ITS 6042075 Headend [***]
Diplexer C-1 Diplexer ITS M0363073 Headend [***]
Diplexer C-2 Diplexer ITS M0370073 Headend [***]
Diplexer C-3 Diplexer ITS M0321073 Headend [***]
Diplexer C-4 Diplexer ITS M0372073 1 Headend [***]
Diplexer D-1 Diplexer ITS 6045075 1 Headend [***]
Diplexer D-2 Diplexer ITS 6046075 1 Headend [***]
Diplexer D-3 Diplexer ITS 6047075 1 Headend [***]
Diplexer D-4 Diplexer ITS 6048075 1 Headend [***]
Diplexer E-1 Diplexer ITS 3830091 1 Headend [***]
Diplexer E-2 Diplexer ITS 3831091 1 Headend [***]
Diplexer E-3 Diplexer rrs 3832091 1 Headend [***]
Diplexer E-4 Diplexer ITS 3833091 1 Headend [***]
Diplexer F-1 Diplexer rrs 3630071 1 Headend [***]
Diplexer F-2 Diplexer ITS 3631071 1 Headend [***]
Diplexer F-3 Diplexer ITS 3633071 1 Headend [***]
Diplexer F-4 Diplexer ITS 3634071 1 Headend [***]
Diplexer G-1 Diplexer ITS M0364073 1 Headend [***]
Diplexer G-2 Diplexer ITS N0373073 1 Headend [***]
Diplexer G-3 Diplexer ITS M0374073 1 Headend [***]
Diplexer G-4 Diplexer ITS N0375073 1 Headend [***]
Diplexer H-1 Diplexer ITS 3595071 1 Headend [***]
Diplexer H-2 Diplexer ITS 3596071 1 Headend [***]
Diplexer H-3 Diplexer ITS 3655071 1 Headend [***]
Transmitter 20 Watt ITS 1510E 1 Headend [***]
Transmitter 20 Watt rrs 1610E M0243063A2 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0244063A3 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0245063A4 1 Headend [***]
Transmitter 20 Watt ITS 1720A 6035075B1 1 Headend [***]
Transmitter 20 Watt ITS 1720A 6036075B2 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0354073C1 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0355073C2 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0356073C3 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0357073C4 1 Headend [***]
Transmitter 50 Watt Agile ITS 1750C 6049075 1 Headend [***]
Transmitter 20 Watt ITS 1750C B944086D2 1 Headend [***]
Transmitter 20 Watt ITS 1720A 6037075D3 1 Headend [***]
Transmitter 20 Watt ITS 1720A 6038075D4 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3618071 E1 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3619071 E2 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3620071 E3 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3621071 E4 1 Headend [***]
Transmitter 20 Watt ITS 1750A 3628071F1 1 Headend [***]
Transmitter 20 Watt ITS 1610E N2764025F2 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3609071F3 1 Headend [***]
Transmitter 20 Watt ITS 1610E M2765025F4 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0358073G1 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0359073G2 1 Headend [***]
Transmitter 20 Watt ITS 161OE M0360075G3 1 Headend [***]
Transmitter 20 Watt ITS 1610E M0361073G4 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3593071H1 1 Headend [***]
Transmitter 20 Watt ITS 161OE 35994071H2 1 Headend [***]
Transmitter 20 Watt ITS 1610E 3613071H3 1 Headend [***]
Transmitter 10 Watt ITS 1510E M1639064 1 Headend [***]
Exciter 5 Watt ITS 7525 212366984 1 Headend [***]
Amplifler 25 Watt Average ITS 1586-1004 212316976 1 Headend [***]
CMD CMD 2000 Downstrea Hybrid 7520P9-34H F-2955500011 1 Headend [***]
Modulator Baseband to IF HYBRID HEM-2204B N/A 1 Headend [***]
De-Modulator Agile General Instruments 06C0000150166 1 Headend [***]
De-Modulator Agile General Instruments 0810000128166 1 Headend [***]
De-Modulator Ante General Instruments 0810000119166 1 Headend [***]
De-Modulator Agile General Instruments 0810000106166 1 Headend [***]
De-Modulator Agile General Instruments 0810000116166 1 Headend [***]
De-Modulator Agile Genera] Instruments 0810000173166 1 Headend [***]
De-Modulator Agile General Instruments 0810000190166 1 Headend [***]
Da-Modulator Agile General Instruments 0810000110166 1 Headend [***]
De-Modulator Agile General Instruments 0810000104166 1 Headend [***]
De-Modulator Agile General Instruments 0810000141168 1 Headend [***]
De-Modulator Agile General Instruments 0810000101166 1 Headend [***]
De-Modulator Agile General Instruments 0810000171166 1 Headend [***]
De-Modulator Agile General Instruments 0810000118166 1 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ---------------- -------------------- --------------- -------------- ------ -------- -------
De-Modulator Agile General Instruments 0810000150166 1 Headend [***]
De-Modulator Agile General Instruments 0810000133166 1 Headend [***]
De-Modulator Agile General instruments 0810000135166 1 Headend [***]
De-Modulator Agile General Instruments 0810000175166 1 Headend [***]
De-Modulator Agile General Instruments 0810000142166 1 Headend [***]
De-Modulator Agile General Instruments 0810000167166 1 Headend [***]
De-Modulator Agile General Instruments 0810000113166 1 Headend [***]
De-Modulator Agile General Instruments 0810000183166 1 Headend [***]
De-Modulator Agile General Instruments 0810000195166 1 Headend [***]
De-Modulator Agile General Instruments 0810000176166 1 Headend [***]
De-Modulator Agile General Instruments 0810000162166 1 Headend [***]
De-Modulator Agile General Instruments 0810000172166 1 Headend [***]
De-Modulator Agile General Instruments 0810000185166 1 Headend [***]
De-Modulator Agile General Instruments 00810000111166 1 Headend [***]
De-Modulator Agile General Instruments 00810000189166 1 Headend [***]
De-Modulator Agile General Instruments 0810000149166 1 Headend [***]
Outdoor RF Head
(receive) 18.142-18.580GHZ CHANNEL MASTER 6633-18 C3339980001 2 Headend [***]
Indoor baseband
unit
(receive) 23.275GHZ MA23VX MRC 845270-2 509VXSA555 1 Headend [***]
Indoor baseband
unit
(receive) 23.475GHZ MA23VX MRC 845270-3 509VXSA556 1 Headend [***]
Outdoor RF Head
(receive) 23.275GHZ MA23VX MRC 845379-2 509VXSA555 1 Headend [***]
Outdoor RF Head
(receive) 23.475GHZ MA23VX MRC 845379-3 509VXSA55G 1 Headend [***]
Antenna
(Receive-
Data) 4ft. 18GHZ MRC N/A 1 Headend [***]
Antenna
(Receive-
AML) 6ft. 18GHZ-AML Andrew N/A 1 Headend [***]
Antenna
(Receive-
ITFS) 6ft. 23GHZ Gabriel N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Reck 72" ADC N/A N/A 1 Headend [***]
Rack 72" ADC N/A N/A 1 Headend [***]
Transmitter 50 Watt ITS 1750C 6829036-MDS1 1 Headend [***]
Alarm System ENTRY/TEMP ADT 1 Headend [***]
UPS 5kva TOPAZ 88051 U1362EE00073 1 Headend [***]
UPS 10kva TOPAZ 88101 U1315AC00040 1 Headend [***]
A/C 5 ton Headend [***]
Antenna
(Transmit-
AML) 6ft. 18GHZ-AML Andrew N/A 1 TVRO [***]
Outdoor RF Head
(transmit) 18.142-18.580GHZ CHANNEL MASTER ? 1 TVRO [***]
Modulator Agile DX Communications D800211 1 TVRO [***]
Modulator Agile DX Communications D800238 1 TVRO [***]
Modulator Agile DX Communications E800338 1 TVRO [***]
Modulator Agile DX Communications 0800239 1 TVRO [***]
Modulator Agile DX Communications E800374 1 TVRO [***]
TVRO Sat.
Receivers STANDARD MT810AA 87U070076 1 TVRO [***]
TVRO Sat.
Receivers STANDARD MT 650 49U740388 1 TVRO [***]
TVRO Sat.
Receivers STANDARD MT 650 49U740362 1 TVRO [***]
TVRO Sat.
Receivers STANDARD MT 650 57U930478 1 TVRO [***]
TVRO Sat.
Receivers STANDARD MT 650 4FU730038 1 TVRO [***]
TVRO Sat.
Receivers STANDARD MT 650 48U730039 N/A TVRO [***]
Broadcast
controller 2 Channel,
8 Device Ad-Tech Liten-ing N/A 1 TVRO [***]
VCR SVHS JVC SR-S360U 078X0049 1 TVRO [***]
VCR SVHS JVC SR-S360U 177X0003 1 TVRO [***]
VCR SVHS JVC SR-S365U 8551422 1 TVRO [***]
VCR SVHS JVC SR-S365U 8551538 1 TVRO [***]
VCR SVHS JVC SR-S365U 8551430 1 TVRO [***]
VCR SVHS JVC SR-S365U 8551548 1 TVRO [***]
VCR SVHS JVC SR-S365U 8551545 1 TVRO [***]
TVRO Earth
Station 3.8M Patriot N/A 1 TVRO [***]
TVRO Earth
Station 3.8M Patriot N/A 1 TVRO [***]
TVRO Earth
Station 3.8M Patriot N/A 1 TVRO [***]
TVRO Earth
Station 3.8M Patriot N/A 1 TVRO [***]
TVRO Earth
Station 3.8M Patriot N/A 1 TVRO [***]
TVRO Earth
Station 3.8M Patriot N/A 1 TVRO [***]
TVRO Earth
Station 3.7M Miralife N/A 1 TVRO [***]
TVRO Earth
Station 3.7M Miralite N/A 1 TVRO [***]
TVRO Earth
Station 3.7M Mlralite N/A 1 TVRO [***]
Earth Station
LNB LNB California Amplifier 140105-1 N/A 16 TVRO [***]
Hardline 200' 1/2" N/A 1 TVRO [***]
Hardline 200' 1/2" N/A 1 TVRO [***]
Tower 40' Rhone N/A N/A 1 TVRO [***]
UPS UPS Batteries Power Works Deltec 101615015-061 BQ454C1078 1 TVRO [***]
UPS UPS Batteries Power Works Deltec 101615015-061 BQ454C1073 1 TVRO [***]
UPS UPS Power Works Deltec ET6001-PP BQ445C0481 1 TVRO [***]
UPS UPS Batteries APC SU24XLBP WS9845007694 1 TVRO [***]
UPS UPS Batteries APC SU24XLBP WS9845007695 1 TVRO [***]
UPS UPS Batteries APC SU24XLBP WS9845007698 1 TVRO [***]
UPS UPS Batteries APC SU24XLBP WS9845007697 1 TVRO [***]
UPS UPS APC SU1000XLNET WS9807001017 1 TVRO [***]
Alarm System ENTRY ADT 1 TVRO [***]
Generator 40 KWK Generac 1 TVRO [***]
A/c 3 ton Goodman MFG CO PC024-1B 9809475424 TVRO [***]
Antenna
(Transmit-
ITFS) 6ft. 23GHZ Gabriel N/A 1 BSU [***]
Indoor baseband
unit
(transmit) 23.275GHZ MA23VX MRC 845270-1 509VXSA555 1 BSU [***]
Indoor baseband
unit
(transmit) 23.475GHZ MA23VX MRC 845270-2 509VXSA556 1 BSU [***]
Outdoor RF Head
(transmit) 23.275GHZ MA23VX MRC 845379-1 509VXSA555 1 BSU [***]
Outdoor RF Head
(transmit) 23.475GHZ MA23VX MRC 845379-2 509VXSA556 1 BSU [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ----------------- -------------------- -------------- ------------ ------ -------- -------
Antenna
(Transmit) Cardioid-Vertical Andrew HMD16VC N/A 1 Headend [***]
Waveguide 300' WE 30 N/A 1 Headend [***]
Combiner Magic T Communication and
Enemy Corp. 1
Heliax 12' 7/8" Foam N/A 1 Headend
Heliax 9' 7/8" Foam N/A 1 Headend
Heliax 3' 7/8" Foam N/A 1 Headend [***]
Combiner Axcer(ITS) 1690 M2781025 1 Headend [***]
Combiner Axcer(ITS) 1694D M1992094 1 Headend [***]
Combiner Axcer(ITS) 1694D M1994094 1 Headend [***]
Combiner Axcer(ITS) 1694D M1996094 1 Headend [***]
Combiner Axcer(ITS) 1694D M1989094 1 Headend [***]
Combiner Axcer(ITS) 1694D M1991094 1 Headend [***]
Combiner Axcer(ITS) 1694D M1993094 1 Headend [***]
Combiner Axcer(ITS) 1694D M1995094 1 Headend [***]
Diplexer Microwave Filter CO. 10759 9409036 1 Headend [***]
Diplexer Microwave Filter CO. 10759 N/A 1 Headend [***]
Diplexer Microwave Filter CO. 10759 N/A 1 Headend [***]
Diplexer Microwave Filter CO. 10759 N/A 1 Headend [***]
Diplexer Axcera(ITS-ADC) 658E M0044033 1 Headend [***]
Diplexer Axcera(ITS-ADC) 658E M0045033 1 Headend [***]
Diplexer Axcera(ITS-ADC) 658E M0047033 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0520093 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0521093 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0522093 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0523093 1 Headend [***]
Transmitter ITS (AXCERA) 5524 15248 1 Headend [***]
Transmitter ITS (AXCERA) 5724 15220 1 Headend [***]
Transmitter ITS (AXCERA) 5524 15247 1 Headend [***]
Transmitter Emcee DS 20 221DS 1 Headend [***]
Transmitter Emcee DS 20 227DS 1 Headend [***]
Transmitter Emcee DS 20 225DS 1 Headend [***]
Transmitter Emcee DS 20 223DS 1 Headend [***]
Transmitter Emcee DS 20 220DS 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0033033 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0034033 1 Headend [***]
Transmitter Emcee DS 20 224DS 1 Headend [***]
Transmitter ITS (AXCERA) 1610 M0003633 1 Headend [***]
Transmitter ITS (AXCERA) 1610E M0035033 1 Headend [***]
Transmitter ITS (AXCERA) 1710 M1803074 1 Headend [***]
Transmitter ITS (AXCERA) 1610E 5157013 1 Headend [***]
Transmitter ITS (AXCERA) 1750 1 Headend [***]
Transmitter Emcee DS 20 216DS 1 Headend [***]
Transmitter ITS (AXCERA) 657C 1635 1 Headend [***]
Transmitter ITS (AXCERA) 658E M2087094 1 Headend [***]
Transmitter ITS (AXCERA) 657C 1652 1 Headend [***]
Transmitter ITS (AXCERA) 657C 1655 1 Headend [***]
Transmitter ITS (AXCERA) 658E M2084094 1 Headend [***]
Transmitter ITS (AXCERA) 658E M2086094 1 Headend [***]
Transmitter ITS (AXCERA) 658E M2085094 1 Headend [***]
IF Modulator A/V Output Scientific Atlanta 6340 1 Headend [***]
IF Modulator A/V Output Scientific Atlanta 6340 1 Headend [***]
IF Modulator A/V Output Scientific Atlanta 6340 1 Headend [***]
IF Modulator A/V Output Scientific Atlanta 6340 1 Headend [***]
IF Modulator A/V Output Scientific Atlanta 6340 1 Headend [***]
Power Distribution Leithc Xplus 0044142 1 Headend
Power Distribution EMCEE Video Switcher 1 Headend
Dehydrator Andrew MT 300 9704MT30490A 1 Headend
Dehydrator Andrew MH-12 9711MHM425A 1 Headend
Rack 72" Emcore N/A N/A 12 Headend
A/C 5 Ton Lennox CHA16-651-5P 5697H00949 1 Headend
A/C 5 Ton Lennox CHA16-651-5P 5697H05406 1 Headend
A/C 5 Ton Lennox CHA16-651-5P 5697G03802 1 Headend
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------- ------------ ------------- -------- ----- -------- -------
Antenna (Transmit OMNI Andrew HMD12HO-W0 11577 1 Headend [***]
Waveguide Andrew LDF5-50A 150' Headend [***]
Combiner Filterplexer MFC 11754S-G 1 Headend [***]
Transmitter Comwave SB050B 11505 1 Headend [***]
Transmitter Comwave SB050B 11509 1 Headend [***]
Transmitter Comwave SB050B 11514 1 Headend [***]
Transmitter Comwave SB050B 11520 1 Headend [***]
Upconverter Digital Agile Thomcast 47266213 14163 1 Headend [***]
Local Oscilator Digital Agile Thomcast 4726617 14163 1 Headend [***]
Power Supply Digital Agile Thomcast 4726613 14163 1 Headend [***]
Amplifier Digital Agile Thomcast 47266181 14163 1 Headend [***]
Amplifier Digital Agile Thomcast 47266181 14163 1 Headend [***]
modulator Comwave TVM-102 11519 1 Headend [***]
modulator Comwave TVM-102 11505 1 Headend [***]
modulator Comwave TVM-102 11509 1 Headend [***]
modulator Comwave TVM-102 11520 1 Headend [***]
Satelite Receiver Dish Network CDSR-6198 42930 1 Headend [***]
Satelite Receiver Dish Network CDSR-6198 26447 1 Headend [***]
Satelite Receiver Dish Network CDSR-6198 42936 1 Headend [***]
Satelite Receiver Dish Network CDSR-6198 45127 1 Headend [***]
Satelite Receiver Dish Network CDSR-6198 37234 1 Headend [***]
Reference Drawer Comwave 2126 14922 1 Headend [***]
Rack ITS 72" 1 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------------------------- -------------------- -------------- ------------- ----- -------- -------
Antenna Transmit Omni Andrew HMD-12HO N/A 2 Headend
Wavequide 190' ANDREW EW-20 N/A 1 Headend
Connectors EW-20 Connector Andrew 120R-3 N/A 4 Headend
Waveguide 187' ANDREW EW-20 N/A 1 Headend
Transition Jumpers 10' ANDREW 7/8" Air N/A 1 Headend
Transition Jumpers 10' ANDREW 7/8" Air N/A 1 Headend
Transition Jumpers 4' ANDREW 1/2" Foam N/A 1 Headend [***]
Transition Jumpers 4' ANDREW 1/2" Foam N/A 1 Headend [***]
Combiner A-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner B-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner C-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner D-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner E-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner F-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner G-Gtoup MFC 9004 N/A 1 Headend [***]
Combiner H-Gtoup MFC 9004 N/A 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 8556 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 8557 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4751 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4752 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4753 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4754 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 8558 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 8559 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 3716 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 3715 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4759 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4760 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4761 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4762 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2250 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2251 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2252 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2253 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2254 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2255 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2256 1 Headend [***]
Transmitter 50W COMWAVE SB-50A 2257 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4729 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 4730 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 3712 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 3712 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 2258 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 2259 1 Headend [***]
Upconverter COMWAVE SB-50A 2250 1 Headend [***]
Upconverter COMWAVE SB-50A 2251 1 Headend [***]
Upconverter COMWAVE SB-50A 2252 1 Headend [***]
Upconverter COMWAVE SB-50A 2253 1 Headend [***]
Upconverter COMWAVE SB-50A 2254 1 Headend [***]
Upconverter COMWAVE SB-50A 2255 1 Headend [***]
Upconverter COMWAVE SB-50A 2256 1 Headend [***]
Upconverter COMWAVE SB-50A 2257 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 8554 1 Headend [***]
Transmitter 50W COMWAVE SB-50B 8555 1 Headend [***]
Modulator IF Comwave TVM-102 8554 1 Headend [***]
Modulator IF Comwave TVM-102 8555 1 Headend [***]
Modulator IF Comwave TVM-102 8556 1 Headend [***]
Modulator IF Comwave TVM-102 8557 1 Headend [***]
Modulator IF Comwave TVM-102 4751 1 Headend [***]
Modulator IF Comwave TVM-102 4752 1 Headend [***]
Modulator IF Comwava TVM-102 4747 1 Headend [***]
Modulator IF Comwave TVM-102 4754 1 Headend [***]
Modulator IF Comwave TVM-102 4753 1 Headend [***]
Modulator IF Comwave TVM-102 11045 1 Headend [***]
Modulator IF Comwave TVM-102 3723 1 Headend [***]
Modulator IF Comwave TVM-102 12768 1 Headend [***]
Modulator IF Comwave TVM-102 4759 1 Headend [***]
Modulator IF Comwave TVM-102 4760 1 Headend [***]
Modulator IF Comwave TVM-102 4761 1 Headend [***]
Modulator IF Comwave TVM-102 4762 1 Headend [***]
Modulator IF Catel CTM-20 2250 1 Headend [***]
Modulator IF Catel CTM-20 2251 1 Headend [***]
Modulator IF Catel CTM-20 2252 1 Headend [***]
Modulator IF Comwave TVM-102 No# 1 Headend [***]
Modulator IF Catel CTM-20 2254 1 Headend [***]
Modulator IF Catel CTM-20 2255 1 Headend [***]
Modulator IF Catel CTM-20 2256 1 Headend [***]
Modulator IF Catel CTM-20 2257 1 Headend [***]
Modulator IF Comwave TVM-102 4748 1 Headend [***]
Modulator IF Comwave TVM-102 4730 1 Headend [***]
Modulator IF Comwave TVM-102 8021 1 Headend [***]
Modulator IF Comwave TVM-102 8565 1 Headend [***]
Modulator IF Catel CTM-20 2258 1 Headend [***]
Modulator IF Catel CTM-20 2259 1 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------------------------- -------------------- -------------- ------------- ----- -------- -------
Enclosures/Drawers GI HVP III D5H0001926343 1 headend
Enclosures/Drawers GI HVP III 215420003 1 headend
Enclosures/Drawers GI HVP III DSH0001085343 1 headend
Enclosures/Drawers GI HVP III 4590001 1 headend
Video Card GI 24 headend
Channel Card GI 24 headend
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers Uniden 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers GI 1 Headend [***]
Sat Receivers GI 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers Uniden 1 Headend [***]
Sat Receivers Motorola 1 Headend [***]
Sat Receivers STANDARD 1 Headend [***]
Sat Receivers SciAtl 1 Headend [***]
Sat Dish 3.2 meters Macom 1 Headend [***]
Sal Dish 3.2 meters Macom 1 Headend [***]
Sat Dish 3.2 meters Macom 1 Headend [***]
Sat Dish 3.7 meters Patroit 1 Headend [***]
Sat Dish 3.7 meters Patroit 1 Headend [***]
Sat Dish 2 meters Winguard 1 Headend [***]
Waveguide 150' ANDREW EW-85 N/A 1 Headend [***]
Dehydrator Andrew Dryline MT-300 N/A 1 headend [***]
STL Receiver 6565-6645Mhz California Microwave MFR 63661 32665 1 Headend
Controller Compaq Proliant 800 3CDHA01135X 1 headend
EAS Monroe WIP925S 1 headend
EAS Monroe R177M 4 headend
EAS Monroe 9509-15577 1 headend
Rack 82" N/A N/A N/A 5 Headend
Rack 76" EMCEE N/A N/A 6 Headend [***]
Monitoring Device DPS Alpha Max 82A 1 Headend [***]
A/C 5 Ton Indoor Out door unit Gibson GS3BA-060KA GS3000550257 1 Headend [***]
A/C 2 Ton window type 220 volt Carrier 2 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------------------------- -------------------- -------------- ------------- ----- -------- -------
Antenna Omni Andrews HMD12VO N/A 1 Headend [***]
Antenna 140Deg Bogner 140/8-VO N/A 1 Headend [***]
Hardline 160' ANDREW 1 5/8" N/A 1 Headend [***]
Hardline 160' ANDREW 7/8" N/A 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1750 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1615 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1615 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1615 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-1615 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 1 Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5524 1 Headend [***]
controller data encoder tray Pacmono data encoder 56983 1 Headend [***]
drawer encoder card trays Pacmono encoder card
tray 56983 5 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12004411 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15024722 1 Headend [***]
TVRO Sat. Rec IRD G.I. 4500 839670026416 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12003599 1 Headend [***]
TVRO Sat. Rec IRD S.A. 9225 314611087093 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15030625 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12002294 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15023460 1 Headend [***]
Dernod IRD BLOND. BLDEMOD524 9665 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15030616 1 Headend [***]
TVRO Sat. Rec IRD G.l. 1500 D45023723 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15035696 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15024723 1 Headend [***]
TVRO Sat. Rec IRD S.A. 4500 839670026410 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15023611 1 Headend [***]
TVRO Sat. Rec IRD G.I. 4500 812760044234 1 Headend [***]
TVRO Sat. Rec IRD S.A. 9225 65253 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D150027447 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D45023752 1 Headend [***]
TVRO Sat. Rec IRD G.I. 4500 820790003886 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12003909 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15032258 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15026961 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12003741 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15030234 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12003254 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15025515 1 Headend [***]
TVRO Sat. Rec IRD WEG MPEG2 51292 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15034842 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D12003468 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15030235 1 Headend [***]
TVRO Sat. Rec IRD G.I. 1500 D15025792 1 Headend [***]
Generator 80kW Generac Gen 80kW None 1 Headend [***]
UPS 50kW Powerware PowerwarePLus
5 None 1 Headend [***]
A/C 10 Bard 10 ton x 2 None 2 Headend [***]
Racks 72" unknow 21" wide N/A 18 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Controllar Facility Channel
---- -------- --------------- ------------- --------- ----- ---------- -------- -------
Transmit Cardioid Andrews HMD12HO N/A 1 N/A Headend [***]
Transmit Cardioid Andrews HMD12VO N/A 1 N/A Headend [***]
Hardline 40' ANDREW 1 5/8" N/A 2 N/A Headend [***]
Combiner A Axcera(ITS-ADC) ITS-685E N/A 1 N/A Headend [***]
Combiner D Axcera(ITS-ADC) ITS-685E N/A 1 N/A Headend [***]
Combiner G Axcera(ITS-ADC) ITS-685E N/A 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559789 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559790 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559791 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559792 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559793 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559794 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559795 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559796 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559797 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559798 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559799 1 N/A Headend [***]
Transmitter 50watts ITS (AXCERA) ADC-5724 213559800 1 N/A Headend [***]
Direct tv 0.5 Direct tv N/A N/A 1 N/A Headend [***]
Direct tv 0.5 Direct tv N/A N/A 1 N/A Headend [***]
Direct tv 0.5 Direct tv N/A N/A 1 N/A Headend [***]
Racks 72" unknow 21" wide N/A 4 N/A Headend [***]
A/C 1 Window Units Site owned unknown 1 N/A Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------------------------- -------------------- -------------- ------------- ----- -------- -------
Antenna Transmit Horizontal-Omni Andrew HMD-12HO/W0.5 N/A 1 Headend
Waveguide 290' ANDREW 7/8" Air N/A 1 Headend
Transition Jumper 20' ANDREW 7/8" Air N/A 1 Headend
Transition Jumper 12' ANDREW 7/8" Air N/A 1 Headend
Connectors Tansition EW20 to 7/8" Andrew Transition
EW20 to 7/8" 2 Headend
Connectors E 7/8" EIA Andrew E 7/8" EIA 4 Headend
Combiner A-group combiner MFC 11754 N/A 1 Headend [***]
Combiner B-group combiner MFC 11754 N/A 1 Headend [***]
Combiner C-group combiner MFC 11754 N/A 1 Headend [***]
Combiner D-group combiner MFC 11754 N/A 1 Headend [***]
Combiner F-group combiner MFC 11754 N/A 1 Headend [***]
Combiner G-group combiner MFC 11754 N/A 1 Headend [***]
Combiner COMBINER MAJIC T MFC N/A 1 Headend [***]
Combiner H-group combiner MWF 11754SA-H N/A 1 Headend [***]
Transmitter 25W Comwave Sb025A 1 Headend [***]
Transmitter 10W Comwave SB010A 1 Headend [***]
Transmitter 25W Comwave SB025A 1 Headend [***]
Transmitter 25W Comwave SB025A 1 Headend [***]
Transmitter 50W Comwave SB050D 15138 1 Headend [***]
Transmitter 50W Comwave SB050D 15139 1 Headend [***]
Transmitter 50W Comwave SB050D 15140 1 Headend [***]
Transmitter 50W Comwave SB050D 15141 1 Headend [***]
Transmitter 50W Comwave SB050D 15132 1 Headend [***]
Transmitter 50W Comwave SB050D 15145 1 Headend [***]
Transmitter 50W Comwave SB050D 15146 1 Headend [***]
Transmitter 50W Comwave SB050D 15147 1 Headend [***]
Transmitter 50W Comwave SB050D 15133 1 Headend [***]
Transmitter 50W Comwave SB050D 15148 1 Headend [***]
Transmitter 50W Comwave SB050D 15149 1 Headend [***]
Transmitter 50W Comwave SB050D 15150 1 Headend [***]
Transmitter 50W Comwave SB050-MRC 1 Headend [***]
Transmitter 50W Comwave SB050-MRC 1 Headend [***]
Transmitter 50W Comwave SB050-MRC 1 Headend [***]
Transmitter 50W Comwave SB050-MRC 1 Headend [***]
Transmitter 50W Comwave SB050D 15134 1 Headend [***]
Transmitter 50W Comwave SB050D 15135 1 Headend [***]
Transmitter 50W Comwave SB050D 15136 1 Headend [***]
Transmitter 50W Comwave SB050D 15137 1 Headend [***]
Transmitter 50W Comwave SB050D 10226 1 Headend [***]
Transmitter 50W Comwave SB050D 10227 1 Headend [***]
Transmitter 50W Comwave SB050D 10228 1 Headend [***]
Modulator IF Comwave TVM-102 n/a 1 Headend [***]
Modulator IF Comwave TVM-102 4743 1 Headend [***]
Modulator IF Comwave TVM-102 3712 1 Headend [***]
Modulator IF SA 9650 895031b 1 Headend [***]
Modulator IF Comwave TVM-102 15138 1 Headend [***]
Modulator IF Comwave TVM-102 15139 1 Headend [***]
Modulator IF Comwave TVM-102 15140 1 Headend [***]
Modulator IF Comwave TVM-102 15141 1 Headend [***]
Modulator IF Comwave TVM-102 15132 1 Headend [***]
Modulator IF Comwave TVM-102 15145 1 Headend [***]
Modulator IF Comwave TVM-102 15146 1 Headend [***]
Modulator IF Comwave TVM-102 15147 1 Headend [***]
Modulator IF Comwave TVM-102 15133 1 Headend [***]
Modulator IF Comwave TVM-102 15148 1 Headend [***]
Modulator IF Comwave TVM-102 15149 1 Headend [***]
Modulator IF Comwave TVM-102 15150 1 Headend [***]
Modulator IF Comwave TVM-102 6001 1 Headend [***]
Modulator IF Comwave TVM-102 4737 1 Headend [***]
Modulator IF Comwave TVM-102 n/a 1 Headend [***]
Modulator IF Comwave TVM-102 n/a 1 Headend [***]
Modulator IF Comwave TVM-102 15134 1 Headend [***]
Modulator IF Comwave TVM-102 15135 1 Headend [***]
Modulator IF Comwave TVM-102 15136 1 Headend [***]
Modulator IF Comwave TVM-102 15137 1 Headend [***]
Modulator IF Comwave TVM-102 10226 1 Headend [***]
Modulator IF Comwave TVM-102 10227 1 Headend [***]
Modulator IF Comwave TVM-102 10228 1 Headend [***]
A/V Distribution A 16 Output Videotronics VDA-500 1 Headend
A/V Distribution A 4 Output Tandy Corp VDA 4 Headend
Sat Receiver EchoStar S001373206373 1 Headend [***]
Sat Receiver EchoStar S001373222941 1 Headend [***]
Sat Receiver EchoStar S001373206878 1 Headend [***]
Sat Receiver EchoStar S001373206474 1 Headend [***]
Sat Receiver EchoStar S000740964861 1 Headend [***]
Sat Receiver EchoStar S000835535976 1 Headend [***]
Sat Receiver EchoStar S001373206070 1 Headend [***]
Sat Receiver EchoStar S001373206272 1 Headend [***]
Sat Dich 36" Dish Network Dual Feed 1 Headend [***]
Dehydrator Andrew MT-300 9801mt30143a 1 Headend
reference tray 10MHz Comwave 15142 1 Headend [***]
montoring Device Alpha Max DPS Alpha Max 82A 1 Headend
A/C 3 Ton 2 Headend
Rack N/A N/A WA Headend
Headend Television Sony Trinitron 8024956 1 Headend
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ -------------------- ------------- ------------- ----- -------- -------
Antenna (Transmit) Cardloid -Vertical Andrew HMD12VC N/A 1 Headend Active
Antenna (Transmit) Cardloid -Vertical Andrew HMD12VC N/A 1 Headend Active
Antenna (Transmit) Cardloid -Vertical Andrew HMD12VC N/A 1 Headend Active
Antenna (Transmit) Cardloid -Vertical Andrew HMD12VC N/A 1 Headend Active
Waveguide Andrew HJ7-50A N/A 1 Headend Active
Waveguide Andrew HJ7-50A N/A 1 Headend Active
Waveguide Andrew HJ7-50A N/A 1 Headend Active
Waveguide Andrew HJ7-50A N/A 1 Headend Active
Heliax 8" Andrew 7/8" Foam N/A 1 Headend Active
Heliax 10' Andrew 7/8" Foam N/A 1 Headend Active
Heliax 10" Andrew 7/8" Foam N/A 1 Headend Active
Heliax 3" Andrew 7/8" Foam N/A 1 Headend Active
Combiner Microwave Filter Co. 9004S N/A 1 Headend Active [***]
Combiner Microwave Filter Co. 9004S N/A 1 Headend Active [***]
Combiner Microwave Filter Co. 9004S N/A 1 Headend Active [***]
Combiner Axcer(ITS) 1694D 7673046 1 Headend Active [***]
Combiner Axcer(ITS) 1694D 4315032 1 Headend Active [***]
Combiner Axcer(ITS) 1694D 4316032 1 Headend Active [***]
Combiner Axcer(ITS) 1694D 7674046 1 Headend Active [***]
Combiner Axcer(ITS) 1893D 4317032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 585 6258095 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 15287 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685 3348041 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685 3349041 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685 3350041 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685 3351041 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4095012 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4096012 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4097012 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4237012 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685 3362041 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685D 3085011 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685D 3086011 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685D 3087011 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 7679046 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 7680046 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 7581046 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 7682046 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4304032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4305032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4306032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4307032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4308032 1 Headend Active [***]
Diplaxer Axcera(ITS-ADC) 685E 4309032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4310032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4311032 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E M0051033 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E M0052033 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E M0053033 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E M0054033 1 Headend Active [***]
Diplexer Axcera(ITS-ADC) 685E 4312032 1 Headend Active [***]
Diplexer Axcera(ITS) 685E 4313032 1 Headend Active [***]
Diplexer Axcera(ITS) 685E 4314032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1720C 6259095 1 Headend Active [***]
Transmitter 50W Axcera(ITS) 5524 15283 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 3330041 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 3331041 1 Headend Active [***]
Transmitter 2OW Axcera(ITS) 1610E 3332041 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 3333041 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 161OE 4089012 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4090012 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4091012 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4236012 1 Headend Active [***]
Transmftter 20W Axcera(ITS) 1610E 3361041 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610D 3085011 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610D 3086011 1 Headend Active [***]
Transmttter 20W Axcera(ITS) 1610D 3087011 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 5160013 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 5161013 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 5162013 1 Headend Active [***]
Transmitter 2OW Axcera(ITS) 1610E 5163013 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4293032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4294032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4295032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4296032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4297032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4298032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4299032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4300032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E M0040033 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E M0041033 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E M0042033 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E M0043033 1 Headend Active [***]
Transmittor 20W Axcera(ITS) 1610E 4301032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4302032 1 Headend Active [***]
Transmitter 20W Axcera(ITS) 1610E 4303032 1 Headend Active [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ -------------------- ------------- ------------- ----- -------- -------
Downstream Router Hybrid CMD 2000 G-3206000004 1 Headend Active
EAS Encoder SAM MIP 921e 2378 1 Headend Active
EAS Printer NCI 122X D51422275 1 Headend Active
EAS Master Switch Monroe R177M 4 Headend Active
A/V Switcher Leightronix Pro 8 P80518 1 Headend Active
TVRO Sat. Recivers Standard MT 650 1 Headend Active [***]
TVRO Sat. Recivers Standard MT 650 1 Headend Active [***]
Radio
(point-to-point
TX/RX) 12.9125 GHz Microwave Radio 905464-013 705FLR12R4819 1 Headend Active
Radio
(point-to-point
TX/RX) 12.9125 GHz Microwave Radio 905900-013 7O5FLR12R4818 1 Headend Active
Radio
(point-to-point
TX/RX) 22.025GHz Microwave Radio 8451722-2 706CXSA222 1 Headend Active
IRD Standard Agile IRD II 59U960732 1 Headend Backup
IRD Standard Agile IRD II 57U920290 1 Headend Backup
IRD Blonder Tongue IRD 2001 34U410184 1 Headend Spare
LNB 4O deqree Cal Amp CS42157-Pro 98907 1 Headend Spare
LNB 45 degree Cal Amp CS42157-SLHMT 1 Headend Spare
LNB 20 degree Cal Amp 140194-1 2 Headend Backup
LNB 20k Cal Amp 140194-1 8 Headend Active
LNB 25k Cal Amp 140105 8 Headend Active
TVRO Earth Station 3.7 m N/A N/A N/A 1 spare
TVRO Earth Station Comtech 1 Headend Active
TVRO Earth Station Comtech 1 Headend Active
TVRO Earth Station Multi-feed Comtech 1 Headend Active
TVRO Earth Station Patriot 1 Headend Active
TVRO Earth Station Patriot 1 Headend Active
TVRO Earth Station Wienguard 1 Headend Active
Antenna (STL) 6' Andrew N/A 1 Headend Active [***]
Rack 72" N/A N/A N/A 11 Headend Active
Generator 75kW Kohler 100RZ 367201 1 Headend Active
Transfer Switch Kohler K164231-400 K61838 1 Headend Active
A/C 5 Ton BDP 588ANW060100 1795G80949 1 Headend Active
A/C 5 Ton BDP 588DJX060000 2995G20989 1 Headend Active
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
Antenna (Transmit) DIRECTIONAL Andrew HMD12VP-W125 N/A 1 Headend N/A
Antenna (Transmit) OMNI Andrew Headend
Antenna (Transmit) DIRECTIONAL Andrew HMD12VP-W125 N/A 1 Headend
Waveguide Andrew EW-20 200 Headend
Combiner Filterplexer ITS/Axcera 676D ADJACENT 8 Headend [***]
Transmitter ITS/Axcera 1750C 14964 Headend [***]
Transmitter ITS/Axcera 1750C 14965 Headend [***]
Transmitter ITS/Axcera 1750C 14966 1 Headend [***]
Transmitter ITS/Axcera 1750C 14969 1 Headend [***]
Transmitter ITS/Axcera 1750 M1436054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1437054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1438054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1439054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1440054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1441054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1442054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1443054 1 Headend [***]
Transmitter ITS/Axcera 1750 M1444054 Headend [***]
Transmitter ITS/Axcera 1750 M1445054 Headend [***]
Transmitter ITS/Axcera 1750 M1446054 Headend [***]
Transmitter ITS/Axcera 1750 M1447054 Headend [***]
Transmitter ITS/Axcera 1750C 14968 1 Headend [***]
Transmitter ITS/Axcera 1750C 14967 1 Headend [***]
Transmitter ITS/Axcera 1750C 14970 1 Headend [***]
Transmitter ITS/Axcera 1750C 14971 1 Headend [***]
Transmitter ITS/Axcera 1750 M1195034 1 Headend [***]
Transmitter ITS/Axcera 1750 M1196034 1 Headend [***]
Transmitter ITS/Axcera 1750 M1197034 1 Headend [***]
Scrambling GI/Tocom HVP 4 Headend [***]
STL MRC 905900 1 Headend [***]
STL MRC 905900 1 Headend [***]
STL MRC 905900 1 Headend [***]
STL MRC 905900 1 Headend [***]
Modulator Standard MOD 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
STL MRC 905900 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satellite Dish Maralite 3.7 4 Headend [***]
Satellite Dish Headend [***]
Satellite Dish Headend [***]
Satellite Dish Headend [***]
Stero Generator Learning MTS-2C 8 Headend
Baseband Switch EAS R177M 4 Headend [***]
Generator Kohler 150ROZJ 1 Headend [***]
AC BARD 5 TON Wall Lessor supplied 2 Headend
STL Dishes Andrew 8' 3 Headend
MMDS RX Dish Andrew 2.5-2.68 8' 1 Headend
Video Switcher Monroe MP-8 1 Headend
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
Antenna (Transmit) OMNI Andrew HMD 16HO N/A 2 Headend N/A
Waveguide Andrew EW-130 110' Headend
Waveguide Andrew EW-20 225' Headend
Waveguide Andrew EW-20 225' Headend
Combiner Filterplexer MFC 9004S 5 Headend [***]
Transmitter EMCEE TTS10HS 838 1 Headend [***]
Transmitter EMCEE TTS10HS 839 1 Headend [***]
Transmitter EMCEE TTS10HS 840 1 Headend [***]
Transmitter EMCEE TTS10HS 841 1 Headend [***]
Transmitter EMCEE TTS10HS 1317 1 Headend [***]
Transmitter EMCEE TTS10HS 1318 1 Headend [***]
Transmitter EMCEE TTS10HS 1319 1 Headend [***]
Transmitter EMCEE TTS10HS 1320 1 Headend [***]
Transmitter EMCEE TTS10HS 842 1 Headend [***]
Transmitter EMCEE TTS10HS 843 1 Headend [***]
Transmitter EMCEE TTS10HS 844 1 Headend [***]
Transmitter EMCEE TTS10HS 845 1 Headend [***]
Transmitter EMCEE TTS10HS 850 1 Headend [***]
Transmitter EMCEE TTS10HS 851 1 Headend [***]
Transmitter EMCEE TTS10HS 852 1 Headend [***]
Transmitter EMCEE TTS10HS 853 1 Headend [***]
Transmitter EMCEE TTS10HS 854 1 Headend [***]
Transmitter EMCEE TTS10HS 855 1 Headend [***]
Transmitter EMCEE TTS10HS 856 1 Headend [***]
Transmitter EMCEE TTS10HS 857 1 Headend [***]
Amplifier EMCEE TSA50HS 838 1 Headend [***]
Amplifier EMCEE TSA50HS 839 1 Headend [***]
Amplifier EMCEE TSA50HS 840 1 Headend [***]
Amplifier EMCEE TSA50HS 841 1 Headend [***]
Amplifier EMCEE TSA50HS 1317 1 Headend [***]
Amplifier EMCEE TSA50HS 1318 1 Headend [***]
Amplifier EMCEE TSASOHS 1319 1 Headend [***]
Amplifier EMCEE TSA50HS 1320 1 Headend [***]
Amplifier EMCEE TSA50HS 842 1 Headend [***]
Amplifier EMCEE TSA50HS 843 1 Headend [***]
Amplifier EMCEE TSA50HS 844 1 Headend [***]
Amplifier EMCEE TSA50HS 845 1 Headend [***]
Amplifier EMCEE TSA50HS 850 1 Headend [***]
Amplifier EMCEE TSA50HS 851 1 Headend [***]
Amplifier EMCEE TSA50HS 852 1 Headend [***]
Amplifier EMCEE TSA50HS 853 1 Headend [***]
Amplifier EMCEE TSA50HS 854 1 Headend [***]
Amplifier EMCEE TSA50HS 855 1 Headend [***]
Amplifier EMCEE TSA50HS 856 i Headend [***]
Amplifier EMCEE TSA50HS 857 1 Headend [***]
Upconverter Comwave 1751 1 Headend [***]
Amplifier Comwave S Band 1751 1 Headend [***]
Driver Comwave SDA 2500 11974 1 Headend [***]
Amplifier Comwave SD 2500 11974 1 Headend [***]
Scrambling GI/Tocom HVP 3 Headend [***]
Satelite Receiver GI DSR4500 1 Headend
Satelite Receiver SA POWERVU 1 Headend
Satelite Receiver GI DSR4500 1 Headend
Satelite Receiver SA POWERVU 1 Headend
Satelite Receiver Standard AGILE 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver SA POWERVU 1 Headend
Satelite Receiver GI DSR4500 1 Headend
Satelite Receiver GI DSR 4400X 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
Satelite Receiver Standard STANDARD 1 Headend
modulator Bindr long agll 1 Headend
modulator SA 6340 21 Headend
modulator Comwave TVM 102 2 Headend
Satelite Receiver Learning sap gen 1 Headend
Tuner Monroe 3000 1 Headend
Receiver Monroe Cut tone 1 Headend
Relay Monroe Aud/Vis 1 Headend
Receiver MRC Ma-12x 2 Headend
Satellite Dish Comtech Simuisat 1 Headend [***]
UHF Antenna Local Scala Ch 27 1 Headend
Generator Kohler 100R262 1 Headend
AC Sun 42000 BTU 3 Headend
Tower Rohn SSV 200' 1 Headend
Building Rohn EST 1084 96 12' x 1 Headend
Propane Tank Trinity 109624 190 Gal. 1 Headend
TV Sony 19" 1 Headend
Surge Suppresso DataSystem P24XAA 1 Headend
Transfer Switch Kohler 1 Headend
Rack EMCEE 72" 9 Headend
Compessor Andrew MT 3000 1 Headend
LoopCouplar MFC 9085 OdB Dw 1 Headend
Site Lock EMCEE SLR 33 1 Headend
Transmitter EMCEE TTS20 408 1 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
Antenna (Transmit) DIRECTIONAL Andrew HMD32VC N/A 1 Headend [***]
Antenna (Transmit) OMNI Andrew HMD12V0-W N/A 1 Headend
Antenna (Transmit) DIRECTIONAL Andrew HMD16VC-Q 1 Headend
Waveguide Andrew EW-20 170 Headend
Combiner Filterplexer ITS/Axcera 676D ADJACENT 7 [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1615E 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Transmitter ITS/Axcera 1750C 1 Headend [***]
Scrambling GI/Tocom HVP 4 Headend [***]
Satelite Receiver Drake DRAKE 1240 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Blonder Tounge BLND TNG 6175 1 Headend [***]
Satelite Receiver GI DSR4400 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver SA SA PWR VW 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Drake DRAKE 1240 1 Headend [***]
Demodulator DMD 141A 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver sa SA PWR VW 1 Headend [***]
Satelite Receiver GI DSR4400X 1 Headend [***]
Demodulator DM141A 1 Headend [***]
Satelite Receiver Headend [***]
Demodulator DM141A 1 Headend [***]
Satelite Receiver GI DSR 4200V 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Demodulator DM141A 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satelite Receiver Standard STANDARD 1 Headend [***]
Satellite Dish PATRIOT 3.7 1 Headend [***]
Satellite Dish SAM I 2.5 1 Headend [***]
Satellite Dish COMTECH 3 1 Headend [***]
Satellite Dish COMTECH 3 1 Headend [***]
Satellite Dish COMTECH 3 1 Headend [***]
Satellite Dish SCI-ATL 3 1 Headend [***]
UHF Antenna Local Scala CH 30 1 Headend
Generator KATOLIGHT 12TC2A 1 Headend
AC Timberline 42000 BTU 3 Headend
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
Antenna (Transmit) Directional/ver Bogner B16SH-V 1 Headend [***]
Antenna (Transmit) Directional/ver Bogner B16SD-V 1 Headend
Waveguide Andrew LDF6-50 300' Headend
Combiner Filterplexer 1 Headend
Notch Filter Thales 3 Headend [***]
Transmitter Agile Thales SBCA-50C 2 Headend [***]
Transmitter Thales SDA 1500 1 Headend [***]
Modulator Thales IRT 1000 1 Headend
Reference Drawer Thales 2126 2 Headend [***]
Rack ITS 72" 1 Headend
Programmer Thales 4ch 2 Headend [***]
Receiver Blndr Tongue CDSR-6198 2 Headend
LNA Blndr Tongue DTV32 1 Headend
Dish receive Blndr Tongue DS2078 1 Headend
Switcher 2x4 Blndr Tongue DTV3x4 1 Headend
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------- ------------- ------------- ------------------------- ----- -------- -------
Tower 40' Rohn N/A N/A 1 N/A Headend [***]
Transmit
antenna 14.5DB
gain Andrew HMD8VC-W05 N/A 2 N/A Headend
Combiner A-group
combiner ComWave 9004S-A 1 N/A Headend
Combiner D-group
combiner ComWave 9004S-D 1 N/A Headend
Combiner E-group
combiner ComWave 9004S-E 1 N/A Headend
Combiner F-group
combiner ComWave 9004S-F 1 N/A Headend
Combiner G-group
combiner ComWave 9004S-G 1 N/A Headend
Combiner H-group
combiner ComWave 9004S-H 1 N/A Headend
Diplexer G2 A/V
combiner Microwave 10759-G2 1 N/A Headend
Diplexer G3 A/V
combiner Microwave 10759-G3 1 N/A Headend
Diplexer G4 A/V
combiner Microwave 10759-G4 1 N/A Headend
Transmitter
/Agile 10 Watt COMWAVE SBSA-10 S4655 1 N/A Headend [***]
Upconverter 10 Watt COMWAVE SB010MRC S1049 1 N/A Headend [***]
Amplifier 10 Watt COMWAVE SB010MRC S1049 1 N/A Headend [***]
Upconverter 10 Watt COMWAVE SB010MRC S1050 1 N/A Headend [***]
Amplifier 10 Watt COMWAVE SBO10MRC S1050 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A S1907 1 N/A Headend [***]
Upconverter 10 Watt COMWAVE SB010MRC S1052 1 N/A Headend [***]
Amplifier 10 Watt COMWAVE SB010MRC S1052 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A-1 S3238 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A-1 S3122 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A-1 S3121 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A-1 S3124 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A S1863 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A S1864 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A S1065 1 N/A Headend [***]
Transmitter 10 Watt COMWAVE SB010A S1866 1 N/A Headend [***]
Transmitter 20 Watt EMCEE TTS20HS 488 1 N/A Headend [***]
Transmitter 20 Watt EMCEE TTS20HS 489 1 N/A Headend [***]
Transmitter 20 Watt EMCEE TTS20HS 490 1 N/A Headend [***]
Transmitter 20 Watt EMCEE TTS20HS 491 1 N/A Headend [***]
Transmitter 20 Watt COMWAVE SB010A S3238 1 N/A Headend [***]
Transmitter 20 Watt ITS 1610E 3629071 1 N/A Headend [***]
Transmitter 20 Watt ITS 1610E 3610071 1 N/A Headend [***]
Transmitter 20 Watt ITS 1710 M18010 1 N/A Headend [***]
Transmitter 20 Watt EMCEE TTS20HS 751 1 N/A Headend [***]
Transmitter 20 Watt EMCEE TTS20HS 752 1 N/A Headand [***]
Transmitter 20 Watt EMCEE TTS20HS 765 1 N/A Headend [***]
Modulator Comwave Comwave TVM-102 S4719 1 N/A Headend [***]
modulator Comwave Comwave TVM-102 S6503 1 N/A Headend [***]
Modulator Comwave Comwave TVM-102 2674 1 N/A Headend [***]
Modulator Catel Catel CTM20 300384 1 N/A Headend [***]
Modulator Catel Catel CTM20 300316 1 N/A Headend [***]
Modulator Emcee Emcee EM1 300576 1 N/A Headend [***]
Modulator Emcee Emcee EM1 6750196 1 N/A Headend [***]
Modulator IF S/A 6340 8817 1 N/A Headend [***]
Modulator IF S/A 6340 9491 1 N/A Headend [***]
Modulator IF S/A 6340 9494 1 N/A Headend [***]
Modulator Comwave Comwave TVM-102 S2896 1 N/A Headend [***]
Modulator ITS ITS ITS-1610E 3629071 1 N/A Headend [***]
Modulator ITS ITS ITS-1610E 3610071 1 N/A Headend [***]
Modulator ITS ITS ITS-1710 M18010 1 N/A Headend [***]
Modulator IF S/A 6340 9485 1 N/A Headend [***]
Modulator IF S/A 6340 8733 1 N/A Headend [***]
Modulator IF S/A 6340 8787 1 N/A Headend [***]
Modulator Catel Catel CTM20 802384- 1 N/A Headend [***]
Modulator Catel Calel CTM20 80384-8 1 N/A Headend [***]
Modulator Comwave Comwave TVM-102 301978 1 N/A Headend [***]
Modulator RCA RCA CTM20 797 1 N/A Headend [***]
Modulator Catel Catel CTM20 30089 1 N/A Headend [***]
Modulator Comwave Comwave TVM-102 68119 1 N/A Headend [***]
EAS Monroe Electr R177M Master 116943 1 N/A Headend [***]
EAS Monroe Electr R177M Master 116944 1 N/A Headend [***]
EAS Monroe Electr R177M Master 116945 1 N/A Headend [***]
IRD S/A 9640 CC3500 1 N/A Headend [***]
Sat.
Recivers Standard IRD II 52U820 1 N/A Headend [***]
Sat.
Recivers Standard IRD II 52U820 1 N/A Headend [***]
Sat.
Recivers Standard IRD II 81U300 1 N/A Headend [***]
IRD S/A Powervu DV3 3828801 1 N/A Headend [***]
IRD S/A 9650 CE1S00 1 N/A Headend [***]
IRD S/A 9650 CC3S00 1 N/A Headend [***]
IRD S/A 9650 CE1S00 1 N/A Headend [***]
Sat.
Recivers Standard IRD II 58U940 1 N/A Headend [***]
IRD S/A 9650 CL2S00 1 N/A Headend [***]
IRD S/A 9650 CE1S00 1 N/A Headend [***]
IRD S/A IRD II 52U820 1 N/A Headend [***]
IRD S/A 9650 CE1S00 1 N/A Headend [***]
IRD S/A 9650 CCFS00 1 N/A Headend [***]
IRD S/A 9650 CL2S00 1 N/A Headend [***]
Sat.
Recivers Blonder Tong Vid. Cipher
RS NO SER 1 N/A Headend [***]
IRD S/A 9650 C62S00 1 N/A Headend [***]
IRD S/A Vid. Cipher
II Plu VE0S00 1 N/A Headend [***]
IRD S/A 9650 CC3S00 1 N/A Headend [***]
Sat.
Recivers Drake Vid. Cipher
II Plu 900248 1 N/A Headend [***]
Sat
Recivers Standard IRD II 81U300 1 N/A Headend [***]
Demodulator Holland S/A HDM 8397813 1 N/A Headend [***]
Demodulator Holland S/A HDM 8397682 1 N/A Headend [***]
Demodulator Holland S/A HDM 7716516 1 N/A Headend [***]
Off-Air
Receive
anten Unknown 1 Unknown N/A 1 N/A Headend
Off-Air
Receive
anten Unknown 1 Unknown N/A 1 N/A Headend
Low Noise
UHF Pre-a N/A Blonder Tong 1264 1 N/A Headend
A/C 5 ton Carrier 53QAB060-5 1 N/A Headend [***]
A/C Window
unit Kenmora 11800BTU 1 N/A Headend [***]
A/C Window
unit Fedders N/A 1 N/A Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ------------------ ------------------- --------------- ---------------- ----- ------------- -------
Antenna (Transmit) DIRECTIONAL Andrew HMD12VP N/A 1 Headend [***]
Antenna (Transmit) OMNI Andrew Headend
Antenna (Transmit) DIRECTIONAL Andrew HMD12VP N/A 1 Headend
Waveguide Andrew EW-20 200 Headend
Combiner Filterplexer ITS/Axcera 676D ADJACENT 8 Headend [***]
Transmitter ITS/Axcera Headend [***]
Transmitter ITS/Axcera Headend [***]
Transmitter ITS/Axcera 1610E M0134043 1 Headend [***]
Transmitter ITS/Axcera 1610E M0135043 1 Headend [***]
Transmitter ITS/Axcera 1720A 6146085 1 Headend [***]
Transmitter ITS/Axcera 1720A 6147085 1 Headend [***]
Transmitter ITS/Axcera 1720A 6148085 1 Headend [***]
Transmitter ITS/Axcera 1720A 6149085 1 Headend [***]
Transmitter ITS/Axcera 1720C 10005126 1 Headend [***]
Transmitter ITS/Axcera 1720C 10006126 1 Headend [***]
Transmitter ITS/Axcera 1610E M0136043 1 Headend [***]
Transmitter ITS/Axcera 1610E M0137043 1 Headend [***]
Transmitter ITS/Axcera 1720C 10001126 1 Headend [***]
Transmitter ITS/Axcera 1720C 10002126 1 Headend [***]
Transmitter ITS/Axcera 1720C 10003126 1 Headend [***]
Transmitter ITS/Axcera 1720C 10004126 1 Headend [***]
Transmitter ITS/Axcera 1610E M0138043 1 Headend [***]
Transmitter ITS/Axcera 1610E M0139043 1 Headend [***]
Transmitter ITS/Axcera 1610E M0140043 1 Headend [***]
Transmitter ITS/Axcera 1610E M0141043 1 Headend [***]
Transmitter ITS/Axcera 1610E 3448061 1 Headend [***]
Transmitter ITS/Axcera 1610E 3449061 1 Headend [***]
Transmitter ITS/Axcera 1610E 3450061 1 Headend [***]
Transmitter ITS/Axcera 1610E 3451061 1 Headend [***]
Transmitter TS/Axcera 1610E M0748123 1 Headend [***]
Transmitter ITS/Axcera 1610E M0479123 1 Headend [***]
Transmitter ITS/Axcera 1610E M0750123 1 Headend [***]
Transmitter ITS/Axcera 1610E M0751123 1 Headend [***]
Transmitter ITS/Axcera 1610E 3711081 1 Headend [***]
Transmitter ITS/Axcera 1610E M0147043 1 Headend [***]
Transmitter ITS/Axcera 1610E M0148043 1 Headend [***]
Scrambling Gl/Tocom HVP 4 Headend [***]
AML CABLE AML 3 CH. 1 Headend [***]
Modulator Standard MOD 3 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
AML Cable AML AML 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
off air mod off air Mod off air 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
STL MRC 905900 1 Headend [***]
AML Cable AML AML 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satelite Receiver DX DX Sat. DIR 657 1 Headend [***]
Satellite Dish Simulsate ATCi 5.5 1 Headend [***]
Satellite Dish Headend [***]
Satellite Dish Headend [***]
Satellite Dish Headend [***]
Stero Generator Leamlnq MTS-2C 8 Headend
Video Switcher Monroe MP-8 1 Headend
Baseband Switch EAS R177M 4 Headend [***]
Generator Kohler 45KW 1 Headend
AC 5 TON Wall 2 Headend
STL Dishes Andrew 6' 1 Headend
Off Air Ant. Bogner quad array 1 Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------- ------------- ------------- ------------------------- ----- -------- -------
Transmit Omni Andrews HMD8VO-WNQ N/A 1 N/A Headend [***]
Hardline 50' ANDREW 1 5/8" N/A 1 N/A Headend [***]
Combiner A Axcera(ITS-
ADC) ITS-685E none on combiners 1 N/A Headend [***]
Combiner C Axcera(ITS-
ADC) ITS-685E none on combiners 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15097 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15098 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15099 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15100 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15101 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15102 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15103 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 15104 1 N/A Headend [***]
Transmitter 20watts ITS (AXCERA) ADC-5522 2545 1 N/A Headend [***]
Receiver dss DISH 1000 R0019844883/S000301515879 1 N/A Headend [***]
Receiver dss DISH 1000 R0020199420/S000301508707 1 N/A Headend [***]
Receiver dss DISH 1000 R0020591850/S000301507090 1 N/A Headend [***]
Receiver dss DISH 1000 R0020594840/S000301515273 1 N/A Headend [***]
Receiver dss DISH 1000 R0020597817/S000295252743 1 N/A Headend [***]
Receiver dss DISH 1000 R0020590833/S000301507494 1 N/A Headend [***]
Receiver dss DISH 1000 R0019604919/S000301516283 1 N/A Headend [***]
Receiver dss DISH 1000 R0020591722/S000301495170 1 N/A Headend [***]
Racks 72" unknow 21" wide N/A 1 N/A Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- ---------- ------------- ------------- ------------------------- ----- -------- -------
Antenna
Transmit Horizontal Andrew HMD-12HO/w0.5 N/A 2 Windom Headend
Wavegulde 315' ANDREW EW-20 N/A 2 Windom Headend
Transition
Jumpers 12' ANDREW 7/8" Air N/A
Transition
Jumpers 4' ANDREW 7/8" Air N/A 2 Windom Headend
Connectors Wr340 to
7/8" Andrew Wr340 to 7/8" N/A 4 Windom Headend
Combiner A-Group MFC 9004 N/A 1 Windom Headend [***]
Combiner B-Group MFC 9004 N/A 1 Windom Headend [***]
Combiner D-Group MFC 9004 N/A 1 Windom Headend [***]
Combiner E-Group MFC 9004 N/A 1 Windom Headend [***]
Combiner F-Group MFC 9004 N/A 1 Windom Headend [***]
Combiner H-Group MFC 9004 N/A 1 Windom Headend [***]
Transmitter 20W Comwave SB010A 8560 1 Windom Headend [***]
Transmitter 20W Comwave SB010A 11826 1 Windom Headend [***]
Transmitter 10W Comwave SB010A 1929 1 Windom Headend [***]
Transmitter 10W Emcee TTS10HS 374 1 Windom Headend [***]
Transmitter 10W Emcee TTS10HS 373 1 Windom Headend [***]
Transmitter 10W Emcee TTS10HS 376 1 Windom Headend [***]
Transmitter 10W Comwave SB010A 2893 1 Windom Headend [***]
Transmitter 10W Comwave SB010A 3123 1 Windom Headend [***]
Transmitter 10W Comwave SB010A 2707 1 Windom Headend [***]
Transmitter 10W Comwave SB010-MRC 1314 1 Windom Headend [***]
Transmitter 50W Comwave SB010-MRC 1876 1 Windom Headend [***]
Transmitter 50W Comwave SB010-MRC 1877 1 Windom Headend [***]
Transmitter 50W Comwave SB010-MRC 1878 1 windom Headend [***]
Transmitter 50W Comwave SB010-MRC 1879 1 Windom Headend [***]
Transmitter 5OW Comwave SB010-MRC 1880 1 Windom Headend [***]
Transmitter 50W Comwave SB010-MRC 1881 1 Windom Headend [***]
Transmitter 50W Comwave SB010-MRC 1882 1 Wlndom Headend [***]
Transmitter 50W Comwave SB010-MRC 1883 1 Windom Headend [***]
Transmitter 50W Comwave SB050B 3146 1 Windom Headend [***]
Transmitter 6OW Comwave SB060B 3271 1 Wlndom Headend [***]
Transmitter
reference 50W Comwave SB050B 3273 1 Windom Headend [***]
tray 10MHZ Comwave 3147 1 Windom Headend [***]
Modulator IF Comwave TVM-102 8559 1 Windom Headend [***]
Modulator IF Comwave TVM-103 11826 1 Windom Headend [***]
Modulator IF Catel CTM-20 2895 1 Windom Headend [***]
Modulator IF Catel CTM-20 1905 1 Windom Headend [***]
Modulator IF Catel CTM-20 No# 1 Windom Headend [***]
Modulator IF Catel CTM-20 6019 1 Windom Headend [***]
Modulator IF Catel CTM-20 1458 1 Windom Headend [***]
Modulator IF Comwave TVM-102 7214 1 Windom Headend [***]
Modulator IF Catel CTM-20 No# 1 Windom Headend [***]
Modulator IF Comwave TVM-102 3572 1 Windom Headend [***]
Modulator IF Catel CTM-20 1876 1 Wlndom Headend [***]
Modulator IF Catel CTM-20 1877 1 Wlndom Headend [***]
Modulator IF Catel CTM-20 1878 1 Windom Headend [***]
Modulator IF Catel CTM-20 1879 1 windom Headend [***]
Modulator IF Catel CTM-20 1880 1 Windom Headend [***]
Modulator IF Catel CTM-20 1881 1 Windom Headend [***]
Modulator IF Catel CTM-20 1882 1 Windom Headend [***]
Modulator IF Catel CTM-20 1883 1 Windom Headend [***]
Modulator IF Comwave TVM-102 3146 1 Windom Headend [***]
Modulator IF Comwave TVM-103 3271 1 Windom Headend [***]
Modulator IF Comwave TVM-104 4600 1 Windom Headend [***]
Demodulator IF Olsen ODT-2000 No# 1 Windom Headend [***]
Enclosure General
Instruments HVPIII D500000745343 1 Windom headend
Enclosure General
Instruments HVPIII 2151300042 1 Windom headend
Encoding
Cards General
Instruments Data Card 28 Windom headend
EAS Switcher Monroe R177m n/a 4 Windom Headend
EAS Control
Unit Hollywell M1P921S 2624 1 Windom headend
EAS Printer Hollywell 9509-15577 d5h22254 1 Windom headend
Sat
Receivers STANDARD Agile IRD Windom Headend
Sat
Receivers STANDARD Agile IRD Windom Headend
Sat
Receivers STANDARD Agile IRD Windom Headend [***]
Sat
Receivers Sci Atl 8650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers STANDARD MT-650 Windom Headend [***]
Sat
Receivers STANDARD MT-651 Windom Headend [***]
Sat
Receivers STANDARD MT-652 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers STANDARD MT-650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Gl ASR-1000 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat
Receivers Sci Atl 9650 Windom Headend [***]
Sat Dish 3.7M SA Windom Headend [***]
Sat Dish 3.2M Macom Windom Headend [***]
Sat Dish 3.2M Macom Windom Headend [***]
Sat Dish 3.7M Patriot Windom Headend [***]
Dehydrator Andrew MT-300 1809 1 Windom headend [***]
Rack 72' N/A N/A N/A 8 Windom Headend
monitoring
Device Alpha
Max DPS Alpha Max 82A 1 Windom Headend
monitoring
Device Alpha
Max DPS Alpha Max UPS 1 Windom Headend
A/C 3
Ton/
Condenser Weather Kinq 10AJA6001 6764 1 Windom Headend [***]
A/C 3 Ton
blower GMC A060-00 9504046370 1 Windom Headend [***]
A/C 3 ton Bard WA 361 1 Windom Headend [***]
A/C 1 Ton Carrier 51 CM 1 Windom Headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------- ------------- ------------- ------------------------- ----- -------- -------
Transmit Omni Andrews HMD12H N/A 1 N/A Headend [***]
Transmit Omni Andrews HMD12H N/A 1 N/A Headend [***]
Transmit Cardioid NSI 20SA90V N/A 1 N/A Headend [***]
Waveguide 130' ANDREW EW-20 N/A 1 N/A Headend [***]
Waveguide 130' ANDREW EW-20 N/A 1 N/A Headend [***]
Hardline 150' ANDREW 1 5/8" N/A 1 N/A Headend [***]
Combiner H Axcera(ITS-
ADC) 1693D 4423032 1 N/A Headend [***]
Combiner B Axcera(ITS-
ADC) 1693D 12918 1 N/A Headend [***]
Combiner D Axcera(ITS-
ADC) 1694D M0347073 1 N/A Headend [***]
Combiner F Axcera(ITS-
ADC) 1994D 4465042 1 N/A Headend [***]
Combiner A Axcera(ITS-
ADC) 1694D 5146122 1 N/A Headend [***]
Combiner C Axcera(ITS-
ADC) 1694D M0346073 1 N/A Headend [***]
Combiner E Axcera(ITS-
ADC) 1694D 4463042 1 N/A Headend [***]
Combiner G Axcera(ITS-
ADC) 1694D 12917 1 N/A Headend [***]
Diplexer A-1 Axcera(ITS-
ADC) ITS-685E 5142122-A1 1 N/A Headend [***]
Diplexer A-2 Axcera(ITS-
ADC) ITS-685E 5143122-A2 1 N/A Headend [***]
Diplexer A-3 Axcera(ITS-
ADC) ITS-685E 5144122-A3 1 N/A Headend [***]
Diplexer A-4 Axcera(ITS-
ADC) ITS-685E 5145122-A4 1 N/A Headend [***]
Diplexer B-1 Axcera(ITS-
ADC) ITS-685E 12922-B1 1 N/A Headend [***]
Diplexer B-2 Axcera(ITS-
ADC) ITS-685E 12922-B2 1 N/A Headend [***]
Diplexer B-3 Axcera(ITS-
ADC) ITS-685E 12922-B3 1 N/A Headend [***]
Diplexer B-4 Axcera(ITS-
ADC) ITS-885E 12922-B4 1 N/A Headend [***]
Diplexer C-1 Axcera(ITS-
ADC) ITS-685E W0344073-C1 1 N/A Headend [***]
Diplexer C-2 Axcera(ITS-
ADC) ITS-685E M0345073-C2 1 N/A Headend [***]
Diplexer C-3 Axcera(ITS-
ADC) ITS-685E M0348073-C3 1 N/A Headend [***]
Diplexer C-4 Axcera(ITS-
ADC) ITS-685E M0349073-C4 1 N/A Headend [***]
Diplexer D-1 Axcera(ITS-
ADC) ITS-685E M0350073-D1 1 N/A Headend [***]
Diplexer D-2 Axcera(ITS-
ADC) ITS-685E M0351O73-D2 1 N/A Headend [***]
Dlplexer D-3 Axcera(ITS-
ADC) ITS-685E M0352O73-D3 1 N/A Headend [***]
Diplexer D-4 Axcera(ITS-
ADC) ITS-685E M0353073-D4 1 N/A Headend [***]
Diplexer E-1 Axcera(ITS-
ADC) ITS-685E 5974065-E1 1 N/A Headend [***]
Diplexer E-2 Axcera(ITS-
ADC) ITS-685E 5975065-E2 1 N/A Headend [***]
Diplexer E-3 Axcera(ITS-
ADC) ITS-685E 881607&E3 1 N/A Headend [***]
Diplexer E-4 Axcera(ITS-
ADC) ITS-685E 8818076-E4 1 N/A Headend [***]
Diplexer F-1 Axcera(ITS-
ADC) ITS-685E 4568042-F1 1 N/A Headend [***]
Diplexer F-2 Axcera(ITS-
ADC) ITS-685E 4569042-F2 1 N/A Headend [***]
Diplexer F-3 Axcera(ITS-
ADC) ITS-685E 4570042-F3 1 N/A Headend [***]
Diplexer F-4 Axcera(ITS-
ADC) ITS-685E 4571042-F4 1 N/A Headend [***]
Diplexer G-1 Axcera(ITS-
ADC) ITS-685E 12921-G1 1 N/A Headend [***]
Diplexer G-2 Axcera(ITS-
ADC) ITS-685E 12921-G2 1 N/A Headend [***]
Diplexer G-3 Axcera(ITS-
ADC) ITS-685E 12921-G3 1 N/A Headend [***]
Diplexer G-4 Axcera(ITS-
ADC) ITS-685E 12921-G4 1 N/A Headend [***]
Diplexer H-1 Axcera(ITS-
ADC) ITS-685E 4421032-H1 1 N/A Headend [***]
Diplexer H-2 Axcera(ITS-
ADC) ITS-685E 3462051-H2 1 N/A Headend [***]
Diplexer H-3 Axcera(ITS-
ADC) ITS-685E 4422032-H3 1 N/A Headend [***]
Diplexer AGILE Axcera(ITS-
ADC) ITS-685E 44264876-ag 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E 5139122-A2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E 5140122-A3 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 161OE 5141122-A4 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12923-B1 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12924-B2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12925-B3 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12926-B4 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E M0336073-C1 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E M0337073-C2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 161QE M0338073-C3 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E M0339073-C4 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E M0340073-D1 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 161OE M0341073-D2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610E M0342073-D3 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 161OE M0343073-D4 1 N/A Headend [***]
Transmitter 50W@20W ITS (AXCERA) FA1750 6366105 AGILE 1 N/A Headend [***]
Transmitter 50W@20W ITS (AXCERA) 1750A 5971065-E2 1 N/A Headend [***]
Transmitter 50W@20W ITS (AXCERA) 1750A 8B15076-E3 1 N/A Headend [***]
Transmitter 50W@20W ITS (AXCERA) 1750A 8817075-E4 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12086-F1 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12087-F2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12088-F3 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12089-F4 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12624-G1 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12625-G2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12626-G3 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1720C 12627-G4 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 161OC 4419031-H1 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 1610C 3461051-H2 1 N/A Headend [***]
Transmitter 20 Watts ITS (AXCERA) 161OC 4420032-H3 1 N/A Headend [***]
Transmitter 50 Watts ITS (AXCERA) 1750 na 1 N/A Headend [***]
controller Data
Encoder
Tra Pacmono Data Enco 56988 1 N/A headend [***]
drawer Data
Card
Tray Pacmono Data Card 56988 5 N/A headend [***]
[*** Confidential Treatment Requested]
[***] Equipment Inventory
[Enlarge/Download Table]
Type Sub-Type Manufacturer Model or Spec Serial # Quan. Facility Channel
---- -------- ------------- ------------- ------------------------- ----- -------- -------
TVRO Sat.
Receiver IRD DX 775-A A0200FB36 1 IN THE CLEAR Headend [***]
TVRO Sat.
Receiver IRD DX 775-A A0200C475 1 A0200FB36 Headend [***]
TVRO Sat.
Receiver IRD DX 775-A 1536616-0 1 A0200C475 Headend [***]
TVRO Sat.
Receiver IRD SA 775-A A020C5F54 1 1536616-0 Headend [***]
TVRO Sat.
Receiver IRD DX 775-A A020C5F5C 1 A020C5F54 Headend [***]
TVRO Sat.
Receiver IRD DX 775-A A020BAC95 1 A020C5F5C Headend [***]
TVRO Sat.
Receiver IRD DX 775-A 2071339-3 1 A020BAC95 Headend [***]
TVRO Sat.
Receiver IRD SA 1500 A020B4DEB 1 2071339-3 Headend [***]
TVRO Sat.
Receiver IRD DX 1500 A02012452 1 A020B4DEB Headend [***]
TVRO Sat.
Receiver IRD DX 775A 311103489184 1 A02012452 Headend [***]
TVRO Sat.
Receiver IRD DX 4500 311121373005 1 311103489184 Headend [***]
TVRO Sat.
Receiver IRD DX 775A A020BF7EE 1 311121373005 Headend [***]
TVRO Sat.
Receiver IRD JER 775A IN THE CLEAR 1 A020BF7EE Headend [***]
TVRO Sat.
Receiver IRD DX 4400D O313742287230 1 IN THE CLEAR Headend [***]
TVRO Sat.
Receiver IRD DX 4400D 311097976254 1 O313742287230 Headend [***]
TVRO Sat.
Receiver IRD SA 4400D 51271 1 311097976254 Headend [***]
TVRO Sat.
Receiver IRD WEG MPEG-2 A0208DAF4 1 51271 Headend [***]
TVRO Sat.
Receiver IRD DX 775A 47891 1 A0208DAF4 Headend [***]
TVRO Sat.
Receiver IRD WEG 775A A020C529C 1 47891 Headend [***]
TVRO Sat.
Receiver IRD SA MPEG-2 2926205-2 1 A020C529C Headend [***]
TVRO Sat.
Receiver IRD SA 1500 A0208DD2B 1 2926205-2 Headend [***]
TVRO Sat.
Receiver IRD DX 4500 31372357039 1 A0208DD2B Headend [***]
TVRO Sat.
Receiver IRD GI 775A A02012401 1 31372357039 Headend [***]
TVRO Sat.
Receiver IRD DX 1500 A020C4D85 1 A02012401 Headend [***]
TVRO Sat.
Receiver IRD SA 1500 A20BF7F3 1 A020C4D85 Headend [***]
TVRO Sat.
Receiver IRD DX 775A 00031461068718 1 A20BF7F3 Headend [***]
TVRO Sat.
Receiver IRD DX 775A A0208DD1C 1 000314610687183 Headend [***]
TVRO Sat.
Receiver IRD DX 775A IN THE CLEAR 1 A0208DD1C Headend [***]
TVRO Sat.
Receiver Demod CADCO 1500 313868245096 1 IN THE CLEAR Headend [***]
TVRO Sat.
Receiver IRD DX 775A O315383528199 1 313868245096 Headend [***]
TVRO Sat.
Receiver IRD GI 775A O314104863085 1 0315383528199 Headend [***]
TVRO Sat.
Receiver IRD DX 2341 A0208ADA2 1 0314104863085 Headend [***]
TVRO Sat.
Receiver IRD DX 775A O315383528199 1 A0208ADA2 Headend [***]
WINEGAURD 3 WINEGAURD 3 none 1 N/A Headend [***]
PATRIOT 4 PATRIOT 4 none 1 N/A Headend [***]
PATRIOT 4.5 PATRIOT 4.5 none 1 N/A Headend [***]
WINEGAURD 4.5 WINEGAURD 4.5 none 1 N/A Headend [***]
PATRIOT 4 PATRIOT 4 none 1 N/A Headend [***]
PATRIOT 4.5 PATRIOT 4.5 none 1 N/A Headend [***]
SA 4.5 SA 4.5 none 1 N/A Headend [***]
SA 4.5 SA 4.5 none 1 N/A Headend [***]
Racks 72" unknow 21" wide N/A 16 N/A Headend [***]
Generator 40KW Winco unknown none 1 N/A Headend [***]
UPS 30KW unknown unknown none 1 N/A Headend [***]
A/C 5 unknown unknown none 1 N/A Headend [***]
A/C 1 Window Units unknown none 3 N/A Headend [***]
[*** Confidential Treatment Requested]
Schedule 7.1(b) Equipment Service Level Requirements
[***]
[*** Confidential Treatment Requested]
Schedule 7.5
Receive Site and Studio-Transmitter Link Obligations
SCHEDULE 9.1(F)
FINANCING COMMITMENTS
[Letter Attached]
SCHEDULE 9.2(C)
NO VIOLATION
None.
SCHEDULE 9.2(D)
LITIGATION
None.
SCHEDULE 9.2(e)(iii)
PENDING FCC APPLICATIONS
FOR SPRINT OWNED LICENSES
[***]
NONE
SCHEDULE 9.2(e)(iii)
PENDING FCC APPLICATIONS
FOR SPRINT LEASED LICENSES
[***]
[*** Confidential Treatment Requested]
SCHEDULE 9.2(E)(IV)
VALID AUTHORIZATIONS
Pursuant to that certain Purchase Agreement dated August 20,1998, by and
between American Telecasting Development, Inc. and [***] as amended by that
certain First Amendment to Purchase Agreement dated January 4, 1999
(collectively, the "Partition Agreement"), American Telecasting Development,
Inc., agreed to sell and thereby partition certain rights under its
authorization for BTA [***] A copy of such Partition Agreement and the
application to the FCC has been provided to Operator.
[*** Confidential Treatment Requested]
SCHEDULE 9.2(E)(V)
PRIMARY LEASE DEFAULTS
The transmitters for channels [***] are inoperable. Sprint will repair the
transmitters at its sole cost and expense, and will indemnify, defend and hold
Operator harmless from any liabilities, claims, expenses and costs relating
thereto or arising therefrom
[*** Confidential Treatment Requested]
SCHEDULE 9.2(E)(VI)
TOWER LEASE DEFAULTS
Pursuant to an unwritten lease agreement, the [***] is using space on the tower
for the purpose of translating and retransmitting its programming. The
underlying ground lease prohibits the subletting of tower space without its
consent. There is no record that consent to this sublease arrangement was
obtained. Sprint will be responsible, at its sole cost and expense, for curing
such default if one exists, and will indemnify, defend and hold Operator
harmless from any liabilities, claims, expenses and costs relating thereto or
arising therefrom.
[*** Confidential Treatment Requested]
SCHEDULE 9.2(E)(VII)
SPRINT INTERFERENCE CONSENTS
For all Markets, the various Sprint Licensees may foe subject to the terms and
conditions set forth in the form of document commonly known as the [***]
For individual Markets, see attached pages:
[***]
[*** Confidential Treatment Requested]
SCHEDULE 9.2(E)(VIII)
LICENSEE INTERFERENCE CONSENTS
For all Markets, the various Third Party Licensees may be subject to the terms
and conditions set forth in the form of document commonly known as the [***]
Agreement.
For individual Markets, see attached pages:
[***]
[*** Confidential Treatment Requested]
SCHEDULE 16
TOWER LEASES (SPRINT)
[***]
[*** Confidential Treatment Requested]
SCHEDULE 17.1(H)
EXAMPLE OF PAID IN FEES
This example is based on the computation of the Paid in Fees for the[***]
Market assuming that the Recapture Closing takes nine months following the date
on which the [***] Market becomes a Closed Market. This example assumes no
Rejected Primary Leases.
Initial Fee attributable to the [***] Market:
Computed as: [***] (the MHz HH for [***]) divided by
[***] (the Total MHz for al1 Proposed Spectrum as of the
Effective Date), multiplied by [***] (the Initial Fee): [***]
Market Closing Payment (from Schedule 6.3) [***]
Monthly Fees: [***]
Computed as [***] (from Schedule 6.3) multiplied by 9
months(1): [***]
Primary Lease Fees:
Computed as monthly minimums of [***]mo. multiplied by 9
months(2): [***]
Paid In Fees (figure is a per MHz HH computation):
Subtotal from above: [***] divided by [***] (MHz HH for
all Proposed Spectrum in [***]) Market as of the
Effective Date: [***]
----------
(1) In actual situation, Monthly Fees paid to Sprint may be less as Monthly
Fees are paid no later than 30 days after the month in question.
(2) Assumes the monthly minimums are the only amounts paid under the Primary
Lease. In actual situation amount would reflect total amount actually paid
under the Primary Lease.
[*** Confidential Treatment Requested]
SCHEDULE 17.2(A)
EXAMPLE OF COMPUTATION OF PUT PRICE
FOLLOWING [***]
This example is based on the computation of the Put Price for the [***]
Market assuming that the Put Closing takes place on the [***] of the date on
which the [***] Market becomes a Closed Market. This example assumes no Rejected
Primary Leases, no Spectrum has been lost, and that Sprint is putting all
Spectrum to Operator in the [***] Market.
Put Subtotal:
[***] (MHz HH for Put Spectrum) multiplied by
[***] (Put Price per MHz HH): [***]
Less:
Market Closing Payment: [***]
Initial Fee
[***] (MHz HH for [***]) divided by
[***] (MHz HH for all Proposed Spectrum)
multiplied by [***] [***]
Monthly Fees(1):
60 mo. @ [***] [***]
12 mo. @ [***] [***]
Subtotal: [***]
Primary Lease Fees(2): [***]
72 months multiplied by [***] [***]
SUBTOTAL: [***]
PUT PRICE: [***]
----------
(1) Monthly Fees paid to Sprint may be less as Monthly Fees are paid no later
than 30 days after the month in question.
(2) Assumes the monthly minimums are the only amounts paid under the Primary
Lease. In actual situation amount would reflect total amount actually paid
under the Primary Lease.
[*** Confidential Treatment Requested]
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/8/07 | | | | | | | None on these Dates |
| | 10/22/04 | | 1 | | 7 |
| | 7/29/04 | | 21 |
| | 6/30/04 | | 46 |
| | 6/10/04 | | 11 |
| | 3/16/04 | | 128 |
| | 10/24/01 | | 140 |
| | 1/1/00 | | 48 | | 49 |
| | 1/4/99 | | 183 |
| List all Filings |
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