Common use of The Systems Clause in Contracts

The Systems. (a) Schedule 4.5(a) sets forth a true and accurate statement, as of the date(s) set forth in said Schedule, of the following information with respect to each System: (i) the megahertz capacity of such System, the approximate miles of plant operating at the applicable megahertz capacity of such System and the approximate number of aerial and underground miles of plant served by such System; (ii) the approximate number of total basic subscribers, including EBUs, subscribers residing or located in multiple dwelling units, Promotional Subscribers, subscribers to Basic Cable Service, Expanded Basic Cable Service, Digital Cable Service, Premium Service and Data Service served by such System and the average revenue per subscriber for certain subscriber categories as set forth in the Schedule, each as of March 31, 2005; and (iii) the approximate number of dwelling units and commercial establishments passed by such System. Schedule 4.5(e) sets forth a true and accurate statement as of the date(s) set forth in said Schedule of certain additional operating specifications for the Systems (other than the portion of the San ▇▇▇▇ System being rebuilt). The Cable Venture has made available to the Buyer the true and correct channel lineup for each System as of January 1, 2005. (i) Except as set forth on Schedule 4.5(b), the Companies have operated the Systems in compliance in all material respects with: (A) the Communications Act of 1934, as amended (the “Communications Act”); (B) the Cable Communications Policy Act of 1984; (C) the Cable Television Consumer Protection and Competition Act of 1992 (the “1992 Act”); (D) the Telecommunications Act of 1996; (E) the Copyright Act of 1976, as amended (the “Copyright Act”); (F) all rules and regulations of the FCC and the Copyright Office; (G) Act No. 213 of September 12, 1996, as amended (the “Puerto Rico Telecommunications Act”), and Regulation 5761 of February 28, 1998, as amended, Regulation for Cable Companies, enacted by the Puerto Rico Board under the Puerto Rico Telecommunications Act; and (H) all other applicable Legal Requirements relating to the construction, maintenance, ownership and operation of the Systems; provided, however, that notwithstanding anything to the contrary in this Agreement, no representation or warranty is made with respect to compliance with Legal Requirements pertaining to utility poles, including, without limitation, pole make ready and grounding and bonding of cable television systems, or with respect to compliance with the Pole Attachment Agreements except that as of the date hereof the Companies have received no written notice asserting any non-compliance by the Companies with Legal Requirements or the terms of the Pole Attachment Agreements. Without limiting the generality of the foregoing, each of the communities served by the Systems has been registered with the FCC, and except as set forth on Schedule 4.5(b), the Systems are currently in compliance in all material respects with the technical standards set forth in the FCC rules and regulations, including the applicable signal leakage requirements. The Cable Venture has made available to the Buyer copies of the most recent FCC Forms 320 filed with the FCC (Basic Signal Leakage Performance Report) with respect to the Systems. (ii) Schedule 4.5(b) sets forth as of the date hereof the rate card, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. The rates charged by the Companies for basic CATV service are not currently subject to regulation by the FCC or by any other Governmental Authority in accordance with the applicable FCC rules and regulations as in effect as of the date hereof; and none of the Companies has received any correspondence indicating that this may change in the future. The Companies have not made any election with respect to any cost of service proceeding conducted in accordance with Part 76.922 of Title 47 of the Code of Federal Regulations or any similar proceeding with respect to either of the Systems. (iii) Except as disclosed on Schedule 4.5(b), each System is in compliance in all material respects with the provisions of the Communications Act as such provisions relate to the rates and other charges of the Systems, and at any times that the rates charged by the System were subject to regulation by any Governmental Authority the Companies used reasonable good faith efforts to establish rates charged to subscribers that were allowable under the Communications Act and any authoritative interpretation thereof then in effect for each System to the extent such rates (on any tier) as of the date such rates were implemented were subject to regulation by any Governmental Authority. (iv) Each Company holds all material Licenses necessary in connection with the operation of its respective System. Each such material License is listed on Schedule 4.5(b), is in full force and effect and has been validly issued or assigned to the Cable Venture or Cable Corp., as the case may be. True and correct copies of such Licenses set forth on Schedule 4.5(b) have been made available to the Buyer. All licensed facilities owned or operated by the Companies are being operated in all material respects in accordance with the terms and conditions of each such License, and none of the Companies, or, to the Companies’ Knowledge, any third party, is in default in any material respect thereunder. There is no legal action or governmental proceeding pending or, to the Companies’ Knowledge, any investigation or proceeding threatened, for the purpose of modifying, revoking, terminating, suspending, canceling or reforming any of the Licenses set forth on Schedule 4.5(b) or that has or would be reasonably expected to cause a Material Adverse Effect or cause a material disruption to the operation of the Systems, other than matters affecting the cable television industry generally. (v) All broadcast television signals carried on the Systems are being carried in compliance in all material respects with the requirements of the Communications Act and the FCC regulations promulgated thereunder. Schedule 4.5(b) sets forth each must carry and retransmission consent election received by the Companies with respect to the Systems that is currently in effect. (vi) The Companies have obtained all required FCC clearances for the operation of the Systems in all aeronautical and navigational frequency bands in which the Systems operate. (c) Except as set forth on Schedule 4.5(c), appropriate registration of each System has been made with the Copyright Office, and the Systems are in compliance in all material respects with all notice, filing, payment and other requirements contained in Section 111 of the Copyright Act and the regulations of the Copyright Office. The copyright fees shown to be due on all Statements of Account (as amended by any required filings and/or any other corrective supplements) filed with respect to the Systems for each of the six (6) reporting periods prior to the date hereof for which the Companies have filed Statements of Account have been calculated in accordance with the regulations of the Copyright Office promulgated pursuant to the Copyright Act. Neither Company nor any Seller Person has received any notice from the Copyright Office claiming that it has any additional obligation with respect to any previously submitted copyright filings relating to the Systems. Complete and correct copies of all current reports and filings for the last two reporting periods, made or filed pursuant to the Copyright Act and the rules and regulations of the Copyright Office with respect to conduct of the business or the operation of the Systems, have been provided or made available to the Buyer. (d) The Systems are being operated in compliance, in all material respects, with the rules and regulations of the FAA. Schedule 4.5(d) lists all of the existing towers of the Systems and all leases of space on any such towers to any third party.