Exhibit 10.3
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TRANSPONDER USE AGREEMENT
THIS TRANSPONDER USE AGREEMENT ("Agreement"), made and executed this 30th
day of April, 1998, by and between College Television Network, Inc., a
corporation organized under the laws of the State of Delaware with offices
located at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("User"),
and the Public Broadcasting Service, a District of Columbia nonprofit
corporation with offices located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 ("PBS").
WITNESSETH:
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WHEREAS, PBS desires to make available to User, and User desires to receive
from PBS, use of PBS Ku-band transponder service located on GE-3 in accordance
with the terms and conditions set forth herein;
WHEREAS, GE-3 is the in-orbit back-up satellite to service on GE-2, and in
the event of catastrophic failure of the GE-2 satellite, (i) GE-3 would be moved
over to the GE-2 satellite orbital location, (ii) transponder service provided
by GEA to PBS on GE-3 may be relocated by GEA to another transponder on another
satellite, and (iii) the provision of Transponder Service to User would be
governed by the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and the respective
covenants and obligations hereinafter provided, the parties hereby agree as
follows:
1. Definitions.
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Capitalized terms used in this Agreement shall have the meanings set forth
in this Section 1.
1.1. Agreement shall mean this Transponder Use Agreement.
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1.2. Available means, (a) with respect to any service or equipment, that
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as of the commencement of the Initial Service Term such service or equipment is
operational, and technically capable of being used by GEA or an affiliate of
GEA, if applicable, to provide service to PBS under the GE-3 Transponder Service
Agreement; and (b) that GEA or an affiliate of GEA, if applicable, has access to
such service or equipment, and such service or equipment may be provided by GEA
or an affiliate of GEA, if applicable, to PBS in accordance with the GE-3
Transponder Service Agreement without resulting in (x) a violation by GEA or an
affiliate of GEA, if applicable, of any law or regulation to which GEA or an
affiliate of GEA, if applicable, is subject, or (y) any violation of any
contractual obligation of GEA or any affiliate of GEA, if applicable, to any
third party other than one entered into in conflict with or violation of the
GE-3 Transponder Service Agreement.
1.3. Class of Service shall mean the identical category of service,
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including full-time or part-time, amount of bandwidth, power and duration of
contracted service.
1.4. End-of-Life means the date on which, in GEA's reasonable judgment, a
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satellite, other than in the case of a Satellite Failure, should be taken out of
service because the fuel remaining on board is insufficient to maintain such
satellite's geosynchronous orbital position within requirements established by
the FCC, from time to time, regarding stationkeeping of satellites in
geosynchronous orbit.
1.5 FCC shall mean the Federal Communications Commission, or any successor
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agency or governmental body having jurisdiction over the Satellite, the
Transponders, service thereon or the use thereof.
1.6 Failed Satellite or Satellite Failure means a satellite:
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(a) on which one or more of the basic subsystems of the satellite
fail, rendering the use of the satellite for its intended
purposes impractical, as determined by GEA in its reasonable
business judgment, or on which more than one-half of the
transponders on the Ku-band payload are transponder failures; and
(b) that GEA has declared a failure. For purposes of this definition,
a hybrid satellite with both C-band and Ku-band payloads shall be
treated, at GEA's option, either (i) as a single satellite, or
(ii) as though the C-band and Ku-band payloads were located on
separate satellites.
1.7. Failed Transponder or Transponder Failure shall mean, with respect to
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any Transponder used to provide service to User under this Agreement, any of the
following events:
a. such Transponder fails to meet the Specifications in any material
respect for a period of twenty-four (24) consecutive hours; or
b. twenty (20) or more Outage Units shall occur within any ninety
(90) consecutive days; or
c. PBS and GEA determine that such Transponder shall fail to meet
the Specifications in any material respect for any period of time
under circumstances that make such failure clearly ascertainable
or predictable, based on satellite industry engineering
standards.
1.8 GE-1 shall mean the communications spacecraft that is currently
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located at 103 X.X., except if such spacecraft becomes a Failed Satellite, or
any successor spacecraft thereto or replacement spacecraft thereof other than
the Satellite, located and operating in an orbital location at or between 85
X.X. and 125 X.X..
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1.9 GE-3 Transponder Service Agreement shall mean the GE-3 Satellite Ku-
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Band Transponder Service Agreement and the attachments thereto, dated as of
April 8, 1997, by and between PBS and GEA, as amended through the term of this
Agreement.
1.10 GEA shall mean GE American Communications, Inc., a Delaware
---
corporation, as agent for GE American Communications California, Inc., its
successors and assigns, and any successor entity to or assignee of GEA's
obligations under the GE-3 Transponder Service Agreement.
1.11. Initial Service Term shall mean the period commencing on the Service
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Commencement Date and continuing until the Service Termination Date as further
defined in Section 7.2 of this Agreement.
1.12. Interruption shall mean any period during which a Transponder fails
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to meet the Specifications and such circumstances preclude the use of the
Transponder for its intended purpose.
1.13. Monthly Service Fee shall mean the amount payable to PBS monthly
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referred to in Section 2.3 hereof.
1.14. Moveable Protected Service or Moveable Protected Transponder has the
-------------------------- ------------------------------
meaning set forth in Section 2.2 of this Agreement.
1.15. Non-Preemptible Service or Non-Preemptible Transponder means a
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satellite service or transponder that may not be preempted to restore another
service or transponder and that is not itself entitled to be restored by
preempting a Preemptible Service, but that will be restored using an on-board
Replacement Transponder on board the same satellite as the Non-Preemptible
Service that failed is located if Available.
1.16. Outage Unit shall mean an Interruption of a Transponder for a period
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of five (5) minutes or more.
1.17. PBS shall mean the Public Broadcasting Service, a District of
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Columbia nonprofit corporation, any successor entity thereto and its permitted
assigns.
1.18. Preemptible Service or Preemptible Transponder means a satellite
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service or transponder that may, subject to the GE-3 Transponder Service
Agreement, be preempted at any time to restore (i) a Satellite Failure, (ii) a
Protected Service or Protected Transponder that becomes a Transponder Failure,
or (iii) or other service offerings of GEA, including but not limited to,
construction and launch delay protection and launch failure protection.
1.19. Protected Service or Protected Transponder means a service or
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transponder that is entitled to preempt a Preemptible Service or Preemptible
Transponder. A Protected Service may be a Moveable Protected Service.
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1.20. Protection Satellite means either (i) GE-1, or (ii) an in-orbit
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satellite with Ku-Band transponders that is (a) located at an orbital location
at or between 85 X.X. and 125 X.X. or some other orbital location that may be
agreed upon by PBS and GEA (so long as such satellite could provide
substantially similar transponder performance specifications as the
Specifications for the Satellite), and (b) with at least the same bandwidth and
power levels and otherwise with substantially similar transponder performance
specifications as the Specifications for the Satellite, and that is designated
by GEA as the satellite to be used to restore Moveable Protected Services as
described in Section 2.2.
1.21. Protection Transponder means in the following order: a Replacement
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Transponder, an unassigned Transponder or a Preemptible Transponder, used to
restore a Protected Service. Where a Protection Transponder is provided on a
Protection Satellite, it will perform to the technical specifications of that
Protection Satellite and such specifications shall be substituted for those in
Exhibit A.
1.22. Replacement Transponder means a spare Transponder amplifier and its
-----------------------
associated components, which is accessible for purposes of restoration and which
is capable of carrying communications traffic within the parameters as described
in the transponder performance specifications for the Transponder to be
restored.
1.23. Satellite shall mean GE-3, a communications satellite owned and
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operated by GEA located at 87 degrees X.X., pursuant to the GE-3 Transponder
Service Agreement, as amended through the term of this Agreement, and any back-
up satellite made available by PBS to User under the terms of this Agreement.
1.24. Service Commencement Date shall have the meaning set forth in
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Section 7.1 hereof.
1.25. Service Termination Date shall mean the date on which this Agreement
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terminates in accordance with its terms.
1.26. Specifications shall mean the Transponder Performance Specifications
--------------
attached to the GE-3 Transponder Service Agreement, and attached hereto as
Exhibit A, as amended from time to time.
1.27. TT&C Services shall mean the tracking, telemetry and control
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services to be provided by GEA to PBS pursuant to the GE-3 Transponder Service
Agreement and in accordance with the applicable FCC satellite operator's license
and all applicable FCC regulations.
1.28. Transponder or Transponders shall mean one or more of the Ku-band
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Transponders referred to in the GE-3 Transponder Service Agreement. (The
specific Transponder assigned to User shall be Transponder K-20 as described in
the Specifications, as amended.)
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1.29. Transponder Service shall mean 10 MHz of service provided on one (1)
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60 Watt, 36 MHz Moveable Protected Transponder on a 24-hour-per-day basis, as
further described in Section 2.
1.30. User shall mean College Television Network, Inc., a corporation
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organized under the laws of the State of Delaware, or any successor entity
thereto and its permitted assigns.
1.31. Users Guide shall mean the Commercial Operations System Users Guide
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attached to the GE-3 Transponder Service Agreement, as such may be amended from
time to time by GEA for any technical or operational reasons necessary or
appropriate for the proper operation of the Satellite, and attached hereto as
Exhibit B.
2. Transponder Service; Protection; Payment of Monthly Service Fee.
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2.1. Transponder Service.
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(a) Subject to the provisions, terms and conditions of this Agreement, PBS
agrees to provide Transponder Service to User, and User agrees to accept and pay
for Transponder Service from PBS. Except as set forth in 2.5 regarding the
Testing Period, Transponder Service shall consist of access to 10 MHz of a 36
MHz, 60 Watt Transponder (designated as Transponder K-20 in the Specifications)
on a 24-hour basis. Notwithstanding anything to the contrary contained herein,
including references to Replacement Transponders and Protection Transponders, in
no event shall User be entitled to more than 10 MHz of any Transponder. The
associated power at the Woodbine, Maryland satellite access center will be 40.44
dBW at 11059 xxxxx. PBS shall not be obligated to provide any other services to
User (such as uplinking or uplink management control) except as PBS and User may
otherwise mutually agree.
(b) User agrees to complete Exhibit C to this Agreement, "Uplink Data
Information Form" for each uplink accessing Transponder Service and return the
completed form(s) to PBS prior to the Service Commencement Date.
(c) Any such other services shall be subject to such terms, conditions and
charges as may be mutually agreed upon by PBS and User.
(d) User agrees that any implementation of uplink power control must be
approved by PBS and GE prior to any such use.
(e) User acknowledges that GE-3 is the in-orbit back-up satellite to
service on GE-2, and in the event of catastrophic failure of the GE-2 satellite,
(i) GE-3 would be moved over to the GE-2 satellite orbital location, (ii)
transponder service provided by GEA to PBS on GE-3 may be relocated by GEA to
another transponder on another satellite, and (iii) the provision of Transponder
Service to User would be governed by the terms of this Agreement.
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2.2. Protection.
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(a) Moveable Protected Service. A "Moveable Protected Transponder" or
--------------------------
"Moveable Protected Service" means a Transponder Service that, if restoration
thereof is needed as a result of a Satellite Failure, or as a result of a
Transponder Failure under circumstances in which no Protection Transponder is
Available on the Satellite on which such Transponder Service is located, is
entitled to restoration, subject to such facilities being Available, on another
satellite at an orbital location at or between 85 X.X. and 125 X.X., or some
other orbital location that may be agreed upon by PBS and GEA; provided,
however, that in the event that GE-2 becomes a Satellite Failure, such
Transponder or Service shall be relocated to another transponder on the
Protection Satellite, if Available.
(i) Intra-Satellite Protection. Pursuant to the GE-3 Transponder
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Service Agreement, if the Transponder on which Transponder Service
is provided to User becomes a Transponder Failure, GEA has agreed
that it will immediately initiate and take all reasonable measures,
consistent with protecting the Satellite and all services provided
thereon, to restore the Transponder Failure as quickly as is
practicable. Restoration shall be effected utilizing any Protection
Transponder on the Satellite, if Available. If no such Protection
Transponder is Available on the Satellite, User's service shall be
restored on the Protection Satellite, if Available, in accordance
with Section 2.2(a)(ii) below.
(ii) Inter-Satellite Protection. In the event that (x) the Satellite on
which Transponder Service is provided to User becomes a Satellite
Failure, (y) a Transponder on which Transponder Service is provided
becomes a Transponder Failure that cannot be restored using a
Protection Transponder, or (z) GE-2 becomes a Satellite Failure,
then PBS shall provide to User and User shall take from PBS Non-
Preemptible Service on one (1) Transponder on the Protection
Satellite, if Available, in accordance with this Section 2.2.
(b) Non-Preemptible Service on the Protection Satellite. Pursuant to the
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GE-3 Transponder Service Agreement, if any Non-Preemptible Transponder on which
User is taking service on the Protection Satellite becomes a Transponder
Failure, GEA has agreed that it shall immediately initiate and take all
reasonable measures, consistent with protecting the Protection Satellite and all
services provided thereon, to restore the Transponder Failure as quickly as is
practicable. Restoration shall be effected by utilizing any Replacement
Transponder Available on the Protection Satellite. If no such Replacement
Transponder is Available on the Protection Satellite, User's service shall not
be restored and this Agreement shall terminate immediately pursuant to Section
10(f). The Non-Preemptible Transponder on which service is provided to User on
the Protection Satellite may not be preempted to restore another service or
transponder.
(c) Term on Protection Satellite. The Service on the Protection Satellite
----------------------------
as set forth above shall be provided to User until the earliest of the following
dates:
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(i) the End-of-Life of the Protection Satellite, or the date that the
Protection Satellite becomes a Satellite Failure; or
(ii) the date the Transponder on which service is provided becomes a
Transponder Failure and cannot be restored in accordance with Section
2.2(b); or
(iii) the Service Termination Date, or through the First Extended Service
Term or Second Extended Service Term, if User has exercised the First
Extension Option or Second Extension Option, respectively.
2.3. Monthly Service Fee.
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(a) In consideration of the Transponder Service provided by PBS to
User pursuant to this Agreement, User shall pay to PBS on the first day of each
month a service fee of $65,400.00 (US dollars), except as set forth in Section
2.5 regarding the Testing Period. If the Initial Service Term does not commence
on the first day of a month or end on the last day of a month, the monthly rate
shall be pro-rated for the fractional part of the month using a daily rate of
one-thirtieth (1/30) of the monthly rate.
(b) User shall pay to PBS the Monthly Service Fees without any
deduction or offset whatsoever. Such payments shall be delivered to PBS at the
following address unless otherwise indicated in writing:
Public Broadcasting Service
X.X. Xxx 000000
Xxxxxxxxx, X.X. 00000
2.4. Late Payment. Interest will be charged to User at a monthly rate of
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1.5% on all Monthly Service Fees not paid by User within thirty (30) days of the
due date thereof. This penalty does not waive any termination or other rights
PBS may have under this Agreement.
2.5. Testing Period. For the period commencing on June 1, 1998, or
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earlier, upon mutual agreement of the parties, through July 31, 1998 (the
"Testing Period"), PBS shall provide User access to 2.7 MHz of a 36 MHz, 60 Watt
Transponder on a 24-hour basis. During the Testing Period, the associated power
at the Woodbine, Maryland satellite access center will be 34.75 dBW at 2986
xxxxx. During the Testing Period, the Monthly Service Fee shall be $32,900.00
(US Dollars). All other terms and conditions of this Agreement shall be
applicable during the Testing Period.
3. Certain Representations and Warranties of PBS. PBS hereby represents and
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warrants to User that PBS is a nonprofit corporation duly organized, validly
existing and in good standing under the laws of the District of Columbia, with
full corporate power, right and authority (i) to
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execute and to deliver this Agreement; and (ii) to enter into and to consummate
the transactions contemplated hereby. PBS further represents and warrants to
User that the execution and delivery of this Agreement by the officer so doing,
and the consummation of the transactions contemplated hereby, will, upon
ratification of this Agreement by the PBS Board of Directors and the public
television Interconnection Committee have been duly authorized by all necessary
corporate action on the part of PBS, and that this Agreement is a valid and
binding obligation of PBS enforceable against PBS in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights in general and by
general principles of equity. PBS hereby represents and warrants to User that
the execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, will not constitute a breach, violation
or default of, or create a lien under, or be prevented by (i) the articles of
incorporation or bylaws of PBS; (ii) any contract, partnership agreement,
indenture, deed of trust, loan note, lease, service agreement or other
instrument to which PBS is subject or is a party; or (iii) any law, rule,
regulation, ordinance, judgment, decree, order, governmental permit or license
to which PBS is subject. PBS further represents and warrants to User that the
GE-3 Transponder Service Agreement is in full force and effect as of the date
hereof.
4. Certain Representations and Warranties of User. User hereby represents and
----------------------------------------------
warrants to PBS that User is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with full corporate
power, right and authority (i) to execute and to deliver this Agreement; and
(ii) to enter into and to consummate the transactions contemplated hereby. User
further represents and warrants to PBS that the execution and delivery of this
Agreement by the officer so doing, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of User, and this Agreement is a valid and binding obligation of
User, enforceable against User in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity. User hereby represents and warrants to PBS that the
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby, will not constitute a breach, violation or
default of, or create a lien under, or be prevented by: (i) any contract,
partnership agreement, indenture, deed of trust, loan note, lease, service
agreement or other instrument to which User is subject or is a party; (ii) any
law, rule, regulation, ordinance, judgment, decree, order, governmental permit
or license to which User is subject; or (iii) the articles of incorporation or
bylaws of User. User further represents and warrants to PBS that the Transponder
provided hereunder will be used primarily for the delivery of television
programming to educational institutions.
5. Conditions Precedent to Commencement of PBS's Obligation To Provide
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Transponder Service.
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PBS shall be under no obligation to provide User with Transponder Service,
or otherwise to consummate this Agreement, and the Initial Service Term shall
not commence, unless, as of the Service Commencement Date, each of the
conditions precedent (which shall not be deemed covenants except as otherwise
expressly provided herein) set forth below in this Section 5 is
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satisfied, or waived by PBS. PBS may, in its sole discretion, waive the
satisfaction of any of the conditions set forth in this Section 5, except to the
extent that such condition is also a condition to User's obligation to accept
Transponder Service pursuant to this Agreement, as set forth in Section 6
hereof.
5.1. Tender of One Month Deposit. User shall have tendered to PBS a sum
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equal to the Monthly Service Fee, which will be a deposit in the amount of
$65,400.00 (US) that PBS will place in an interest-bearing account upon
execution of this Agreement. Following expiration or early termination of this
Agreement, PBS will return the deposit, with all interest earned in such
account, to User less any amounts that are reasonably necessary to remedy any of
User's defaults in the payment of fees, or, at PBS's option, apply the deposit
to the final Monthly Service Fee. In the event that PBS elects to apply the
deposit to the final Monthly Service Fee, PBS will remit to User all interest
earned on the deposit.
5.2. Availability of Satellite and Transponders. The Satellite and the
------------------------------------------
Transponders shall be in service in the orbital location designated in the GE-3
Transponder Service Agreement and shall be operating in accordance with the
Specifications.
5.3 GEA Not in Breach. GEA shall not be in material breach or material
------------------
default of any of its obligations under the GE-3 Transponder Service Agreement.
5.4. User Not in Breach. User shall not be in material breach of any of
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its obligations under this Agreement, provided that PBS shall have notified User
promptly of any such breach or default of which PBS has actual knowledge and
User shall have had a reasonable opportunity to cure such breach or default.
5.5 Governmental Approvals. All FCC and other governmental approvals,
-----------------------
authorizations or consents necessary for the valid and legal commencement of
Transponder Service pursuant to this Agreement or the GE-3 Transponder Service
Agreement shall have been obtained and shall be in full force and effect.
5.6. Final Board Approval. The execution of this Agreement shall have been
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ratified and approved by the PBS Board of Directors and public television's
Interconnection Committee, if such approvals are deemed necessary by PBS. PBS
agrees to promptly notify User upon request if such approvals will be required.
5.7. No Injunctions Etc. No order, writ, injunction or decree of any
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court, governmental authority or arbitrator, then in effect, shall restrain,
prohibit or invalidate the provision of Transponder Service to User by PBS
pursuant to this Agreement, or by GEA pursuant to the GE-3 Transponder Service
Agreement or in any other respect the performance by PBS contemplated by this
Agreement.
5.8. Representations and Warranties of User Correct as of Service
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Commencement Date. Each representation and warranty of User set forth in Section
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4 hereof shall be true and
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correct when made and as of the Service Commencement Date. Upon request, User
shall deliver to PBS a written statement to this effect, certified by an
authorized officer of User.
5.9 Contingency Regarding Amendment to GE-3 Transponder Service Agreement.
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PBS and GEA shall have entered into an amendment to the GE-3 Transponder Service
Agreement providing for the upgrade of one Moveable Transponder Protected
Transponder to Moveable Protected.
6. Conditions Precedent to Commencement of User's Obligation To Accept
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Transponder Service.
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User shall be under no obligation to accept from PBS service on the
Transponders, to pay to PBS the initial Monthly Service Fee, or otherwise to
consummate this Agreement, and the Initial Service Term shall not commence,
unless, as of the Service Commencement Date, each of the conditions precedent
(which shall not be deemed covenants except as otherwise expressly provided
herein) set forth below in this Section 6 is satisfied, or waived by User. User
may, in its sole discretion, waive the satisfaction of any of the conditions set
forth in this Section 6, except to the extent that such condition is also a
condition to PBS's obligation to provide Transponder Service pursuant to this
Agreement, as set forth in Section 5 hereof.
6.1. Availability of Satellite. The Satellite and the Transponders
--------------------------
assigned to User shall be in service in the orbital location designated in the
GE-3 Transponder Service Agreement and shall be operating in accordance with the
Specifications.
6.2. PBS Not in Breach. PBS shall not be in material breach or material
------------------
default of any of its obligations under this Agreement; provided that User shall
have notified PBS promptly of any breach or default on the part of PBS under
this Agreement of which User had actual knowledge and PBS shall have had a
reasonable opportunity to cure such breach or default.
6.3. Governmental Approvals. All FCC and other governmental approvals,
----------------------
authorizations or consents necessary for the valid and legal commencement of
Transponder Service pursuant to this Agreement or the GE-3 Transponder Service
Agreement shall have been obtained and shall be in full force and effect.
6.4. No Injunctions Etc. No order, writ, injunction or decree of any
------------------
court, governmental authority or arbitrator, then in effect, shall restrain,
prohibit or invalidate the provision of transponder service by PBS to User
pursuant to this Agreement, or GEA pursuant to the GE-3 Transponder Service
Agreement, or in any other respect the performances contemplated by this
Agreement.
6.5. Representations and Warranties of PBS Correct as of Service
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Commencement Date. Each representation and warranty of PBS set forth in Section
-----------------
3 hereof shall be true and correct when made and as of the Service Commencement
Date. Upon request, PBS shall deliver to User a written statement to that
effect, certified by an authorized officer of PBS.
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6.6 Contingency Regarding Amendment to GE-3 Transponder Service Agreement.
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PBS and GEA shall have entered into an amendment to the GE-3 Transponder Service
Agreement providing for the upgrade of one Moveable Transponder Protected
Transponder to Moveable Protected.
7. Service Commencement Date; Initial Service Term; Extended Service Terms;
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Monthly Status Reports.
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7.1. Service Commencement Date. Assuming all conditions precedent to
--------------------------
commencement of the Initial Service Term have been satisfied or waived by the
appropriate party, the provision of Transponder Service to User shall commence
at 12:01 a.m. (ET) on June 1, 1998, or earlier upon mutual agreement of the
parties.
7.2. Initial Service Term. This Agreement shall remain in effect from the
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Service Commencement Date until and including July 31, 2003, unless earlier
terminated in accordance with Section 10.
7.3. Extended Service Terms.
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(a) Unless this Agreement is earlier terminated in accordance with
Section 10, User shall have the one-time option (the "First
Extension Option") to extend the Initial Service Term for the
services described in Section 2 above on the same terms and
conditions for an additional two (2) years (the "First Extended
Service Term") until and including July 31, 2005 upon mutual
agreement of PBS and User, including availability of capacity
and upon written notice delivered to PBS on or before July 31,
2002 (12 month's notice).
(b) Unless this Agreement is earlier terminated in accordance with
Section 10, User shall have the one-time option (the "Second
Extension Option") to extend the First Extended Service Term for
the services described in Section 2 above on the same terms and
conditions for one (1) additional year (the "Second Extended
Service Term") until and including July 31, 2006 upon mutual
agreement of PBS and User, including availability of capacity
and upon written notice delivered to PBS on or before July 31,
2004 (12 month's notice).
8. Additional Transponder Service Terms and Conditions.
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8.1. No Warranties As to Transponders or Satellite. PBS MAKES NO
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REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE SATELLITE OR ANY OF THE TRANSPONDERS, OR
AS TO THE CURRENT OR FUTURE PERFORMANCE, OR THE USEFUL LIFE, OF THE TRANSPONDERS
OR THE SATELLITE OR ANY COMPONENTS THEREOF. PBS shall not be responsible for
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any failure, partial or total, of the Transponders or of the Satellite, or for
any partial or total interruption in Transponder Services, or otherwise with
respect to the technical aspects of the Satellite or the Transponders, and shall
have no duties or obligations with respect thereto, unless such failure or
interruption is caused by the gross negligence or intentional misconduct of PBS,
and User hereby releases and will indemnify PBS and hold PBS harmless from any
liability or responsibility arising from or with respect thereto, except in the
event of PBS's gross negligence or intentional misconduct, or breach of its
representations and warranties under Section 3.
8.2 PBS Substitution Rights.
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(a) PBS shall have the right, but not the obligation, in the event of (i)
the failure of one or more Transponders (ii) interference with other
Transponders (including adjacent satellite interference) caused by User's
transmission, and/or interference caused by others to Users' transmission, (iii)
the unavailability of the designated Transponder provided by GEA, or (iv) the
relocation by GEA of any Transponder Service provided by GEA to PBS on GE-3 to
another transponder on the same or on another satellite, upon reasonable prior
notice to User and in the sole discretion of PBS, to substitute the
Transponder(s) upon which Transponder Service is provided for any other
Transponder(s) upon which comparable Transponder Service may be provided, and,
provided User was given reasonable prior notice, User shall be obliged to accept
Transponder Service on such substituted Transponder(s); provided, however, that
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in exercising its right under this Section 8(a), PBS will use reasonable efforts
to provide Transponder Service on a Transponder in the same orbital location and
with the same polarity to the extent that PBS is able to do so without adversely
affecting PBS's operations.
(b) Upon sixty (60) days written notice to User, PBS shall have the right
to substitute another Transponder on the Satellite for the Transponder upon
which Transponder Service is provided, in order for PBS to maximize transponder
loading and utilization. Provided that User was given sixty (60) days' written
notice, User shall be obligated to accept Transponder Service on such
substituted Transponder. PBS shall not exercise its substitution right under
this Section 8.2(b) more than once per calendar year.
8.3 GE-3 Transponder Service Agreement. User acknowledges and agrees that
-----------------------------------
PBS is not by this Agreement assigning any of its rights under the GE-3
Transponder Service Agreement to User, including, without limitation, any of
GEA's warranties or PBS's remedies with respect to the Transponders or the
Satellite.
8.4 Resale, Sublease or Shared Use. User may resell, sublet or share,
-------------------------------
in whole or in part, Transponder Service to or with any third party for
educational television purposes, including other instructional material,
provided, however, that User shall remain responsible to PBS under this
--------
Agreement for any act or failure to act of any person or entity utilizing the
Transponder Service and shall indemnify and hold harmless PBS in such event in
accordance with Section 13.
8.5 Action to Protect Satellite. Service to User may be discontinued or
---------------------------
suspended upon such notice as practical under the circumstances if GEA takes
action to protect the Satellite,
12
including discontinuance or suspension of operation of the Satellite, the
Transponder(s) on which User is taking service or any other transponder. In the
event of any discontinuance or suspension by GEA under this Section 8.5, PBS
shall not be liable to User, provided, however, that User may receive a credit
-------- -------
computed as provided in Section 11 of this Agreement.
8.6 Compliance with GEA Procedures. Earth station requirements,
------------------------------
satellite access specifications and operating procedures are set forth in the
Users Guide. User agrees to conform its uplink earth station transmissions, if
any, to the access specifications and comply with the operating procedures set
forth herein and in the Users Guide. Prior to commencing use of any service
provided hereunder, User, at its expense, shall provide GEA with any de-
scrambling or decoding devices which may be required for signal monitoring. At
a mutually agreed time, and prior to transmitting from a User-provided earth
station, User or its designee will contact the GEA Technical Operations Center
designated by GEA and demonstrate the earth station's ability to perform in
accordance with access specifications.
8.7 Improper Operation. In the event of any failure of User to comply
------------------
with the satellite access specifications or operating procedures set forth in
the Users Guide, or if operation by User interferes materially with GEA's other
satellite services or with the use of other transponders, User agrees to correct
such improper operation immediately upon discovery or receiving notice from PBS
or GEA of the occurrence of any such improper operation. In the event of User's
failure to discontinue, PBS may take such action as is reasonable and necessary
in the circumstances to eliminate such improper operation, including suspending
User's use of the service provided hereunder, without any liability for loss or
damage whatsoever. In addition to PBS's right to terminate under Section 10(h),
User will pay to PBS, as liquidated damages, Two Hundred Dollars ($200) for each
minute improper operation continues after User has been notified by PBS of the
improper operation. If User's services are suspended in accordance with this
Section 8.7, then PBS may, at its option, immediately assume operational control
of User's use of the service until such time as User has been recertified by GEA
to properly operate and access the Satellite. Notwithstanding the foregoing or
anything to the contrary contained herein, in the event of improper operation by
User and termination of service to User by GEA, PBS shall not be liable to User
as a result of termination of service to User by GEA.
8.8 Testing. Service to User may be suspended upon such notice as is
-------
reasonable under the circumstances for the purpose of testing in connection with
a failure or suspected failure of a component or subsystem of the Satellite or
any transponder thereon, or in response to an order of a court or governmental
agency, or to determine the cause or source of any interference. User shall be
granted a credit computed in accordance with Section 11 of this Agreement for
any suspension of service pursuant to this Section 8.8. PBS reserves the right
to permit GEA to periodically transmit essential station-keeping signals to
selected transponders, including User's Transponder(s) on the Satellite.
8.9 PBS's Rights under GE-3 Transponder Service Agreement. PBS shall not
-----------------------------------------------------
modify or waive any of its rights under the GE-3 Transponder Service Agreement
in a way that would materially and adversely affect the Transponder Service
provided to User hereunder, unless PBS determines in its reasonable judgment
that such modification or waiver is necessary in order to
13
protect and maintain PBS's service under the GE-3 Transponder Service Agreement,
in which case, PBS shall use its best efforts, consistent with the protection
and maintenance of PBS's service, to not modify, alter or terminate the rights,
privileges, or services being provided to User hereunder. In addition, PBS
agrees that it shall comply with the terms, conditions, and agreements of the
GE-3 Transponder Service Agreement and that PBS shall notify User in writing
within two (2) days of a default by GE under the GE-3 Transponder Service
Agreement or that GE is modifying or reducing the rights of PBS. Such notice of
a default to User shall include a copy of any correspondence or other
communications relating to the default.
8.10 Sun Transit Outage Reports. PBS will provide User with advance
--------------------------
notice in the spring and fall of expected sun transit outages, upon PBS's
receipt of such notice from GEA.
9. Covenants of User.
------------------
User hereby agrees and covenants with PBS that User will faithfully and
diligently perform each of the covenants set forth in this Section 9.
9.1. Satisfaction of Conditions to Commencement of User's Obligation To
------------------------------------------------------------------
Receive Transponder Service. User shall endeavor to ensure that all the
---------------------------
conditions set forth in Section 6 of this Agreement are satisfied to the extent
that action by User is necessary therefor or contemplated in connection
therewith.
9.2. Operating Restrictions of GEA and PBS. User shall comply with all
-------------------------------------
operating conditions and restrictions imposed upon users of Transponders on the
Satellite by GEA, including without limitation any anti-interference
obligations, and in accordance with the Users Guide. User agrees to promptly
correct any problems of a technical nature that PBS or GEA determines are caused
by User and, if so directed by PBS, shall cease or modify transmission to the
Transponders in order to remedy any interference caused by User. In the event
User is utilizing a Transponder(s) for multiple transmissions, User shall be
responsible for coordinating such use with GEA in advance and shall be solely
responsible for any additional operating fees GEA may require.
9.3. Ground Equipment. User shall be solely responsible for the design,
----------------
engineering, and provision of all uplink, downlink and terrestrial transmission
facilities employed by User and for their compatibility with the Transponders.
9.4. Compliance with Law. User shall comply during the Service Term with
-------------------
all applicable laws and all requirements of the FCC, or any other US, state or
local authority of competent jurisdiction, with respect to the use of the
Transponders. User shall support the validity of and shall not challenge any
provisions in this Agreement or the GE-3 Transponder Service Agreement in
connection with any attempts by PBS or GEA to obtain any approvals by the FCC or
any other regulatory body, and agrees to furnish such documents and to take all
such actions as may be required by GEA or PBS to assist in obtaining such
approvals.
14
9.5 Objectionable Material. User hereby represents and warrants to PBS
----------------------
that it will not, and that it will not permit others to, use the services, the
Satellite, Transponders, facilities or equipment provided hereunder for any
unlawful purpose, or to transmit obscene or sexually explicit communications or
unlawful communications of any nature or otherwise in violation of any
applicable law. User understands and agrees that any such use shall be grounds
for immediate termination in accordance with Section 10(g), or, at PBS's sole
option, suspension of service.
10. Termination.
------------
This Agreement shall immediately terminate and henceforth be of no force
and effect whatsoever, except as otherwise expressly provided herein, upon the
occurrence of any of the following:
(a) If, as of May 1, 1998, all conditions precedent to commencement of
Transponder Service have not been satisfied or waived by the appropriate party;
(b) The GE-3 Transponder Service Agreement shall have been terminated in
accordance with its terms;
(c) There shall have occurred a material breach or default of any
obligation hereunder (including non-payment of any sums due PBS), which material
breach or default remains uncured ten (10) days after notice of the occurrence
thereof to the breaching party, and the party not in breach or default elects to
terminate this Agreement. For purposes of determining termination rights only,
any failure of PBS to furnish service for in excess of a period of twenty-four
(24) consecutive hours regardless of whether such service failure is caused by
PBS, shall, unless service is restored within ten (10) days be deemed to be a
material breach of this Agreement by PBS;
(d) Any court or governmental authority, including without limitation the
FCC, shall determine that User's use of the Transponders is unlawful;
(e) At PBS's option, immediately upon notice to User, if (i) User shall
become insolvent, or shall make a transfer or assignment for the benefit of
creditors; (ii) User shall file a voluntary petition for relief under the U.S.
Bankruptcy Code or other law relating to bankruptcy, insolvency, reorganization
or liquidation or an order for relief shall be entered against User in any
involuntary case under U.S. or any other law relating to bankruptcy, insolvency,
reorganization or liquidation; (iii) a receiver or trustee shall be appointed
for all or substantially all of the assets of User; or (iv) User shall attempt
to pledge, hypothecate, encumber or create any lien with respect to any
Transponder;
(f) In accordance with Section 2.2(b), in the event that any Non-
Preemptible Transponder on which User is taking service on the Protection
Satellite becomes a Transponder Failure that cannot be restored;
15
(g) At PBS's option, upon notice to User, in the event that User or any
person authorized to use the Transponder(s) by User uses the Transponder(s) for
any unlawful purpose, or transmits obscene or sexually explicit communications
or unlawful communications of any nature or otherwise in violation of applicable
law;
(h) At PBS's option, upon notice to User, in the event of any failure of
User to correct any improper operation immediately upon discovery or receiving
notice from PBS or GEA of the occurrence of any such improper operation; or
(i) At PBS's option, upon notice to User, if User or its successor or
assignee ceases to use the Transponder primarily to broadcast to educational
institutions.
If this Agreement is terminated during the Service Term, PBS shall
immediately suspend Transponder Service and User shall immediately cease all use
of the Transponder(s) upon which Transponder Service had been provided.
11. Remedies.
--------
Each party hereto shall be entitled only to such remedies for breach of any
covenant or other provision hereof, or for any misrepresentation contained in
any representation and warranty, as are set forth in this Section 11. The
provisions of this Section 11 shall survive the termination of this Agreement.
11.1. Actions by Satellite Operator. Neither party hereto shall be liable
-----------------------------
to the other solely as a result of (i) the Transponders failing to function in
accordance with the Specifications; (ii) GEA or any other operator of the
Satellite failing to provide adequate TT&C Services; (iii) GEA moving the
Satellite from its current assigned operating position, or GEA's decision to
retire or replace the Satellite; or (iv) any other act or omission by GEA,
including without limitation breach by GEA of any covenant contained in the GE-3
Transponder Service Agreement, or any misrepresentation of any matter contained
in any representation or warranty made by GEA and contained in the GE-3
Transponder Service Agreement.
11.2. Interruption Credits.
---------------------
(a) PBS's sole obligation to User in the event service is interrupted or is
terminated due to any technical failure or any conduct by GEA shall be to refund
that portion of the applicable Monthly Service Fee paid by User for which
service was not provided. For any Interruption, PBS will give User a credit
allowance as described below. A Transponder Failure does not constitute an
Interruption when due to any of the following causes:
(i) The failure or non-performance of any User-provided
facilities or equipment, including failures resulting from any
out-of-tolerance earth station conditions;
16
(ii) The fault, negligent act, or failure to act of User, its
employees, or agents;
(iii) Sun outages, rain fade, or externally caused interference,
other than interference caused by PBS, or by its other customers,
in their use of the Satellite;
(iv) The failure or unavailability of satellites, transponders,
facilities, services or equipment furnished to User by any other
entity which may be used in conjunction with GEA's satellites,
transponders, facilities, services or equipment, or any act or
omission of such other entity; or
(v) Suspensions of service made in accordance with this
Agreement, unless the applicable provision of this Agreement
expressly provides for granting of a credit hereunder.
(b) The duration of an Interruption is measured from the earlier of the
time that PBS is notified by User of a suspected Interruption or PBS otherwise
becomes aware of an Interruption, until the time the affected Transponder again
meets the Specifications, or until the Service is otherwise restored on a
Transponder meeting the Specifications. For the purpose of calculating the
credit, a month is considered to have thirty (30) days.
(c) Credits for Interruptions in the service for each Transponder
provided to User under this Agreement shall be granted as follows:
(i) Interruptions of 24 Hours or Less. Credit for Interruptions
---------------------------------
will be allowed as follows:
Length of Interruption Credit
---------------------- ------
Less than 5 minutes None
5 minutes up to but not including 3 hours 1/10 day
3 hours up to but not including 6 hours 1/5 day
6 hours up to but not including 9 hours 2/5 day
9 hours up to but not including 12 hours 3/5 day
12 hours up to but not including 15 hours 4/5 day
15 hours up to 24 hours inclusive One day
Two or more Interruptions of five (5) minutes or more, during any
period up to but not including three (3) hours, shall be
considered as one Interruption.
(ii) Interruptions Over 24 Hours. Credit will be allowed in one-
---------------------------
fifth (1/5) day multiples for each three (3) hour period of
Interruption or
17
fraction thereof. No more than one full day's credit will be
allowed for any period of twenty-four (24) hours.
(d) Credits will be provided within ninety (90) days of the event giving
rise to the right to such credit. If, after the expiration of this Agreement,
User has not utilized credits granted pursuant to this Section, subject to
payment of all sums due PBS under this Agreement and all other agreements
between User and PBS, PBS will refund to User the balance of such credits.
11.3. Force Majeure. Neither party shall be liable to the other for any
--------------
failure of or delay in performance hereunder due to causes beyond its
commercially reasonable control. These causes include but are not limited to:
acts of God; fire, flood or other natural catastrophes; the need to comply with
any law or any rule, order, regulation or direction of the United States
Government, or of any other government, including state and local governments
having jurisdiction over either party, or of any department, agency, commission,
bureau, court or other instrumentality thereof, or of any civil or military
authority; national emergencies; insurrections; riots; acts of war; quarantine
restrictions; embargoes; or strikes, lockouts, work stoppages or labor
difficulties.
11.4. Exclusion of Consequential Damages. In no event shall either party
----------------------------------
have the right to recover indirect or consequential damages (including loss of
profits or business opportunities), for breach of this Agreement, or under any
other form or cause of action (including, but not limited to, negligence), in
any way relating to the subject matter hereof, or for the partial or total
failure of the Transponders except as expressly provided herein.
11.5. Other Remedies. Subject to the provisions of this Section 11, in the
--------------
event of the breach of this Agreement each party shall have the right to
exercise any and all remedies that it may have at law or in equity, including in
the case of a breach of Section 9.5, the right to injunctive relief.
12. Brokers' Fees.
--------------
User represents and warrants to PBS that it has dealt with no broker, agent
or other person, other than One World Technologies, Inc. ("One World"), in
connection with this transaction and that no broker, agent or other person
acting on its behalf brought about this transaction other than One World. User
agrees to indemnify and hold PBS harmless from and against any claims by any
other broker, agent or other person acting on its behalf claiming a commission
or other form of compensation by virtue of having dealt with regard to this
Agreement.
13. Indemnification.
----------------
Each party hereto shall indemnify the other party and hold it harmless from
and against any claim or allegation, whether civil or criminal, liability,
damage, loss or expense (including reasonable attorneys fees) (each a "Claim")
arising from or in connection with (i) any use of any
18
of the Transponders by the other party or any person authorized to use any of
the Transponders by the other party, including, without limitation, any
assignee, licensee, lessee, purchaser, or person to whom use or service rights
are granted, which claims may include, without limitation, any claim or
allegation of libel, slander or other defamation, invasion of privacy,
infringement of copyright or other intellectual property right, or any other
claim arising out of the content or subject matter of any communication which is
being transmitted using the service provided hereunder, or violation of any
governmental law, rule or regulation relating to program content, or any other
claim arising from any use of service on any transponder furnished to User and
not based on the content of the communication transmitted using the service; and
(ii) any breach by such latter party of any of its representations, warranties
and covenants under this Agreement, and the indemnifying party shall, at its own
expense, and with counsel reasonably satisfactory to the indemnified party,
defend the indemnified party against any such Claim. The provisions of this
Section 13 shall survive the termination of this Agreement.
14. Confidentiality.
----------------
14.1. Confidential Information. Except to the extent necessary to perform
-------------------------
this Agreement, User agrees not to use or disclose to any third party and agrees
to hold in strict confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of counsel, by other requirements of
law, all research results, documents, information, knowledge, or other data (the
"Confidential Information") obtained by User with respect to PBS or GEA in
connection with the services provided under this Agreement, except to the extent
that the Confidential Information was known to User prior to the date of
disclosure of such Confidential Information by PBS, entered the public domain
other than as a result of a disclosure by User, is public knowledge in the field
or trade, or otherwise ceases to be confidential or proprietary through no fault
of User. All Confidential Information shall be used only for the purposes set
forth in this Agreement and shall be protected from unauthorized disclosure with
the same degree of care, which shall be no less than reasonable care, as User
uses to protect its own confidential and proprietary business information.
14.2. GEA Confidential Information. User acknowledges and agrees that the
----------------------------
confidentiality obligation in this Section 14 shall extend to all information,
knowledge, or other data provided to PBS by GEA, including information provided
to User related to the design and performance characteristics of the Satellite,
the Specifications and Users Guide (collectively the "GEA Confidential
Information"). User hereby acknowledges and agrees that the GEA Confidential
Information is confidential and is not to be disclosed to any other party or
publicized except as set forth herein.
14.3. Duration. Notwithstanding any other provision hereof, the
---------
confidentiality obligation in this Section 14 shall survive for a period of
three (3) years from the date hereof.
19
15. Miscellaneous.
-------------
15.1 Notification to PBS Satellite Operations Center. User agrees to
--------------------------------------------------
notify the PBS Satellite Operations Center of the person or person(s) who will
be available on a 24-hour basis for PBS to contact in the event of a required
adjustment or problem.
15.2. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the Commonwealth of Virginia applicable to contracts
made and to be performed therein without giving effect to the principles of
conflicts of laws.
15.3. Waiver. Any waiver by either party hereto of any breach of any term
------
or condition of this Agreement shall not constitute a waiver of any other breach
of the same or any other term or condition.
15.4. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
15.5. Captions. The captions and headings herein are inserted for
--------
convenience and reference only and in no way define or limit the scope or
content of this Agreement or in any way affect its provisions.
15.6. Assignment. No party may assign any of its rights, interests,
----------
claims or obligations under this Agreement, except to its parent company or
another company with substantially identical ownership, without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed. No such assignment will release the assigning party from
its obligations hereunder.
15.7. Amendment. This Agreement may be amended only in a writing signed
---------
by the parties.
15.8. Exhibits. Any Exhibits shall be deemed to be a part of this
--------
Agreement as if set forth fully herein.
15.9. Survival of Rights Duties and Obligations. To the extent that the
-----------------------------------------
terms of this Agreement provide for rights, duties and obligations of the
parties subsequent to the termination hereof, the terms of this Agreement shall
survive the termination thereof.
15.10. Entire Agreement. This Agreement represents the entire
----------------
understanding between the parties and supersedes all prior oral and written
understandings and agreements of the parties with respect to the subject matter
hereof.
15.11. Notices. Any notice contemplated by this Agreement shall be in
-------
writing and addressed as indicated below and, except as otherwise expressly
provided herein, shall be deemed given when mailed by registered or certified
mail, return receipt requested, or sent by overnight delivery service
maintaining records of receipt; or when received if notice is personally
delivered.
20
As to User: College Television Network, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a copy to:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
As to PBS:
Public Broadcasting Service
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Vice President, Distribution Services
With a copy to:
Public Broadcasting Service
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Office of the General Counsel
Provided that either party may, by written notice, designate from time to time a
substitute address for such notice.
15.12. Severability. If any covenant, term, provision, agreement, or
------------
obligation contained in this Agreement, or the application thereof to any person
or circumstances, shall be determined to be invalid or unenforceable, the
remainder of this Agreement shall remain in full force and effect.
15.13. Successors and Assigns. The terms, conditions, and covenants
----------------------
contained in this Agreement shall apply to, inure to the benefit of, and are
binding upon the parties hereto and their respective successors and permitted
assigns.
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PUBLIC BROADCASTING SERVICE COLLEGE TELEVISION NETWORK, INC.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxx
----------------------- -------------------
Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxx
Executive Vice President Title: Chief Operations Officer
and Chief Operating Officer
Date: 5/7/98 Date: 4/30/98
------ -------
22
EXHIBIT A
TRANSPONDER PERFORMANCE SPECIFICATIONS
23
EXHIBIT B
COMMERCIAL OPERATIONS SYSTEM USERS GUIDE
24
EXHIBIT C
GEA UPLINK DATA SHEET
25
