EXHIBIT 10.1
SATELLITE SERVICE AGREEMENT FOR AMC-16
THIS AGREEMENT between SES Americom, Inc., as agent for SES Americom
California, Inc. (for the period prior to the In-Service Date) and SES Americom
Colorado, Inc. (for the period on and after the In-Service Date), on the one
hand, and EchoStar Satellite L.L.C. ("Customer") *** on the other hand, is made
effective as of February 19, 2004 (the "Effective Date"). All references to "SES
Americom" herein shall include SES Americom California, Inc., SES Americom
Colorado, Inc., and SES Americom, Inc. as agent for each. Defined terms used in
this Agreement have the meanings specified herein.
ARTICLE 1. SERVICE PROVIDED
***
SES Americom has entered into a contract (the "Construction Contract")
with Vendor for the construction of *** communications satellite designated as
the "AMC-15 Satellite," and one substantially identical satellite designated as
the "AMC-16 Satellite", which is intended for use in certain circumstances as a
ground spare for the AMC-15 Satellite. The AMC-16 Satellite is planned to be
placed In-Service on or about March 1, 2005. SES Americom will provide to
Customer, and Customer will pay the applicable MRC for, and be entitled to
utilize solely for the Intended Use, the entire communications capacity
(including all spare capacity) on the Satellite in accordance with this
Agreement (the "Service"). The orbital location of the Satellite will be
determined as set forth in this Agreement. Technical performance criteria for
the Service on the AMC-16 Satellite (the "Technical Performance Specifications")
are appended to this Agreement as Attachment A.
The Service will be provided in accordance with the terms and conditions
set forth in this Agreement, including Attachments A - D (as listed below),
which are hereby incorporated by reference in their entirety (collectively, the
"Agreement"). In the event of any conflict or inconsistency between the terms
and conditions set forth in the body of this Agreement and the terms and
conditions set forth in any Attachment hereto, then terms and conditions set
forth in the body of this Agreement shall control.
Attachment A - Technical Performance Specifications ***
Customer may use the Channels for the transmission of digital services,
and for the transmission of analog services, but only to the extent that all
services are consistent with the then-current licenses and coordination
agreements for the applicable orbital location. ****
1.B. TERMS RELATED TO CONSTRUCTION CONTRACT, LAUNCH SERVICE AGREEMENT, AND
INSURANCE.
1.B(1) *** Subject to any applicable ITAR restrictions and Vendor's standard
security procedure requirements, Customer shall be permitted to participate in
and be present at: (a) reviews of each of Vendor's milestone events leading up
to launch of the Satellite (the only remaining milestones for the AMC-16
Satellite are "PSR" and "Launch Readiness Review"); (b) Vendor's "Final
Integration and Test," "Pre-ship Review" and "Launch and In-Orbit Testing
Sessions"; and (c) informal Project Manager meetings and informal project level
technical review meetings. Participation by Customer as contemplated herein
shall include attendance by Customer employees and U.S. citizen representatives
at such events and meetings, consultation with Customer on engineering decisions
that affect the Satellite's performance (including the ability to meet the
applicable Technical Performance Specifications) and the review of
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
relevant reports and test results. When available to SES Americom and upon
completion of any necessary ITAR reviews and redactions, if applicable, SES
Americom shall distribute all design review documents to Customer. SES Americom
shall also instruct Vendor to make available to Customer employees and
Customer's U.S. citizen representatives access to all technical documents under
the Construction Contract, including without limitation the spacecraft
performance specification, subject to any applicable ITAR reviews and
redactions. With reasonable prior notice, SES Americom shall allow Customer ***
to view program hardware in progress in accordance with Vendor's access policies
and procedures. Subject to any confidentiality restrictions set forth in the
Construction Contract, SES Americom shall afford Customer and Customer's U.S.
citizen representatives access, *** to all work, including without limitation
technical data and information, test data, drawings, documentation, tooling, and
manufacturing processes, testing and hardware in progress, being performed at
Vendor's facilities pursuant to the Construction Contract at all times during
the period of Construction Contract performance, provided that such access does
not unreasonably interfere with such work or any other work. SES Americom shall
afford Customer and Customer's U.S. citizen representatives access, *** to work
being performed pursuant to the Construction Contract in Vendor's
subcontractors' facilities to the extent Vendor obtains such access, *** subject
further to the execution by Customer and Customer's U.S. citizen representatives
of non-disclosure or similar agreements as may be required by said
subcontractors. ***
1.B(2) In the event that Customer requests a modification of any Satellite ***
then SES Americom will negotiate in good faith and in accordance with SES
Americom's duties and obligations under Subsection 3.A(11) with Vendor to
implement such modification. *** Customer further acknowledges that any such
modification may also require additional approvals or authorizations from the
FCC, which SES Americom shall use its reasonable commercial efforts to obtain.
The parties agree that the increase or decrease in the Satellite Investment as a
result of such a modification requested by Customer will be reflected in the
calculation of the MRC and that the planned In-Service Date will be adjusted to
reflect the change to the milestone schedule in the Construction Contract. ***
1.B(3) SES Americom agrees to collaborate with and include Customer in all
significant decisions related to the matters surrounding the Launch Service
Agreement, *** Subject to any applicable ITAR restrictions, Customer employees
and Customer's U.S. citizen representatives shall be permitted to participate in
reviews of each of the launch service provider's milestone events with respect
to launch of the Satellite. Customer and Customer's guests may *** attend the
launch of the Satellite.
1.B(4) To the extent that a failure by SES Americom to make payments in
accordance with the terms of the Construction Contract or the Launch Service
Agreement is the direct cause of a delay in the In-Service Date of the
Satellite, then in addition to any rights and remedies that Customer may have in
this Agreement, SES Americom will pay Customer ***
1.B(7) Some of the individual specifications set forth in the Technical
Performance Specifications *** are specific to Service at the Orbital Location.
For Service at an orbital location other than the Orbital Location, the
Technical Performance Specifications shall be equitably adjusted to give effect
to such change in orbital location.
1.C. SERVICE TERM. The term for Service (the "Service Term") on any Satellite
*** shall commence on the In-Service Date for that Satellite, and, except as
otherwise provided herein, shall expire on the earlier of (1) ten years after
such In-Service Date (the "Initial Term"), or (2) the date that Satellite
becomes a Failed Satellite. The Service Term on any Satellite *** that is not a
Failed Satellite may be extended at Customer's sole option for successive
one-year periods (or a portion thereof in the case of the final extension) until
the Satellite reaches its End-of-Life (each an "Extended Term"), upon written
notice to SES Americom provided at least *** days prior to the end of the
Initial Term and/or the then current Extended Term, and provided that, at the
time of each such extension, Customer is in full compliance with all of its
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
2
obligations under this Agreement.
1.D. SERVICE PRIORITIES. In the event of a Partial Loss, SES Americom shall
immediately initiate all commercially and technically reasonable measures,
consistent with protecting the Satellite and all services provided thereon, to
restore the Service as quickly as possible. Restoration shall be effected by
utilizing any available spare equipment on the Satellite to restore the Service
and/or the Channel. If access to spare equipment on the Satellite is required
for more than one Channel as a result of a single event or simultaneous events,
Customer will determine the preferred use of the spare equipment, provided that
Customer's decision does not adversely impact the Satellite.
1.E. NOTICES. All notices regarding technical or operational matters requiring
immediate attention will be given by telephone to the telephone number set forth
below for Customer and the telephone number set forth in the User's Guide for
SES Americom and shall be followed by written notification. Any notice required
or permitted to be given hereunder shall be in writing and shall be sent by
facsimile transmission, or by first class certified mail, postage prepaid, or by
overnight courier service, charges prepaid, to the party notified, addressed to
such party at the address set forth below, or sent by facsimile to the fax
number set forth below, or such other address or fax number as such party may
have substituted by written notice to the other party. The sending of such
notice with confirmation of receipt thereof (in the case of facsimile
transmission) or receipt of such notice (in the case of delivery by mail or by
overnight courier service) shall constitute the giving thereof.
IF TO BE GIVEN TO CUSTOMER: IF TO BE GIVEN TO SES AMERICOM:
Attn: Xxxxx Xxxx Attn: General Counsel
Vice President, Space Programs and Operations SES Americom, Inc.
EchoStar Satellite L.L.C. Four Research Way
Fax #: *** Xxxxxxxxx, XX 00000
Fax #: ***
P.O. Box 6655 (for first class certified mail)
Xxxxxxxxx, XX 00000
0000 X. Xxxxxxxx Xxxx. (for overnight courier)
Xxxxxxxxx, XX 00000
cc: Xxxxx X. Xxxxxxxxx, Esq.
Senior Vice President & General Counsel
(same addresses and fax number)
CUSTOMER'S 24 HOUR EMERGENCY TELEPHONE # FOR TECHNICAL/OPERATIONAL ISSUES:
Tel #: ***
ARTICLE 2. PAYMENTS AND OTHER CONSIDERATIONS/ FUTURE SATELLITES
***
2.B. MONTHLY RECURRING SERVICE CHARGE. Commencing on the In-Service Date and for
the duration of the Service Term (including any Extended Terms) Customer will
pay to SES Americom for the Service a monthly recurring service charge (the
"MRC") with respect to the AMC-16 Satellite determined based on ***
2.C. MRC ADJUSTMENTS/REFUNDS.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
3
2.C(1) In the event of a Partial Loss (but not a Satellite Failure), Customer
shall be entitled to a refund of any MRC already paid, and a reduction of the
MRC to be paid, in either case applicable to the period of such Partial Loss
until either (a) such Partial Loss is restored through the use of spare
equipment on the Satellite, or (b) the Service Term ends, in an amount
calculated in accordance with the provisions in Section 2.G(7) and Attachment B
*** In the event of a Satellite Failure for any reason whatsoever, Customer's
obligation to pay the MRC due for the period after the Satellite Failure shall
automatically terminate as of the date of the Satellite Failure, *** SES
Americom will refund to Customer any MRC paid for periods subsequent to the date
of a Satellite Failure, including the period between and including the date of
the Satellite Failure and the date upon which it is determined that a Satellite
Failure has occurred. ***
2.F. TAXES AND OTHER CHARGES. *** SES Americom represents that, as of the date
hereof, it has no actual knowledge of any taxes, duties or other fees or charges
(1) which would be levied on SES Americom by any governmental authorities, (2)
which would apply to the Service at the Orbital Location or the facilities used
to provide the Service at the Orbital Location to Customer, provided that the
Service is used solely for its Intended Use ***
ARTICLE 3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.A. SES AMERICOM'S REPRESENTATIONS, WARRANTIES AND COVENANTS. SES Americom
hereby represents, warrants and covenants to Customer as follows:
3.A(1) It is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. It is duly licensed or qualified to do
business as a foreign corporation in all jurisdictions where the failure to be
so qualified would materially adversely affect its ability to perform its
obligations hereunder. It has all requisite corporate power and authority to own
its properties and carry on its business as now conducted.
3.A(2) The execution, delivery and performance (as provided herein) by SES
Americom of this Agreement has been duly authorized by all requisite corporate
action and will not violate any applicable provisions of law or any order of any
court or any agency of government and will not conflict with or result in a
breach under (a) its Articles of Incorporation or By-Laws, or (b) any material
agreement to which SES Americom is a party or by which it is bound.
3.A(3) SES Americom has not retained or authorized anyone to represent it as a
broker or finder in connection with this Agreement.
3.A(4) In connection with SES Americom's performance under this Agreement, SES
Americom shall comply in all material respects with all applicable laws,
regulations, or orders of any governmental entity, including without limitation
the FCC.
3.A(5) SES Americom (a) has filed, and will diligently prosecute, application(s)
with the FCC to launch and operate the AMC-16 Satellite *** in geostationary
orbit at the Orbital Location and (b) agrees to acquire and maintain all
necessary governmental authorizations or permissions to operate the Satellite
*** at the Orbital Location in a manner consistent with the Technical
Performance Specifications and its Intended Use. SES Americom will comply in all
material respects with all applicable FCC and other governmental and
intergovernmental orders and regulations regarding the licensing and operation
of the Satellite, *** For clarification purposes, among other things SES
Americom shall comply in all material respects with all requirements imposed by
the Communications Act of 1934, as amended, and by the FCC's rules, decisions
and policies, on SES Americom as licensee with respect to each SES Orbital
Location at
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
4
which the AMC-16 Satellite is located under a U.S. space station authorization,
including without limitation that the AMC-16 Satellite will be under the
Ultimate Control of SES Americom when located at such an SES Orbital Location.
SES Americom shall use all reasonable efforts to resist any move of the
Satellite from an SES Orbital Location *** if Service is being provided from an
SES Orbital Location. In the event that SES Americom is required by order of the
FCC to change the Orbital Location or because of an FCC order or for any other
reason (provided that such order or such other reason is not caused solely by
the acts or failures to act of Customer in compliance with its representations,
warranties or covenants under this Agreement) does not have the right to operate
the Satellite at the Orbital Location for the benefit of Customer in accordance
with this Agreement and for its Intended Use, then, effective at the time the
Service is terminated for the foregoing reason, Customer shall be entitled to
terminate this Agreement without any further liability to SES Americom. ***
3.A(8) In accordance with requests made and instructions given by Customer, SES
Americom shall use commercially reasonable efforts, at Customer's reasonable
expense, to support Customer's efforts in obtaining any site licenses, earth
station authorizations and other necessary FCC, *** and other governmental
authorizations to communicate with the Satellite for the Intended Use, provided
that SES Americom shall have no duty or obligation whatsoever under this
Subsection (8) to act or refrain from acting in any way that would materially
adversely impact SES Americom. ***
3.A(10) SES Americom's Program Management for the Satellite will apply the same
degree of care as is normally applied by SES Americom to satellite construction
efforts for the other satellites owned by SES Americom. ***
3.A(12) SES Americom will not amend the Construction Contract in a way that
would adversely impact Customer or terminate the Construction Contract without
the express written concurrence of Customer, provided that Customer's
concurrence shall not be required if notice has been given of the termination of
this Agreement.***
3.B. CUSTOMER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer hereby
represents, warrants and covenants to SES Americom as follows:
3.B(1) It is a limited liability company duly organized, validly existing and in
good standing under the laws of Colorado. It is duly licensed or qualified to do
business as a foreign entity in all jurisdictions where the failure to be so
qualified would materially adversely affect its ability to perform its
obligations hereunder. It has all requisite corporate power and authority to own
its properties and carry on its business as now conducted.
3.B(2) The execution, delivery and performance (as provided herein) by Customer
of this Agreement has been duly authorized by all requisite corporate action and
will not violate any applicable provisions of law or any order of any court or
agency of government and will not conflict with or result in a breach under (a)
its organizational documents, or (b) any material agreement to which Customer is
a party or by which it is bound.
3.B(3) Customer has not employed or authorized anyone to represent it as a
broker or finder in connection with this Agreement.
3.B(4) In connection with Customer's performance under this Agreement, Customer
shall comply in all material respects with all applicable laws, regulations, or
orders of any governmental entity, including without limitation those governing
content of transmissions and all FCC license requirements.
3.B(5) Customer will properly illuminate and will use commercially reasonable
efforts to cause third
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
5
parties that Customer authorizes to use the Service to properly illuminate the
Channels. ***
ARTICLE 4. SERVICE RESPONSIBILITIES
4.A. LAWS AND REGULATIONS GOVERNING SERVICE. As to SES Americom and Customer,
construction, launch, location and operation of the Satellite, SES Americom's
satellite system and SES Americom's performance of all obligations pursuant to
this Agreement are subject to all applicable laws and regulations, including
without limitation ITAR, as amended, the Communications Act of 1934, as amended,
the rules and regulations of the FCC, and coordination agreements with other
operators and administrations.
4.B. USE CONDITIONS.
4.B(1) Customer will use the Service in accordance with (a) all applicable laws
and regulations and (b) the conditions of use to be contained in a Commercial
Operations Systems User's Guide to be agreed to by the parties (the "User's
Guide"). Customer will not use the Service for any unlawful purpose, including
violation of laws governing the content of material transmitted using the
Service. If Customer's non-compliance with the preceding two sentences causes or
threatens, or other circumstances arise from Customer's use of the Service which
cause or threaten, damage to the Satellite, or if Customer's use of Service may
reasonably result in the institution of criminal proceedings, or administrative
proceedings that may result in sanctions or other non-monetary remedies, against
SES Americom, SES Global SA, or any Affiliates of either entity, SES Americom
may take actions (including suspension and/or restriction of Service) it
reasonably believes necessary to ensure Customer's compliance with the User's
Guide or SES Americom's compliance with law. SES Americom will provide Customer
with advance notice as reasonably practicable prior to taking any such action;
provided that the foregoing shall not preclude SES Americom from taking prompt
action to preserve its interests. SES Americom will also provide continuous
monitoring of the Satellite in accordance with generally accepted industry
standards. ***
ARTICLE 5. OPERATIONAL MATTERS
5.A. SERVICE ACCESS. Customer is responsible for providing, operating and
maintaining the equipment necessary to access the Satellite and Service. At no
additional cost to Customer (except as set forth in Subsection 2.G(2)), SES
Americom shall be solely responsible for providing telemetry, tracking and
control ("TT&C") service for the Satellite, notwithstanding the relocation of
the Satellite to an orbital location other than an SES Orbital Location, and
shall perform TT&C service on the same standards as applied by SES Americom to
the rest of its satellite fleet. For clarification purposes, all TT&C services
performed by SES Americom hereunder shall be subject to the Ultimate Control of
Customer or the licensee when the AMC-16 Satellite is located at an orbital
location other than an SES Orbital Location. Customer at its expense shall
provide SES Americom with any descrambling or decoding devices that may be
required for signal monitoring. At a mutually agreed time, and prior to Customer
transmitting from its earth station(s), Customer will demonstrate to SES
Americom's designated Technical Operations Center that its earth station(s)
comply with the satellite access specifications contained in the User's Guide.
5.B. ACTION TO PROTECT SATELLITE. Notwithstanding anything to the contrary set
forth herein, SES Americom shall have Ultimate Control of the Satellite when the
Satellite is located at an SES Orbital Location. Notwithstanding anything to the
contrary set forth herein, the Satellite shall be subject to the Ultimate
Control of Customer or the licensee when the AMC-16 Satellite is located at an
orbital location other than an SES Orbital Location. If circumstances occur
which in SES Americom's reasonable judgment pose a threat to the stable
operation of the Satellite, SES Americom shall have the right to take action it
reasonably believes necessary to protect the Satellite, including discontinuance
or suspension of operation of the Satellite or any Channel, without any
liability to Customer, except as otherwise set forth in this Agreement, *** If
the discontinuance or suspension of operation is permanent, then, if the
discontinuance
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
6
applies to the entire Satellite, it shall be treated as a
Satellite Failure for purposes of Section 2.C, and if the discontinuance applies
to particular Channels, it shall be treated as a Partial Loss for purposes of
Section 2.C. SES Americom shall give Customer as much notice as practical under
the circumstances of any such discontinuance or suspension. If it becomes
necessary to discontinue or suspend service on one or more Channels on the
Satellite, and operational circumstances allow SES Americom to select the
Channel or Channels to be discontinued or suspended, SES Americom will consult
with Customer and implement Customer's preferred course of action, such
consultation to take place prior to action by SES Americom unless more immediate
action is necessary.***
ARTICLE 6. INDEMNIFICATION
***
6.C. SURVIVAL. The provisions of this Article 6 shall survive expiration or
termination of this Agreement indefinitely.
ARTICLE 7. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
***
7.C. SURVIVAL. The provisions of this Article 7 shall survive expiration or
termination of this Agreement indefinitely.
ARTICLE 8. CONFIDENTIALITY AND NONDISCLOSURE
8.A. CERTAIN INFORMATION REGARDING SERVICE. Except for disclosures required by a
court or governmental agency or to assignees permitted under Section 10.I, each
party hereby agrees not to disclose to third parties (without the prior written
consent of the other party) the material terms and conditions of this Agreement
(including but not limited to the prices, payment terms, schedules, protection
arrangements, and restoration provisions thereof), and all information provided
to Customer and SES Americom related to the design and performance
characteristics of the Satellite, and any subsystems or components thereof,
including the Channels). Notwithstanding the foregoing, Customer (and not SES
Americom) may disclose to its third-party customers making use of the Service,
and SES Americom (and not Customer) may disclose to its third party vendors and
contractors providing services relating to the Satellite (including but not
limited to insurance and launch service providers), the Technical Performance
Specifications, the User's Guide, and the protection arrangements and
restoration provisions of the Service.
8.B. PROPRIETARY INFORMATION. To the extent that either party discloses to the
other any other information which it considers proprietary or is proprietary
information of a third party, in written or tangible form, said party shall
identify such information as proprietary when disclosing it to the other party
by marking it clearly and conspicuously as proprietary information. Any
proprietary disclosure to either party, if made orally, shall be identified as
proprietary information at the time of disclosure, if the disclosing party
wishes to keep such information proprietary under this Agreement. Any such
information disclosed under this Agreement shall be used by the recipient
thereof only in its performance under this Agreement.
Neither party shall be liable for the inadvertent or accidental disclosure
of such information marked as proprietary, if such disclosure occurs despite the
exercising of the same degree of care as the receiving party normally takes to
preserve and safeguard its own proprietary information (but not less than
reasonable care) or if such information (1) is or becomes lawfully available to
the public from a source other than the receiving party before or during the
period of this Agreement, (2) is released in writing by the disclosing party
without restrictions, (3) is lawfully obtained by the receiving party from a
third party or parties
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
7
without obligation of confidentiality, (4) is lawfully known by the receiving
party prior to such disclosure and is not subject to any confidentiality
obligations, or (5) is at any time lawfully developed by the receiving party
completely independently of any such disclosure or disclosures from the
disclosing party.
In addition, neither party shall be liable for the disclosure of any
proprietary information which it receives under this Agreement pursuant to
judicial action or decree, or pursuant to any requirement of any Government or
any agency or department thereof, having jurisdiction over such party, provided
that in the reasonable opinion of counsel for such party such disclosure is
required, and provided further that such party, to the extent reasonably
practical, shall have given the other party notice prior to such disclosure.
Customer and SES Americom agree to negotiate in good faith a three-party
non-disclosure agreement with Vendor for information to be disclosed related to
this Agreement.
8.C. SURVIVAL. The provisions of this Article 8 shall survive expiration or
termination of this Agreement indefinitely.
ARTICLE 9. TERMINATION
9.A. TERMINATION FOR DEFAULT. In addition to any rights of termination provided
in other Articles of this Agreement, either party may terminate this Agreement
(a "Termination for Default") by giving the other party written notice thereof
in the event: (1) the other party materially breaches this Agreement *** and
fails to cure such breach within thirty (30) days after receipt of written
notice thereof *** (2) the other party becomes insolvent or the subject of
insolvency proceedings, including without limitation if the other party is
judicially declared insolvent or bankrupt, or if any assignment is made of the
other party's property for the benefit of its creditors or if a receiver,
conservator, trustee in bankruptcy or other similar officer is appointed by a
court of competent jurisdiction to take charge of all or any substantial part of
the other party's property, or if a petition is filed by or against the other
party under any provision of the Bankruptcy Code now or hereafter enacted, and
such proceeding is not dismissed within sixty (60) days after filing, or if a
petition is filed by the other party under any provision of the Bankruptcy Code
now or hereinafter enacted. ***
9.B. TERMINATION FOR CONVENIENCE.
9.B(1) At any time after the In-Service Date, Customer may terminate this
Agreement for convenience (a "Termination for Convenience"), by written notice
to SES Americom, provided at least *** days prior to the effective date of such
termination, provided that, on the effective date of such termination, Customer
shall pay to SES Americom an amount calculated as follows: ***
9.D. REFUNDS. In the event of the expiration of this Agreement pursuant to
Section 9.F(1), or in the event of termination by Customer or wrongful
termination by SES Americom pursuant to this Agreement, SES Americom shall
refund any portion of the MRC paid by Customer to SES Americom which relates to
Service not provided by SES Americom, and no further MRC or other amounts shall
be due for the period following expiration or termination. By way of
clarification, this Section 9.D shall not limit Customer's rights under this
Agreement, at law, in equity or otherwise, in the event of Termination for
Default or otherwise by Customer.
9.F. EXPIRATION OF AGREEMENT/ SURVIVAL.
***
9.F(2) Neither party shall have any further obligations or liability to the
other under this Agreement
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
8
in the event of the termination or expiration of this Agreement in accordance
with this Article 9, except for any obligations or liability (a) arising prior
to such termination or expiration, (b) expressly arising upon or as a result of
such termination or expiration, (c) expressly described in this Agreement as
surviving such expiration or termination, or (d) arising as a result of or in
connection with the representations and warranties in Article 3.***
ARTICLE 10. GENERAL PROVISIONS
10.A. FORCE MAJEURE. If a Force Majeure Event under this Agreement has occurred
and is continuing, then the performance obligations of the party directly
affected by such Force Majeure Event under this Agreement shall be tolled for
the duration of such Force Majeure Event and such party shall not be liable to
the other by reason of any delay or failure in performance of this Agreement
which arises out of such Force Majeure Event; provided that the party directly
affected by such Force Majeure Event shall promptly take and continue to take
all reasonable actions to xxxxx such Force Majeure Event as soon as possible.
*** If Service is unavailable as a result of a Force Majeure Event affecting the
Satellite, then Customer's obligation to pay the MRC shall be suspended during
such period Service is unavailable and shall resume upon the Service becoming
available. A "Force Majeure Event" means acts of God, acts of the other party,
acts of government authority, strikes or other labor disturbances, or any other
cause beyond the reasonable control of that party, that (1) as to SES Americom,
relates to or affects its ability to provide the Service, or (2) as to either
party, relates to or affects that party's ability to make a payment.
10.B. NO IMPLIED LICENSE. The provision of services or the conveying of any
information under this Agreement shall not convey any license by implication,
estoppel or otherwise, under any patents or other intellectual property rights
of Customer or SES Americom, SES Global SA, and their Affiliates, contractors
and vendors (including Vendor).
10.C. NO THIRD-PARTY RIGHTS; NO FIDUCIARY RELATIONSHIP. Nothing contained in
this Agreement shall be deemed or construed by the parties or by any third party
to create any rights, obligations or interests in third parties; or to create
the relationship of principal and agent, partnership or joint venture or any
other fiduciary relationship or association among the parties.
10.D. NO WAIVER; REMEDIES CUMULATIVE. No waiver, alteration, or modification of
any of the terms of this Agreement will be binding unless in writing and signed
by all parties. All remedies and rights hereunder and those available in law or
in equity shall be cumulative and the exercise by a party of any such right or
remedy shall not preclude the exercise of any other right or remedy available
under this Agreement in law or in equity.
10.E. COSTS AND ATTORNEYS' FEES. In any action brought with respect to this
Agreement by one party hereto against the other party hereto, in addition to any
other money damages awarded by a court of competent jurisdiction, the prevailing
party shall be entitled to recover from the other party its reasonable costs,
including reasonable attorneys' fees, in successfully bringing or defending
against such action.
10.F. EXCLUSIVE JURISDICTION.
10.F(1) Each party hereby irrevocably and unconditionally (a) agrees that any
suit, action or proceeding against SES Americom by Customer with respect to this
Agreement shall be instituted only in the trial court of *** as Customer may
elect in its sole discretion, (b) agrees that any suit, action or proceeding
against Customer by SES Americom with respect to this Agreement shall be
instituted only in the trial court of *** as SES Americom may elect in its sole
discretion, (c) consents and submits, for itself and its property, to the
jurisdiction of such courts for the purpose of any such suit, action or
proceeding instituted against it by the other, and (d) agrees that a final
judgment in any such suit, action or proceeding
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
9
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
10.F(2) Each party hereby irrevocably and unconditionally agrees that service of
all writs, process and summonses in any suit, action or proceeding pursuant to
Subsection 10.F(1) may be effected by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such party at its address for
notices pursuant to Section 1.E, such service to become effective 30 days after
such mailing, provided that nothing contained in this Subsection 10.F(2) shall
affect the right of either party to serve process in any other manner permitted
by law.
10.F(3) Each party hereby irrevocably and unconditionally (a) waives any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement brought in any
court specified in clause (a) or clause (b) of Subsection 10.F(1) (as
applicable), (b) waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum and (c)
agrees not to plead or claim either of the foregoing.
10.F(4) The provisions of this Section 10.F shall survive expiration or
termination of this Agreement indefinitely.
10.G. SPECIFIC PERFORMANCE. Each party recognizes that any material breach of
the terms of this Agreement would give rise to irreparable harm to the other
party for which money damages would not be an adequate remedy, and accordingly
agrees that, any term of this Agreement to the contrary notwithstanding, in
addition to all other remedies available to it, each party shall be entitled to
enforce the terms of this Agreement by a decree of specific performance against
the other party, in each case without the necessity of proving the inadequacy of
money damages, provided that Customer shall not be entitled to receive the
benefit of such specific performance with respect to any action by SES Americom
that would: (1) pose or allow to remain a threat to the health and stable
operation of the Satellite; or (2) result in a violation by SES Americom of any
applicable law or regulation, or any coordination agreement or requirement. Such
remedy shall not be deemed the exclusive remedy for breach of this Agreement,
but shall be in addition to all other remedies that a party may have at law, in
equity, under contract or otherwise. The provisions of this Section 10.G shall
survive expiration or termination of this Agreement indefinitely.
10.H. HEADINGS; SEVERABILITY; CUSTOMER PURCHASE ORDERS. All titles and headings
in this Agreement are for reference purposes only; they will not affect the
meaning or construction of the terms of this Agreement. If any part or parts of
this Agreement are held to be invalid, the remaining parts of the Agreement will
continue to be valid and enforceable. Customer agrees that any purchase order or
other similar document that Customer may issue in connection with this Agreement
will be for Customer's internal purposes only and, therefore, even if
acknowledged by SES Americom, will not in any way add to, subtract from, or in
any way modify the terms and conditions of this Agreement.***
10.J. INTER-PARTY WAIVER. Customer, on behalf of itself and its officers,
employees, Affiliates, agents, insurers, owners and customers, agrees to accept
the inter-party waiver and related indemnity provisions required by the
applicable Launch Services Agreement for a launch, modified so as to apply to
Customer and the launch services provider. SES Americom likewise, on behalf of
itself and its officers, employees, Affiliates, agents, insurers, owners and
customers, agrees to accept the inter-party waiver and related indemnity
provisions required by the applicable Launch Services Agreement for a launch,
modified so as to apply to SES Americom and the launch services provider. In no
event shall such inter-party waiver and related indemnity provisions have any
effect on the rights, obligations and liabilities of and between Customer and
SES Americom under this Agreement.
10.K. PUBLICITY. Neither party shall in any way or in any form publicize or
advertise in any manner this
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
10
Agreement or the Services to be provided pursuant to this Agreement without the
express written approval (which shall not be unreasonably withheld, conditioned
or delayed) of the other party, obtained in advance, for each item of
advertising or publicity. The foregoing prohibition shall include but not be
limited to news releases, letters, correspondence, literature, promotional
materials or displays of any nature or form. Each request for approval hereunder
shall be submitted in writing to the representative designated in writing; and
approval, in each instance, shall be effective only if in writing and signed by
said representative. Nothing herein shall prevent either party from providing
the FCC, or any other governmental agency, information concerning this Agreement
as required by law or in response to a request for information by such
governmental agency. Notwithstanding the foregoing, either party may refer to
the fact that SES Americom is providing the Service to Customer without the
other party's prior approval so long as such statements are limited to a
statement of such fact and are not an endorsement (positive or negative) of any
product or service.
10.L. ITAR. Information exchanged under this Agreement may be subject to U.S.
export control laws and regulations, such as the U.S. International Traffic in
Arms Regulations ("ITAR") or the Export Administration Act. The parties agree
that information subject to the export control laws and regulations shall not be
disclosed or transferred to a third party without first obtaining written
approval from the disclosing party and complying with all applicable U.S. export
control laws and regulations.***
10.N. ENTIRE AGREEMENT. This Agreement contains the entire and exclusive
understanding between the parties concerning the subject matter hereof and
supersedes all prior communications and understandings between them relative to
the subject matter hereof.
ARTICLE 11. DEFINITIONS
As used in this Agreement:
A. "Affiliate" means, with respect to a party, any person or entity (1) more
than 50% of the capital securities of which on an as-converted basis are
owned by, or (2) directly or indirectly controlling, controlled by, or
under common control with, such party at the time when the determination
of affiliation is being made. For purposes of this definition, the term
"control" (including the correlative meanings of the terms "controlled by"
and "under common control with"), as used with respect to a person or
entity, shall mean the possession, directly or indirectly, of the power to
(a) direct or cause the direction of management policies of such person or
entity, whether through the ownership of voting securities or by contract
or otherwise, or (b) select a majority of the Board of Directors of such
person or entity.
B. "Agreement" shall have the meaning specified in Section 1.A.
C. "AMC-2 Satellite Service Agreement" shall mean that certain Americom-2
Ku-Band Satellite Transponder Service Agreement entered into by SES
Americom, Inc. (as agent for SES Americom Colorado, Inc.) and Customer
effective as of March 21, 2003, as amended by Amendment #1 effective as of
February 19, 2004, for the provision by SES Americom to Customer of
service on the AMC-2 Satellite, as such agreement may be amended in the
future from time to time in accordance with its terms.
D. "AMC-14 Satellite" shall have the meaning specified in Section 1.A of the
Satellite Service Agreement for AMC-14 among the parties effective as of
August 13, 2003.
***
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
11
E. "AMC-15 Agreement" shall mean the Satellite Service Agreement among the
parties effective as of March 21, 2003, as previously amended by Amendment
#1 effective as of July 10, 2003, by Amendment #2 effective as of
September 22, 2003, and by Amendment #3 effective as of February 19, 2004,
and as such agreement may be amended in the future from time to time in
accordance with its terms.
F. "AMC-15 Satellite" shall have the meaning specified in Section 1.A.
G. "Business Day" means Monday through Friday, 8:30 a.m. to 5:00 p.m. (local
time in New York City, New York) exclusive of banking holidays observed in
New York City.
H. "Channel" means a communication path by which a signal is transmitted
using the Satellite.
***
I. "Construction Contract" shall have the meaning specified in Section 1.A.
J. "Continuation Payments" shall have the meaning specified in Section 9.G.
***
K. "Customer" shall have the meaning specified in the first preamble
paragraph.
L. "Customer's Designees" shall have the meaning specified in Subsection
4.B(2).
***
M. "DTH Video Service" shall mean direct-to-home video services provided to
residential and/or commercial subscribers in the ***
N. "Effective Date" shall have the meaning specified in the first preamble
paragraph.
O. "End-of-Life" means the date on which, in SES Americom's reasonable
judgment, a satellite should be taken out of service because of
insufficient fuel.
P. "Extended Term" shall have the meaning specified in Section 1.C.
***
Q. "Force Majeure Event" shall have the meaning specified in Section 10.A.
***
R. "In-Service" means that the Satellite *** is deployed at the orbital
location at which the Satellite is initially required to be placed in
service hereunder, and, following SES Americom testing and verification of
the entire satellite, SES Americom determines in its reasonable business
judgment that such satellite or all usable capacity thereof, is ready for
commercial operation in accordance with the applicable Technical
Performance Specifications, provided that the satellite is not a Satellite
Failure. SES Americom agrees that it shall provide written notice of such
determination to Customer on the date that SES Americom makes its
determination.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
12
S. "In-Service Date" means the date on which the Satellite *** is In-Service.
T. "Initial Period" shall have the meaning specified in Subsection 2.I(1).
***
U. "ITAR" shall have the meaning ascribed to that term in Section 10.L.
V. "ITU" means the International Telecommunications Union.
W. ***
X. "MRC" shall have the meaning specified in Section 2.B.
***
Y. "Partial Loss" shall mean any failure of a Channel to operate in
accordance with the Technical Performance Specifications that does not
result in a Satellite Failure ***
Z. "Prime Rate" shall mean the "prime rate" of interest as shown in the Money
and Investing Section of the Wall Street Journal as of the applicable
date.
***
AA. "Satellite" shall mean the AMC-16 Satellite ***
BB. "Service" shall have the meaning specified in Section 1.A.
CC. "Service Term" shall have the meaning specified in Section 1.C.
DD. "SES Americom" shall have the meaning specified in the first preamble
paragraph.
***
EE. "Technical Performance Specifications" shall have the meaning specified in
Section 1.A.
FF. "Termination for Convenience" shall have the meaning specified in
Subsection 9.B(1).
GG. "Termination for Default" shall have the meaning specified in Section 9.A.
HH. "Termination Payment" shall have the meaning specified in Subsection
9.B(1).
II. "Termination Value" shall have the meaning specified in Section 9.E.
JJ. "TT&C" shall have the meaning specified in Section 5.A.
***
KK. "User's Guide" shall have the meaning specified in Subsection 4.B(1).
***
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
13
This Agreement contains the complete and exclusive understanding of the parties
with respect to the subject matter hereof and supersedes all prior negotiations
and agreements between the parties with respect thereto. To the extent that any
Attachment may be inconsistent with the text of the Agreement, the text of the
Agreement shall control.
ECHOSTAR SATELLITE L.L.C. SES AMERICOM, INC., as agent for
SES AMERICOM CALIFORNIA, INC. and
By: EchoStar DBS Corporation, its sole member SES AMERICOM COLORADO, INC.
By: _________________________________ By: _____________________________
(Signature) (Signature)
Name: ______________________________ Name: ___________________________
(Typed or Printed Name) (Typed or Printed Name)
Title: ______________________________ Title: __________________________
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
14
