EXHIBIT 10.16
SUPPORT SERVICES AGREEMENT
THIS SUPPORT SERVICES AGREEMENT (this "Agreement") is effective
as of May 1, 2004 (the "Effective Date") among Pegasus Communications Management
Company, a Pennsylvania corporation (the "Company") and each of the entities
listed on Attachment A hereto that is also a signatory hereto (each of which is
referred to individually as an "Operating Affiliate" or collectively as the
"Operating Affiliates").
WITNESSETH:
WHEREAS, Company and the Operating Affiliates desire to
memorialize certain arrangements and understandings with respect to the
performance and provision of certain services and resources; and
WHEREAS, the parties have determined to memorialize such
arrangements and undertakings on the terms and conditions set forth herein which
are consistent with past practices.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties agree as follows:
1. SERVICES
(a) Services.
(i) During the term of this Agreement, Company shall
provide to each Operating Affiliate and its subsidiaries the services set forth
on Attachment B (the "Services").
(ii) If any Operating Affiliate desires that Company
provide any services in addition to the Services, such Operating Affiliate shall
so notify Company and during the 30 days following the receipt of such notice,
Company and such Operating Affiliate will mutually discuss the matter and
negotiate in good faith with a view towards the provision of such services for
appropriate compensation. If such services are added to the Agreement, the
parties shall so amend Attachment B through an addendum, and such services shall
be deemed "Services" hereunder for that Operating Affiliate.
(b) Cross Services. Each Operating Affiliate or its
subsidiaries may provide each other Operating Affiliate and its subsidiaries
with services and products under such terms and conditions as they may agree
(the "Cross Services").
(c) Term and Termination.
(i) Each Operating Affiliate may terminate its
participation in this Agreement, in its entirety, upon 90 days prior notice to
Company, if such Operating Affiliate's
Board of Directors determines that obtaining the Services from a third party (or
performing such Services itself) is in its best interests.
(ii) Company may terminate this Agreement in its
entirety or with respect to any Operating Affiliate upon 90 days prior notice to
the affected Operating Affiliates.
(iii) Upon termination of this Agreement by any
Operating Affiliate or by Company: each affected Operating Affiliate shall pay
Company for all Services rendered and expenses incurred by Company (in
accordance with Section 2) prior to the effective date of termination; and each
affected party shall return to the other party all Confidential Information of
the other party (including all copies thereof) and all other papers, materials
and other property of the other party in such party's possession.
(iv) Sections 1(d), 1(e), 2 (as it relates to any
then unreimbursed payments), and 3 through 6, and any other provision that
should naturally extend beyond the termination of this Agreement shall survive
termination of this Agreement for any reason.
(d) Limited Warranty. Company shall provide the Services in
good faith, and with due care, diligence and timeliness. Each Operating
Affiliate acknowledges that Company is not in the business of providing such
Services to third parties and that, except as set forth in this Section 1(d),
Company does not otherwise warrant the Services. The warranty stated above is in
lieu of and exclusive of all other representations and warranties of any kind
whatsoever. EXCEPT AS STATED ABOVE, COMPANY DISCLAIMS ALL WARRANTIES AND
REPRESENTATIONS RELATING TO THE SERVICES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. Each Operating Affiliate's sole remedy for
Company's breach of this Section 1(d) shall be termination of this Agreement in
accordance with Section 1(c)(i).
(e) Warranty for Cross Services. Any warranty or
representation relating to any of the Cross Services provided by an Operating
Affiliate or its subsidiaries to another Operating Affiliate or its subsidiaries
shall be as agreed in writing between the parties. EXCEPT AS STATED SPECIFICALLY
IN ANY SUCH WRITTEN AGREEMENT, EACH OPERATING AFFILIATE THAT PROVIDES CROSS
SERVICES DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS RELATING TO THE CROSS
SERVICES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. PAYMENTS BY OPERATING AFFILIATES; REIMBURSEMENT
(a) Fees. For the Services provided to each Operating
Affiliate (and its subsidiaries), such Operating Affiliate shall pay to Company
fees calculated in accordance with the methods set forth on Attachment B hereto.
(b) Payment of Charges. Company shall invoice each Operating
Affiliate for Services performed for such Operating Affiliate (and its
subsidiaries) on such intervals as may be determined by Company. Payments shall
be due 15 days after the end of the month in which the
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invoice for such Services was received by such Operating Affiliate; provided
that Company may provide an estimate for Services performed for any Operating
Affiliate prior to the date Company would otherwise invoice such Operating
Affiliate, and the Operating Affiliate shall pay such estimated amount for
Services performed by the Company, the amount of such estimated payment to be
reconciled with the actual amount of Services invoiced for the applicable
service interval.
(c) Disputed Charges; Claims. (i) If an Operating Affiliate
disputes any charges invoiced by Company pursuant to this Agreement, such
Operating Affiliate shall deliver a written statement describing the dispute to
Company within 15 days after receipt of the disputed invoice. The statement
shall provide a sufficiently detailed description of the disputed items. Fees
not so disputed shall be deemed accepted. If the parties cannot resolve the
dispute in a mutually satisfactory manner, the dispute shall be submitted within
30 days after the date of notice to PricewaterhouseCoopers LLP (or its
successor) or another independent public accounting firm mutually acceptable to
the Company and the Operating Affiliate. The independent public accounting firm
will review the books and records of the Operating Affiliate (or any subsidiary
that is the subject of such disputed invoice) and Company and make such other
investigation as they may deem necessary to verify the invoice. The costs of
such accountants' fees shall be borne by the Operating Affiliate if the invoice
is determined to be substantially correct, and borne by Company, if the invoice
is determined to be substantially incorrect. Pending any such final
determination, the Operating Affiliate shall pay the invoiced amount to Company,
with appropriate adjustment (including interest at the rate of interest which
commercial banks charge to their most creditworthy customers from the date of
such payment) to be made following such final determination.
(ii) An Operating Affiliate's (and its subsidiaries')
receipt of any of the Services performed hereunder shall be an unqualified
acceptance of, and a waiver by such Operating Affiliate (and its subsidiaries')
of any and all claims with respect to, such Services unless the Operating
Affiliate gives Company notice of a claim within 30 days after the end of the
month in which the invoice for such Services was received by the Operating
Affiliate or its subsidiaries, as applicable, except for any claims arising from
the bad faith, gross negligence or willful misconduct of Company.
(d) Taxes. In addition to any other amounts payable to
Company hereunder, each Operating Affiliate shall promptly reimburse Company for
any taxes, excises, imposts, duties, levies, withholdings or other similar
charges (excepting any taxes or charges based on Company's income) that Company
may be required to pay on account of such Operating Affiliate (and its
subsidiaries) in connection with the performance of Services, or with respect to
payments made by such Operating Affiliate for such Services pursuant to this
Agreement.
(e) Reimbursement. Each of the Operating Affiliates
acknowledges that Company may make payments to third parties (including for
legal, insurance, financial, accounting, public relations and other consultant
fees, costs and expenses) on behalf of an Operating Affiliate (or its
subsidiaries) in connection with Company's provision of Services to such
Operating Affiliate (or its subsidiaries) or otherwise. Each Operating Affiliate
shall promptly, and in any event within 15 days after notice (which notice shall
include, upon request of an Operating Affiliate, documentation of such
expenses), reimburse Company for any such
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third party fees, costs and expenses attributable to it or its subsidiaries.
Without limiting the foregoing, each Operating Affiliate also shall promptly
reimburse Company for any and all other costs, expenses, and other amounts paid
by Company, directly or indirectly, to third parties on behalf of or for the
benefit of such Operating Affiliate (or its subsidiaries) in connection with
Company's provision of Services to such Operating Affiliate (or its
subsidiaries), including for costs, expenses and other payments made under
guarantees, letters of credit, surety bonds and other contingent obligations
entered into or agreed to by Company on behalf of or for the benefit of such
Operating Affiliate (or its subsidiaries).
3. PAYMENTS FOR CROSS SERVICES, REIMBURSEMENT.
Payments for Cross Services provided by an Operating Affiliate
(or its subsidiaries) to any other Operating Affiliate and its subsidiaries
shall be as agreed to by the parties on a case-by-case basis. For any third
party fees, costs and expenses paid on its or its subsidiaries' behalf by
another Operating Affiliate (or a subsidiary), each Operating Affiliate shall
reimburse such other Operating Affiliate (or such subsidiary) in accordance with
the terms of Section 2(e) above.
4. INDEMNIFICATION; LIMITATION OF LIABILITY; DISCLAIMER OF
DAMAGES.
(a) Indemnification by Operating Affiliate. Each Operating
Affiliate shall indemnify, defend and hold Company, its Affiliates and their
respective officers, directors, agents and employees harmless from and against
any and all demands, claims, actions, causes of action, suits and encumbrances
brought or asserted by, or liabilities, penalties, obligations, losses, damages,
costs and expenses paid or attributable to (including reasonable attorneys' fees
and expenses), third parties (collectively, "Losses") to which Company may be
subjected arising out of or attributable, directly or indirectly, to: (i) the
performance or nonperformance of any Services for or on behalf of such Operating
Affiliate or its subsidiaries (including Losses arising out of or relating to
guarantees, letters of credit, surety bonds and other contingent obligations
entered into or agreed to by Company on behalf of or for the benefit of such
Operating Affiliate or its subsidiaries) or otherwise arising out of or
attributable, directly or indirectly, to this Agreement, except for any Losses
arising out of or attributable, directly or indirectly, to Company's gross
negligence, bad faith or willful misconduct; (ii) any acts or omissions of such
Operating Affiliate and its subsidiaries; or (iii) personal injuries, including
death, or damage to property occurring on such Operating Affiliate's or any of
its subsidiary's premises or arising out of or due to its operation of its
business or its negligence.
(b) Indemnification by Company. Company shall indemnify,
defend and hold each Operating Affiliate, their respective Affiliates and their
respective officers, directors, agents and employees harmless from and against
any and all demands, claims, actions, causes of action, suits and encumbrances
brought or asserted by, or Losses to which such Operating Affiliate may be
subjected arising out of or attributable, directly or indirectly, to Company's
gross negligence, bad faith or willful misconduct.
(c) Indemnification Procedures. Promptly after receipt by an
indemnified party of a notice of any third party claim or the commencement of
any action, such indemnified
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party shall: (i) notify the indemnifying party in writing of any such claim;
(ii) provide the indemnifying party with reasonable assistance to settle or
defend such claim, at the indemnifying party's own expense; and (iii) grant to
the indemnifying party the right to control the defense and/or settlement of
such claim, at the indemnifying party's own expense; provided, however, that:
(A) the failure to so notify, provide assistance and grant authority and control
shall relieve the indemnifying party of its obligation to the indemnified party
only to the extent that the indemnifying party is prejudiced thereby; (B) the
indemnifying party shall not, without the indemnified party's consent (such
consent not to be unreasonably withheld or delayed), agree to any settlement
which: (x) makes any admission on behalf of the indemnified party; or (y)
consents to any injunction against the indemnified party (except an injunction
relating solely to the indemnified party's continued use of any infringing
intellectual property); and (C) the indemnified party may, at its expense,
participate in any legal proceeding to contest and defend a claim and to be
represented by legal counsel of its choosing, but shall have no right to settle
a claim without the indemnifying party's written consent.
(d) Limitation of Liability. (i) UNDER NO CIRCUMSTANCES WILL
COMPANY BE LIABLE (IN CONTRACT, TORT OR OTHERWISE) TO ANY OPERATING AFFILIATE OR
ANY OF ITS SUBSIDIARIES FOR ANY LOSSES SUFFERED BY SUCH OPERATING AFFILIATE OR
ANY OF ITS SUBSIDIARIES ARISING OUT OF OR ATTRIBUTABLE, DIRECTLY OR INDIRECTLY,
TO THE PERFORMANCE OR NONPERFORMANCE BY COMPANY OF ANY SERVICES OR OTHERWISE
ARISING OUT OF OR ATTRIBUTABLE, DIRECTLY OR INDIRECTLY, TO THIS AGREEMENT,
EXCEPT FOR ANY SUCH LOSSES ARISING OUT OF OR ATTRIBUTABLE, DIRECTLY OR
INDIRECTLY, TO THE BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY.
(ii) UNDER NO CIRCUMSTANCES WILL ANY OPERATING
AFFILIATE OR ITS SUBSIDIARIES BE LIABLE (IN CONTRACT, TORT OR OTHERWISE) TO ANY
OTHER OPERATING AFFILIATE OR ITS SUBSIDIARIES FOR ANY LOSSES SUFFERED BY SUCH
OTHER OPERATING AFFILIATE OR ITS SUBSIDIARIES BASED UPON THE TERMS AND
PROVISIONS OF THIS AGREEMENT, UNLESS EXPRESSLY AGREED IN WRITING TO THE
CONTRARY.
(iii) ANY LIABILITY OF THE PARTIES TO ONE ANOTHER
ARISING WITH RESPECT TO ANY MATTERS ARISING OUT OF OR ATTRIBUTABLE TO, DIRECTLY
OR INDIRECTLY, THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF
ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY,
OTHER TORT OR OTHERWISE), SHALL BE LIMITED TO ACTUAL DAMAGES. IN NO EVENT SHALL
ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF ANTICIPATED
PROFITS, LOSS OF USE, LOSS OF REVENUE, COST OF CAPITAL AND LOSS OR DAMAGE OF
OTHER PROPERTY OR EQUIPMENT, WHETHER ARISING UNDER CONTRACT, IN TORT, AT LAW, OR
IN EQUITY, OF SUCH OTHER PARTY OF ANY OTHER PERSON, AND REGARDLESS OF WHETHER
ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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5. OWNERSHIP OF WORK PRODUCT.
(a) Except as set forth in Section 5(b) below, all
proprietary tools and methodologies and all written materials which were
preexisting or originated with or were prepared by Company pursuant to this
Agreement shall belong to Company, except to the extent such may be acquired by
such Operating Affiliate or any of its subsidiaries pursuant to any separate
written agreement signed by authorized representatives of each party.
(b) All data provided to Company pursuant to this Agreement
by or on behalf of an Operating Affiliate or any of its subsidiaries, is the
Confidential Information of such Operating Affiliate or subsidiary, and shall
remain the property of such Operating Affiliate or any of its subsidiaries, as
applicable.
(c) All data provided to an Operating Affiliate or any of
its subsidiaries pursuant to this Agreement by or on behalf of another Operating
Affiliate or any of its subsidiaries, is the Confidential Information of such
other Operating Affiliate or its subsidiaries, as applicable, and shall remain
the property of such other Operating Affiliate or its subsidiaries, as
applicable.
(d) No license under any patents, know-how, trade secrets,
copyrights, or other rights is granted by this Agreement or any disclosure
hereunder.
(e) Each Operating Affiliate shall have reasonable access to
all data, records, files, statements, invoices, xxxxxxxx, and other information
generated by or in custody of Company relating to the Services provided to such
Operating Affiliate or any of its subsidiaries pursuant to this Agreement.
6. MISCELLANEOUS.
(a) Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given to the address or facsimile number set forth opposite such
party's signature on the signature page hereto or such other address as a party
may designate by notice. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient thereof if
received prior to 5 p.m. in the place of receipt and such day is a business day
in the place of receipt. Otherwise, any such notice, request or communication
shall be deemed not to have been revised until the next succeeding business day
in the place of receipt.
(b) Amendments and Waivers.
(i) Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed,
in the case of an amendment, by each party to this Agreement affected by the
amendment, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(ii) No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
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privilege. The rights and remedies herein provided shall be cumulative and are
not exclusive of any rights or remedies provided by law.
(c) Force Majeure. A party shall be relieved of its
obligations hereunder, if and to the extent that any of the following events
hinder, limit or make commercially impracticable the performance by such party
of any of its obligations hereunder: act of God, war, terrorism, civil
commotion, riot, acts of public enemies, blockade or embargo, fire, explosion,
lightning, casualty, accident, flood, sabotage, national defense requirements,
labor trouble, strike, lockout or injunction, governmental requests, lows
regulations, orders or actions whether valid or invalid (including import or
export prohibitions or priorities, requisitions, allocations and price
adjustment restrictions); breakage or failure of machinery or apparatus;
inability to obtain power, materials, facilities, equipment, communication or
transportation; or any other event, whether or not of the class or kind
enumerated herein, beyond the control of such party such as cannot be
circumvented by reasonable diligence and without unusual expense. The party
claiming relief hereunder shall notify the affected parties in writing of the
events causing delay or default in performance. The party failing to fulfill its
obligations shall, however, take reasonable steps to remove or otherwise address
the impediment to action.
(d) Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that: (i) Company may not assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto, except that Company
may, without the consent of any of the Operating Affiliates, assign, delegate or
transfer any of its rights or obligations under this Agreement to one or more of
its Affiliates; and (ii) no Operating Affiliate may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
Company's consent. Notwithstanding the foregoing, any party possessed of an
obligation to render Services or Cross Services may discharge that obligation in
whole or in part through third parties.
(e) Governing Law and Venue. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH JURISDICTION.
VENUE FOR ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
EXCLUSIVELY THE STATE OR FEDERAL COURTS LOCATED IN XXXXXXXXXX COUNTY,
PENNSYLVANIA. THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF SUCH COURTS.
(f) Counterparts. This Agreement may be signed in any number
of counterparts, each of which will be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(g) Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstance shall be declared
to be invalid, unenforceable or void, such decision shall not have the effect of
invalidating or voiding the remainder of this Agreement, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to render it valid, legal and
enforceable while preserving its intent or, if such modification is not
possible, by substituting
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therefor another provision that is valid, legal and enforceable so as to
materially effectuate the parties' intent.
(h) Entire Agreement. This Agreement memorializes,
constitutes and supercedes all prior agreements and understandings, both oral
and written, among the parties with respect to the subject matter of this
Agreement. No representation, inducement, promise, understanding, condition or
warranty not set forth herein has been made or relied upon by any party hereto.
Neither this Agreement nor any provision hereof is intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. The
Attachments to this Agreement are hereby incorporated into this Agreement.
(i) Independent Contractors. Except as otherwise set forth
in this Agreement, the parties hereto are independent contractors. Nothing in
this Agreement is intended or shall be deemed to constitute a partnership,
agency franchise or joint venture relationship between the parties. No party
shall incur any debts or make any commitments for the other, except to the
extent specifically provided herein.
(j) Defined Terms. Capitalized terms used herein shall have
the meanings set forth herein. In this Agreement, the words "including",
"include" and "includes" shall each be deemed to be followed by the term
"without limitation". For purposes of this Agreement, "Affiliate" shall mean, as
applied to any entity, any other entity directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such entity. For
purposes of this definition, "control" (including the terms "controlling,"
"controlled by," and "common control with") as applied to any entity, means the
possession, directly or indirectly of the power to direct or cause the direction
of the management and policies of such entity, whether through the ownership of
voting securities, by contract or otherwise.
(k) Confidentiality.
(i) Confidential Information. "Confidential
Information" means with respect to a party hereto, this Agreement, together with
all confidential business or technical information or materials of such party.
Anything to the contrary notwithstanding, Confidential Information shall not
include information or materials that the Receiving Party demonstrates: were
known to the Receiving Party prior to the Effective Date free of any obligation
of nondisclosure; were in the public domain prior to the date received by a
Receiving Party hereunder or which subsequently came into the public domain
through no fault of the Receiving Party; were lawfully received by the Receiving
Party from a third party free of any obligation of nondisclosure; or are or were
independently developed by the Receiving Party or any of its Affiliates,
employees, consultants or agents without reference to any Confidential
Information of the Disclosing Party.
(ii) Nondisclosure of Confidential Information. All
Confidential Information supplied by a party (the "Disclosing Party") to the
other party (the "Receiving Party") shall remain solely and exclusively the
property of the Disclosing Party. Except as expressly authorized herein or by
prior written consent of the Disclosing Party, which consent may be withheld in
the Disclosing Party's sole discretion, the Receiving Party shall not use, or
disclose to any third party, any of the Disclosing Party's Confidential
Information. The
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Receiving Party shall only disclose the Disclosing Party's Confidential
Information to those of its Affiliates, employees and their respective
contractors who have a need to know it for the purposes of this Agreement and
who have executed a written non-disclosure agreement containing terms
substantially similar to this Section 6(k) regarding such Confidential
Information. The Receiving Party shall protect the Confidential Information of
the Disclosing Party with the same level of care with which it protects its own
Confidential Information, but in no event with less than reasonable care. Each
party shall be responsible for any unauthorized use or disclosure of any the
other party's Confidential Information received by it and its Affiliates and
their respective employees, agents, representatives and consultants.
(iii) Compelled Disclosures. Notwithstanding the
foregoing, the Receiving Party may disclose the Disclosing Party's Confidential
Information to the extent that the Receiving Party is required by any applicable
governmental authority to do so; provided, however, that in such event, to the
extent permitted by applicable law, the Receiving Party shall notify the
Disclosing Party and shall cooperate with the Disclosing Party in any attempt to
contest or limit such required disclosure, at the Disclosing Party's sole
expense.
(l) Records. Company shall maintain the business records
pertaining to the Services and will retain the records pertaining to each of the
Services for a period of twelve months after the cessation of such Services. At
any Operating Affiliate's request, Company shall provide to such Operating
Affiliate copies of records pertaining to the Services provided to it or its
subsidiaries.
(m) Headings. All headings used herein are for convenience
only and shall not be referred to in construction of this Agreement.
(n) New Operating Affiliates. Any Affiliate of Pegasus
Communications Corporation may join this Agreement by executing an Affiliate
Agreement substantially in the form attached hereto as Attachment C. Company
hereby consents to execute any such Affiliate Agreement. Upon any such joinder,
such Pegasus Communications Corporation Affiliate shall constitute an Operating
Affiliate hereunder and shall be entitled to all of the rights, and subject to
all of the obligations, of an Operating Affiliate hereunder.
(o) Several Liability. Notwithstanding anything in this
Agreement to the contrary, the obligations of each Operating Affiliate hereunder
shall be several and not joint; no Operating Affiliate shall be liable in any
respect for the obligations of any other Operating Affiliate.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year set forth below.
ARGOS SUPPORT SERVICES COMPANY
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
B.T. SATELLITE, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
BRIDE COMMUNICATIONS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
XXXX RURAL TV, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
DBS TELE-VENTURE, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
DIGITAL TELEVISION SERVICES OF INDIANA, LLC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PBT HOLDING, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
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PEGASUS BROADCAST TELEVISION I, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE FINANCE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE TELEVISION I, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
DTS MANAGEMENT, LLC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
GOLDEN SKY DBS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
GOLDEN SKY HOLDINGS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
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GOLDEN SKY SYSTEMS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
XXXXX COUNTY MRTV, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
HMW, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS BROADCAST ASSOCIATES, L.P.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS BROADCAST TELEVISION, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS BROADCAST TOWERS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS COMMUNICATIONS CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
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PEGASUS COMMUNICATIONS CORPORATION PAC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS COMMUNICATIONS MANAGEMENT COMPANY
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS DEVELOPMENT 107 CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS DEVELOPMENT 107 LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS DEVELOPMENT 9182 CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
PEGASUS DEVELOPMENT CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
13
PEGASUS DEVELOPMENT DBS CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS GUARD BAND, LLC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS LETTER OF CREDIT SUBSIDIARY, INC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS MEDIA & COMMUNICATIONS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS REAL ESTATE COMPANY
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS RURAL BROADBAND, LLC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS RURAL TELEVISION, LLC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
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PEGASUS PCS PARTNERS, LP
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE COMMUNICATIONS HOLDINGS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE COMMUNICATIONS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE DEVELOPMENT CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE TELEVISION OF ILLINOIS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PEGASUS SATELLITE TELEVISION, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
15
PEGASUS TRAVEL, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PMC SATELLITE DEVELOPMENT, LLC
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PORTLAND BROADCASTING, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PRIMEWATCH, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
PST HOLDINGS, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
SATELLITE ACCESS CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
SOUTH PLAINS DBS, L.P.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
16
TELECAST OF FLORIDA, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WDSI LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WFXU CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WFXU LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WGFL CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WGFL LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
17
WILF, INC.
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WOLF LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WPME CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WPME LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
WTLH LICENSE CORPORATION
By: /s/Xxxxx X. Blank
-------------------------------------
Title: Senior Vice President
-------------------------------------
18
ATTACHMENT A
OPERATING AFFILIATES
ALL PEGASUS ENTITIES (including non-debtor affiliates)
ARGOS SUPPORT SERVICES COMPANY
B.T. SATELLITE, INC.
BRIDE COMMUNICATIONS, INC.
XXXX RURAL TV, INC.
DBS TELE-VENTURE, INC.
DIGITAL TELEVISION SERVICES OF INDIANA, LLC
PBT HOLDING, INC.
PEGASUS BROADCAST TELEVISION I, INC.
PEGASUS SATELLITE FINANCE CORPORATION
PEGASUS SATELLITE TELEVISION I, INC.
DTS MANAGEMENT, LLC
GOLDEN SKY DBS, INC.
GOLDEN SKY HOLDINGS, INC.
GOLDEN SKY SYSTEMS, INC.
XXXXX COUNTY MRTV, INC.
HMW, INC.
PEGASUS BROADCAST ASSOCIATES, L.P.
PEGASUS BROADCAST TELEVISION, INC.
PEGASUS BROADCAST TOWERS, INC.
PEGASUS COMMUNICATIONS CORPORATION
PEGASUS COMMUNICATIONS CORPORATION PAC
PEGASUS COMMUNICATIONS MANAGEMENT COMPANY
PEGASUS DEVELOPMENT 107 CORPORATION
PEGASUS DEVELOPMENT 107 LICENSE CORPORATION
PEGASUS DEVELOPMENT 9182 CORPORATION
PEGASUS DEVELOPMENT CORPORATION
PEGASUS DEVELOPMENT DBS CORPORATION
PEGASUS GUARD BAND, LLC
PEGASUS LETTER OF CREDIT SUBSIDIARY, INC.
PEGASUS MEDIA & COMMUNICATIONS, INC.
PEGASUS REAL ESTATE COMPANY
PEGASUS RURAL BROADBAND, LLC
PEGASUS RURAL TELEVISION, LLC
PEGASUS PCS PARTNERS, LP
PEGASUS SATELLITE COMMUNICATIONS HOLDINGS, INC.
PEGASUS SATELLITE COMMUNICATIONS, INC.
PEGASUS SATELLITE DEVELOPMENT CORPORATION
PEGASUS SATELLITE TELEVISION OF ILLINOIS, INC.
PEGASUS SATELLITE TELEVISION, INC.
PEGASUS TRAVEL, INC.
PMC SATELLITE DEVELOPMENT, LLC
19
PORTLAND BROADCASTING, INC.
PRIMEWATCH, INC.
PST HOLDINGS, INC.
SATELLITE ACCESS CORPORATION
SOUTH PLAINS DBS, L.P.
TELECAST OF FLORIDA, INC.
WDSI LICENSE CORPORATION
WFXU CORPORATION
WFXU LICENSE CORPORATION
WGFL CORPORATION
WGFL LICENSE CORPORATION
WILF, INC.
WOLF LICENSE CORPORATION
WPME CORPORATION
WPME LICENSE CORPORATION
WTLH LICENSE CORPORATION
20
ATTACHMENT B
SERVICES
(1) The Services described in this Section 1 are "Support Services".
Charges for Support Services shall be based upon actual costs
(including direct and indirect costs) incurred by Company in the
performance of such Support Services. Charges are based upon the
level of effort devoted by Company resources to each Operating
Affiliate; allocations among Operating Affiliates may be based
upon: (i) the cost of compensation of each Operating Affiliate
compared to total cost of compensation of all Operating
Affiliates, (ii) the net assets employed by each Operating
Affiliate compared to total net assets of all Operating
Affiliates, (iii) the net revenue generated by each Operating
Affiliate compared to total net revenue generated by all
Operating Affiliates, or (iv) other similar allocation methods.
o Accounting and Financial Reporting
o Cash and Treasury Management
o Communications - Investor Relations and Corporate
o Employee Benefit Plan Management
o Engineering; and Research and Development
o Executive and Staff Administration
o Financial Planning and Analysis
o General and Administrative Services
o Global Sales and Service
o Government Operations
o Human Resources and Administration
o In-house Legal Administration
o Insurance
o Payroll Management
o Purchasing, Procurement and Transportation Administration
o Quality Assurance
o Systems Administration
o Tax Services
o Miscellaneous Services and Costs
(2) The Services described in this Section 2 are "Shared Services
and Benefits". Charges for Shared Services and Benefits are
based upon each Operating Affiliate's (and its subsidiaries')
share of actual costs (including direct and
21
indirect costs) incurred by Company in the performance of such
Shared Services and Benefits.
o Employee Bonuses and Compensation
o Employee Stock Purchase Plan
o Healthcare, Medical, Insurance and Other Employee Welfare
Plans
o Property and Casualty Insurance
o Office Space
o Telecommunication Services
o 401(k) Plan
o Other Miscellaneous Shared Services
(3) With respect to the provision of third party guaranties and
indemnities (including making or the co-making of Lenders of
Credit and Surety Bonds) for the benefit of an Operating
Affiliate (or any of its subsidiaries), the applicable Operating
Affiliate shall pay Company a fee based upon the interest spread
over the London interbank offered rate (LIBOR) that the
applicable Operating Affiliate (or such subsidiary) pays on its
borrowings, either actual or estimated.
22
ATTACHMENT C
AFFILIATE AGREEMENT
This Affiliate Agreement ("Affiliate Agreement") is between
Pegasus Communications Management Company, a Pennsylvania corporation
("Company"), and [____________], a [______] [_____] ("Joining Operating
Affiliate").
Company and certain Affiliates of Joining Operating Affiliate
are party to that certain Support Services Agreement, effective as of May 1,
2004 (the "Agreement"; capitalized terms used but not defined herein have the
meanings set forth in the Agreement). Joining Operating Affiliate wishes to
join, and Company wishes to permit Joining Operating Affiliate to join, the
Agreement.
The parties hereto agree as follows:
1. By its execution of this Affiliate Agreement, Joining Operating
Affiliate agrees to become a party to the Agreement and to be bound by all of
the obligations undertaken by an Operating Affiliate thereunder, as if Joining
Operating Affiliate were an original signatory thereto.
2. By its execution of this Affiliate Agreement, Company agrees to allow
Joining Operating Affiliate to become a party to the Agreement and that Joining
Operating Affiliate is entitled to all of the benefits under the Agreement to
which an Operating Affiliate is entitled thereunder, as if Joining Operating
Affiliate were an original signatory thereto.
3. Each party hereto agrees and confirms that the obligations of each
Operating Affiliate under the Agreement are several and not joint, and that no
Operating Affiliate shall be responsible in any respect for the obligations of
any other Operating Affiliate.
PEGASUS COMMUNICATIONS [JOINING OPERATING AFFILIATE]
MANAGEMENT COMPANY
By: By:
---------------------------------- ------------------------------------
Its: Its:
---------------------------------- ------------------------------------
Date: Date:
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