Information included herein, marked with [*], is being filed pursuant to a
request for confidential treatment.
FULL-TIME TRANSPONDER SERVICE AGREEMENT
FROM PAS-3 (EUROPEAN BEAM)
--------------------------
This Agreement (the "Agreement") is entered into as of this 20th day of
September, 1996, by and between PanAmSat Corporation, a Delaware corporation
("PanAmSat") and Televisa, S.A. de C.V., a sociedad responsabilidad limitada,
formed under the laws of the United Mexican States ("Customer"). This Agreement
covers the provision of twenty-four hour fixed term non-preemptible video
channel satellite signal reception and retransmission service (the "Service") by
PanAmSat to Customer. The Service shall be supplied by PanAmSat, in outerspace,
initially from three (3) transponders and later from a total of up to five (5)
transponders with the bandwidth and in the band and beam that are identified in
Appendix A to this Agreement from the Atlantic Ocean Region Satellite referred
to by the parties as PAS-3 aka PAS-3R (the "Satellite") that has been
constructed by Xxxxxx Aircraft Company for PanAmSat, as described in Appendix B,
and that was launched in January 1996. The transponders on the Satellite and the
beams in which these transponders are grouped are referred to as
"Transponder(s)" and the "Beam(s)," respectively.
AGREEMENT
---------
In consideration of the foregoing and of the mutual promises set forth
below, PanAmSat and Customer mutually agree as follows:
ARTICLE 1 PROVISION OF SERVICE
--------------------
1.1 The Service. PanAmSat agrees to provide, and Customer agrees to
accept, Service meeting the "Service Specifications" set forth in Appendix C.
Except as otherwise specifically permitted under this Agreement, PanAmSat shall
not preempt or interrupt the provision of Service to Customer. In no event shall
these exceptions be construed so as to permit PanAmSat to preempt Service to
Customer so as to allow PanAmSat to use the capacity formerly used to provide
Service to Customer for itself or for another customer.
1.2 Beam and Transponder Designation. The Beam, and subject to Sections
1.2A and 5.3 and Appendix C, the particular Transponders upon which Customer
shall be provided Service (the "Service Transponders") shall be identified by
PanAmSat from the Transponders listed in Appendix A prior to the commencement of
Service from the relevant Transponders; provided that, if it still meets the
Service Specifications, one of the "Initial Group" (as defined below) of Service
Transponders shall be Transponder 11.
1.2A. Beam Election. The Initial Group of Service Transponders shall
all be provided from the group of Transponders shown in Appendix A with a Europe
downlink Beam. Not later than thirty (30) days after the date of this Agreement,
Customer may elect, on notice to PanAmSat, to have the "Remaining Two" (as
defined below) Service Transponders provided from the Transponders shown in
Appendix A in the North American downlink Beam. If Customer fails to give such
notice, said Remaining Two Service Transponders shall be provided from
Transponders shown in Appendix A in the Europe downlink Beam.
1.3 Television Service. The Service is designed for, and shall be used
by, Customer primarily for transmission of its own "Television Service," which,
for purposes of this Agreement means video programming, with associated audio
signals, for broadcast, cable, direct to home, or other distribution purposes.
In addition, on a secondary basis, the Service may be used for audio, data and
teletext signals and any other one way electronic information subject to the
control of Customer, however transmitted, whether in the form of data, teletext
or packets and whether contained or transmitted within subcarriers, the VBI, or
other portion of the signal or RF carrier; provided that in no event may the
Service be used for switched public international telecommunications services.
For purposes of this Agreement, Customer's Television Service shall be deemed to
include the Television Services of entities that control, are controlled by, or
are under common control with Customer ("Commonly Controlled Entities"),
including entities in which there is a minimum of 25% common equity ownership
with Customer (i.e., Televisa, S.A. de C.V.). Customer's Television Service
shall also be deemed to include Television Services of other entities if these
Services are delivered as part of a "DTH Service" that is provided by Customer
or a Commonly Controlled Entity (for purposes of this sentence, applying a 10%
common equity with Customer standard) and for which the Customer also provides
programming. To qualify for the above exception, all of the programming that is
provided by the "DTH Service" must be marketed and provided primarily to
individual end user recipients as part of a package of programming services,
using the same conditional access system. In all events, Customer shall remain
responsible to PanAmSat for all uses of the Services permitted hereunder.
1.3A Additional Use Restrictions on SSA Transponders. Customer
acknowledges and agrees that, notwithstanding anything in Section 1.3 above to
the contrary, if it elects to take Service from the SSA Transponders, its use
(and all uses that may be permitted under Section 1.3 above) shall be subject to
all of the restrictions that PanAmSat is required to impose on customers under
that certain letter agreement, dated February 29, 1996, by and among PanAmSat,
Customer, The News Corporation Limited ("News"), and Globo Comunicacoes e
Participacoes (formerly Globo Participacoes, Ltda.) ("Globo"), as the same may
be amended, and such agreements that may be reached, or amended, as contemplated
in said letter agreement.
1.4 Transmission Plan for Transponders. Customer's transmissions to the
Satellite (which may be performed by one or more third party uplink providers,
as provided in Section 4.2 below) shall conform to digital transmission plan to
be submitted by Customer to PanAmSat and that shall be subject to PanAmSat's
prior written approval. The transmission plan shall include such information as
called for in the form of transmission plan that is attached hereto as Appendix
E and such other technical information as PanAmSat may require in its reasonable
engineering judgment to manage the operation of its Satellite. Customer shall be
permitted to modify this transmission plan from time to time, subject to
PanAmSat's prior written approval. PanAmSat shall not unreasonably withhold its
approval of a transmission plan or modification to such a plan, which approval
shall be based solely upon the considerations identified in Section 4.1 below.
PanAmSat makes no representation, warranty, or covenant regarding the efficacy
of the use of any number of carriers or other alternative uses of capacity
provided under this Agreement. If not otherwise provided by PanAmSat pursuant to
separate agreement, Customer will provide PanAmSat, at no cost to PanAmSat, with
equipment necessary to decode its signals. It is understood that, in some
circumstances, PanAmSat may provide uplink services to Customer, in which event
Customer shall not be responsible to PanAmSat for the technical operation or
performance of such PanAmSat-provided uplinks under this or other sections of
this Agreement.
1.5 Interim Marketing of the Capacity.
----------------------------------
(a) If Customer does not initially require all of the
capacity provided hereunder, for use from the "Initial Service Date" as defined
below through the first anniversary thereof, upon Customer's request, PanAmSat
shall use all reasonable efforts to market services from the Service
Transponders (which Customer would thereafter cease to employ) to other
potential customers for video, data, or other uses, as market demand and
technical considerations may warrant, as reasonably determined by PanAmSat in
consultation with Customer, and subject to PanAmSat's reasonable discretion with
regard to the terms and conditions of service and selection of appropriate
customers, which shall be consistent with its general practices in this regard.
In such event,
(i) PanAmSat shall actively market services from the
Service Transponders in good faith provided that PanAmSat shall not be obligated
to use the Service Transponders ahead of any other capacity that PanAmSat may
also have available for comparable service. Unless otherwise agreed by both
parties, the marketing shall be for full-time, fixed term uses. In addition,
subject to the considerations stated above, if Customer identifies to PanAmSat a
potential customer who desires to purchase service from PanAmSat that employs
the Service Transponders, PanAmSat shall seek, in good faith, promptly to enter
into a service agreement with said customer, provided that if PanAmSat was
already in negotiations with said potential customer for other PanAmSat
capacity, PanAmSat shall not be required to discontinue such negotiations; and
(ii) PanAmSat shall credit against Customer's next
monthly service fee (which shall continue to be payable as adjusted above)
one-half of such amounts that are actually received from other customers for
service from the Service Transponders for the previous month (less costs
reasonably incurred by PanAmSat for providing any related services and
equipment, not provided to Customer, that may be associated with the provision
of such service, e.g., turnaround, compression, or other terrestrial services or
facilities) up to the amount of the service fees paid by Customer for the
applicable period for the Service Transponders made available by Customer to
PanAmSat for remarketing under this Section 1.5. In addition, after deducting
the costs specified above, if the monthly service fees actually received by
PanAmSat for service from the Service Transponders exceed the monthly service
fees to be paid to PanAmSat by Customer for the remarketed capacity (the "Excess
Amount") in addition to crediting the next month's Service Fee payment, PanAmSat
shall pay Customer one-half of such Excess Amount.
ARTICLE 2. TERM, SERVICE TERM.
-------------------
2.1 Term. The term of this Agreement (the "Term") shall commence upon
the first date above written and, unless previously terminated in accordance
with Article 7, shall remain effective until the end of "Service Term," as
defined below.
2.2 Service Term.
-------------
(a) The Service Term for the first three Service
Transponders (the "Initial Group") shall start on March 1, 1997 (the "Initial
Service Date"). PanAmSat hereby certifies to Customer that the Satellite has
been placed in its assigned orbital position with all three Service Transponders
capable of providing Service meeting the Service Specifications and now
available.
(b) The Service Term for one or both of the remaining two
Service Transponders (the "Remaining Two") shall start on the later of: (i) the
date(s) that Customer receives certification(s) from PanAmSat that such Service
Transponder(s) are available and are capable of providing Service in accordance
with the Service Specifications, or (ii) June 1, 1997. If it would be true and
correct, PanAmSat shall give such certification(s) (as to one or both of the
Transponders) not later than the later of: (i) sixty-one days after the date of
the "Service Date" for the "Transponders" in the "NTSC Beam" or the "SSA Beam,"
as applicable, of the satellite referred to by the parties as PAS-6 (an all
Ku-band satellite now under construction for PanAmSat by Space Systems/Loral,
Inc., and currently scheduled to be launched into an AOR orbit in November or
December 1996), or (ii) June 1, 1997. Customer acknowledges and agrees that the
existing customers for four of the seven NTSC Beam Transponders and all of the
"SSA Beam" Transponders that are identified in Appendix A may be permitted to
retain some or all of them if not all of the transponders in the comparable
beam(s) of PAS-6 meet their specifications after the launch of that satellite,
in which event such transponder(s) would not be available to Customer. Once one
or more of said Transponders are assigned to Customer, however, such existing
customers will have no further right to use them.
(c) The Service Term for all Service Transponders shall
continue until 23:59, Greenwich Mean Time, May 31, 2007.
2.3 Service Term Extension. Not later than May 31, 2006, Customer may
notify PanAmSat of its desire to extend the Service Term to the end of life of
the Satellite. In this event, PanAmSat and Customer shall negotiate in good
faith to establish the monthly Service Fee for an extended Service Term, which
fee shall not be increased by a percentage that is greater than that which is
equal to the increase in the CPI (as defined below) from the Initial Service
Date to the month and year in which an extended Service Term commences. Unless
otherwise agreed in writing, all other provisions of this Agreement shall apply
during such extended Term. The "CPI" means the Consumer Price Index now known as
the United States Bureau of Labor Statistics Consumer Price Index for Urban Wage
Earners and Clerical Workers, All Items, for All Urban Consumers. If such CPI
shall be discontinued, the foregoing calculations shall be made using a
reasonably equivalent successor or comparable measure of increases in the cost
of living in the United States. If Customer does not agree to such CPI increase
The information below, marked with [*], is being filed pursuant to a request for
confidential treatment.
and PanAmSat and Customer do not agree upon another monthly Service Fee for the
extended Service Term, within ninety (90) days of Customer's notice of its
desire to extend, neither party shall have any obligation to the other with
respect to the provision of Service from the Satellite beyond the end of the
initial Service Term.
ARTICLE 3. CUSTOMER PAYMENTS.
------------------
3.1 Service Fee. For each month of the Service Term beginning on the
Initial Service Date, Customer agrees to pay, for each Service Transponder from
which Service was made available during the month, the monthly "Service Fee"
**************************************************************************** per
Service Transponder. Customer shall deposit with PanAmSat ******************
************************************************************************ within
five days of the first date above written and shall deposit an additional
*******************************************************************************
***************** within thirty (30) days of the first date above written for a
total deposit of *********************************************************
**************************************** (the "Deposit"). Of this Deposit, (i)
************ shall be applied to the Service Fee for the Initial Group of three
Service Transponders for the first two months of the Service Term, and (ii) the
balance shall be applied to the Service Fee for the Remaining Two Service
Transponders for the first two months that such Transponders are used for the
provision of Service hereunder. If one or both of the Service Transponders of
the Remaining Two does not become available for Customer's use during the
Service Term, the portion of the Deposit to be applied to such Service
Transponder(s) shall then be applied to the aggregate Service Fee then due
hereunder for other Service Transponders until exhausted. Customer shall make
each and all other payments of the Service Fee, in advance, no later than the
first business day of each month of the Service Term.
3.2 Reservation Fee. In consideration for PanAmSat having reserved and
continuing to reserve capacity for Customer under this and earlier agreements,
Customer agrees to pay PanAmSat a reservation fee of ********** United States
Dollars (****************). Said reservation fee shall be due and payable upon
The information below, marked with [*], is being filed pursuant to a request for
confidential treatment.
the "Closing" of the transaction described in that certain "DTH Option
Agreement," dated the same date as this Agreement, by and between PanAmSat and
Customer. The parties acknowledge and agree that this Section 3.2 shall survive
the termination of the Agreement and that the reservation fee shall be due in
full, as stated above, without offset, even if this Agreement has been otherwise
terminated for any reason whatsoever.
3.3 Manner Of Payment. All payments by Customer shall be made in U.S.
dollars; shall be deemed to be made only upon receipt by PanAmSat of collected
funds; and shall be made by bank wire transfer to such bank account as PanAmSat
may designate by notice to Customer, or by cashier's or certified check, from a
U.S. bank, delivered to PanAmSat at its principal place of business, as
designated in Section 14.5(b).
3.4 Late Payment. Any payment due from Customer to PanAmSat that is not
received by PanAmSat on the date that it is due shall be subject to a
delinquency charge (liquidated damages) at the rate of ******************* per
month on such overdue amount from the due date until it is actually received by
PanAmSat. Customer acknowledges that such delinquency charge is reasonable under
all the circumstances existing as of this date.
3.5 Taxes. Customer is solely responsible for any taxes, charges,
levies, or duties, which may be asserted by any local, state, or national
governmental entity as a result of the Service provided to Customer and/or
Customer's use of said Service, with the exception of any income (for the
avoidance of doubt, not including non-U.S. withholding in countries where
PanAmSat is not otherwise directly subject to paying income taxes), property or
employment taxes imposed on PanAmSat in the United States; provided, that, to
the extent that taxes may be imposed with respect to the Satellite itself,
Customer shall be responsible only for a pro rata share (to be reasonably
determined by PanAmSat) in proportion to the capacity of the Satellite used by
Customer, but in no event greater than a fraction equal to the number of Service
Transponders divided by the number of Transponders on the Satellite.
ARTICLE 4. CUSTOMER'S OBLIGATIONS IN USING THE SERVICE.
--------------------------------------------
4.1 Non-interference and Use Restrictions. Customer's transmissions to
and from the Satellite and its use of the Service shall comply with all
applicable governmental laws, rules and regulations, and with the operational
requirements (the "Operational Requirements") set forth in Appendix D, as the
same may be modified from time to time by PanAmSat, in its reasonable
discretion, but only for good technical cause(s). Customer will follow
established practices and procedures for frequency coordination and will not use
the Service Transponders, or any portion thereof, in a manner which would or
could reasonably be expected to, under standard engineering practice, interfere
with the use of any other Transponder, the Satellite, or any other satellite or
transponder on such satellite, or cause physical harm to the Service
Transponders, any other Transponder, the Satellite, or any other in-orbit
satellite or transponder on such satellite. Provided that Customer's
transmissions conform with the transmission plan approved by PanAmSat under
Section 1.4 above, Customer complies with the Operational Requirements, as the
same may be modified as provided above, and Customer immediately ceases any
transmission upon being notified by PanAmSat of any violation of this Section
4.1 (even if such transmission is in conformity with the Operational
Requirements), Customer shall not be deemed to be in breach of its obligations
under the preceding sentence.
4.2 No Terrestrial Facilities. Subject to the exception stated in
Section 1.4 above, with respect to PanAmSat-provided uplinks, if any, Customer
shall be responsible for the provision, installation, operation and maintenance
of all earth station facilities and equipment ("Customer-Provided Facilities"),
for transmitting signals to, or receiving signals from, the Satellite in
accordance with the requirements set forth in this Agreement. Customer shall
also be responsible for acquiring all authorizations necessary for installation
and operation of Customer-Provided Facilities. Customer shall be permitted to
contract with third parties to transmit its signals to, or receive its signals
from the Satellite; provided, that, Customer requires its contractors to agree
with PanAmSat to comply with all of the requirements set forth in this Agreement
regarding transmissions to, or reception from, the Satellite. If Customer
retains third parties (other than PanAmSat) as permitted by the previous
sentence, these third parties' facilities shall be deemed to be
Customer-Provided Facilities and the acts and omissions of these third parties
in connection with the transmission or reception of Customer's signals shall be
deemed to be the acts and omissions of such third parties and of Customer. Any
provision by PanAmSat (or by an affiliated company) to Customer of earth station
or other terrestrial facilities or services shall be the subject of a separate
agreement.
4.3 Customer's Transmitting Stations. Customer will configure, equip
and operate its transmit facilities so that the interface of these facilities,
in space, with the Satellite shall conform to the characteristics and technical
parameters of the Satellite. Customer will follow PanAmSat's procedures for
initiating or terminating any transmission to the Satellite. Customer will
operate all transmit facilities in a manner that allows for cessation of, and
will cease, transmission immediately upon receiving notice from PanAmSat under
Section 14.5(a) ("Telephone Notices"). Customer will furnish information on a
continuing basis as reasonably required by PanAmSat to prepare for, initiate,
provide, maintain and immediately discontinue the use of the Service upon notice
by PanAmSat.
PanAmSat shall have the right, but not the obligation, subject to such
reasonable confidentiality restrictions as Customer may impose, to inspect any
Customer-Provided Facilities together with associated facilities and equipment
used by Customer, or by a third party under the authority of Customer, to
transmit to the Service Transponders. PanAmSat will use all reasonable efforts
to schedule inspections to minimize the disruption of the operation of the
facilities, and Customer shall make the facilities available for inspection at
all reasonable times. Customer shall, upon PanAmSat's request, provide measured
proof that any transmit facility meets or exceeds the sidelobe envelope
described in Appendix D.
4.4 Consistent Application of Satellite Operating Procedures. PanAmSat
shall have similar (but not necessarily identical) restrictions not to interfere
with or cause physical harm to the Satellite, its Transponders, and other
satellites and their transponders, as contained in this Agreement with all other
customers, including any of its Affiliates, having a right to uplink to the
Satellite and shall enforce these restrictions (and, to the extent it may use
the Satellite for its own services, follow these restrictions itself) in a
consistent and nondiscriminatory manner vis-a-vis Customer and the other
customers with a right to uplink to the Satellite. Allowing for the fact
(understood and accepted by Customer) that technical variations in the kinds of
transmissions that different customers may employ, different performance
characteristics of different Transponders, differences in the use of adjacent
frequencies or the same frequencies on other satellites, other technical
factors, and the use of different uplink providers and facilities may require
the application of different restrictions to achieve the same non-interference
and satellite protection goals, PanAmSat shall not require Customer to follow
Operational Requirements or transmission procedures that are more stringent than
those imposed upon other customers on the same Satellite in comparable technical
circumstances.
ARTICLE 5. OUTAGES.
5.1 Confirmed Outage. There shall be deemed to have occurred a
"Confirmed Outage" of Service on a Service Transponder if Service on a Service
Transponder fails to meet the Service Specifications for a continuing and
uninterrupted period of thirty (30) minutes (or, if Service failure is
intermittent, a cumulative period of thirty (30) minutes or more during any
one-hour period) and such failure is confirmed by PanAmSat. Any Outage Credits
shall be measured in accordance with the procedures set forth in Section 5.2.
5.2 Outage Credits. If there is a Confirmed Outage of Service on a
Service Transponder during the Service Term, PanAmSat shall credit to Customer's
next payment an "Outage Credit" that shall be determined by the following
formula:
Outage Credit equals:
N multiplied by S;
---
M
where,
N = the number of hours (or portion thereof) during a month that there is a
Confirmed Outage on a particular Transponder
M = the number of hours in the month, and
S = Customer's Service Fee, applicable to the affected Service Transponder,
for said month
Customer shall not be entitled to any Outage Credit for any Service failure that
does not constitute a Confirmed Outage. For purposes of determining Outage
Credits, each failure that is confirmed by PanAmSat shall be measured as
commencing from the later to occur of (i) Customer's cessation of use of the
affected Service Transponder and (ii) notice from Customer to PanAmSat of such
failure. Any such failure shall be deemed to have ended upon the earlier to
occur of (i) Customer's resumption of use of the Service and (ii) notice to
Customer from PanAmSat that Service on the affected Service Transponder has been
restored to the Service Specifications.
5.3 Transponder Service Failure. If, after the Initial Service Date
(or, with respect to the Remaining Two Service Transponders, after they are
placed in Service), a Service Transponder fails to meet the Service
Specifications for: (a) any period of six (6) consecutive hours, or (b) a
cumulative period of twelve (12) hours during any consecutive 30-day period, or
(c) any period of time following a catastrophic event under circumstances that
make it clearly ascertainable that a failure described in clauses (a) or (b)
will occur, Service on such Transponder shall be deemed to have failed on a
"Confirmed Basis." Any such failure must be confirmed by PanAmSat, which it
shall take steps to do as expeditiously as possible. If confirmed, the failure
shall be measured as commencing from notice from Customer to PanAmSat of such
failure (provided that the affected Service Transponder is, in fact, not meeting
the Service Specifications). Any such failure shall be deemed to have ended upon
notice from PanAmSat to Customer that the affected Service Transponder is
capable of meeting the Service Specifications (provided that the affected
Service Transponder is, in fact, meeting the Service Specifications); provided,
further, that if PanAmSat enters into an agreement to provide Ku-band capacity
from the Satellite on which a Service Transponder is located and such agreement
provides that, for purposes of employing said "Spare Equipment" on the
Satellite, failure on a Confirmed Basis shall be deemed to have occurred in less
than the applicable time periods specified above, PanAmSat shall determine
whether a failure on a Confirmed Basis has occurred for Service Transponder on
the same Satellite under this Agreement using the time periods specified in such
other agreement.
In the event Service on a Service Transponder fails on a Confirmed
Basis, PanAmSat shall, as soon as possible and to the extent technically
feasible, employ certain redundant equipment units, as described in Appendix B
("Spare Equipment") on a first-needed, first-served basis as among Customer and
other Transponder owners, lessees, and users, including without limitation,
PanAmSat and its predecessors in interest ("Protected Parties"), as a substitute
for a Service Transponder equipment unit which has failed, provided that
PanAmSat may elect to use "Substitute Capacity" (as provided below), if
available, in lieu of using Spare Equipment.
Customer acknowledges and agrees that the Spare redundancy plan of the
Satellite may require PanAmSat to reassign certain traveling wave tube
amplifiers ("TWTAs") among Transponders to make use of a Spare. In circumstances
in which a spare TWTA is required to be employed for any customer and to do so
requires a change in the TWTA assigned to Customer, Customer shall, on notice
from PanAmSat, cease transmitting to the applicable Service Transponder(s) to
allow the TWTA that is assigned to its Transponder(s) to be reassigned and a
different unit (that meets the Service Specifications) to be put in its place.
PanAmSat shall use all reasonable efforts to keep to a minimum the time during
which Customer is required to cease transmitting under this paragraph, in
accordance with good engineering practices, to make the shift in the
assignments.
If (a) a Service Transponder fails to meet its Service Specifications
on a Confirmed Basis, and (b) the Spare Equipment associated with such Service
Transponder is not available, and (c) equivalent capacity on another Transponder
meeting the Service Specifications in the same Beam of the Satellite as such
Service Transponder (the "Substitute Capacity"), is available, and its use by
Customer in accordance with PanAmSat's Operational Requirements would not be
predicted to interfere with the use or rights of others using the Satellite,
then PanAmSat shall, as soon as possible and to the extent technically feasible,
employ such Substitute Capacity for the Service Transponder to satisfy
PanAmSat's Service obligations under this Agreement. PanAmSat may condition its
provision of Substitute Capacity on Customer's acceptance, in writing, of
additional restrictions on its use so as to protect other Protected Parties from
interference. If Customer does not accept such conditions, PanAmSat shall not be
obligated to provide Customer with the Substitute Capacity. In the event that
PanAmSat employs such Substitute Capacity for a Service Transponder, such
Substitute Capacity shall be deemed to be such Service Transponder for all
purposes under this Agreement.
In the event that two or more Transponders simultaneously fail to meet
their respective service or performance specifications and are entitled to
restoral under any applicable agreement with PanAmSat, then the Protected Party
who first executed a definitive agreement as to the affected Satellite with
PanAmSat or its predecessors in interest shall, to the extent technically
feasible, have priority as to use of the Spare Equipment; provided that, if
service from a Transponder is provided to more than one Protected Party (for
example, if there are two customers each taking service from one-half of a
Transponder), PanAmSat's decision may be made in accordance with the order that
the earliest Protected Party(ies) using the Transponder(s) executed agreements
with PanAmSat or its predecessors in interest. As used in this Section 5.3, the
term "simultaneously" shall be deemed to mean occurring within a 12-hour period.
All determinations as to when failures requiring protection shall have occurred,
for purposes of determining whether the failures are "simultaneous," shall be
made by PanAmSat in its sole reasonable discretion. Customer acknowledges and
agrees, without limitation, that the letter agreement dated February 29, 1996,
by and among PanAmSat, Customer, News, and Globo constituted such a definitive
agreement. PanAmSat also has a pre-existing definitive agreement for Ku-band
capacity on the Satellites with Liberty Sports, Inc. Accordingly, Customer
acknowledges and agrees that the priority rights fall behind the rights of the
customers under such agreements or successor entities or agreements.
5.4 Degraded Service. If a Service Transponder, while operational, does
not meet the Service Specifications, Customer shall have the right, within ten
(10) days of being notified of this condition, provisionally to waive the
Service Specifications to the extent that they are not met.
If Customer gives such a provisional waiver, Customer shall
have an additional fifty (50) days (for a total of sixty from being notified of
the condition) in which to determine whether to accept the degraded Service and
grant a permanent waiver of the Service Specifications to reflect the affected
Transponder(s)' current operating level, or not. The termination provisions of
Section 7.3 shall also be stayed during any period in which Customer is
considering electing a permanent waiver. During this period, Customer and
PanAmSat shall negotiate in good faith, to the extent that the degradation
reflects a material loss in the Service provided, to reach agreement as an
appropriate Service Fee reduction for the affected capacity (which would, if
agreed, be applied retroactively to the time of the failure to meet the
applicable Service Specifications), provided that nothing herein shall require
that a price reduction be given or that an agreement be reached.
If Customer gives a provisional waiver, it shall take and pay
for (without Outage Credit) the affected degraded Service, as if provided in
accordance with the Service Specifications until the conclusion of the sixty day
period specified above. On or before the end of this sixty-day period, either
Customer shall grant a permanent waiver of the Service Specifications (subject
to any change in Service Fee as to which both Customer and PanAmSat shall have
agreed) or the termination provisions of this Agreement, as to the capacity that
does not meet the Service Specifications shall, at that time, apply.
If a permanent waiver is given, it shall be deemed to apply
retroactively to the time of such failure to meet the Service Specifications. In
such event the Service Specifications for the affected Service Transponder(s)
shall be reduced to reflect the current operating level of the affected Service
Transponder(s); provided that PanAmSat continues, if there are further steps may
practically be taken, to use reasonable efforts to restore the affected Service
Transponder to meet the Service Specifications; provided further that if any
price reduction was agreed upon, the restoration of a Service Transponder to its
Service Specifications shall also result in the restoration of the original
Service Fee to be paid for the applicable capacity from that point forward. For
the avoidance of doubt, a waiver given under this Section 5.4 shall not, unless
otherwise agreed by Customer, be deemed to apply to any further reduction in
performance from the operating level of the affected Service Transponders at the
time that the waiver was given.
5.5 Customer Cooperation. If the Service fails to meet the Service
Specifications, Customer shall use all reasonable efforts to cooperate and aid
PanAmSat in curing such failure; provided that all reasonable efforts can be
done at no cost to Customer. These obligations of Customer shall include, but
not be limited to, the following:
(a) At the request of PanAmSat, if there is a problem that
can be compensated for by increasing the power of its transmission to the
Satellite, without affecting its Service, Customer shall do so to the extent it
can with existing equipment; and
(b) Permitting PanAmSat, at PanAmSat's option, and at
PanAmSat's cost and expense, to upgrade the Customer-Provided Facilities.
5.6 Application to Individual Service Transponders. All determinations
as to Confirmed Outages, failures of Service on a Confirmed Basis, Outage
Credits, and protection rights to be made under this Article 5 shall be made on
an individual Service Transponder by Service Transponder basis.
ARTICLE 6. PREEMPTIVE RIGHTS.
------------------
6.1 (a) Preemptive Rights In Abnormal Circumstances. Customer
recognizes that it may be necessary, in unusual or abnormal technical situations
or other unforeseen technical conditions, for PanAmSat deliberately to preempt
or interrupt Service to Customer from, and Customer's use of, one or more of the
Service Transponders, solely in order to protect the overall health and
performance of the Satellite. Such decisions shall be made by PanAmSat in its
sole discretion, exercised in good faith. To the extent technically feasible,
PanAmSat shall give Customer at least 24 hours' notice of such preemption or
interruption and will use all reasonable efforts to schedule and conduct its
activities during periods of such preemption or interruption so as to minimize
the disruption of the services on the Satellite. Customer shall immediately
cease transmissions to the Satellite at such time as its Service is preempted or
interrupted pursuant to this Section. To the extent that such preemption results
in a loss to Customer of Service sufficient to constitute a failure of Service
on a Confirmed Basis, Customer shall have all the rights and remedies regarding
termination set forth in Articles 7 and regarding Outage Credits under Section
5.2.
(b) Testing in the Event of Failure. If the Service is not
meeting Service Specifications, but Customer elects to continue to use (and pay
for) the Service, as degraded, PanAmSat may, with Customer's reasonable consent
as to the time such action will be taken, interrupt Customer's use as necessary
to perform testing or take any other action that may be appropriate to attempt
to restore Service to the Service Specifications. In such event, PanAmSat shall
coordinate activities with affected customer(s) and shall use all reasonable
efforts to minimize the overall disruption of use to the affected customer(s).
If Customer refuses to provide the consent referred to in the first sentence of
Section 6.1(b) when such consent is requested, the availability of remedies for
failure to meet Service Specifications, including the use of Spares and
termination for failure to meet Service Specifications shall be commensurately
delayed.
ARTICLE 7. TERMINATION RIGHTS.
-------------------
7.1 Reserved.
7.2 Reserved.
7.3 Termination For Service Failure. Subject to Section 5.4 above, on a
Service Transponder by Service Transponder basis, this Agreement shall
automatically terminate if Service fails on a Confirmed Basis, unless, within
thirty days of such failure, PanAmSat provides Service meeting the Service
Specifications using any available Transponder and/or Spare Equipment. In the
event Service from one or more of the Service Transponders fails on a Confirmed
Basis and PanAmSat does not provide Service meeting the Service Specifications
using Spare Equipment or other available Transponder(s), if any, but Service is
still being provided in accordance with the Service Specifications from other
Service Transponder(s), this Agreement shall continue as to the remaining
Service Transponder(s), with service fee calculations made based upon the number
of Service Transponders being supplied.
7.4 Satellite Out Of Service. PanAmSat may determine to take the
Satellite out of service if: (a) in PanAmSat's judgment, the remaining fuel on
board the Satellite is no longer sufficient to maintain geosynchronous orbit
within plus or minus 0.05 degrees, allowing sufficient fuel for de-orbiting the
Satellite, or (b) the Satellite suffers failure of eight (8) or more C-band
Transponders or eight (8) or more Ku-band Transponders. In such event, PanAmSat
shall promptly notify Customer of such determination and of the date the
Satellite will be taken out of service. On the date that the Satellite is taken
out of Service, this Agreement shall automatically terminate.
7.5 Termination By PanAmSat For Cause. PanAmSat may terminate this
Agreement if Customer fails: (a) to make payment of any amount due and such
amount remains unpaid within ten (10) business days after receiving from
PanAmSat a notice of such nonpayment (but, except for the Deposit, only if the
payment is at least twenty (20) business days past due at the time of
termination), or (b) to cease any activity in violation of Section 4.1 or 6.1
upon receiving telephone or facsimile notice from PanAmSat (provided that
PanAmSat shall not be entitled to terminate the Agreement under this clause (b)
if all of the following requirements are met: (i) Customer is (and remains) in
compliance with Section 15.5(a), and the operator on duty mistakenly did not
implement PanAmSat's initial notice; (ii) the mistake was rectified as soon as
it became apparent to Customer; (iii) appropriate steps are taken to prevent a
future recurrence of the mistake and the problem is not recurring; and (iv) no
damage occurred as a result of the mistake or Customer immediately reimburses
and indemnifies PanAmSat for all such damage, or (c) to cease any other activity
The information below, marked with [*], is being filed pursuant to a request for
confidential treatment.
in violation of Customer's material obligations under this Agreement within
thirty (30) days after receiving from PanAmSat a notice of such violation.
In the event of a termination under Section 7.5(a), other than for
failure to pay the Deposit, PanAmSat may declare immediately due and payable the
remaining Service Fee payments for all of the Service Transponders based on the
then predicted life of the Satellite, discounted for present value at a rate of
*************** per annum from the date paid to the date otherwise due in the
absence of termination, and apply any remaining unapplied portion of the Deposit
against the termination liability. In the event of a termination under Section
7.5(b) or (c), Customer shall be responsible for payments of the remaining
Service Fee payments that would be otherwise due and as they would otherwise
become due on and after the date of such termination; provided that if Customer
fails to make payment of any such amount due and such amount remains unpaid
within ten (10) business days after receiving from PanAmSat a notice of such
nonpayment (but only if payment is at least twenty (20) business days due at the
time of termination), then PanAmSat may declare immediately due and payable the
remaining Service Fee payments, discounted for present value as provided above,
and apply any remaining unapplied portion of the Deposit against the termination
liability.
In the event of such termination, in addition to all of PanAmSat's
other remedies at law or in equity, PanAmSat shall be entitled to use the
Service Transponders or to provide service on such Transponders to whomever
PanAmSat sees fit, and Customer shall not be entitled to any equitable relief
with respect to such use or any refund of amounts paid to PanAmSat; provided, as
follows: In the event that Customer has paid (and, if applicable, continues
timely to pay to) PanAmSat all amounts due hereunder including, without
limitation, pursuant to the preceding paragraphs of this Section 7.5 (the
"Termination Payment(s)"), PanAmSat shall use all reasonable efforts to
re-market service from the Service Transponders and in the event PanAmSat
subsequently reaches an agreement to provide service to a third party via a
Service Transponder during the period Service otherwise would have been provided
to Customer via such Service Transponder, PanAmSat shall remit to Customer as a
refund of the Termination Payment(s) any service fees it receives from such
third party with respect to such Service Transponder, applicable to such period,
up to the amount paid by Customer for such Service Transponders for the period
for which Customer did not receive Service, less (i) any amounts owed by
Customer to PanAmSat under this Agreement; (ii) any reasonable costs (including
reasonable attorneys' fees) incurred by PanAmSat in attempting to collect such
amounts from Customer; (iii) any other direct damages incurred by PanAmSat as a
result of Customer's breach of its obligations hereunder; (iv) any reasonable
costs (including reasonable attorneys' fees) incurred by PanAmSat in marketing
such Service Transponder to, or negotiating a service agreement with, third
parties; and (v) any costs reasonably incurred by PanAmSat in providing related
services and equipment for which PanAmSat is not separately reimbursed that may
be associated with the provision of such service in addition to those agreed to
be provided under this Agreement. Nothing herein shall be deemed to require
PanAmSat to enter into such a service agreement, if the nature of the party, the
party's proposed use of the service or demand for terms and conditions for
service, or other reasonable and appropriate factors, lead PanAmSat reasonably
and in good faith to determine not to enter such a service agreement; nor shall
PanAmSat be obligated to use the capacity formerly used to provide Service to
Customer ahead of any other capacity that PanAmSat may also have available.
Customer acknowledges that the foregoing rights of PanAmSat: (i) are reasonable
under all of the circumstances existing as of this date; (ii) constitute
liquidated damages for the loss of a bargain; and (iii) do not constitute a
penalty.
7.6 Rights and Obligations Upon Termination. Upon termination of this
Agreement in accordance with any of Sections 7.3 or 7.4 above, or Sections 7.7
or 8.1 below, PanAmSat shall promptly refund to Customer any portion of the
Service Fee (including any applicable portion of the Deposit) applicable to any
period during which Service has not been made available to Customer. The
termination of this Agreement for any reason in accordance with this Agreement
shall extinguish all of PanAmSat's obligations to provide, and Customer's
obligations to accept and pay for, Service for the Satellite, but shall not
relieve either party of any obligation that may have arisen prior to such
termination, including (without limitation), under Section 7.5 above, nor shall
termination affect the parties' obligations under Section 3.2 ("Reservation
Fee") or Article 11 ("Confidentiality") that shall survive the termination of
this Agreement.
7.7 Termination for Patent Infringement. In the event that: (a)
PanAmSat's use or provision of Service from the Satellite or the Service
Transponders infringes upon the patents or intellectual property rights of third
parties; (b) such infringement exists independent of the combination of the
Service with any Customer-Provided Facilities; and (c) as a result, Customer
cannot use the Service without infringing upon the patent or intellectual
property rights of third parties, Customer may terminate this Agreement upon
thirty (30) days' notice to PanAmSat, unless (i) such infringement ceases to
exist within this thirty (30)-day notice period; or (ii) PanAmSat agrees (to the
extent that Customer is not protected under the indemnity provided by PanAmSat's
satellite manufacturer) to indemnify and hold harmless Customer from any claim
or suit based on such infringement and arising from PanAmSat's continued
provision and Customer's continued use of the Service on and after the date that
PanAmSat agrees to so indemnify Customer. In this latter instance, Customer
agrees to cooperate with PanAmSat and the satellite manufacturer, as applicable,
in the defense of such claim and specifically agrees, as a condition to this
indemnity, to take all steps within its power that are required of it and/or
that are necessary for PanAmSat to take in order to receive the benefits of the
satellite manufacturer's indemnity, in accordance with the relevant provisions
of PanAmSat's contract with the satellite manufacturer.
ARTICLE 8. FORCE MAJEURE.
--------------
8.1 Failure To Commence Service Or To Perform. Any failure or delay in
the performance by PanAmSat of its obligation to commence or to continue to
provide Service shall not be a breach of this Agreement, if such failure or
delay results from any Act of God, governmental action (whether in its sovereign
or contractual capacity), or any other circumstance reasonably beyond the
control of PanAmSat, including, but not limited to, receive earth station sun
outage, meteorological or astronomical disturbances, earthquake, hurricane,
snowstorm, fire, flood, strikes, labor disputes, war, civil disorder, epidemics,
quarantines, embargoes, or acts or omissions of Customer or any third parties
(except that the acts or omissions of third parties acting on behalf of
PanAmSat, including PanAmSat's satellite manufacturer and launch contractor,
shall not constitute a force majeure unless their acts and omissions are
themselves the result of force majeure conditions of the kind set forth above).
The foregoing notwithstanding, PanAmSat shall provide Customer with Outage
Credits when applicable in accordance with Section 5.2 of this Agreement in
circumstances in which PanAmSat is unable to perform because of force majeure
conditions, with the exception of force majeure conditions that are attributable
to sun outages, meteorological or astronomical disturbances, or acts or
omissions of Customer or its employees, agents, or contractors (other than
PanAmSat) other than acts or omissions taken in accordance with Appendix D.
Subject to the following sentence, either party shall be permitted to terminate
this Agreement if, because of force majeure conditions: (a) Service meeting the
Service Specifications cannot be recommenced within sixty (60) days; or (b) the
nature of the force majeure event makes it clearly ascertainable that Service
meeting the Service Specifications will not be able to recommence within this
sixty (60) day period. Customer shall not be permitted to terminate this
Agreement if PanAmSat's inability to perform is due to acts or omissions of
Customer or its employees, agents, or contractors that are not in conformance
with Appendix D or for intermittent failure of Service due to any or all of the
following: sun outages, meteorological or astronomical disturbances. The
foregoing notwithstanding, to the extent a failure to provide Service results
from a malfunction of the Satellite, Customer's rights of termination shall be
governed by Section 7.3 of this Agreement and not this Section 8.1.
ARTICLE 9. LIMITATION OF LIABILITY AND INDEMNIFICATION.
--------------------------------------------
9.1 Limitation Of PanAmSat's Liability. ANY AND ALL EXPRESS AND IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PURPOSE OR USE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. IT IS
EXPRESSLY AGREED THAT PANAMSAT's SOLE OBLIGATION AND CUSTOMER'S EXCLUSIVE
REMEDIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT
ARE LIMITED TO THOSE SET FORTH IN SECTIONS 5.2, 5.3, 8.1, 9.4, AND 9.5 AND
ARTICLE 7 AND ALL OTHER REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED. In no event
shall PanAmSat be liable for any incidental or consequential damages or loss of
revenues, whether foreseeable or not, occasioned by any defect in the Satellite,
the Transponders or the provision of Service to Customer, any delay in the
provision of Service to Customer, any failure of PanAmSat to provide Service, or
any other cause whatsoever.
9.2 Limitation Of Liability Of Others. Without limiting the generality
of the foregoing, Customer acknowledges and agrees that it shall have no right
of recovery for the satisfaction of any cause whatsoever, arising out of or
relating to this Agreement, against (a) any supplier of services or equipment to
PanAmSat in connection with the construction, launch, operation, maintenance,
tracking, telemetry and control of the Satellite or the Service Transponder(s),
or the provision of Service to Customer in any circumstances in which PanAmSat
would be obligated to indemnify the supplier, or (b) any officer, director,
employee, agent or partner of (i) PanAmSat or (ii) any service or equipment
provider under 9.2(a). PanAmSat acknowledges and agrees that it shall have no
right of recovery for the satisfaction of any cause whatsoever, arising out of
or related to this Agreement, against any officer, director, employee, agent or
partner of Customer, except with respect to any partner of Customer or agent of
Customer to the extent arising out of the transmission of signals to the
Satellite by it or on its behalf.
9.3 Indemnification. Customer shall defend and indemnify the "PanAmSat
Group" (defined herein to mean PanAmSat and all officers, directors, employees,
agents and partners of PanAmSat) from any claims, liabilities, losses, costs, or
damages, including attorneys' fees and costs, arising out of the provision of
Service to Customer from, or Customer's use of, the Satellite or the Service
Transponder(s), that (a) is caused by the fault or negligence of Customer, (b)
arises under a warranty, representation, or statement by Customer to any third
party in connection with transmissions carried on the Service Transponders, (c)
arises out of the transmissions carried on the Service Transponders, including
any libel, slander, obscenity, indecency, pornography, religious fanaticism, or
political advocacy, infringement of copyright, infringement of patents, breach
in the privacy or security of transmissions; or (d) arises out of disputes
between or among Customer and any program supplier to Customer and/or any other
entity that may be permitted to use the Service under other provisions of this
Agreement The limitation of liability set forth in this Article 9 shall apply
to, and the indemnifications set forth in this Article 9 shall run in favor of,
the PanAmSat Group.
9.4 Equitable Relief. Nothing contained in this Article 9 or elsewhere
in this Agreement shall preclude either party from seeking injunctive relief to
prevent a willful breach or to compel performance in the event of a willful
failure to comply with this Agreement.
9.5 Patents, Copyrights, Mask Work Rights and Proprietary Computer
Programs. To the extent that the manufacturer of the Satellite or any part
thereof may be obligated to indemnify PanAmSat for any infringement of any
patent, copyright, "mask work" (as defined in the Semiconductor Chip Protection
Act, 17 U.S.C. Secs. 901-14) right or other proprietary computer right with
respect to the manufacture of, or provision of services from the Satellite and
the Service Transponders and such indemnification obligations may be passed
through to protect PanAmSat's customers, PanAmSat shall pass such protection
through to Customer; provided, that PanAmSat makes no representation or warranty
that any manufacturer's indemnification obligation exists or will continue to
exist or may be passed through; and provided further that, to the extent such
indemnification rights are limited, PanAmSat may equitably share such
indemnification protections for the common benefit of PanAmSat and its
customers.
9.6 Indemnitor Rights. If Customer is obligated to provide
indemnification pursuant to this Article 9 or PanAmSat undertakes to indemnify
Customer under Section 7.7, the indemnifying party (the "Indemnitor") shall
promptly defend any claims against the party entitled to indemnification (the
"Indemnitee") with counsel of Indemnitor's choosing at its own cost and expense.
The Indemnitee shall allow the Indemnitor to control the defense and cooperate
with, and assist as reasonably requested by, Indemnitor in the defense of any
such claim, including the settlement thereof on a basis stipulated by Indemnitor
(with Indemnitor being responsible for all costs and expenses of defending such
claim or making such settlement); provided, however, that (1) Indemnitor will
not, without the Indemnitee's consent, settle or compromise any claim or consent
to any entry of judgment which does not include the giving by the claimant or
the plaintiff to the Indemnitee of an unconditional release from all liability
for which the Indemnitor does not fully indemnify the Indemnitee with respect to
such claim, (2) the Indemnitee shall be entitled to participate at its sole
expense in support of Indemnitor's action in the defense of any such claim and
to employ counsel at the Indemnitee's own expense to assist in the handling of
such claim, and (3) the Indemnitee shall have the right to pay, settle or
compromise any such claim as to itself, provided that in such event Indemnitor
shall be relieved of any liability or obligation which would otherwise then or
thereafter have existed or arisen in respect of such claim.
ARTICLE 10. SUBORDINATION AND ASSIGNMENT.
-----------------------------
10.1 No Property Interest Created. This Agreement is a service contract
and does not grant, and Customer shall not assert, any right, interest, or lien
upon the property or assets of PanAmSat, including any satellite or related
equipment which it may own.
10.2 Collateral Trustee
------------------
(a) Customer hereby acknowledges that this Agreement and all
rights granted to Customer hereunder are subject and subordinate to a security
interest and lien in favor of First Trust National Association (the "Trustee"),
as the same may be assigned (the "Security Interest") in and to the
Transponder(s) that may be owned and operated by PanAmSat and which are the
subject of this Agreement (and/or the proceeds from the sale or other
disposition of all or any portion thereof, or any insurance that may be received
by PanAmSat as a result of any loss or destruction of, or damage to, the
Transponders identified above). The Security Interest shall be deemed to arise
under all security agreements, indentures, mortgages, pledge agreements and
other collateral documents between Trustee and PanAmSat, including all renewals,
modifications, consolidations or replacements thereto (collectively, the
"Collateral Documents"). Notwithstanding the Security Interest, the Trustee
agrees that Customer shall continue to have the benefits of this Agreement
notwithstanding any default on the part of PanAmSat under the Collateral
Documents, so long as (i) Customer is not in default under the terms and
conditions of this Agreement, (ii) Customer shall not pay any of its obligations
under this Agreement more than 30 days prior to their scheduled payment date
under this Agreement, (iii) this Agreement is not supplemented, amended or
extended or otherwise modified in any manner which adversely affects the
interests of the Trustee on behalf of the holders of the Senior Secured Notes
(as defined in the Collateral Documents) in a degree greater than the manner in
which it adversely affects PanAmSat, and (iv) after receipt of notice from the
Trustee of a default by PanAmSat under the Collateral Documents, Customer agrees
to make, and makes, all payments thereafter as instructed by the Trustee.
(b) Customer acknowledges and consents to the foreclosure,
should it occur, upon this Agreement by the Trustee or its designee, successor
or assignee, and the consequent replacement of PanAmSat under this Agreement by
the Trustee, its designee, successor or assignee, or another purchaser or
assignee, provided that any successor to PanAmSat under this Agreement (i)
expressly assumes PanAmSat's obligations hereunder for the benefit of Customer,
and (ii) succeeds to substantially all of the right, title, and interest in and
to all assets of PanAmSat reasonably necessary for such successor to perform its
obligations under this Agreement. Upon such succession and assumption by a party
other than the Trustee, the Trustee and its successors under this Agreement,
other than the ultimate successor, shall be released from any further liability
under this Agreement.
(c) The Trustee shall be entitled to exercise all rights and
to cure any defaults of PanAmSat under this Agreement, within such cure period
as may be available to PanAmSat under this Agreement. Upon receipt of notice
from the Trustee, Customer agrees to accept such exercise and cure by the
Trustee and to render all or any part of the performance due by Customer under
this Agreement to the Trustee.
(d) The Trustee shall be deemed an express third party
beneficiary of this Section 10.2. This Section 10.2 shall be self-operative and
no further instrument of subordination shall be required by any security
agreement, mortgage or other document reflecting the Security Interest to make
this subordination effective. In confirmation of such acknowledged
subordination, Customer shall execute promptly any instrument or certificate
which PanAmSat or the Trustee may reasonably request.
10.3 Subordination to Other Entities. Customer acknowledges and agrees
that PanAmSat may grant additional security interests in the Transponders and/or
the Satellite to other parties. In such event, the provisions set forth above or
similar provisions, to the extent that changes are requested by another secured
party, shall apply.
10.4 PanAmSat's Right To Assign. Customer agrees that PanAmSat may
assign its rights and interests under this Agreement and to the Satellite(s) and
any or all sums due or to become due under this Agreement to an assignee for any
reason; provided that, except with respect to the granting of a security
interest or the assignment of a right to payment, such assignee agrees in
writing to assume all of the duties and obligations of PanAmSat hereunder.
Customer agrees that upon receipt of notice from PanAmSat of such assignment,
Customer shall perform all of its obligations directly for the benefit of the
assignee and shall pay all sums due or to become due directly to the assignee,
if so directed. Upon receipt of notice of such assignment, Customer agrees to
execute and deliver to PanAmSat such documentation as assignee may reasonably
require from PanAmSat. As used in this Section 10.4, assign shall mean to grant,
sell, assign, encumber or otherwise convey directly or indirectly, in whole or
in part.
10.5 Customer Assignment. Customer may assign its rights under this
Agreement only in whole, only to an entity that is a Commonly Controlled Entity
with Customer (i.e., with Televisa S.A. de C.V.), and only if the following
conditions are satisfied: (a) the proposed assignee in writing assumes all of
Customer's obligations with respect to this Agreement and agrees to be treated
as Customer for all purposes under this Agreement; (b) such written undertaking
is delivered to PanAmSat at least thirty (30) days in advance of the assignment;
(c) Customer guarantees assignee's performance of payment obligations; and (d)
the assignee agrees in writing to continue the programming practices of
Customer. As used in this Section 10.5, assign shall mean to grant, sell,
assign, encumber, otherwise convey, license, lease, sublease, or permit the
utilization of, directly or indirectly, in whole or in part; provided that
Customer shall be permitted to sublease its rights to Commonly Controlled
Entities on a Transponder by Transponder basis in accordance with Section 1.3.
Without limitation, any assignee shall be required to use the Transponders
assigned in accordance with Section 1.3.
10.6 Successors. Subject to all the provisions concerning assignments,
above, this Agreement shall be binding on and shall inure to the benefit of any
successors and assigns of the parties, provided that no assignment of this
Agreement shall relieve either party of its obligations to the other party,
without the express written consent of the other party, not to be unreasonably
withheld. Any purported assignment by either party not in compliance with the
provisions of this Agreement shall be null and void and of no force and effect.
10.7 No Resale. Except as expressly permitted in Sections 1.3 and 10.5,
the Service is provided for Customer's own use and in no event shall Customer be
permitted to resell the Service, in whole or in part, to any other person or
entity.
ARTICLE 11. CONFIDENTIALITY.
----------------
11.1 Publicity. The terms of this Agreement and the transactions
contemplated herein shall be kept strictly confidential by the parties and their
advisors; provided, however, that the parties may disclose such information: (i)
to their respective shareholders, directors, officers, partners, lenders,
insurance agents, and advisors on an as needed and confidential basis; (ii) to
regulatory authorities or the general public if and to the extent a party is
required by law or securities exchange rules or regulations to make such
disclosures (including, but not limited to, in connection with a public
offering); and (iii) to actual and proposed potential partners, investors,
lenders, and successors in interest on an as needed and confidential basis.
Subject to the proviso of the preceding sentence, the parties will mutually
agree on the timing and substance of the initial announcement of this Agreement
to the general public. To the extent practicable, any other disclosures to the
general public will be coordinated and approved by the parties prior to release.
ARTICLE 12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
------------------------------------------
PanAmSat has obtained, and shall use all reasonable effort to maintain,
all consents and authorizations from the FCC and other governmental entities
that may be necessary to provide the Service as contemplated in this Agreement;
provided that, except as it may relate to actions that may need to be taken with
third parties or non-U.S. governmental agencies a "best efforts" standard shall
apply to PanAmSat's activities before the FCC with respect to PAS-3. PanAmSat
shall, in this regard, also use all reasonable efforts through the International
Telecommunications Union coordination process and, whenever required to do so by
the United States government, through coordination with the operators of
adjacent satellites, so as to secure such FCC or other authorizations from
governmental entities with jurisdiction over PanAmSat that may be necessary for
PanAmSat to provide the Service. Subject to the understanding that certain
consents and authorizations have not yet been obtained and that certain
applications in this regard may be pending or subsequently filed with the FCC or
other applicable governmental entity, PanAmSat and Customer each represents and
warrants to, and agrees with, the other that:
12.1 Authority. It has the right, power and authority to enter into and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement shall not result in the breach or non-performance
of any document, instrument or agreement by which it is bound.
12.2 Partnership And Corporate Approvals. It has taken all requisite
partnership or corporate action, as applicable, to approve execution, delivery
and performance of this Agreement, and this Agreement constitutes a legal, valid
and binding obligation upon itself.
12.3 Consents.
---------
(a) The fulfillment of its obligations will not constitute a
material violation of any existing applicable law, rule, regulation or order of
any governmental authority. All necessary public or private consents,
permissions, agreements, licenses or authorizations necessary for the
performance of its obligations under this Agreement to which it is subject have
been obtained, or it will use all reasonable efforts to obtain, in a timely
manner.
(b) PanAmSat and Customer each acknowledges that the use of
the Service may be subject to the applicable consultation obligations of the
International Telecommunications Satellite Organization Agreement ("Intelsat"),
as to which, if any further consultation is required, PanAmSat shall take the
lead in securing, and, if Service is to be provided within Europe, of the
European Telecommunications Satellite Organization Agreement. PanAmSat and
Customer shall cooperate with each other to meet these obligations. PanAmSat
shall also use all reasonable efforts to assist Customer in Customer's efforts
to secure landing rights in the Territory.
12.4 Litigation. To the best of its knowledge, there is no outstanding
or threatened judgment, pending litigation or proceeding, involving or affecting
the transactions provided for in this Agreement, except as has been previously
disclosed in writing by either party to the other and/or to its counsel.
12.5 No Broker. It does not know of any broker, finder or intermediary
involved in connection with the negotiations and discussions incident to the
execution of this Agreement, or of any broker, finder or intermediary who might
be entitled to a fee or commission upon the consummation of the transactions
contemplated by this Agreement.
12.6 Good Faith. Each party shall carry out its obligations under this
Agreement, including (without limitation) with respect to all matters requiring
that a consent be given, in good faith.
ARTICLE 13. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF PANAMSAT.
-----------------------------------------------------------------
13.1 Orbital Location. PanAmSat has been authorized to construct,
launch and operate the Satellite in geosynchronous orbit at 43l West Longitude.
PanAmSat shall use such orbital location (or, to the extent that PanAmSat
obtains FCC authority to do so, any location within five degrees of 43l X.X.),
unless prevented by subsequent order of the FCC, in which event PanAmSat shall
use such orbital position closest to the range identified above that the FCC may
designate. PanAmSat shall use all reasonable efforts to resist any move of the
Satellite from outside the orbital range specified above. In the event that
PanAmSat is required to change the Satellite's orbital location, such change
shall not affect the continuing validity of this Agreement, except to the extent
such change prevents PanAmSat from providing Service that meets the Service
Specifications, in which event the termination provision set forth in Article 7
shall apply.
13.2 Government Authorizations. PanAmSat shall use all reasonable
efforts to obtain and maintain all necessary governmental authorizations or
permissions to operate the Satellite and to comply in all material respects with
all FCC and other governmental regulations regarding the operation of the
Satellite; provided that, except as it may relate to actions that may need to be
taken with third parties or non-U.S. governmental agencies, a "best efforts"
standard shall apply to PanAmSat's activities before the FCC with respect to
PAS-3
13.3 Operational Reports. PanAmSat shall provide Customer a quarterly
written operational report concerning the Satellite which shall include
information regarding the status of Spare Equipment and updated projections
regarding the predicted life of the Satellite. PanAmSat shall also notify
Customer as soon as practicable of any significant anomalies with respect to the
Satellite which have a material effect on the Service Transponder(s) or
materially reduce the projected life of the Satellite.
ARTICLE 14. MISCELLANEOUS.
--------------
14.1 Applicable Law And Entire Agreement. This Agreement shall be
interpreted according to the laws of the State of New York, U.S.A. Subject to
the following sentence, the parties agree that the appropriate and exclusive
forum for any disputes arising under this agreement shall be the United States
District Court for the Southern District of New York. Each party consents to the
jurisdiction of this court, but, if that court determines it lacks jurisdiction,
consents to the jurisdiction of the State courts of New York. The parties agree
to waive any or all rights they may have to a jury trial with respect to
disputes arising under this Agreement. Each party agrees that service of process
in any action or proceeding shall be deemed sufficient if mailed, first class,
postage prepaid, to the other at the address set forth in Section 14.5(b), as
the same may be changed in accordance with that Section. This Agreement
constitutes the entire agreement between the parties and supersedes all previous
understandings, commitments or representations concerning its subject matter.
For the avoidance of doubt, except as it relates to the provision of satellite
capacity for the Iberian Peninsula, that certain DTH System in Latin America
Memorandum of Understanding by and between Televisa and PanAmSat, dated March
27, 1995 (the "DTH MOU"), and any other agreements which may have been, or in
the future may be, executed thereunder are not superseded and, subject to such
other agreements as the parties may have now entered or may in the future enter,
remain binding commitments of the parties thereto. This Agreement may not be
amended or modified in any way, and none of its provisions may be waived, except
by a prior writing signed by an authorized officer of each party.
14.2 Severability; Reconstitution. Nothing contained in this Agreement
shall be construed so as to require the commission of any act contrary to law.
In the event that the transactions set forth in this Agreement are challenged
before a court or regulatory body of competent jurisdiction by other persons or
entities not parties hereto, PanAmSat and Customer agree that each will use its
all reasonable efforts before such court or regulatory body to support the
continuing operation of this Agreement by its terms. If any provision of this
Agreement shall be invalid or unenforceable, the provisions of this Agreement so
affected shall be curtailed and limited only to the extent necessary to permit
compliance with the minimum legal requirements; provided that if the effect is
such so that the economic relationships or benefits and burdens contemplated
under the Agreement are substantially affected, the parties shall seek and use
all reasonable efforts to reconstitute this Agreement so as best possible to
restore to each party to the economic position contemplated in this Agreement.
14.3 No Third Party Beneficiary. The provisions of this Agreement are
for the benefit only of Customer and PanAmSat, and, except as provided under
Section 10.2 and 10.3, no third party may seek to enforce or benefit from these
provisions, except that both parties acknowledge and agree that the
non-interference requirements of Section 4.1 are intended for the benefit of
both PanAmSat and all other Protected Parties, and that the provisions of
Sections 9.2 and 9.3 are intended for the benefit of the PanAmSat Group. The
foregoing notwithstanding, no Protected Party who has the right to uplink to the
Satellite shall be entitled to third party beneficiary rights to enforce Section
4.1 against Customer, unless the agreement giving such other Protected Party the
right to uplink to the Satellite also gives Customer comparable third party
beneficiary rights against it. Any other Protected Party shall have the right,
as a third party beneficiary (a) to enforce the non-interference requirements of
Section 4.1, against Customer directly, in an action brought solely by itself,
or (b) to join with PanAmSat or any other Protected Parties in bringing an
action against Customer for violation of the non-interference requirements of
Section 4.1. Any member of the PanAmSat Group shall have the right to enforce,
as a third party beneficiary, the provisions of Sections 9.2 and 9.3 either by
(a) an action brought solely by itself, or (b) joining PanAmSat, or other
members of the PanAmSat Group in bringing an action against Customer for
violation of Sections 9.2 or 9.3.
14.4 Non-Waiver Of Breach. Either party may specifically waive any
breach of this Agreement by the other party, provided that no such waiver shall
be binding or effective unless in writing and no such waiver shall constitute a
continuing waiver of similar or other breaches. A waiving party may at any time,
upon notice given in writing to the breaching party, direct future compliance
with the waived term or terms of this Agreement, in which event the breaching
party shall comply as directed from such time forward.
14.5 Notices.
--------
(a) Telephone Notices. For the purpose of receiving notices
from PanAmSat regarding preemption, interference or other technical problems,
including with respect to Service failure and restoration, Customer shall
maintain at each earth station transmitting signals to the Satellite a telephone
that is continuously staffed at all times during which customer is transmitting
signals to the Satellite and an automatic facsimile machine in operation and
capable of receiving messages from PanAmSat at all times. THOSE PERSONS STAFFING
THE EARTH STATION, FOR THE PURPOSES OF RECEIVING SUCH MESSAGES FROM PANAMSAT,
MUST HAVE THE TECHNICAL CAPABILITY AND ABSOLUTE AUTHORITY IMMEDIATELY TO
TERMINATE OR MODIFY THE TRANSMISSION IF NOTIFIED BY PANAMSAT. PanAmSat shall
also maintain a telephone that is continuously staffed for the purposes of
receiving notices regarding the matters identified above. All such notices shall
be made in English and shall be effective upon the placement of a telephone call
from one party to the other. Each party shall promptly confirm all telephone
notices that may be given under this Agreement in writing in accordance with
Section 14.5(b) below. Any unsuccessful efforts to reach a party by telephone
shall be followed by telecopy and telephone calls to other contact points, e.g.,
the corporate headquarters of the other party, that said party may have provided
the notifying party.
(b) General Notices. All notices and other communications
from either party to the other, except as otherwise stated in this Agreement,
shall be in English writing and, shall be deemed received upon actual delivery
or completed facsimile addressed to the other party as follows:
To PanAmSat if by recognized courier PanAmSat Corporation
service or by personal delivery to One Pickwick Plaza
its principal place of Xxxxxxxxx, Xxxxxxxxxxx 00000
business: Attention: General Counsel
To PanAmSat if by facsimile: 000-000-0000
Attention: General Counsel
With a copy to:
---------------
If by recognized courier service or Goldberg, Godles, Wiener & Xxxxxx
by personal delivery to its principal 0000 Xxxxxxxxxx Xxxxxx, X.X.
place of business: Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxxx
If by facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxx
To Customer if by recognized courier Xxxxx Xxxxxx
service or by personal delivery to its Vice President of Operations
principal place of Grupo Televisa S.A.
business: Xxxxxxxx 000
Xxx. Xxxxxx
Xxxxxx, X.X. Xxxxxx
To Customer if by facsimile: 000-000-000-0000
With a copy to:
---------------
If by recognized courier service or by Xxxxxxx Xxxxxx
personal delivery to its principal Director, Technological Development
place of business: Grupo Televisa, S.A. de C.V.
Xxxxxxxxxxx 000, 0xx Xxxxx
Xxx Xxx Xxxxx
XXXXXX DF
If by facsimile: 011 525 628 8547
and to Xxxxxxxx X. Dam, Esq.
President
Univisa, Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If by facsimile: 000-000-0000
and to Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx, Xxxxxx & Xxxxxx
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If by facsimile: 202-293-7783
Each party will advise the other of any change in the address, designated
representative or telephone or facsimile number.
For the avoidance of doubt, notices and certifications given by either
party to the other while relevant to the timing of further action by the
notified party shall not be deemed in and of themselves to establish the fact
stated in the notice. So, for example, under Section 5.3, the fact that Customer
notifies PanAmSat that the Service does not meet the Service Specifications
and/or that PanAmSat notifies Customer that the Service has been restored to its
Service Specifications shall not be deemed conclusive evidence, in and of
itself, of failure and/or restoration. Each party shall timely notify the other
if said party believes that any such notice is inaccurate.
14.6 Headings. The descriptive headings of the Articles and sections of
this Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
14.7 Documents. Each party agrees to execute, and, if necessary, to
file with the appropriate governmental entities and international organizations,
such documents as the other party shall reasonably request in order to carry out
the purposes of this Agreement.
14.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one and the same instrument.
ARTICLE 15. SUCCESSOR SATELLITE.
--------------------
In the event that: (i) the Service Term of this Agreement has been
extended to the end of life of the Satellite pursuant to Section 2.3 of this
Agreement, and (ii) PanAmSat, or a commonly controlled entity (collectively
referred to as "PanAmSat" for purposes of this Section 15.1) determines to
launch a "Successor Satellite" (as defined herein) during the Term hereof, with
transponders covering substantially the same coverage area as the Service
Transponders, PanAmSat shall give Customer the right to enter into a full-life
service agreement with respect to up to the number of Service Transponders from
which Service is taken under this Agreement that are substantially equivalent to
or technically upgraded from, the Service Transponders on terms and conditions
to be negotiated. The negotiation period shall be for three months, during which
time each party agrees to negotiate in good faith. The three-month negotiating
period may be initiated by either party on notice to the other at any time
within the time period set forth below. The negotiation period shall not begin
earlier than the date on which both of the following conditions have been
satisfied: (a) PanAmSat notifies Customer of a firm intent to launch a Successor
Satellite and of the commencement of marketing activities with respect thereto;
and (b) three years prior to the proposed launch date of the Successor
Satellite. The negotiation period shall not commence, if at all, later than the
date that the Successor Satellite has been successfully launched and placed in
to geostationary orbit at its designated orbital location. If negotiations are
not initiated by such date or successfully concluded with a binding purchase or
service agreement within the three-month negotiation period, neither party shall
have any further obligation pursuant to this Section 15.1. The conclusion or
failure to conclude such an agreement for a transponder or transponders on a
Successor Satellite shall not otherwise affect the parties' obligations
hereunder. For purposes of this Section 15.1, the term "Successor Satellite"
shall mean any satellite containing Ku-band capacity that PanAmSat launches or
causes to be launched to replace the Satellite at its presently assigned
location or at such other orbital location to which the FCC may authorize the
Satellite to be moved. For the avoidance of doubt, each party acknowledges and
agrees that the rights specified in this Article XV shall terminate upon the
termination of this Agreement for any reason.
Each of the parties has duly executed and delivered this Agreement as
of the day and year first written above.
PANAMSAT CORPORATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
TELEVISA, S.A. de C.V.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
LIST OF APPENDICES
A. Group of Transponders From Which Service Transponders Shall be Designated
B. Satellite Description and Spare Equipment
C. Service Specifications
D. Operational Requirements
E. Form of Transmission Plan
APPENDIX A
GROUP OF TRANSPONDERS FROM WHICH
SERVICE TRANSPONDERS SHALL BE DESIGNATED
(PAS-3)
UPLINK DOWNLINK
Transp. # MHz Band Beam Band Beam
--------- --- ---- ---- ---- ----
1-K 54 Ku Eur/No. Amer V Ku Europe H*
5-K 54 Ku Eur/No. Amer V Ku Europe H*
7 E-K 64 Ku Eur/No. Amer V Ku Europe H
9-K 54 Ku Eur/No. Amer V Ku Europe V*
11 E-K 54 Ku Eur/No. Amer V Ku Europe V
13-K 54 Ku Eur/No. Amer V Ku Europe V*
15 E-K 64 Ku Eur/No. Amer V Ku Europe V
2-K 54 Ku Eur/No. Amer H Ku No. Amer V**
6-K 54 Ku Eur/No. Amer H Ku No. Amer V**
10-K 54 Ku Eur/No. Amer H Ku No. Amer V**
14-K 54 Ku Eur/No. Amer H Ku No. Amer V**
-----------------------------------------
* To be switched from NSA Beam.
** To be switched from SSA Beam.
APPENDIX B
SATELLITE DESCRIPTION AND SPARE EQUIPMENT
*
APPENDIX C
SERVICE SPECIFICATIONS
*
APPENDIX D
OPERATIONAL REQUIREMENTS
*
APPENDIX E
FORM OF TRANSMISSION PLAN
*
