Exhibit 10.10
AMERICOM-6 KU-BAND SATELLITE
BARE TRANSPONDER SERVICE AGREEMENT
THIS AGREEMENT between SES Americom, Inc., as agent for SES Americom
Colorado, Inc., and Rainbow DBS Company, LLC ("Customer"), a limited liability
company organized under the laws of Delaware, is made effective as of the date
of the last signature below. All references to "SES Americom" herein shall
include both SES Americom Colorado, Inc. and SES Americom, Inc. as agent
therefor. Defined terms used in this Agreement have the meanings specified
herein.
ARTICLE 1. SERVICE PROVIDED
A. SCOPE.
(1) SES Americom will provide to Customer Bare Transponder Protected
Service on the Americom-6 ("AMC-6") Satellite ("Service"), with the number of
Transponders as specified below. Service will be provided in accordance with the
terms and conditions set forth in this Agreement, including Attachment A
(Transponder Performance Specifications), Attachment B (Commercial Operations
System User's Guide), Attachment C (Form of Letter of Credit), Attachment D
(Form of Parent Guaranty), Attachment E (Operational Report Elements), and
Attachment F (Methodology for Determining MRC) (collectively, the "Agreement").
Subject to Section 4.A, the Satellite is authorized to be and is located at the
72(degree) X.X. orbital position. Subject to Section 4.A, the Satellite may,
however, be located at any other orbital position hereafter authorized by the
FCC. Technical performance criteria for the Satellite are described in the
Transponder Performance Specifications set forth in Attachment A. The
transponder assignments are as described below and will be changed only in
accordance with this Agreement.
(2) The Service will commence on October 1, 2004, on the first group of
thirteen (13) Transponders ("Transponder Group 1"). *** All other terms and
conditions of this Agreement shall apply to such Service.
(3) The Service will commence on January 1, 2005, on the second group of
three (3) Transponders ("Transponder Group 2"). SES Americom will assign the
Transponders in Transponder Group 2 no later than two (2) months prior to the
commencement date of Service for Transponder Group 2.
(4) ***
(5) ***
B. TERM. The term for Service ("Service Term") on Transponder Group 1 provided
under this Agreement shall commence on October 1, 2004 (the "Commencement
Date"), except for those Transponders for which the Commencement Date is August
1, 2004 pursuant to Section 1.A(2). The Service Term for Transponder Groups 2, 3
and 4 shall commence as specified in Sections 1.A.(3),(4) and (5), respectively.
The Service Term for all Transponder Groups and for this Agreement shall end,
except as otherwise provided herein, on the earliest of: (1) the End-of-Life or
Replacement Date of the Satellite; (2) the date the Satellite becomes a
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
Satellite Failure; (3) with respect to any particular Transponder, the date the
Transponder on which Service is provided hereunder becomes a Transponder Failure
and cannot be restored; or (4) September 30, 2014 (the "Projected Termination
Date"). If SES Americom intends to provide service on Ku-band transponders after
the end of the Service Term on the Satellite, then Customer will have a right of
first refusal to extend the Service Term on terms and conditions to be mutually
agreed by the parties, provided that Customer shall notify SES Americom in
writing of its desire to extend the Service Term not later than twenty-four (24)
months prior to the Projected Termination Date. The parties will negotiate in
good faith exclusively for a period of three (3) months following such notice by
Customer, and if no agreement is reached during such period then the parties
shall have no further obligations under this Agreement regarding Service after
the end of the Service Term.
C. SERVICE PRIORITIES. SES Americom shall promptly take all steps stated in this
Section, consistent with protecting the Satellite and all services provided
thereon, to restore any of Customer's affected Transponders as quickly as
possible should such Transponder(s) become a Transponder Failure. Restoration
shall be effected in the following manner and order, on a first-needed,
first-served basis: first, by utilizing any available Replacement Transponder on
the Satellite; and second, if no such Replacement Transponder is available, by
using a Preemptible Transponder on the Satellite, if available (e.g., if
Customer is taking service on twenty-four (24) Transponders, then there will be
no Preemptible Transponder). If no such Protection Transponder is available on
the Satellite, Customer's Service shall not be restored. If access to Protection
Transponders on the Satellite is required for more than one Ku-band transponder
as a result of simultaneous transponder failures, such access shall be granted
in Contract Order (defined as the opposite order from Reverse Contract Order).
Any Transponder restoration shall be effected by SES Americom as soon as
technically feasible but in any event in not more than one (1) hour after a
Transponder is a Transponder Failure (provided that such one-hour obligation
shall not commence until Customer has vacated use of the Transponder) and any
Protection Transponder provided to Customer shall be deemed a Transponder
Protected Transponder.
D. OTHER COLLABORATION. SES Americom agrees, at Customer's request, to
collaborate on the design and deployment of Customer's next-generation Ka-band
satellite system, with possible operational or financing services to be provided
by SES Americom. Any agreements resulting from such collaboration are subject to
mutual agreement of the parties, each acting in its sole discretion.
E. NOTICES. All notices regarding technical or operational matters requiring
immediate attention will be given by telephone followed by written notification.
All other notices and requests will be in writing delivered to the address(es)
set forth below or to such other address(es) as the party may designate in
writing.
IF TO BE GIVEN TO CUSTOMER: IF TO BE GIVEN TO SES AMERICOM:
Attn: Xxxxxx Xxxxx Attn: Xxxx Xxxxxx
Vice President, Business Development Manager, Satellite Services
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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Rainbow DBS Company, LLC SES Americom, Inc.
200 Jericho Quadrangle, 0x Xxxxx Xxxx Xxxxxxxx Xxx
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax #: (000) 000-0000 Fax #: (000) 000-0000
Tel #: (000) 000-0000 Tel #: (000) 000-0000
cc: General Counsel cc: General Counsel
Fax #: (000) 000-0000 Fax #: (000) 000-0000
CUSTOMER'S 24 HOUR EMERGENCY TELEPHONE # FOR TECHNICAL/OPERATIONAL ISSUES:
TEL #: (000) 000-0000
ARTICLE 2. PAYMENT
A. ***
B. SECURITY.
(1) On or before May 1, 2004, Customer will, in order to secure
performance of its obligations hereunder, deliver to SES Americom (a) a cash
deposit (the "Cash Deposit") in the amount of *** and (b) one or more
irrevocable letter(s) of credit in the aggregate amount of *** in the form
attached hereto as Attachment C (such letter(s) of credit collectively referred
to as the "Letters of Credit") issued by one or more bank(s) acceptable to SES
Americom. (Bank of America, Citigroup, XX Xxxxxx Chase, Scotia Bank and Toronto
Dominion are each deemed to be a bank acceptable to SES Americom.)
(2) The Cash Deposit will be wire transferred to an SES Americom account
in accordance with instructions provided by SES Americom. (SES Americom is not
obligated to segregate the Cash Deposit from other assets.) The proceeds of the
Cash Deposit may be applied by SES Americom to the obligations of Customer
hereunder. If the Cash Deposit is utilized by SES Americom, Customer shall
restore the Cash Deposit to the initial amount of *** within five (5) business
days from the date that SES Americom notifies Customer of the obligation to
restore. Failure to maintain the Cash Deposit shall be treated as a failure by
Customer to make a payment due to SES Americom under this Agreement. Upon
condition that Customer shall otherwise have performed fully all of the terms
hereunder, SES Americom shall return to Customer the amount of the Cash Deposit
without interest by ***.
(3) Customer shall cause the Letters of Credit (together with any renewal
or replacement thereof) to remain in full force and effect until ***. The
Letters of Credit may be drawn upon by SES Americom in accordance with their
terms. Multiple and partial draw-downs may be made against them. The proceeds of
any drawing shall be applied to the obligations of Customer hereunder. Failure
to provide the Letters of Credit by May 1, 2004, and/or failure to
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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maintain the Letters of Credit throughout the required term shall be treated as
a failure by Customer to make a payment due to SES Americom under this
Agreement.
(4) If the Letters of Credit or any renewal or replacement thereof are
drawn upon, Customer shall cause the Letters of Credit then in effect to be
replaced such that the principal amount of the Letters of Credit is restored to
the amount of the initial Letters of Credit. Failure to obtain and deliver to
SES Americom a replacement of the Letters of Credit as provided in the preceding
sentence within five (5) business days from the date of each such drawing shall
entitle SES Americom to draw upon the Letters of Credit then in effect and to
hold the proceeds as a security deposit. Such security deposit may be used by
SES Americom as an offset for any amounts due SES Americom at ***, or, in the
event of termination of this Agreement prior to ***, for any liabilities of
Customer arising out of such termination. Upon condition that Customer shall
otherwise have performed fully all of the terms hereunder, SES Americom shall
return to Customer the amount of the deposit by ***.
(5) At any time after July 1, 2005 and during the period during which the
Cash Deposit and the Letters of Credit are in place, Customer may deliver to SES
Americom a parent guaranty in the form attached as Attachment C (the "Parent
Guaranty") in replacement of the Cash Deposit and the Letters of Credit,
provided that the Parent Guaranty is to be issued and executed by an entity
("Newco") expected to be formed, and further provided that (i) Newco is the
direct and beneficial owner of 100% of Customer (i.e., Rainbow DBS Company,
LLC), American Movie Classics Company, Women's Entertainment and Independent
Film Channel, LLC, and (ii) Newco has long term senior unsecured debt that is
rated equal to or greater than a rating of BBB+ by Standard & Poor's Ratings
Services (or if Newco is unrated, Newco has creditworthiness at least equivalent
to the specified credit criteria as reasonably determined by SES Americom in its
sole judgment) (the requirements set forth in clauses (i) and (ii) hereinafter
referred to as the "Credit Criteria").
(6) In the event that after delivery of a Parent Guaranty in replacement
of the Cash Deposit and the Letters of Credit Newco does not meet the Credit
Criteria, then within thirty (30) days after written notice from SES Americom
Customer shall deliver to SES Americom a Cash Deposit and a Letters of Credit as
required by paragraph (1), and the terms of paragraphs (1)-(4) shall thereafter
apply to such Cash Deposit and Letters of Credit. Failure to deliver the Cash
Deposit and Letters of Credit within such 30-day period shall be grounds for
immediate termination of this Agreement by SES Americom (i.e., without
application of the cure period under Article 9.A).
(7) With reference to the obligation in paragraph (1) to provide the Cash
Deposit and the Letters of Credit on or before May 1, 2004, Customer shall have
the right in the alternative to provide Letters of Credit only (i.e., and not a
Cash Deposit) on or before May 1, 2004, in the amount of *** and otherwise in
the form of Attachment C. If Customer has provided the Cash Deposit and the
Letters of Credit, Customer shall have the right at any time after May 1, 2004,
to replace the Cash Deposit and the Letters of Credit with Letters of Credit
only, provided that such Letters of Credit are in the amount of ***, are
otherwise in the form of Attachment C, and otherwise meets the requirements of
this Agreement.
C. ***
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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D. BILLING AND PAYMENT. Invoices will be issued monthly thirty (30) days in
advance of the month in which Service is to be provided and are payable on the
first day of such month, at Customer's option, either by wire transfer or by
check as per the remittance instructions on the respective monthly invoice. On
payments not received by the due date, SES Americom may assess until such time
as payment in full is made, a late payment charge of the lesser of (i) one and
one-half percent (1.5%) per month compounded monthly, or (ii) the maximum rate
permitted by applicable law. A failure or delay by SES Americom to send a xxxx
will not relieve Customer either of its obligation to pay on a timely basis for
Service or of its obligation to pay late payment charges in the event of late
payment. In addition to any other rights SES Americom may have under this
Agreement, SES Americom may suspend provision of Service on ten (10) days'
notice for failure to pay any sums due to SES Americom.
E. TAXES AND OTHER CHARGES. All charges hereunder are exclusive of taxes, duties
and other fees or charges levied by governmental authority on the Service.
Customer will pay directly or reimburse SES Americom for all such taxes, duties
and other fees or charges.
ARTICLE 3. CREDITS FOR INTERRUPTIONS
Credits for Interruptions in Service of five (5) minutes or more shall be
granted to Customer as follows:
Credit = (Number of minutes in interruption/43,200) multiplied by the MRC
The length of an Interruption will be measured from the earlier of the
time SES Americom (i) is notified by Customer of the Interruption or (ii)
becomes aware of the Interruption. The Interruption will be deemed ended when
Service is restored to the Transponder Performance Specifications and SES
Americom has so notified Customer. No credit will be due, however, if such
Interruption is a result of, or attributable in whole or part to (i) the fault
of Customer, any Customer Designee (as defined below) or any agent or
subcontractor of either, (ii) the failure or unavailability of satellites,
transponders, facilities, services or equipment furnished to Customer other than
by SES Americom, (iii) sun outages or rain fade, or (iv) unless otherwise
provided herein, suspensions of Service made in accordance with this Agreement.
Except as otherwise specifically set forth in this Agreement, the aforementioned
credit will be Customer's sole and exclusive remedy for unavailability of
Service and/or failure of Service to meet the Transponder Performance
Specifications.
ARTICLE 4. SERVICE RESPONSIBILITIES
A. LAWS AND REGULATIONS GOVERNING SERVICE. Location and operation of the
Satellite, SES Americom's satellite system and SES Americom's ability to perform
are subject to all applicable laws and regulations, including without
limitation, the Communications Act of 1934, as amended, and the Rules and
Regulations of the FCC. SES Americom is, and will remain throughout the Service
Term, in compliance with all such laws and regulations. Throughout the Service
Term, SES Americom will operate and provide for tracking, telemetry and command
of the Satellite in accordance with standard practices in the industry. SES
Americom will maintain the Satellite at 72(degree) X.X. throughout the Service
Term unless the FCC orders that the Satellite be
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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relocated. SES Americom will not seek permission from the FCC to relocate the
Satellite during the Service Term.
B. USE CONDITIONS. Customer will use, and will cause others authorized or
permitted by Customer to access Service ("Customer's Designees") to use, Service
in accordance with the conditions of use (as such may, upon notice, be amended
for technical or operational reasons) contained in the Commercial Operations
Systems User's Guide set forth in Attachment B ("User's Guide"). In addition,
Customer will use, and will cause Customer's Designees to use, the Service in
compliance in all material respects with all applicable laws and regulations of
any competent authority of the United States or any of its political
subdivisions governing the Satellite or Customer's use of the Service, including
laws governing the content of material; provided that SES Americom's sole rights
and remedies arising out of a breach of the obligations in this Article 4.B
shall be limited to those stated in Sections 4.C, 4.D, 6.A, 7.C and 9.A.
C. SUSPENSION OF SERVICE (INTERFERENCE). If Customer or Customer's Designee
fails to use the Service in accordance with the conditions of use contained in
the User's Guide, and does not correct such failure within thirty (30) minutes
after notice of such failure from SES Americom by telephone in accordance with
Section 1.E, then SES Americom may take actions (including suspension and/or
restriction of Service) it reasonably believes necessary to ensure Customer's
compliance with the User's Guide.
D. ***
ARTICLE 5. OPERATIONAL MATTERS
A. SERVICE ACCESS. Except as set forth in Section 1.D., Customer is responsible
for providing, operating and maintaining the equipment necessary to access the
Satellite and Service. Customer at its expense shall provide SES Americom with
any descrambling or decoding devices that may be required for signal monitoring.
At a mutually agreed time, and prior to Customer transmitting from its earth
station(s), Customer will demonstrate to SES Americom's designated Technical
Operations Center that its earth station(s) comply with the satellite access
specifications contained in the User's Guide.
B. ACTION TO PROTECT SATELLITE. SES Americom shall have sole and exclusive
control of operation of the Satellite. If circumstances occur which in SES
Americom's reasonable judgment pose a threat to the stable operation of the
Satellite, SES Americom shall have the right to take action it reasonably
believes necessary to protect the Satellite, including discontinuance or
suspension of operation of the Satellite, the Transponder(s) or any other
transponder, without any liability to Customer, except that Customer may receive
a credit computed as provided in Article 3 hereunder, and Customer may treat any
affected Transponders as Transponder Failures and exercise the rights Customer
has hereunder related to Transponder Failures. SES Americom shall give Customer
as much notice as practical under the circumstances of any such discontinuance
or suspension. If it becomes necessary to discontinue or suspend service on one
or more transponders on the Satellite, and operational circumstances allow SES
Americom to select the transponder or transponders to be discontinued or
suspended, SES Americom will make such selection in Reverse Contract Order,
without distinction, for purposes of this Section, between the Satellite's
C-band and Ku-band payloads.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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C. OPERATIONS REPORTS AND COMMUNICATIONS. Following the execution of this
Agreement and continuing throughout the Service Term, SES Americom shall provide
Customer with monthly written operational reports concerning the Satellite. Such
reports shall be delivered within thirty (30) days of the close of each month
and shall contain the elements set forth in Attachment E.
D. ***
E. ***
ARTICLE 6. INDEMNIFICATION
***
ARTICLE 7. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
A. WARRANTY DISCLAIMER. No warranties, express, implied, or statutory, including
any warranty of merchantability or fitness for a particular purpose, apply to
Service provided hereunder or the equipment and facilities used to provide
Service. The conveying by SES Americom of proprietary information or other
information to Customer shall in no way alter this disclaimer.
B. ***
C. EQUITABLE RELIEF. Customer and SES Americom shall have the right to seek
enforcement of the provisions of this Agreement through a decree of specific
performance. SES Americom acknowledges and agrees that the Transponders used to
provide the Service are unique and not readily available on the open market, and
that if the Service, or any portion thereof, is not available to Customer
because the material terms of this Agreement are not fulfilled due to SES
Americom's breach, Customer's remedies at law would not be adequate.
ARTICLE 8. CONFIDENTIALITY AND NONDISCLOSURE
A. CERTAIN INFORMATION REGARDING SERVICE. The parties agree not to disclose to
third parties (without the prior written consent of the non-disclosing party)
the material terms and conditions of this Agreement (including but not limited
to the prices, payment terms, schedules, protection arrangements, and
restoration provisions thereof), except that SES Americom may disclose any of
the material terms and conditions of this Agreement to the extent such terms and
conditions are part of SES Americom's standard contract offerings and so long as
such disclosure does not directly or indirectly identify Customer, and Customer
agrees not to disclose any information provided to Customer by SES Americom
related to the design and performance characteristics of the Satellite, and any
subsystems or components thereof, including the Transponders. The foregoing will
not preclude SES Americom or Customer (without the consent of the other) from
disclosing, on a confidential basis, such information to affiliates, or to its
or their employees, agents, representatives, auditors, investors, purchasers or
lenders, potential investors, purchasers or lenders, or legal counsel, provided
that (i) such disclosures are done on a need-to-know basis, and (ii) each
recipient is obligated to maintain the confidentiality of the information in a
manner consistent with this Agreement.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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B. PROPRIETARY INFORMATION. To the extent that either party discloses to the
other any other information which it considers proprietary, said party shall
identify such information as proprietary when disclosing it to the other party
by marking it clearly and conspicuously as proprietary information. Any
proprietary disclosure to either party, if made orally, shall be identified as
proprietary information at the time of disclosure and promptly thereafter
confirmed in writing and identified as proprietary information, if the
disclosing party wishes to keep such information proprietary under this
Agreement. Any such information disclosed under this Agreement shall be used by
the recipient thereof only in its performance under this Agreement.
Neither party shall be liable for the inadvertent or accidental disclosure
of such information marked as proprietary, if such disclosure occurs despite the
exercising of the same degree of care as the receiving party normally takes to
preserve and safeguard its own proprietary information (but not less than
reasonable care) or if such information: (i) is or becomes lawfully available to
the public from a source other than the receiving party before or during the
period of this Agreement; (ii) is released in writing by the disclosing party
without restrictions; (iii) is lawfully obtained by the receiving party from a
third party or parties without obligation of confidentiality; (iv) is lawfully
known by the receiving party prior to such disclosure; or (v) is at any time
lawfully developed by the receiving party completely independently of any such
disclosure or disclosures from the disclosing party.
In addition, neither party shall be liable for the disclosure of any
proprietary information which it receives under this Agreement pursuant to
judicial action or decree, or pursuant to any requirement of any Government or
any agency or department thereof, having jurisdiction over such party, provided
that in the reasonable opinion of counsel for such party such disclosure is
required, and provided further that such party to the extent reasonably
practical shall have given the other party notice prior to such disclosure,
C. TRADE NAMES/TRADEMARK. Neither Customer nor SES Americom shall in any manner
represent that it has rights in or to any trade name or trademark used by the
other party. Neither Customer nor SES Americom shall register or attempt to
register any trade names or trademark of the other party under the laws of any
jurisdiction, or at any time do or cause to be done any act or thing impairing
the distinctiveness of such trade names or trademarks or any part of the other
party's interest therein whether or not they are registered in the jurisdiction
in which such party is located or does business. SES Americom agrees that the
Customer may refer to the Satellite as "Rainbow-2" in presentations, marketing
materials and other materials associated with the sale and promotion of
Customer's services transmitted on the Satellite, provided that (i) SES Americom
is not restricted in its naming of the Satellite, and (ii) FCC filings shall
reflect the Satellite name as determined by SES Americom.
ARTICLE 9. TERMINATION
A. TERMINATION. In addition to any rights of termination provided in other
Articles of this Agreement, either party may terminate this Agreement by giving
the other party written notice thereof in the event: (i) the other party
materially breaches this Agreement and fails to cure such breach within thirty
(30) days after receipt of written notice thereof (except that if Customer fails
to pay amounts due hereunder, such cure period shall be reduced to *** business
days); or (ii) the other party is unable to perform its obligations as a result
of its becoming insolvent or the
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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subject of insolvency proceedings, including without limitation if the other
party is judicially declared insolvent or bankrupt, or if any assignment is made
of the other party's property for the benefit of its creditors, or if a
receiver, conservator, trustee in bankruptcy or other similar officer is
appointed by a court of competent jurisdiction to take charge of all or any
substantial part of the other party's property, or if a petition is filed by or
against the other party under any provision of the Bankruptcy Act now or
hereafter enacted, and such proceeding is not dismissed within sixty (60) days
after filing. Customer may terminate this Agreement by giving SES Americom
written notice if the Satellite is relocated to an orbital position other than
72(degree) W.L.
B. REFUNDS. In the event of the end of the Agreement pursuant to Article 1.B.,
or in the event of termination by Customer pursuant to this Agreement (except
pursuant to Section 2.C), or in the event of termination by SES Americom
pursuant to Article 10.G., SES Americom shall refund any portion of amounts paid
by Customer to SES Americom which relate to Service not provided by SES Americom
plus any credits that may be due to Customer.
C. ***
D. INABILITY TO REGAIN TRANSPONDER. If upon expiration or termination of this
Agreement for any reason by either party, SES Americom is unable to regain the
use of all, or any part of, the Transponder(s) free and clear of any claims
(including, but not limited to, claims of a debtor in bankruptcy) or liens
arising as a result of the use of the Transponder(s) by Customer or Customer's
Designees, then in addition to all other remedies available to SES Americom
pursuant to this Agreement, at law, in equity, or otherwise, Customer shall be
obligated, without regard to any such termination or expiration, to continue to
pay SES Americom the payments provided for in Article 2.
ARTICLE 10. GENERAL PROVISIONS
A. FORCE MAJEURE. Neither party will be liable to the other by reason of any
failure in performance of this Agreement if the failure arises out of acts of
God, acts of the other party, acts of government authority, strikes or other
labor disturbances beyond the reasonable control of that party, or terrorist
acts. In no event shall Customer's failure to make payment when due be excused
by a force majeure event.
B. NO IMPLIED LICENSE. The provision of services or the conveying of any
information under this Agreement shall not convey any license by implication,
estoppel or otherwise, under any patents or other intellectual property rights
of Customer or SES Americom, SES Global S.A., and their affiliates, contractors
and vendors.
C. NO THIRD PARTY RIGHTS; NO FIDUCIARY RELATIONSHIP. Nothing contained in this
Agreement shall be deemed or construed by the parties or by any third party to
create any rights, obligations or interests in third parties, or to create the
relationship of principal and agent, partnership or joint venture or any other
fiduciary relationship or association between the parties.
D. NO WAIVER; REMEDIES CUMULATIVE. No waiver, alteration, or modification of any
of the terms of this Agreement will be binding unless in writing and signed by
both parties. All remedies and rights hereunder and those available in law or in
equity shall be cumulative, and the
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
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exercise by a party of any such right or remedy shall not preclude the exercise
of any other right or remedy available under this Agreement in law or in equity.
E. GOVERNING LAW AND JURISDICTION. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York, excluding its
conflicts of law rules. The parties hereby consent to and submit to the
non-exclusive jurisdiction of the federal and state courts located in the State
of New York, and any action or suit under this Agreement shall be brought by the
parties in any federal or state court established or sitting in the State of New
York with appropriate jurisdiction over the subject matter. The parties shall
not raise in connection therewith, and hereby waive, any defenses based upon
venue, inconvenience of the forum, lack of personal jurisdiction, sufficiency of
service of process (as long as notice of such action or suit is furnished in
accordance with Section 1.D hereunder) or the like in any such action or suit.
F. HEADINGS; SEVERABILITY; CUSTOMER PURCHASE ORDERS. All titles and headings in
this Agreement are for reference purposes only and will not affect the meaning
or construction of the terms of this Agreement. If any part or parts of this
Agreement are held to be invalid, the remaining parts of the Agreement will
continue to be valid and enforceable. Customer agrees that any purchase order or
other similar document that Customer may issue in connection with this Agreement
will be for Customer's internal purposes only and, therefore, even if
acknowledged by SES Americom, will not in any way add to, subtract from, or in
any way modify the terms and conditions of this Agreement.
G. ***
H. PRIVATE PARTIES. The parties acknowledge that the Customer's Service offered
hereunder has been privately offered and is intended to be privately furnished
on a non-common carrier basis. Neither SES Americom nor Customer regards any
representations, offers or undertakings made by the other in connection with
this Agreement to be in the nature of offers of common carriage. Neither SES
Americom nor Customer will attempt, now or in the future, to assert through
legal process, directly or indirectly, that the relationship hereunder between
the parties involves the offering of a common carrier service.
I. SURVIVAL. Termination or expiration of this Agreement for any reason shall
not release either party of any liabilities or obligations set forth in this
Agreement which the parties have expressly agreed shall survive such termination
or expiration.
ARTICLE 11. DEFINITIONS
As used in this Agreement:
A. "Business Preemptible Service" or "Business Preemptible Transponder" means a
satellite service or transponder that is not entitled to restoration in the
event it becomes a Transponder Failure and may be preempted at any time to
restore (1) a satellite failure, (2) a Protected Service or Protected
Transponder that becomes a transponder failure, (3) any other service or
transponder (including a Preemptible Service or Preemptible Transponder)
experiencing technical difficulties or interference, or (4) other service
offerings of SES Americom or any of its affiliates, including but not limited to
mass move protection, construction and launch delay protection and launch
failure protection. In addition, such Business Preemptible Service or Business
Preemptible
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
-10-
Transponder may be preempted for any other reason (including but not limited to,
SES Americom's desire to provide service on such Transponder to another
customer) upon five (5) business days' notice.
B. "End-of-Life" means the date on which, in SES Americom's reasonable judgment
a satellite should be taken out of service because of insufficient fuel.
C. "Fully Protected Service" or "Fully Protected Transponder" means a satellite
service or a transponder that may not be preempted to restore another service or
transponder, and if restoration thereof is needed as a result of a satellite
failure, or as a result of a transponder failure under circumstances in which no
Protection Transponder is available on the satellite on which such satellite
service or transponder is located, is entitled to restoration, subject to
availability of facilities and to the conditions of the applicable contract, on
another satellite.
D. "Interruption" means any period during which a Transponder fails to meet the
Transponder Performance Specifications and such circumstances preclude the use
of the Transponder for its intended purpose.
E. "Non-Preemptible Service" or "Non-Preemptible Transponder" means a satellite
service or a transponder on which such service is provided that may not be
preempted to restore another service or transponder and that is not itself
entitled to be restored by preempting a Preemptible Service.
F. "Preemptible Service" or "Preemptible Transponder" means a satellite service
or transponder that is not entitled to restoration in the event it becomes a
Transponder Failure and may be preempted at any time to restore (1) a satellite
failure, (2) a Protected Service or Protected Transponder that becomes a
transponder failure, or (3) other service offerings of SES Americom or any of
its affiliates, including but not limited to mass move protection, construction
and launch delay protection and launch failure protection.
G. "Protected Service" or "Protected Transponder" means a service or transponder
that is entitled to preempt a Preemptible Service or Preemptible Transponder.
H. "Protection Transponder" means a Replacement Transponder or Preemptible
Transponder used to restore a Protected Service.
I. "Replacement Date" means the date on which a successor satellite to the
Satellite or to the Ku-band payload of the Satellite is made capable of carrying
communications traffic at the orbital location to which the Satellite is
assigned. Unless SES Americom commits to continue to provide service pursuant to
this Agreement on the successor satellite, such Replacement Date shall not occur
prior to twelve (12) months before SES Americom's good faith estimate of the
End-of-Life of the Satellite.
J. "Replacement Transponder" means a spare transponder amplifier and its
associated components, which is accessible for purposes of providing restoration
and which is capable of carrying communications traffic within the parameters as
described in the transponder performance specifications for the transponder to
be restored.
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
-11-
K. "Reverse Contract Order" means, as to each service or transponder on the
Satellite, in order from the latest date on which a binding agreement for the
taking of such service has been executed by both a customer and SES Americom, to
the earliest such date. If Reverse Contract Order is to be determined among more
than one class of service, then Reverse Contract Order means first in order from
the latest such date to the earliest such date among Business Preemptible
Services, second in such order among Preemptible Services, third in such order
among Non-Preemptible Services, fourth in such order among Transponder Protected
Services and last in such order among Fully Protected Services. Notwithstanding
the foregoing, any service being provided to the United States Government or any
department or agency thereof, whether through a prime contract or a subcontract,
shall be deemed to have an earlier date of binding agreement than Customer
hereunder.
L. "Satellite" means the communications spacecraft designated AMC-6 operated by
SES Americom at 72(degree) X.X. When used in the lower case, "satellite" means a
domestic communications satellite operating in Ku-band.
M. ***
N. ***
O. ***
P. "Transponder Protected Service" or "Transponder Protected Transponder" means
a satellite service or transponder that may not be preempted to restore another
service or transponder, that is itself entitled to be restored by Protection
Transponders on the same satellite in the event it becomes a Transponder Failure
but that is not entitled to be restored if there is no such Protection
Transponder available.
THIS AGREEMENT CONTAINS THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR
NEGOTIATIONS AND AGREEMENTS BETWEEN THE PARTIES WITH RESPECT THERETO. TO THE
EXTENT THAT ANY ATTACHMENT MAY BE INCONSISTENT WITH THE TEXT OF THE AGREEMENT,
THE TEXT OF THE AGREEMENT SHALL CONTROL.
RAINBOW DBS COMPANY, LLC SES AMERICOM, INC., as agent for
SES AMERICOM COLORADO, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
------------------------------- ----------------------------------------
(Signature) (Signature)
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxx
----------------------------- --------------------------------------
(Typed or Printed Name) (Typed or Printed Name)
Title: Chairman Title: Vice-President, Entertainment Sales
---------------------------- --- ----------------------------------
Date: April 23, 2004 Date: April 26, 2004
----------------------------- --------------------------------------
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 406 under the
Securities Act of 1933.
