Exhibit 10.64
GALAXY VIII(i)R
TRANSPONDER LEASE AGREEMENT
BETWEEN
PANAMSAT CORPORATION
AND
CALIFORNIA BROADCAST CENTER, LLC
________________________________________________________________________________
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
TABLE OF CONTENTS
1. The Satellite.......................................................................................... 2
1.01 Satellite..................................................................................... 2
1.02 Orbital Position.............................................................................. 2
1.03 Certain Transponder-Related Definitions....................................................... 2
1.04 Transponders Components and Certain Specifications............................................ 2
2. Lease of Transponders; Lease Term...................................................................... 3
2.01 Term.......................................................................................... 3
2.02 [***]......................................................................................... 3
2.03 Redelivery of Lessee Transponders............................................................. 4
3. Lease Rate............................................................................................. 4
3.01 Lease Price Components Description............................................................ 4
3.02 Monthly Base Lease Rate; TT&C Fee............................................................. 4
3.03 Place of Payment.............................................................................. 5
3.04 Deposit....................................................................................... 5
4. Conditions; Acceptance................................................................................. 5
4.01 Condition to Lessee's Right to Lease.......................................................... 5
4.02 Acceptance.................................................................................... 5
5. Representations and Warranties......................................................................... 6
5.01 Authority, No Breach.......................................................................... 6
5.02 Corporate Action.............................................................................. 6
5.03 Consents...................................................................................... 6
5.04 Litigation.................................................................................... 7
5.05 No Broker..................................................................................... 7
6. Additional Representations, Warranties and Obligations................................................. 7
6.01 Authorization Description..................................................................... 7
6.02 Transponder Performance Specifications........................................................ 8
6.03 Right to Lease................................................................................ 8
6.04 Government Regulations........................................................................ 8
6.05 Not a Common Carrier.......................................................................... 8
6.06 TT&C.......................................................................................... 8
6.07 Outage Allowance.............................................................................. 9
6.08 [***]......................................................................................... 9
6.09 [***]........................................................................................ 10
6.10 [***]........................................................................................ 10
6.11 Additional Transponders...................................................................... 11
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
7. Additional Representations, Warranties and Obligations of Lessee...................................... 12
7.01 Compliance by Customers...................................................................... 12
7.02 Non-Interference............................................................................. 12
7.03 Laws......................................................................................... 12
7.04 Terrestrial Facilities....................................................................... 12
7.05 Lessee's Transmitting Stations............................................................... 13
7.06 Lessee's Uplink Providers.................................................................... 13
7.07 [***]........................................................................................ 13
7.08 Additional Usage Representations, Warranties and Obligations................................. 13
8. Preemptive Rights..................................................................................... 14
8.01 ............................................................................................. 14
8.02 ............................................................................................. 14
8.03 Satellite Power Constraint................................................................... 15
9. Transponder Spares.................................................................................... 15
9.01 Use of Transponder Spares.................................................................... 15
9.02 Simultaneous Failure-- Priority with Respect to the Use of Transponder Spares................. 15
9.03 PanAmSat's Ownership of Transponders.......................................................... 16
10. Termination Rights..................................................................................... 16
10.01 Termination by Lessee for Transponder Failure................................................. 16
10.02 Termination by PanAmSat....................................................................... 16
10.03 PanAmSat's Right to Transfer.................................................................. 17
10.04 Prompt Repayment.............................................................................. 17
10.05 Termination by Lessee or PanAmSat............................................................. 18
10.06 Right to Deny Access.......................................................................... 18
10.07 Termination by Lessee Upon Galaxy IIIC Lease Commencement Date................................ 21
11. Force Majeure.......................................................................................... 21
11.01 Failure of Performance........................................................................ 21
12. Limitation of Liability/Breach of Warranty............................................................. 21
12.01 Liability of PanAmSat......................................................................... 21
12.02 Confirmed Failure............................................................................. 21
12.03 Repayment for Failed Transponder.............................................................. 22
12.04 Limitation of Liability....................................................................... 22
12.05 Obligations of Lessee to Cooperate............................................................ 24
13. Limitations on Transfer by Lessee...................................................................... 25
14. Utilization of Transponders for Services............................................................... 26
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
15. Monthly Satellite Reports.............................................................................. 26
15.01 Reports....................................................................................... 26
15.02 Anomalous Operation Notification.............................................................. 26
15.03 Maneuver Notification......................................................................... 26
16. Confidentiality and Press Releases..................................................................... 26
16.01 Confidential Information...................................................................... 26
16.02 Notice Proceeding; Compelled Disclosure....................................................... 27
16.03 Press Releases................................................................................ 27
16.04 Compliance with U.S. Export Laws............................................................. 27
17. Disposition of Satellite............................................................................... 27
18. Documents.............................................................................................. 28
19. Conflicts.............................................................................................. 28
20. Miscellaneous.......................................................................................... 28
20.01 Interest...................................................................................... 28
20.02 Applicable Law and Entire Agreement........................................................... 28
20.03 Notices....................................................................................... 29
20.04 Severability.................................................................................. 30
20.05 Taxes......................................................................................... 31
20.06 Successors.................................................................................... 31
20.07 Rules of Construction......................................................................... 31
20.08 Survival of Representations and Warranties.................................................... 31
20.09 No Third-Party Beneficiaries.................................................................. 31
20.10 Non-Waiver of Breach.......................................................................... 32
20.11 Amendments.................................................................................... 32
20.12 Counterparts.................................................................................. 32
Exhibit A Transponder Performance Specifications
Exhibit B Operational Requirements
Exhibit C Transponder Priority List
Exhibit D [***]
Exhibit E [***]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
GALAXY VIII(i)R TRANSPONDER LEASE AGREEMENT
This GALAXY VIII(i)R TRANSPONDER LEASE AGREEMENT (as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms set forth herein, this "Agreement") is made and entered into as of
December 15, 2000, by and between PanAmSat Corporation, a Delaware corporation
("PanAmSat"), and California Broadcast Center, LLC, a Delaware limited liability
company ("Lessee").
RECITALS
A. PanAmSat and Lessee are party to that certain Amended and Restated
Galaxy VIII(i) Transponder Lease Agreement (the "Galaxy VIII(i) Lease
Agreement") and that certain Galaxy IIIC Transponder Lease Agreement
(the "Galaxy IIIC Lease Agreement"), each dated as of June 30, 2000,
for the lease of transponder capacity on the HS-601HP satellite
commonly known as Galaxy VIII(i) ("Galaxy VIII(i)") and on the HS-702
satellite currently under construction to be known as Galaxy IIIC
("Galaxy IIIC"), respectively.
B. PanAmSat plans to construct a satellite, model HS-601HP, to be known as
Galaxy VIII(i)R ("Galaxy VIII(i)R"), carrying a payload of 32 Ku-Band
transponders and one Ku-Band TCN transponder, as more specifically
described in Section 1.04 hereof (collectively, the "Transponders"),
and certain redundant equipment.
C. Subject to the approval of the Federal Communications Commission (the
"FCC"), PanAmSat currently anticipates that Galaxy VIII(i)R will be
launched during the early third quarter of 2002 (although the parties
recognize that schedule delays may occur) and intends to cause such
satellite to be co-located in the 95 West Longitude orbital location
along with Galaxy IIIC, with Galaxy VIII(i) to be retired.
D. The Transponders are capable of providing signals to Mexico, Central
America, South America and the Caribbean (collectively, the
"Territory"), as such coverage is described more fully in this
Agreement and the Exhibits hereto.
E. Lessee desires to lease from PanAmSat and PanAmSat desires to lease to
Lessee up to all of the Transponders upon the terms and conditions set
forth in this Agreement.
F. Concurrently herewith, Lessee and PanAmSat desire to amend the Amended
and Restated Galaxy VIII(i) Transponder Lease Agreement, the Galaxy
IIIC Lease Agreement, and that certain Galaxy IIIR Transponder Sublease
Agreement dated as of April 21, 1997 (as previously amended).
AGREEMENT
In consideration of the mutual promises set forth below and other
valuable consideration the receipt and adequacy of which are hereby
acknowledged, PanAmSat and Lessee hereby
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mutually agree as follows:
1. The Satellite
1.01 Satellite. Subject to the approval of the FCC, PanAmSat plans to
construct and launch the satellite which is referred to hereinafter as "Galaxy
VIII(i)R" or the "Satellite." PanAmSat shall use commercially reasonable efforts
to cause the Satellite to be constructed and launched no later than [***] and
shall not take any action to delay the completion or launch of the Satellite in
order to advance the launch of any other satellite being built for PanAmSat by
Boeing Satellite Systems, Inc. (the "Satellite Manufacturer") or launched for
PanAmSat by the Galaxy VIII(i)R launch provider (the "Launch Provider").
Notwithstanding the foregoing, PanAmSat makes no representation or warranty with
respect to such schedule for construction and launch of the Satellite, and
Lessee understands that technical issues related to the construction or launch
of the Satellite beyond the reasonable control of PanAmSat may occur which could
prevent such schedule from being maintained. In the event that one or more such
technical issues occur, PanAmSat shall use commercially reasonable best efforts
to cause the Satellite Manufacturer and/or the Launch Provider to resolve such
technical issues, and upon such resolution to cause the construction and launch
of the Satellite to be completed, as soon as technically and contractually
feasible; provided that in the event of such technical issues, PanAmSat shall
have the right to take such actions as may be available to optimize the
construction and launch schedule of other satellites so long as such
optimization does not materially delay the completion of construction and launch
of the Satellite beyond the delays caused directly or indirectly by the
resolution of such technical issues. In the event that due solely to
manufacturing delays (not including delays which result from changes to the
Satellite requested by Lessee or DIRECTV Latin America, LLC (formerly known as
Galaxy Latin America, LLC) ("GLA")), the Galaxy VIII(i)R Lease Commencement Date
does not occur before the Satellite Removal Date of Galaxy VIII(i) (as
determined in accordance with Section 17 of the Galaxy VIII(i) Lease Agreement),
then [***].
1.02 Orbital Position. Subject to the approval of the FCC, the orbital
position of Galaxy VIII(i)R will be 95(Degree) West Longitude.
1.03 Certain Transponder-Related Definitions. As used in this
Agreement, (i) "Owner" shall include the actual owner of a Transponder,
including PanAmSat if there remain any unsold Transponders, or any permitted
assignee of such owner's Transponder, or any lessee or licensee of PanAmSat's
(including, without limitation, Lessee), or any entity to which PanAmSat (or any
affiliate of PanAmSat) provides service using the Transponders; (ii) the term
"purchase" shall include the execution of an agreement with PanAmSat for a lease
of Transponders for a term equal to at least 75% of the Satellite's useful
economic life (as determined by PanAmSat in its reasonable discretion); and
(iii) "affiliate" shall mean, with respect to any entity, any corporation or
other entity controlling or controlled by or under common control with such
entity.
1.04 Transponders Components and Certain Specifications. Exhibit A to
this Agreement sets forth the "Transponder Performance Specifications," which
are certain technical specifications for the Transponders, including values for
each Transponder for polarization isolation, interference between Transponders,
frequency response, group delay, amplitude non-linearity, spurious outputs,
phase shift, cross talk, stability, transmit EIRP, uplink saturation flux
density, and G/T. PanAmSat shall make copies of the antenna range gain contour
test data
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confidential treatment.
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available to Lessee promptly upon written request of Lessee after the
tests related thereto are completed.
2. Lease of Transponders; Lease Term
2.01 Term. Unless otherwise terminated earlier in accordance with this
Agreement, including, without limitation, pursuant to Sections 5.03, 6.01, 10 or
17, this Agreement shall be for the term (the "Term") commencing on and as of
the Delivery (as defined in Section 4.02) of Galaxy VIII(i)R (the "Galaxy
VIII(i)R Lease Commencement Date") and terminating on "Satellite Removal Date"
(as defined in Section 17). During the Term, PanAmSat shall lease to Lessee, and
Lessee shall lease from PanAmSat, either:
(a) [***] Transponders; or
(b) [***] Transponders([***] of which shall be on the West
(Mexico) downlink beam and [***] of which shall be on the East (Brazil)
downlink beam), with rights to lease [***] "Additional Transponders" on
the East (Brazil) downlink beam in accordance with Section 6.11.
Lessee shall be required to elect whether to lease the number of Transponders
specified in either clause (a) or clause (b) above no later than thirty (30)
days prior to the projected Galaxy VIII(i)R Lease Commencement Date, which
projected date PanAmSat shall determine in good faith and notify to Lessee no
later than sixty (60) days prior to such projected date. Each Transponder being
leased to Lessee at a given time is a "Lessee Transponder" and, collectively,
such Transponders constitute the "Lessee Transponders". On the Galaxy VIII(i)R
Lease Commencement Date, PanAmSat shall provide to Lessee a good faith estimate
of the Satellite Removal Date based on the results of the "Acceptance Test Plan"
(as defined in Section 4.02); provided, however, that Lessee understands and
acknowledges that the actual Satellite Removal Date may differ from such
estimate.
2.02 [***]
(a) PanAmSat agrees that if (i) PanAmSat terminates this Agreement
pursuant to Sections 10.02 or 10.05 hereof, desires to Transfer the
Transponders to a third party or accelerates remaining payments
pursuant to Section 10.02 due to Lessee's breach or default of the
terms hereof; and (ii) [***]
(b) Nothing in this Section 2.02, [***] shall prevent PanAmSat and
Lessee from modifying or amending this Agreement at any time or in any
manner (an "Amendment"); [***]
2.03 Redelivery of Lessee Transponders. Subject to Section 2.02, upon
the expiration, termination, or cancellation of this Agreement as to any Lessee
Transponder for any reason whatsoever (including, without limitation, expiration
of this Agreement in accordance with its terms or cancellation of this Agreement
by PanAmSat as a result of a breach by Lessee), such
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Lessee Transponder shall be deemed, without any further action by any party, to
be redelivered to PanAmSat and PanAmSat shall be entitled to immediate
possession thereof. PanAmSat shall thereafter have the right to utilize such
redelivered Lessee Transponder in any manner it determines.
3. Lease Rate
3.01 Lease Price Components Description. The monthly lease rate for the
Lessee Transponders shall be the "Monthly Base Lease Rate" set forth in Section
3.02. In addition, Lessee shall pay to PanAmSat a fee (the "TT&C Fee") for the
tracking, telemetry and control services described in Section 6.06.
3.02 Monthly Base Lease Rate; TT&C Fee. During the Base Term, the
"Monthly Base Lease Rate" shall be either: (a) if Lessee elects to lease the
number of Transponders specified in Section 2.01(a), [***] per Lessee
Transponder per month; or (b) if Lessee elects to lease the number of
Transponders specified in Section 2.01(b), the sum of (x) [***] per Lessee
Transponder per month plus (y) the "Additional Transponder Fee" (as defined
below). Subject to the following proviso, the Monthly Base Lease Rate and the
TT&C Fee shall be due and payable in advance on (i) the Galaxy VIII(i)R Lease
Commencement Date, and (ii) the first day of each month thereafter through the
last day of the Term [***] If one of the Lessee Transponders becomes a Failed
Transponder (as defined in Section 12.01), Lessee's rights and obligations to
continue making Monthly Base Lease Rate payments with respect to such Failed
Transponder shall be governed by Sections 12.01 and 12.03. Payments for any
partial month shall be pro-rated. The Additional Transponder Fee shall be: (i)
[***] per "Additional Transponder" (as defined in Section 6.11(a)) per month
[***]; (ii) [***] per Additional Transponder per month for [***] and [***] per
Additional Transponder per month [***]. The TT&C Fee shall be [***]per month
based on a base year of 2000 and the TT&C Fee for each subsequent year shall be
adjusted at a rate equal to [***]. For the avoidance of doubt, Lessee shall not
be required to pay more than two separate TT&C Fees for the same period pursuant
to this Agreement, the Galaxy VIII(i) Lease Agreement and the Galaxy IIIC Lease
Agreement.
3.03 Place of Payment. All payments by Lessee (i) shall be made in
immediately available funds to PanAmSat at its principal place of business, as
designated in Section 20.03, or by wire transfer to the account of PanAmSat
designated by PanAmSat pursuant to written notice given as set forth in Section
20.03 and (ii) shall be deemed to be made only upon actual receipt by PanAmSat.
Any refunds by PanAmSat (a) shall be made in immediately available funds to
Lessee at its principal place of business as designated in Section 20.03, or by
wire transfer to the account of Lessee designated by Lessee pursuant to written
notice given as set forth in Section 20.03 and (b) shall be deemed to be made
only upon actual receipt by Lessee.
3.04 Deposit. Lessee shall pay to PanAmSat a deposit in the amount of
[***] in immediately available funds on or before the Galaxy VIII(i)R Lease
Commencement Date. Except as set forth in Sections 6 and 10 hereof, such deposit
is non-refundable and Lessee shall not be entitled to interest on any portion
thereof. PanAmSat shall apply such deposit in partial or in full satisfaction
(as the case may be) of Lessee's Monthly Base Lease Rate payments for the last
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months of the Term or as required to meet any delinquent Monthly Base Lease Rate
payments, as determined by PanAmSat in its sole discretion. PanAmSat shall
credit Lessee toward its deposit obligation hereunder the full amount of the
deposit paid by Lessee under the Galaxy VIII(i) Lease Agreement to the extent
that such deposit has not been applied toward any unpaid amount in accordance
with Section 3.04 of the Galaxy VIII(i) Lease Agreement.
4. Conditions; Acceptance
4.01 Condition to Lessee's Right to Lease. A condition to PanAmSat's
obligation to lease the Lessee Transponders to Lessee, and of Lessee's right to
lease the Lessee Transponders from PanAmSat, shall be Lessee's timely payment,
on or before the Galaxy VIII(i)R Lease Commencement Date, of the Monthly Base
Lease Rate and the TT&C Fee for the first month hereof and the deposit referred
to in Section 3.04.
4.02 Acceptance. PanAmSat will test each of Lessee's Transponders in
accordance with the acceptance test plan (the "Acceptance Test Plan") prepared
by PanAmSat prior to the launch of Galaxy VIII(i)R, a copy of which Acceptance
Test Plan shall be provided to Lessee upon written request of Lessee after such
Acceptance Test Plan is prepared. Lessee agrees that if such tests indicate that
the Lessee Transponders (i) have passed all tests set forth in the Acceptance
Test Plan, (ii) meet the Transponder Performance Specifications and (iii) are
available for service, then acceptance and Delivery of the Lessee Transponders
by Lessee shall be deemed to occur on the later of (x) PanAmSat's delivery to
Lessee of a certification that the foregoing clauses (i) and (ii) have been met
and (y) the date on which PanAmSat makes the Transponders available to Lessee
for Lessee's commercial use; provided that if more than one-half of the number
of Lessee Transponders elected by Lessee pursuant to Section 2.01 to be leased
upon the Galaxy VIII(i)R Lease Commencement Date meet the Transponder
Performance Specifications, then acceptance and Delivery shall be deemed to
occur with respect to such Lessee Transponders (provided that clauses (i) and
(iii) above have also been met) and the Monthly Base Lease Rate payments shall
be prorated accordingly based upon the number of Lessee Transponders meeting the
Transponder Performance Specifications as a percentage of the total number of
Lessee Transponders; provided further that the TCN Transponder shall not be
considered for purposes of the foregoing calculation. PanAmSat shall keep Lessee
reasonably informed of the expected date of such Delivery and upon written
request of Lessee shall provide Lessee with a written copy of Acceptance Test
Plan results promptly after PanAmSat's receipt thereof from the manufacturer of
the Satellite. To the extent any Lessee Transponders are not deemed accepted and
Delivered, the amounts of the Monthly Base Lease Rate will be proportionately
reduced (based on the assumption that all of the Lessee Transponders have equal
value) and "Lessee Transponders" shall be deemed to be comprised of only the
accepted and Delivered Lessee Transponders.
5. Representations and Warranties
PanAmSat and Lessee each, except as expressly indicated herein,
represent and warrant to, and agree with, the other that:
5.01 Authority, No Breach. It has the corporate or other organizational
right, power and authority to enter into, and perform its obligations under,
this Agreement. The execution,
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delivery and performance of this Agreement will not result in the breach or non-
performance of any agreements it has with third parties.
5.02 Corporate Action. It has taken all requisite corporate or other
organizational action necessary to approve execution, delivery and performance
of this Agreement, and this Agreement constitutes a legally valid and binding
obligation upon itself in accordance with its terms.
5.03 Consents.
(a) The fulfillment of its obligations hereunder will not
constitute a material violation of any existing applicable law, rule, regulation
or order of any governmental authority. Except as set forth in Section 6.01, all
material necessary or appropriate public or private consents, permissions,
agreements, licenses, or authorizations to which it or any Lessee Transponder
or, in the case of PanAmSat, the Satellite may be subject have been or shall be
obtained in a timely manner; provided, however, that it shall be PanAmSat's sole
responsibility to obtain any regulatory approvals needed to enable it to lease
the Lessee Transponders as provided for in this Agreement, other than the
regulatory approvals described in Section 6.01(b) below, for which the parties
shall be responsible as set forth therein.
(b) Notwithstanding the final sentence of Section 5.03(a),
PanAmSat and Lessee acknowledge that the transactions set forth in this
Agreement may be challenged before the FCC or a court of competent jurisdiction
by other persons or entities not parties hereto. In such event, PanAmSat and
Lessee agree that PanAmSat shall use its best efforts, and, at the reasonable
request of PanAmSat, Lessee shall use reasonable efforts, before the FCC, and
the courts if an appeal from an FCC order is taken, to support PanAmSat's right
to lease and Lessee's right to lease the Lessee Transponders and that they shall
fully cooperate with each other in these endeavors. Lessee alone shall have the
right to determine whether and to whom it will incur legal expenses in
connection with any proceeding arising out of its obligations under this Section
5.03(b). If, however, by written order, the FCC or a court of competent
jurisdiction shall determine that PanAmSat may not lease to Lessee and Lessee
may not lease from PanAmSat the Lessee Transponders on the terms and conditions
set forth herein, then PanAmSat and Lessee shall seek immediate review of such
order before the FCC or an appellate court or shall, if possible, reconstitute
the transaction to comply with such order. If an appellate court issues a
written order, which is no longer subject to further judicial rehearing or
review, upholding the determination of the FCC or a court or competent
jurisdiction that PanAmSat may not lease and Lessee may not lease the Lessee
Transponders, then PanAmSat and Lessee shall, if possible, reconstitute the
transaction as set out herein and, if they are unable to do so, either party
shall thereafter have the right to terminate this Agreement (upon written notice
to the other party) as set forth in Section 10.05, without liability to the
other, except for obligations arising prior to the date thereof.
5.04 Litigation. There is no outstanding, or to the best of its
knowledge, threatened, judgment, pending litigation or proceeding, involving or
affecting the transactions provided for in this Agreement.
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5.05 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.
6. Additional Representations, Warranties and Obligations
6.01 Authorization Description.
(a) PanAmSat shall file with the FCC an application, and will
promptly file any necessary amendments to such application (collectively, the
"Application") to launch and operate the Satellite at the 95(Degree) West
Longitude orbital location and to permit the Lessee Transponders to be used to
provide fixed satellite services to the Territory.
(b) Certain authorizations, consents, permissions, agreements,
licenses, registrations or approvals (collectively, "Authorizations") from
governmental bodies outside the United States have not yet been obtained and
will need to be obtained from such governmental bodies in order to: (i)
authorize the Satellite to be used to provide capacity for use in certain
countries other than the United States; and (ii) authorize the right to uplink
signals to or downlink signals from the Satellite and to provide a
"Direct-To-Home Service" (as defined in Section 6.10) using the Satellite to
customers in certain countries. PanAmSat and Lessee shall each use commercially
reasonable efforts to obtain and to assist the other in obtaining the
Authorizations as set forth in the immediately following sentence and in a
manner which minimizes legal risk, economic costs and tax exposure to each of
PanAmSat and Lessee. [***]
(c) If the FCC fails to approve the Application [***], then this
Agreement shall terminate at the election of either party (upon written notice
to the other party) and (i) PanAmSat shall have no liability to Lessee, except
for prepaid charges made by Lessee (if any); and (ii) Lessee shall have no
liability to PanAmSat, except for previously incurred obligations.
6.02 Transponder Performance Specifications. The Lessee Transponders,
upon Delivery, shall at least meet the Transponder Performance Specifications.
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6.03 Right to Lease. On the Galaxy VIII(i)R Lease Commencement Date and
subject to Section 4.01, Lessee shall be entitled to lease each of the Lessee
Transponders free from all liens, charges, claims or encumbrances (collectively,
"Encumbrances"), except: (i) Encumbrances resulting from (a) Lessee's lease of
the Lessee Transponders; (b) any actions taken by Lessee; or (c) the right and
interest of any financing entity pursuant to any transactions entered into in
connection with a sale and leaseback transaction involving the Satellite or
other financing by PanAmSat; and (ii) Encumbrances which do not have an adverse
effect on Lessee's rights hereunder. Notwithstanding the preceding sentence, for
so long as this Agreement is in full force and effect and for so long as Lessee
is not in default under this Agreement, PanAmSat shall not assign (including as
security) or otherwise grant any ownership interest in any Lessee Transponder
then being leased by Lessee pursuant to this Agreement without securing the
agreement of the party granted such an interest (the "Holder") that, (y)
provided Lessee is not in default under this Agreement, Lessee shall lawfully
and quietly hold and enjoy the benefits of this Agreement without hindrance or
molestation from PanAmSat, Holder or any person claiming through or under
PanAmSat or Holder, and (z) Holder shall not interfere with Lessee's use of any
of the Lessee Transponders in accordance with this Agreement notwithstanding any
default by PanAmSat under its agreement with Holder providing for such an
interest. [***]
6.04 Government Regulations. PanAmSat has used, and until disposition
of the Satellite pursuant to Section 17 will continue to use, its reasonable
best efforts to obtain and maintain, in all material respects, all applicable
United States federal, state and municipal and other non-governmental third
party authorizations or permissions to operate the Satellite, applicable to it
and the Satellite, and to comply, in all material respects, with all such
regulations regarding the operation of the Satellite and the Lessee Transponders
applicable to it.
6.05 Not a Common Carrier. Unless required to do so by the FCC,
PanAmSat shall not hold itself out, publicly or privately, as a provider of
common carrier communications services on the Satellite and is not purporting
herein to provide to Lessee or to any other party any such services with respect
to Galaxy VIII(i)R.
6.06 TT&C. Tracking, telemetry and control shall be provided by
PanAmSat. The TT&C Fee for the Satellite shall be as set forth in Section 3.01
hereof.
6.07 Outage Allowance. PanAmSat shall grant Lessee an Outage Allowance
as follows:
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If an "Outage Allowance Failure Period" (as defined below) occurs, then
for each hour of such Outage Allowance Failure Period PanAmSat shall grant
Lessee a pro rata Outage Allowance based upon the monthly charge for the Lessee
Transponder experiencing the Transponder Capacity Failure, the length of the
Outage Allowance Failure Period, and a standard of 720 hours per month,
calculated pursuant to the equation below. Any such Outage Allowance shall be
applied to the next succeeding monthly billing to Lessee and shall not in any
case exceed one month's standard billing. "Outage Allowance Failure Period"
shall mean the aggregate period--only where such aggregation exceeds [***]
during any consecutive [***] period on such Lessee Transponder--during which a
Transponder Capacity Failure(s) occurs. A "Transponder Capacity Failure" shall
be deemed to occur if (i) after the Galaxy VIII(i)R Commencement Date, a Lessee
Transponder fails to meet the applicable Transponder Performance Specifications
and (ii) PanAmSat is unable to furnish the necessary Transponder Spare as a
substitute for such Lessee Transponder pursuant to Section 9. A Transponder
Capacity Failure shall be measured from the time PanAmSat receives notice from
Lessee of a claimed Transponder Capacity Failure until the time the Lessee
Transponder has been restored to meeting the applicable Transponder Performance
Specifications, but shall not begin in any event until Lessee ceases to use such
Lessee Transponder. PanAmSat shall accept or reject such outage claim within
twenty-four (24) hours of notice from Lessee, or else such claim will be deemed
accepted.
Outage Allowance = Outage Allowance Failure (in Hours) x N
------------------------------------------
720
where N = the Monthly Base Lease Rate then in effect divided by the number of
Lessee Transponders in operation immediately prior to such Outage
Allowance Failure Period.
In no case shall an Outage Allowance be made for any Transponder Capacity
Failure caused primarily by: (i) any failure on the part of Lessee to perform
its transmission or other material or operational obligations pursuant to this
Agreement; (ii) failure of any facilities provided by Lessee and/or its
contractors; (iii) reasonable periodic maintenance; provided, however, that
PanAmSat will inform Lessee of any proposed periodic maintenance in advance and
will use best reasonable efforts to agree upon the times at which such periodic
maintenance will be performed on the Lessee Transponders; (iv) interference from
sun outage or from third party transmissions or usage; (v) cooperative testing,
except where trouble or fault is found in the Lessee Transponder; or (vi) any
other act or failure to act by Lessee and/or its "Contractors" (as defined in
Section 20.07).
6.08 [***]
6.09 [***]
6.10 [***]
6.11 Additional Transponders.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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(a) If in accordance with Section 2.01 Lessee elects to lease
the number of Transponders specified in Section 2.01(b), then in addition to the
Lessee Transponders leased pursuant to Section 2.01(b), Lessee shall have
certain rights to lease [***] additional Transponders on the Satellite (the
"Additional Transponders") pursuant to Sections 6.11(b) and (c).
(b) Lessee shall have the right to lease one or more of the
Additional Transponders upon one hundred twenty (120) days prior written notice
to PanAmSat. Lessee's lease of Additional Transponders pursuant to this Section
6.11(b) shall continue until the end of the Term.
(c) In the event that (i) PanAmSat verifies that (A) one or
more of the Lessee Transponders on the East (Brazil) downlink beam then being
leased by Lessee pursuant to this Agreement have become "Failed Transponders" as
defined in Section 12.01 hereof or (B) one or more of the transponders on the
East (Brazil) downlink beam then being leased by Lessee pursuant to the Galaxy
IIIC Lease Agreement have become "Failed Transponders" as defined in such Galaxy
IIIC Lease Agreement, and (ii) PanAmSat is not able to replace such Failed
Transponders with Transponder Spares pursuant to this Agreement or the Galaxy
IIIC Lease Agreement (as applicable), then PanAmSat shall lease to Lessee, and
Lessee shall lease from PanAmSat, as many of the Additional Transponders as may
be necessary to replace the capacity of such unreplaced Failed Transponders.
Lessee's lease of Additional Transponders pursuant to this Section 6.11(c) shall
continue until the earlier to occur of: (i) the end of the Term; or (ii) the
date that the applicable Failed Transponder has been restored to operation
meeting the applicable Transponder Performance Specifications.
(d) Upon the lease by Lessee of one or more Additional
Transponders on the Satellite either (i) at Lessee's election pursuant to
Section 6.11(b) or (ii) to replace a Failed Transponder on Galaxy IIIC pursuant
to Section 6.11(c), the aggregate Monthly Base Lease Rate shall be increased by
the applicable amount per Lessee Transponder per month for each leased
Additional Transponder (less any Additional Transponder Fee payable with respect
thereto), and each such Additional Transponder shall thereafter be deemed to be
a "Lessee Transponder" under this Agreement.
(e) Subject to Section 6.10 above, PanAmSat shall have the
right to lease, or provide services using, any of the Additional Transponders;
provided, however, that each such agreement for the lease of, or provision of
services using, any such Additional Transponder to any other customer shall
provide that PanAmSat shall have the right to (i) terminate such agreement upon
not more than one hundred twenty (120) days prior written notice from PanAmSat
in the event that Lessee exercises its right to lease such Additional
Transponder in accordance with Section 6.11(b), and (ii) immediately terminate
such agreement in the event of that such Additional Transponder is required to
be leased to and by Lessee in accordance with Section 6.11(c); provided,
further, that in the case of both clause (i) and (ii) in the foregoing proviso,
if any other Additional Transponders then remain not leased by Lessee, PanAmSat
shall also have the right to move the affected other customer to such other
Additional Transponder in lieu of terminating such agreement; provided, further,
that any use of such Additional Transponders pursuant to any such
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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lease or service agreement shall not interfere with Lessee's transmissions to
and from the Lessee Transponders.
7. Additional Representations, Warranties and Obligations of Lessee
7.01 Compliance by Customers. Lessee shall not allow any of its
customers or any other third party to utilize, directly or indirectly, any of
the Lessee Transponders in a manner that would constitute a breach of the terms
of this Agreement had such use been by Lessee on its own behalf. Without
implying any right of Lessee to permit any third party use of the Lessee
Transponders other than as expressly provided in this Agreement, Lessee shall be
responsible to PanAmSat for any third party use or transmission that is
permitted by Lessee to the same extent as it would be for Lessee's own use or
transmissions and references in this Agreement with respect to Lessee's
responsibilities to PanAmSat regarding Lessee's use or transmissions shall be
interpreted accordingly.
7.02 Non-Interference. Lessee's radio transmissions (and those of its
uplinking agents) to the Satellite shall comply in all material respects with
all FCC and all other governmental (whether international, federal, state,
municipal, of a Territory Country (as defined in Section 7.08(a)) or otherwise)
statutes, laws, rules, regulations, ordinances, codes, directives and orders, of
any such governmental agency, body, or court (collectively, "Laws") applicable
to it regarding the operation of the Satellite and the Lessee Transponders, and
with the operational requirements (the "Operational Requirements") set forth in
Exhibit B, as the same may be modified from time to time by PanAmSat in its
reasonable discretion. Lessee shall not utilize (or permit or allow any of its
uplinking agents to utilize) any of the Lessee Transponders in a manner that
will or may interfere with the use of any other Transponder or cause physical
harm to any Lessee Transponder, any other Transponder, or to the Satellite.
Further, Lessee will coordinate (and will require its uplinking agents to
coordinate) with PanAmSat, in accordance with procedures reasonably established
by PanAmSat and uniformly applied to all users of transponders on the Satellite,
its transmissions to the Satellite, so as to minimize adjacent channel and
adjacent satellite interference and mitigate potential or actual damage to any
Lessee Transponder, any other Transponder or the Satellite. For purposes of this
Section 7.02, interference shall also mean acts or omissions which cause a
Transponder to fail to meet its Transponder Performance Specifications. Without
limiting the generality of the foregoing, Lessee (and its uplinking agents)
shall comply with all FCC rules and regulations regarding use of automatic
transmitter identification systems (ATIS).
7.03 Laws. Lessee shall comply (and shall require its uplinking agents
to comply), in all material respects, with all Laws applicable to it regarding
the operation or use of the Satellite and the Lessee Transponders.
7.04 Terrestrial Facilities. Lessee shall be responsible for the
provision, installation, operation, maintenance of, and for securing all
necessary authorizations for all earth station facilities and equipment
("Lessee-Provided Facilities"), for transmitting signals to, or receiving
signals from, the Satellite in accordance with the requirements set forth in
this Agreement. Any provision by PanAmSat to Lessee of earth station or other
terrestrial facilities or services shall be the subject of a separate agreement.
The parties agree and acknowledge that the absence of
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-11
terrestrial interference is not part of the Transponder Performance
Specifications.
7.05 Lessee's Transmitting Stations.
(a) Lessee 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. Lessee will follow PanAmSat's procedures for initiating, and
terminating, and increasing or decreasing the power levels of, any transmission
to the Satellite. Lessee 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 20.03(a) ("Telephone Notices"). Lessee will
furnish such information regarding the technical parameters of its transmissions
as may be required by PanAmSat prior to commencing, during, and upon the
conclusion of any transmission to the Satellite.
(b) PanAmSat shall have the right, but not the obligation, to
inspect any Lessee-Provided Facilities together with associated facilities and
equipment used by Lessee, or by a third party under the authority of Lessee, to
transmit to any Lessee Transponder. PanAmSat will use all reasonable efforts to
schedule inspections to minimize the disruption of the operation of the
facilities, and Lessee shall make the facilities available for inspection at all
reasonable times. Lessee shall, upon PanAmSat's request, provide measured proof
that any transmit facility meets or exceeds the sidelobe envelope described in
Exhibit B.
7.06 Lessee's Uplink Providers. Lessee shall be permitted to contract
with other parties to transmit its signals to, or receive its signals from the
Satellite; provided, that Lessee requires its contractors to comply with all of
the requirements of this Agreement regarding transmissions to, or reception
from, the Satellite and makes PanAmSat a third party beneficiary (or to the
extent that it may be required for enforceability, gives PanAmSat direct
privity) entitled to enforce said agreement. If Lessee retains third parties as
permitted by the previous sentence, these third parties' facilities shall be
deemed to be Lessee-Provided Facilities and the acts and omissions of these
third parties in connection with the transmission or reception of Lessee's
signals shall be deemed to be the acts and omissions of such third parties and
of Lessee.
7.07 [***]
7.08 Additional Usage Representations, Warranties and Obligations.
(a) Lessee has not been convicted for the criminal violation
of, and has not been found by the FCC or other federal, state or local
governmental authority in the United States or by a Territory Country (as
defined below) with appropriate jurisdiction (a "Governmental Authority")
to have violated, any law or regulation concerning illegal or obscene
program material or the transmission thereof (the "Obscenity/Content
Laws"), and Lessee is not aware of any pending investigation (including,
without limitation, a grand jury investigation) involving Lessee's
programming related to the Obscenity/Content Laws
[***] Filed separately with the Commission pursuant to a request for
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or any pending proceeding against Lessee for the violation of any
Obscenity/Content Laws. As used herein, "Territory Country" shall mean
any country located in the Territory.
(b) Lessee will notify PanAmSat as soon as it receives
notification of, or becomes aware of, any pending investigation by any
Governmental Authority, or any pending criminal proceeding against
Lessee, which investigation or proceeding concerns transmissions by
Lessee over the Transponders potentially in violation of any law,
including without limitation, Obscenity/Content Laws.
(c) Any use of the Lessee Transponders shall comply, in all
material respects, with all applicable laws of the United States and
each Territory Country regarding the operation or use of the Satellite
and the Lessee Transponders (including, but not limited to, any
Obscenity/Content Laws).
8. Preemptive Rights
8.01 Lessee recognizes that it may be necessary in unusual or abnormal
situations or conditions for PanAmSat deliberately to preempt or interrupt
Lessee's use of any or all of the Lessee Transponders, in order to protect the
overall performance of the Satellite. Such decisions shall be made by PanAmSat
in its sole discretion; provided, however, that, to the extent it is technically
feasible, as among the Lessee Transponders, PanAmSat shall preempt or interrupt
the use of Lessee Transponders in the order provided by Lessee in accordance
with Section 9.02. To the extent technically feasible, PanAmSat shall give
Lessee at least forty-eight (48) hours' notice of such preemption or
interruption, shall provide Lessee with information regarding the technical
circumstances and reasons for such preemption or interruption, and shall use its
reasonable best efforts to schedule and conduct its activities during periods of
such preemption or interruption so as to minimize the disruption to the use of
Lessee Transponders on the Satellite. To the extent that such preemption results
in a loss to Lessee of the use of the Lessee Transponders sufficient to
constitute a breach of PanAmSat's obligations as set forth in Section 12, Lessee
shall have all of the rights and remedies set forth in Sections 6.07, 9 and 12.
8.02 If a Lessee Transponder is not meeting the applicable Transponder
Performance Specifications, but Lessee elects to continue to use (and pay for)
such Lessee Transponder, as degraded, PanAmSat may interrupt Lessee's use as
necessary to perform testing or take any other action that may be appropriate to
attempt to restore the affected Lessee Transponder to the applicable Transponder
Performance Specifications. In such event, PanAmSat shall coordinate activities
with affected users of the Satellite and shall use all reasonable efforts to
minimize the overall disruption. To the extent that any period of interruption
results in a loss to Lessee of the use of such Lessee Transponder that is
sufficient to constitute a Confirmed Failure, Lessee shall have all of the
rights regarding Outage Allowances that are set forth in Section 6.07.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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8.03 Satellite Power Constraint. As the Satellite increases in age,
because of overall power constraints on the Satellite, it may be necessary to
cease operating (or interrupt operation of) one or more Transponders on the
Satellite. If such deactivation is required, to the extent consistent with
protecting the overall health and performance of the Satellite, and to the
extent technically feasible, PanAmSat will, as between the Lessee Transponders
and other Transponders on the Satellite, deactivate Transponders in reverse
order of the priority stated in Section 9.02 below. If any Lessee Transponder
will be affected, and such action can be anticipated, PanAmSat will give Lessee
at least thirty days' notice or such lesser period of notice as is practical
under the circumstances. The deactivation of a Lessee Transponder under this
Section 8.03 shall be treated as a failure of the capacity to meet the
applicable Transponder Performance Specifications.
9. Transponder Spares
9.01 Use of Transponder Spares. The Satellite contains certain Ku-Band
redundant equipment units (individually, a "Transponder Spare"), which are
designed as substitutes for equipment units the failure of which could cause a
Transponder to fail to meet the Transponder Performance Specifications.
PanAmSat, as soon as possible and to the extent technically feasible, shall
employ a Transponder Spare in the Satellite as a substitute for any Lessee
Transponder equipment unit that has caused any Lessee Transponder to suffer a
Confirmed Failure (as defined in Section 12.02) in order to enable such Lessee
Transponder to meet the Transponder Performance Specifications. To the extent
technically feasible, a Transponder Spare will be substituted for the faulty
equipment unit on a first-needed, first-served basis to satisfy PanAmSat's
obligations to Lessee and to other Owners or Users of Transponders on the
Satellite, if any, which have suffered Confirmed Failures; provided, however,
that PanAmSat's obligations to provide Transponder Spares shall continue until
such time as all of the Transponder Spares are committed to use as substitutes
for Transponders which have suffered Confirmed Failures. If PanAmSat furnishes a
Transponder Spare to Lessee as a substitute for an equipment unit that has
caused a Lessee Transponder to suffer a Confirmed Failure, then such Transponder
Spare shall become part of the Transponder which is leased to Lessee hereunder,
and Lessee, concurrently, shall no longer have any right to lease or otherwise
use the failed equipment unit. Any Lessee Transponder equipment unit which has
been returned shall be made available by PanAmSat, to the extent technically
feasible, to satisfy its obligations to any other Owners of Transponders on the
Satellite. Lessee agrees and acknowledges that the Transponder Spare redundancy
plan of the Satellite may require PanAmSat to reassign certain TWTAs among
Transponders to make use of spare equipment. In circumstances in which a
Transponder Spare is required to be employed for any Owner and to do so requires
a change in the TWTA assigned to Lessee, Lessee shall, on notice from PanAmSat,
immediately cease transmitting to the Lessee Transponder using such TWTA to
allow such reassignment and for a different TWTA (which must meet or exceed the
applicable Transponder Performance specifications) to be assigned to such Lessee
Transponder. PanAmSat also shall have the right, until the Transponder Spares
are needed, to utilize such Transponder Spares in any manner PanAmSat
determines.
9.02 Simultaneous Failure -- Priority with Respect to the Use of
Transponder Spares. If Transponders of more than one Owner simultaneously suffer
a Confirmed Failure, then, to the extent technically feasible, the Lessee
Transponders shall have priority over the Transponders of
[***] Filed separately with the Commission pursuant to a request for
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other Owners as to the use of a Transponder Spare. In the event that one or more
Lessee Transponders simultaneously suffer a Confirmed Failure, then such Lessee
Transponders shall have priority amongst themselves as to the use of Transponder
Spares according to the list set forth in Exhibit C (provided, however, that
Lessee shall have the right at any time from time to time, by written notice to
PanAmSat, to change the priorities between and among any of the Lessee
Transponders), to the extent technically feasible. As used in this Section 9.02,
the term "simultaneously" shall be deemed to mean occurring within any 24-hour
period.
9.03 PanAmSat's Ownership of Transponders. PanAmSat may retain or
acquire ownership of any Transponders (any Transponders so retained or acquired
by PanAmSat being referred to herein as "PanAmSat's Transponders"). In such
event, PanAmSat shall have the same right to use PanAmSat's Transponders as any
other Owner (taking into account such Owner's rights as set forth in the
relevant transponder purchase agreement, lease agreement or license agreement)
would have, including, without limitation, the right to utilize Transponder
Spares in the event PanAmSat's Transponders do not meet the Transponder
Performance Specifications. PanAmSat also shall have the right, but not the
obligation, to utilize PanAmSat's Transponders to satisfy PanAmSat's obligations
(i) to Lessee under this Agreement, or (ii) to any other Owners. PanAmSat's
priority under the provisions of this Section 9 and other sections of this
Agreement shall be determined in accordance with Section 9.02.
10. Termination Rights
10.01 Termination by Lessee for Transponder Failure. Provided that
Lessee is not in default of any of its material obligations under the Agreement,
Lessee shall have the right to terminate its obligations under this Agreement
upon delivery of written notice to PanAmSat at least thirty (30) days' prior to
the effective date of such termination, only if prior to the last day of the
Term, more than one-half of the total number of Lessee Transponders then being
leased on Galaxy VIII(i)R become Failed Transponders (as defined in Section
12.01) and PanAmSat has not, within one (1) month of such failure, restored such
Failed Transponders to the applicable Transponder Performance Specifications
(including through the use of Transponder Spares or Additional Transponders);
provided that such failure does not result from a force majeure condition (as
set forth in Section 11.01, unless (i) such force majeure condition continues
for longer than one (1) month and during such period all of such Lessee
Transponders remain Failed Transponders; and (ii) such force majeure condition
is not attributable to acts or omissions of Lessee any of Lessee's Contractors
or "Users" (as defined in Section 10.06) or the employees, directors or agents
of Lessee or of any of Lessee's Contractors or Users). If Lessee terminates its
obligations as to all Lessee Transponders as set forth in this Section 10.01
(the "Terminated Transponders"), then Lessee shall be entitled to a full refund,
without interest, of all lease prepayments made, if any, for each such
Terminated Transponder, less any payments made by PanAmSat to it on account of
such Terminated Transponders pursuant to other provisions of this Agreement, and
Lessee and PanAmSat shall have no further obligations to each other as to each
such Terminated Transponder, except for (i) obligations arising with respect to
such Terminated Transponder prior to its becoming a Failed Transponder, and (ii)
Lessee's obligation to pay [***] for all periods prior to such termination.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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10.02 Termination by PanAmSat.
-----------------------
(a) Notwithstanding anything else set forth in this Agreement
and in addition to all other remedies PanAmSat may have, PanAmSat may
immediately terminate this Agreement if: (i) Lessee shall have failed to pay any
amount due and payable pursuant to the provisions of Section 3, and Lessee has
been given written notice by PanAmSat of said failure (and the Chief Financial
Officer and General Counsel of GLA have been given a copy of such notice) and
Lessee shall have failed to pay the amount due and payable within ten (10)
business days after PanAmSat has given such notice to Lessee; (ii) Lessee fails
to cease any activity in violation of Section 7.02, 8.01 or 10.06 upon receiving
notice from PanAmSat in accordance with Section 20.03(a); (iii) Lessee fails to
cease any other activity in violation of Lessee's obligations under this
Agreement within thirty (30) days after receiving from PanAmSat a written notice
of such violations; or (iv) PanAmSat terminates the Galaxy IIIC Lease Agreement;
provided that in the case of any of (i), (ii) or (iii), GLA has not assumed and
performed all of Lessee's obligations pursuant to a GLA Assumption as set forth
in Section 2.02 hereunder within the cure period specified in the applicable
clause.
(b) In the event of a termination under clause (i) of Section
10.02(a), PanAmSat may accelerate and declare immediately due and payable all
remaining payments due under this Agreement through the end of the Term. In the
event of a termination under any of clauses (ii), (iii) or (iv) of Section
10.02(a), Lessee shall continue to be responsible for all remaining payments as
they would otherwise have become due and payable under this Agreement through
the end of the Term but for such termination; provided, that if Lessee fails to
make payment of any such amount such that a termination right would arise under
clause (i) of Section 10.02(a), then PanAmSat may accelerate and declare
immediately due and payable all remaining payments that would otherwise have
become due and payable under this Agreement through the end of the Term.
(c) Any late payments by Lessee to PanAmSat shall be with
interest calculated at the "Interest Rate" set forth in Section 20.01, payable
with the amount due and calculated from the date payment was due until the date
it is received by PanAmSat. PanAmSat shall have the obligation to mitigate its
damages in connection with any breach by Lessee of this Agreement only to the
extent mandated by the internal laws of the State of California. As an
indication only and not as a limitation, PanAmSat shall not have any obligation
to remarket the Lessee Transponders prior to leasing or selling all transponders
on satellites either launched or expected to be launched by PanAmSat or any of
its affiliates.
10.03 PanAmSat's Right to Transfer. If, for any reason whatsoever,
(i) Lessee does not make the payments in the amounts and on the dates set forth
in Section 3 or any other event occurs which may give rise to a termination
right under 10.02 if uncured and (ii) if applicable, Lessee and GLA fail to cure
such default as set forth in Section 10.02, then, in addition to all of its
other remedies at law or in equity, PanAmSat shall be entitled immediately to
Transfer (as defined in Section 13) any or all of the Lessee Transponders to
whomever PanAmSat sees fit, Lessee shall
[***] Filed separately with the Commission pursuant to a request for
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C-16
not be entitled to any equitable relief as a result thereof, and Lessee's
exclusive remedy shall be limited to recovery of any payments made to it by
PanAmSat, without interest, less any claim PanAmSat has against Lessee by reason
of Lessee's default.
10.04 Prompt Repayment. All refunds provided for in this Section 10
to be made by PanAmSat shall be made within fifteen (15) business days of
receipt by PanAmSat of notice of termination by Lessee, and any late payment by
PanAmSat to Lessee shall be with interest calculated at the "Interest Rate" set
forth in Section 20.01, payable with the amount due and calculated from the date
payment was due until the date it is received by Lessee.
10.05 Termination by Lessee or PanAmSat. Notwithstanding anything
else set forth in this Agreement, either Lessee or PanAmSat may terminate its
obligations under this Agreement as to the Lessee Transponders, upon written
notice to the other party: (i) if the FCC shall have by Final Order (as defined
below), prevented PanAmSat from using the Satellite or the Transponders to
transmit to the Territory; or (ii) as provided under the provisions of Section
5.03. As used herein, an order of the FCC becomes a "Final Order" when the FCC's
action is no longer subject to administrative or judicial reconsideration,
rehearing, review, stay, appeal or other similar actions which could be filed
with the FCC or with any court having jurisdiction to review said action.
10.06 Right to Deny Access.
(a) If, in connection with using the Lessee Transponders,
(i) User (as defined below) is indicted or is
otherwise charged as a defendant in a criminal proceeding
based upon, or is convicted under, any Obscenity/Content Law
or has been found by any Governmental Authority to have
violated any such law;
(ii) based on any User's use of the Transponders,
PanAmSat is indicted or otherwise charged as a criminal
defendant, becomes the subject of a criminal proceeding or a
governmental action seeking a fine, license revocation or
other sanctions, or any Governmental Authority seeks a cease
and desist or other similar order or filing;
(iii) the FCC has issued an order initiating a
proceeding to revoke PanAmSat's authorization to operate the
Satellite;
(iv) PanAmSat obtains a court order pursuant to
Section 10.06(c) or a court or Governmental Authority of
competent jurisdiction orders PanAmSat to deny access to User
or orders User to cease transmission;
(v) PanAmSat receives written notice (the "Illegal
Programming Notice") from a Governmental Authority that such
authority considers Lessee
[***] Filed separately with the Commission pursuant to a request for
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and/or any other User's programming to be in violation of
Obscenity/Content Laws (the "Illegal Programming"), and that
if PanAmSat does not cease transmitting such Illegal
Programming, then PanAmSat and/or its affiliates and/or any of
their executives will be indicted or otherwise charged as a
criminal defendant, will become the subject of a criminal
proceeding or a governmental action seeking a fine, license
revocation or other sanctions, or that such Governmental
Authority will seek a cease and desist or other similar order
or filing (with PanAmSat being obligated, to the extent
permitted by law, to provide Lessee with a copy of such
Illegal Programming Notice);
(vi) PanAmSat has the right to terminate this
Agreement pursuant to Section 10.02 (provided that any notice
that would be required for termination under Section 10.02
shall also be given for any such denial of access); or
(vii) Lessee's signal(s) is being "jammed" by a
third party (governmental or otherwise) and such jamming is
interfering with the use or threatens the health of the
Satellite; provided that PanAmSat shall, in cooperation with
Lessee, use its reasonable efforts through available legal
means to cause such jamming to be stopped as soon as possible;
provided further that the foregoing shall not require either
Lessee or PanAmSat to institute legal proceedings against any
third party;
then, upon notice from PanAmSat to Lessee (the "Denial of Access
Notice"), User shall cease using the Lessee Transponders immediately,
in the case of a denial of access pursuant to subparagraphs (i), (ii),
(iii), (iv), (vi) or (vii) above, or within 24 hours following receipt
of such notice, in the case of a denial of access pursuant to
subparagraph (v), above; and if User does not voluntarily cease using
such capacity at the appropriate time, then PanAmSat shall have the
right to take such steps as PanAmSat deems necessary to prevent User
from accessing the Lessee Transponders. Provided, however, that in the
case of an Illegal Programming Notice, if User has more than one
programming service, then the denial of access by PanAmSat shall apply
only to the Transponders used to provide the alleged Illegal
Programming service, as best as can be determined by PanAmSat; and
provided further, however, that if, upon receipt of the Denial of
Access Notice from PanAmSat, User does not immediately cease
transmission of such Illegal Programming service, then PanAmSat shall
have the right to take such steps as PanAmSat deems necessary to
prevent User from accessing the Transponders used to transmit such
Illegal Programming service (and if, thereafter, Lessee transmits such
Illegal Programming service using any of the Lessee Transponders, then
PanAmSat shall have the immediate right, without further notification,
to take such steps as PanAmSat deems necessary to prevent Lessee from
accessing any Lessee Transponder). As used herein, "User" shall mean
Lessee and any person to whom Lessee Transfers all or part of its right
to use any of the Lessee Transponders, including without limitation, a
lessee, licensee or assignee. Lessee agrees to maintain a properly
operating facsimile machine at all times to receive the Denial of
Access Notice from PanAmSat.
(b) If PanAmSat denies, or has given Lessee notice of its
intent to deny, access
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to the Lessee Transponders pursuant to the provisions of this Section
10.06, and if Lessee does not believe the conditions set forth in this
Agreement to PanAmSat's denial of access have been met, then Lessee
shall have the immediate right to seek injunctive relief, including a
temporary restraining order on notice of four (4) hours or more to
PanAmSat, to prevent the denial or continuing denial of such access by
PanAmSat.
(c) PanAmSat shall also have the right to seek: (i)
injunctive relief, including a temporary restraining order on notice of
four (4) hours or more to Lessee, to prevent, suspend or otherwise
limit User's continued access to the Lessee Transponders where PanAmSat
believes such use has resulted or will result in a violation of any
Obscenity/Content Law; or (ii) declaratory relief to establish its
right to deny User's access to Lessee Transponders under this
Agreement.
(d) Either party shall be entitled to oppose the other's
attempt to obtain equitable relief. However, in order to enable either
party to obtain a resolution of any such dispute as expeditiously as
possible, both parties hereby agree that: (i) neither party will
contest the jurisdiction of, or the venue of, any action for equitable
relief brought by the other party in the following courts: the U.S.
District Court for the Southern District of New York and the U.S.
District Court for the Central District of California; (ii) the party
opposing equitable relief (the "Opposing Party") will make itself
available to accept service by telecopy or personal delivery on a 24
hour-a-day basis for five (5) consecutive days following receipt by the
Opposing Party of the other party's notice of its intent to seek such
equitable relief; and (iii) if either party seeks a temporary
restraining order and provides notice to the Opposing Party at least
four (4) hours before the scheduled court hearing, then the Opposing
Party will not challenge the timeliness of such notice.
(e) If it is determined by final judicial order that PanAmSat
prevented Lessee from accessing any or all of the Lessee Transponders
at a time when it did not have the right to do so pursuant to this
Section 10.06, then Lessee's sole and exclusive remedy shall be
PanAmSat's payment to Lessee of liquidated damages equal to [***] for
the terminated capacity, such pro-ration to be based on the period of
time of loss of use of such capacity and the amount of capacity
affected. Except as provided in the immediately preceding sentence, a
denial of access made by PanAmSat under this Section 10.06 shall not
result in any Outage Allowance, refund or other damages to Lessee, and
all Monthly Base Lease Rate and TT&C Fee payments shall continue to be
due and payable.
(f) All remedies of PanAmSat set forth in this Section 10.06
shall be cumulative and in addition to, and not in lieu of, any other
remedies available to PanAmSat at law, in equity or otherwise, and may
be enforced by PanAmSat concurrently or from time to time.
(g) In addition to any other indemnification obligations
found elsewhere in this Agreement, Lessee shall indemnify and save
PanAmSat, its directors, officers, employees, and its affiliates from
any liability or expense arising out of or related to User's use of the
Lessee Transponders in violation (or alleged violation) of this Section
10.06. Lessee shall
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pay all expenses (including reasonable attorneys' fees) incurred by
PanAmSat in connection with all legal or other formal or informal
proceedings, instituted by any private third party or any Governmental
Authority, and arising out of or related to User's use of the Lessee
Transponders under this Section 10.06, and Lessee shall satisfy all
judgments, fines, penalties, costs, or other awards which may be
incurred by or rendered against PanAmSat as a result thereof, as and to
the extent permitted by law.
10.07 Termination by Lessee upon Galaxy IIIC Lease Commencement Date.
Lessee shall have the right to terminate this Agreement by giving PanAmSat
written notice of termination on or before the date that is [***] after the
Galaxy IIIC Lease Commencement Date; provided however, that such right to
terminate shall expire immediately upon a launch failure of Galaxy IIIC or a
satellite failure of Galaxy IIIC under circumstances which make it clearly
ascertainable or predictable, by technical analysis, that the Galaxy IIIC Lease
Commencement Date will not occur with such Galaxy IIIC satellite. In the event
that Lessee terminates this Agreement pursuant to this Section 10.07, Lessee
understands that PanAmSat intends to exercise its rights to terminate and/or to
modify its agreements for the construction and launch of Galaxy VIII(i)R, and
Lessee agrees to reimburse PanAmSat, or, at PanAmSat's election, to pay directly
to the party to which PanAmSat owes, all amounts owed by PanAmSat to the
Satellite Manufacturer and the Launch Provider pursuant to the applicable
agreement as a result of such termination or modification (including delay costs
or charges) (collectively, the "Termination Costs"). PanAmSat agrees to use
commercially reasonable efforts to mitigate the total of such Termination Costs.
All Termination Costs owed by Lessee to PanAmSat (or, if so elected by PanAmSat,
to the Satellite Manufacturer and the Launch Provider) under this Section 10.07
shall be paid by Lessee [***] PanAmSat delivers to Lessee a statement of
Termination Costs certified by the Chief Financial Officer of PanAmSat as true
and accurate and an amortization schedule of the payments required hereunder by
Lessee. Any subsequent decrease or increase in the total Termination Costs owed
by PanAmSat to the Satellite Manufacturer or the Launch Provider shall result in
a corresponding [***]. Lessee's obligations under this Section 10.07 shall
survive termination of this Agreement pursuant to this Section 10.07.
11. Force Majeure
11.01 Failure of Performance. Any failure in the performance of the
Transponders, once provided, shall not be a breach of this Agreement if such
failure results from acts of God, governmental action or Law (whether in its
sovereign or contractual capacity) or any other circumstances reasonably beyond
the control of PanAmSat, including, but not limited to, earth station sun
outage, weather, or acts or omissions of Lessee or any third parties (excluding
affiliates of PanAmSat with whom PanAmSat contracts for any components of the
Satellite or any services with respect thereto). Nothing in this Section 11.01
shall excuse (i) PanAmSat's obligations to provide Transponder Spares, to the
extent available and technically feasible, to satisfy its obligations as set
forth in Section 9 or (ii) PanAmSat's obligations under Sections 6.08 and 6.09.
12. Limitation of Liability/Breach of Warranty
12.01 Liability of PanAmSat. If (i) after the Galaxy VIII(i)R Lease
Commencement
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Date, a Lessee Transponder fails to meet the Transponder Performance
Specifications prior to the last day of the Term, (ii) such failure is deemed to
be a "Confirmed Failure" (as defined in Section 12.02), and (iii) PanAmSat is
unable to furnish the necessary Transponder Spare as a substitute for such
Lessee Transponder pursuant to Section 9, then such Transponder shall be deemed
to be a "Failed Transponder." In the event that any such failure of a Lessee
Transponder is excused by an event set forth in Section 11.01, Lessee shall be
entitled to cease making a pro rata portion of the Monthly Base Lease Rate
payments as to such Lessee Transponder for so long as the event set forth in
Section 11.01 continues.
12.02 Confirmed Failure. A Lessee Transponder shall be deemed to have
suffered a "Confirmed Failure" if (a) it fails to meet the Transponder
Performance Specifications for a cumulative period of more than [***] during any
consecutive [***] period, (b) [***] or more "outage units" (as defined below)
occur within a consecutive [***] period, or (c) it fails to meet the Transponder
Performance Specifications for any period of time under circumstances that make
it clearly ascertainable or predictable, by technical analysis, that the failure
set forth in either (a) or (b) of this Section 12.02 will occur. An "outage
unit" shall mean the failure of the Lessee Transponders to meet the Transponder
Performance Specifications for a [***] period in one day (with each such [***]
period in the same day constituting a separate outage unit). As used herein, the
term "day" shall mean a 24-hour period of time commencing on 12:00 Midnight
Eastern Time. Lessee shall give PanAmSat immediate notification of any such
failure, as soon after commencement of any such failure as is reasonably
possible, and of the relevant facts concerning such failure. Upon PanAmSat's
verification that a Lessee Transponder has suffered a Confirmed Failure, such
failure shall be deemed to have commenced upon receipt by PanAmSat of
notification from Lessee, or PanAmSat's actual knowledge, whichever first
occurs, of the Confirmed Failure. If PanAmSat has actual knowledge that a Lessee
Transponder has suffered a failure which is clearly ascertainable or
predictable, by technical analysis, that such failure will become a Confirmed
Failure with the passage of time, then PanAmSat shall so notify Lessee and such
Lessee Transponder shall be deemed to have suffered a Confirmed Failure upon
such notification. All determinations as to Confirmed Failures and Outage
Allowances shall be made on an individual Transponder by Transponder basis.
12.03 Repayment for Failed Transponder. For each Lessee Transponder
that has become a Failed Transponder, for which Lessee is entitled to cease
making Monthly Base Lease Rate payments, and for which Lessee has ceased making
Monthly Base Lease Rate payments, Lessee shall be entitled to a refund equal to
the product of (i) a fraction, the numerator of which is the number of days from
the date such Lessee Transponder became a Failed Transponder until the end of
the calendar month in which such failure occurred and the denominator of which
is the total number of days in the calendar month in which such failure
occurred, multiplied by (ii) the applicable Monthly Base Lease Rate actually
paid by Lessee for such Transponders for the calendar month in which such
failure occurred. PanAmSat may offset against any refund due to Lessee pursuant
to this Section 12.03 any amounts due from Lessee to PanAmSat under this
Agreement [***] and any Outage Allowance already paid to Lessee for any period
from and after the date such Lessee Transponder became a Failed Transponder. In
addition, if the performance of a Lessee Transponder is such that, while it
fails to meet the Transponder Performance Specifications, its performance is
nonetheless of some value to Lessee, then prior to accepting
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repayment calculated as aforesaid, Lessee shall have the right to negotiate with
PanAmSat to determine if there is a mutually agreeable reduced lease rate upon
which Lessee is willing to continue leasing such Transponder.
12.04 Limitation of Liability.
-----------------------
(a) 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 EXCEPT TO THE
EXTENT SPECIFICALLY AND EXPRESSLY PROVIDED FOR IN SECTION 6.02. IT IS
EXPRESSLY AGREED THAT PANAMSAT'S SOLE OBLIGATIONS AND LIABILITIES
RESULTING FROM A BREACH OF THIS AGREEMENT, AND LESSEE'S EXCLUSIVE
REMEDIES FOR ANY CAUSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
LIABILITY ARISING FROM NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY, ARE LIMITED TO
THOSE SET FORTH IN SECTIONS 6.07, 9, 10 AND 12, HEREOF, AND ALL OTHER
REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED, INCLUDING, WITHOUT
LIMITATION, ALL RIGHTS AND REMEDIES OF LESSEE UNDER DIVISION 10,
CHAPTER 5, ARTICLE 2 AND SECTIONS 10209, 10406 AND 10504 OF THE
CALIFORNIA UNIFORM COMMERCIAL CODE.
(b) IN NO EVENT SHALL PANAMSAT BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS),
WHETHER FORESEEABLE OR NOT, OCCASIONED BY ANY DEFECT IN THE
TRANSPONDERS, DELAY IN DELIVERY OR PROVISION OF THE TRANSPONDERS,
FAILURE OF THE TRANSPONDERS TO PERFORM OR ANY OTHER CAUSE WHATSOEVER.
PANAMSAT MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO ANY OTHER PERSON OR
ENTITY CONCERNING THE TRANSPONDERS OR THE SATELLITES AND LESSEE SHALL
DEFEND AND INDEMNIFY PANAMSAT FROM ANY CLAIMS MADE UNDER ANY WARRANTY
OR REPRESENTATION BY LESSEE TO ANY THIRD PARTY. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, LESSEE 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 PARENT COMPANY OF PANAMSAT OR COMMONLY CONTROLLED ENTITIES,
INCLUDING, WITHOUT LIMITATION, XXXXXX ELECTRONICS CORPORATION
(COLLECTIVELY, "PANAMSAT COMPANIES"), (B) 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 LESSEE TRANSPONDERS, OR THE PROVISION OF THE LESSEE
TRANSPONDERS TO LESSEE IN ANY CIRCUMSTANCES IN WHICH PANAMSAT WOULD BE
OBLIGATED TO INDEMNIFY THE SUPPLIER,
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OR (C) ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, PARTNER OR SHAREHOLDER
OF PANAMSAT OR ANY PANAMSAT COMPANY.
(c) Lessee shall indemnify and save the "PanAmSat Group"
(defined herein to mean PanAmSat, the PanAmSat Companies and all
officers, employees, agents, partners and shareholders of PanAmSat
and/or the PanAmSat Companies) harmless from all liability disclaimed
by PanAmSat, as specified in Sections 12.04(a) and (b) above, to the
extent such liability arises in connection with the Services provided
pursuant to this Agreement, including, without limitation, Lessee's
violation or alleged violation of any Laws (including, without
limitation, any Obscenity/Content Laws). Lessee shall pay all expenses
(including attorneys' fees) incurred by the PanAmSat Group (whether
individually or jointly) in connection with all legal or other formal
or informal proceedings concerning claims of third parties described in
the preceding sentence, and Lessee shall satisfy all judgments, costs,
or other awards which may be incurred by or rendered against the
PanAmSat Group (whether individually or jointly) in such proceeding.
Lessee shall have the right to defend any legal or other formal or
informal proceedings concerning claims of third parties; provided,
however, that Lessee shall conduct such defense with legal counsel
reasonably satisfactory to PanAmSat. Lessee shall pay any settlement of
any such claim or legal or other formal or informal proceeding, but
Lessee shall not agree to any settlement of any third party claim
without first giving thirty (30) days prior written notice of the terms
and conditions of such settlement to PanAmSat and obtaining PanAmSat's
written consent to such settlement, which consent shall not be
unreasonably withheld or delayed.
(d) Notwithstanding the limitations of the second sentence of
Section 12.04(a), Lessee and PanAmSat each shall have the right to
obtain injunctive relief, if necessary, in order to prevent the other
party from willfully breaching its obligations under this Agreement or
to compel the other party to perform its obligations under this
Agreement. In this regard, both parties acknowledge and agree that the
Lessee Transponders to be provided hereunder are unique and not readily
available on the open market and that, if the Lessee Transponders are
not available to Lessee because the terms of the Agreement are not
fulfilled through no fault of Lessee and for reasons attributable to a
breach of this Agreement by PanAmSat, then Lessee's remedies at law
would not be adequate. The parties further acknowledge and agree that
if Lessee breaches the terms of this Agreement, then PanAmSat's
remedies at law would not be adequate.
(e) [***]
12.05 Obligations of Lessee to Cooperate. If any of the Lessee
Transponders fail to meet the Transponder Performance Specifications, then
Lessee shall use reasonable efforts to cooperate and aid PanAmSat in curing such
failure; provided that such efforts can be done at minimal or no cost to Lessee,
unless reimbursed by PanAmSat.
(a) These obligations of Lessee shall include, but not be
limited to, the following:
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(i) If there is a problem which can be compensated
for by increasing the power of its transmission to the Lessee
Transponders, then Lessee shall do so, at PanAmSat's cost and
expense, to the extent it can with existing equipment;
provided, however, that PanAmSat shall not be able to require
Lessee to increase the power of its transmission if, by doing
so, it would cause interference with other Transponders on the
Satellite which is prohibited by Section 7.02 of this
Agreement, or interference with any other satellite; and
(ii) Permitting PanAmSat, at PanAmSat's cost and
expense, to upgrade Lessee's equipment; provided that Lessee
shall be entitled to select and install such equipment and
determine its configuration in accordance with its own
existing operating procedures and technical requirements, and
in accordance with applicable laws and regulations.
(b) PanAmSat shall give notice to Lessee if and when it
requires the increase of power of the transmission of any other Owner
pursuant to such Owner's obligation equivalent to this Section 12.05.
PanAmSat shall also give notice to Lessee when it acquires knowledge of
any other Transponder user uplinking at power levels which might cause
interference with the Lessee Transponders. If, after such increase in
power, any of the Lessee Transponders no longer meet its Transponder
Performance Specifications, PanAmSat shall promptly take steps to
reduce interference, if any, prohibited by Section 7.02.
(c) Lessee's priority for the use of Transponder Spares under
Section 9 shall be determined at the time that any of the Lessee
Transponders would otherwise have become a Failed Transponder without
Lessee's cooperation under this Section 12.05. Regardless of Lessee's
cooperation under this Section 12.05, Lessee shall have the right to
exercise its right to the use of a Transponder Spare to which it would
have been entitled at the time that such Lessee Transponder was
initially determined to have failed had Lessee not taken such action.
13. Limitations on Transfer by Lessee
Except as specifically provided for in this Agreement, neither Lessee
nor PanAmSat shall assign or otherwise Transfer (as defined below) its rights
under this Agreement except with the written consent of the other, which consent
may be given or withheld in such party's sole and absolute discretion, except
that PanAmSat shall have the right to assign any or all of its rights or
obligations hereunder to any affiliate of PanAmSat or its parent corporation,
Xxxxxx Electronics Corporation; provided, however, that the affiliate to which
the PanAmSat's obligations are assigned shall have the technical capability to
perform such obligations. Nothing herein shall preclude PanAmSat or its
affiliates from engaging in a transaction with respect to the Satellite commonly
referred to as a "sale-leaseback" or from granting to other parties security
interests in the Lessee Transponders or the Satellite; provided that
commercially reasonable steps are taken to protect the interests of Lessee
hereunder as provided in Section 6.03. Lessee shall not be permitted to Transfer
any of its rights under this Agreement to the Lessee Transponders to any third
party except as otherwise specified in this Agreement or with the written
consent of
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PanAmSat, which consent may be given or withheld in PanAmSat's sole and absolute
discretion; provided, however, that Lessee shall have the right to assign its
rights hereunder to GLA (or its successor in interest conducting the direct-to-
home business currently conducted by GLA) without PanAmSat's consent provided
that GLA agrees to be bound by this Agreement as if the original Lessee
hereunder. "Transfer" shall mean to grant, sell, assign, encumber, permit the
utilization of, license, lease, sublease or otherwise convey, directly or
indirectly, in whole or in part.
14. Utilization of Transponders for Services
PanAmSat acknowledges that Lessee may utilize the Lessee Transponders
solely for the provision of services to third parties, including, without
limitation, GLA. PanAmSat further acknowledges that as long as such utilization
does not conflict with any of the other provisions of this Agreement, such
utilization shall not constitute a Transfer.
15. Monthly Satellite Reports
15.01 Reports. Lessee shall receive monthly reports on the overall
performance of Galaxy VIII(i)R in the form of the Galaxy satellite status
reports similar to the Galaxy VIII(i) satellite services monthly report, plus
information furnished to insurers.
15.02 Anomalous Operation Notification. PanAmSat shall notify Lessee
as soon as possible by telephone, with prompt written confirmation thereafter,
of any significant anomalous condition which it detected in the Transponders or
associated Satellite supporting subsystems and which have a material effect or
potential material effect on the Satellite. PanAmSat shall also notify Lessee
promptly of any circumstances that make it clearly ascertainable or predictable
that any of the incidents described in this Section 15.02 will occur.
15.03 Maneuver Notification. To the extent operationally feasible,
PanAmSat shall notify Lessee of all Satellite maneuvers, except for routine
station-keeping and momentum dumping, at least three (3) days in advance of
their scheduled initiation and, if such maneuver will result in a change of the
Satellite's assigned orbital position, promptly following PanAmSat's receipt of
FCC authorization or direction of such maneuver.
16. Confidentiality and Press Releases
16.01 Confidential Information. PanAmSat and Lessee shall hold in
confidence this Agreement and all its Exhibits, including the financial terms
and provisions hereof and all information received pursuant to this Agreement,
including, without limitation, Section 15, and all other information related to
this Agreement not otherwise known to the public (collectively, "Confidential
Information"), and PanAmSat and Lessee hereby acknowledge and agree that the
Confidential Information is confidential and proprietary and is not to be
disclosed to third persons without the prior written consent of both PanAmSat
and Lessee. Neither PanAmSat, nor Lessee, shall disclose such Confidential
Information to any third party (other than to officers, directors, employees and
agents of PanAmSat, Lessee or GLA, each of whom shall be bound by this Section
16.01) except:
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(a) to the extent necessary to comply with applicable law or
the valid order of a governmental agency or court of competent
jurisdiction, or to satisfy its obligations to other Owners of
Transponders; provided, however, that the party making such disclosure
shall seek confidential treatment of said information;
(b) as part of its normal reporting or review procedure to
regulatory agencies, its parent company, its auditors and its
attorneys; provided, that the party making such disclosure to any such
regulatory agency shall seek confidential treatment of such
information; and, provided, further, that any other third party to whom
disclosure is made agrees to the confidential treatment of such
information;
(c) in order to enforce its rights and perform its
obligations pursuant to this Agreement;
(d) to the extent necessary to obtain appropriate insurance,
to its insurance agents; provided that such agents agree to the
confidential treatment of such information; and
(e) to the extent necessary to negotiate clauses that will be
common to all transponder lease agreements.
16.02 Notice Proceeding; Compelled Disclosure. In the event that
either party is requested (the "Disclosing Party") pursuant to, or becomes
compelled by, applicable law, regulation or legal process to disclose any
Confidential Information, the Disclosing Party will provide the other party with
prompt written notice so that the other party may seek a protective order or
other appropriate remedy or, in the other party's sole discretion, waive
compliance with the terms of this Agreement. In the event that no such
protective order or other remedy is obtained, or that the other party waives
compliance with the terms of this Agreement, the Disclosing Party will furnish
only that portion of the Confidential Information which the Disclosing Party is
advised by counsel is legally required and cooperate, at the other party's sole
cost and expense, with the other party's efforts to obtain reliable assurance
that confidential treatment will be accorded the Confidential Information.
16.03 Press Releases. The parties agree that no press release
relating to the terms and conditions of this Agreement shall be issued without
the approval of both parties.
16.04 Compliance with U.S. Export Laws. The parties agree and
acknowledge that, notwithstanding anything herein to the contrary: (a)
PanAmSat's disclosure of information to Lessee, GLA and any other third party
required pursuant to this Agreement (including, without limitation, Sections
1.04, 4.02, 15.01, 15.02 and 15.03) shall be subject to compliance with the Laws
of the United States regarding export restrictions ("U.S. Export Laws"), and
that such U.S. Export Laws may prohibit, limit or delay PanAmSat's ability to
disclose information as otherwise required under this Agreement; and (b) to the
extent that any information disclosed by PanAmSat to Lessee under the Agreement
is subject to U.S. Export Laws (including, without limitation, the
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International Traffic in Arms Regulations, 22 CFR ss.ss.120-130 ("ITAR")),
Lessee shall handle such information in compliance with the applicable U.S.
Export Laws and shall not disclose, transfer or otherwise export (as defined in
ITAR ss. 120.17) such information to any foreign individual (including employees
of Lessee), foreign corporation (including subsidiaries or affiliates of
Lessee), foreign government or other foreign person (as defined in ITAR ss.
120.16) without the prior written authorization of the U.S. government. This
Section 16.04 shall survive the termination of this Agreement for any reason.
17. Disposition of Satellite
At the earlier of the time as (i) the remaining fuel on board Galaxy
VIII(i)R is less than [***] of its initial mass prior to launch, including
uncertainty in estimate of fuel, as determined by PanAmSat in its sole
discretion; (ii) there are fewer than [***] Transponders capable of meeting
their respective Transponder Performance Specifications; or (iii) [***],
PanAmSat, in its sole discretion, may remove the Satellite from its assigned
orbital location. In such event, this Agreement shall terminate, PanAmSat shall
have no further obligations to Lessee under this Agreement, and the Lessee
Transponders shall be deemed, without any further action by any party, to be
redelivered to PanAmSat and PanAmSat shall be entitled to immediate possession
thereof and PanAmSat, in its sole discretion, may remove the Satellite from its
assigned orbital location. PanAmSat shall thereafter have the right to utilize
such redelivered Transponders in any manner it determines. PanAmSat will, to the
extent practicable, provide Lessee with ninety (90) days notice prior to the
disposition of Galaxy VIII(i)R pursuant to this Section 17. Notwithstanding the
foregoing, until PanAmSat so removes Galaxy VIII(i)R or this Agreement is
terminated or expires in accordance with its provisions, PanAmSat shall continue
to make available to Lessee the Lessee Transponders and Transponder Spares
(subject to the priority provisions contained herein) the use of Transponders
and Transponder Spares on the Satellite on operational and payment terms no less
favorable than PanAmSat has offered to other lessees at such time. The
"Satellite Removal Date" shall mean the date on which PanAmSat removes the
Satellite from its assigned orbital location in accordance with this Section 17.
18. Documents
Each party hereto agrees to execute and, if necessary, to file with the
appropriate governmental entities, such documents as the other party hereto
shall reasonably request in order to carry out the purpose of this Agreement.
19. Conflicts
In the case of a conflict between the provisions of this Agreement and
any Exhibit, the provisions of this Agreement will prevail.
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20. Miscellaneous
20.01 Interest. The rate of interest referred to herein (the "Interest
Rate") shall be equal to the lower of (i) the rate per annum equal to [***] or
(ii) the highest legally permissible rate of interest. All interest or
discounting shall be compounded on a yearly basis. "Pro rata" shall mean an
allocation on a straight line basis based on number of days. All present value
analyses shall use an annual discount rate equal to the Interest Rate on the
applicable date.
20.02 Applicable Law and Entire Agreement. The existence, validity,
construction, operation and effect of this Agreement and the Exhibits hereto,
shall be determined in accordance with and be governed by the laws of the State
of California, without reference to the conflicts of laws principles thereof.
This Agreement and the Exhibits hereto constitute the entire agreement between
the parties, and supersedes all previous understandings, commitments or
representations concerning the subject matter hereof, except for the Galaxy
VIII(i) Lease Agreement and the Galaxy IIIC Lease Agreement. The parties each
acknowledge that the other party has not made any representations other than
those which are contained herein.
20.03 Notices.
(a) Telephone Notices. For the purpose of receiving notices
from PanAmSat regarding preemption, interference or other technical problems,
including with respect to Transponder failure and restoration, Lessee shall
maintain at each earth station transmitting signals to the Satellite a telephone
that is continuously staffed at all times during which Lessee 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 20.03(b) below.
(b) General Notices. All notices and other communications
from either party to the other hereunder (or copies of any such notices or other
communications to be delivered to GLA, the delivery of which (or failure to
deliver) shall not affect, in any manner, notice by or to either of the parties
hereto) shall be in writing and shall be deemed received upon actual receipt
when personally delivered, upon acknowledgement of receipt (electronically or
otherwise) if sent by facsimile or upon the expiration of the third business day
after being deposited in the United States mails, postage prepaid, certified or
registered mail, addressed to the other party as follows:
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-28
TO PanAmSat:
If by mail: PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
If by FAX: PanAmSat Corporation
Attention: General Counsel
(000) 000-0000
If by personal
delivery to its
principal place
of business at: PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
TO LESSEE:
If by mail: California Broadcast Center, LLC
c/x Xxxxxx Electronics Corporation
000 Xxxxxxxxx Xxxx.
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx, Esq.
Assistant General Counsel
If by FAX: California Broadcast Center, LLC
c/x Xxxxxx Electronics Corporation
Attention: Xxxxx Xxxxxxxxxxxx, Esq.
Assistant General Counsel
(000) 000-0000
If by personal
delivery to its
principal place
of business at: California Broadcast Center, LLC
c/x Xxxxxx Electronics Corporation
000 Xxxxxxxxx Xxxx.
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx, Esq.
Assistant General Counsel
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-29
TO GLA:
If by mail: DIRECTV Latin America, LLC
0000 Xxxx Xxxxxxxxxx Xxxx.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
If by FAX: DIRECTV Latin America, LLC
Attn: Xxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
If by personal
delivery to: DIRECTV Latin America, LLC
0000 Xxxx Xxxxxxxxxx Xxxx.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
All payments to be made under this Agreement, if made by mail, shall be deemed
to have been made on the date of receipt thereof. The parties hereto may change
their addresses by giving notice thereof in conformity with this Section 20.03.
20.04 Severability. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to law, and
wherever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, order or regulation, such statute, law, ordinance,
order or regulation shall prevail; provided, however, that in such event the
provisions of this Agreement so affected shall be curtailed and limited only to
the extent necessary to permit compliance with the minimum legal requirement,
and no other provisions of this Agreement shall be affected thereby and all such
other provisions shall continue in full force and effect.
20.05 Taxes. If any property, sales or other taxes, charges (including
universal service fund contribution charges, if any), levies, duties,
withholding, usage or other fees (collectively, "Taxes") are asserted against
PanAmSat after, or as a result of, Delivery, by any local, state, national or
international, public or quasi-public governmental entity, in respect of the
Lessee Transponders or the lease thereof to Lessee, Lessee shall be solely
responsible for such Taxes. At Lessee's expense, PanAmSat shall cooperate with
Lessee in contesting in good faith any such Taxes. If any Taxes are asserted by
reason of the use of the point in space or the frequency spectrum at that point
in space in which the Satellite containing the Lessee Transponders are located,
or the use or ownership of such Satellite (excluding any FCC license fee imposed
on the Satellite itself, as compared to the Transponders, which license fee
shall be paid by PanAmSat), and such Taxes are not specifically allocated among
the various components of such Satellite, then PanAmSat, Lessee and any other
Owners of such transponders shall each pay a proportionate amount of such Taxes
based on the number of transponders each of them owns or leases.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-30
20.06 Successors. Subject to Section 13, this Agreement shall be
binding on and shall inure to the benefit of any successors and assigns of the
parties; provided that no Transfer of this Agreement shall relieve either party
hereto of its obligations to the other party. Any purported Transfer by either
party not in compliance with the provisions of this Agreement shall be null and
void and of no force and effect.
20.07 Rules of Construction. Any ambiguities shall be resolved without
reference to which party may have drafted this Agreement. All Article or Section
titles or captions contained in this Agreement are for convenience only, and
they shall not be deemed part of this Agreement and in no way define, limit,
extend or describe the scope or limit of any provisions hereof. Unless the
context otherwise requires: (i) a term has the meaning assigned to it; (ii) "or"
is not exclusive; (iii) words in the singular include the plural, and words in
the plural include the singular; (iv) provisions apply to successive events and
transactions; (v) "herein," "hereof" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; (vi) all references to "Sections" refer to Sections of this
Agreement unless otherwise specifically indicated; and (vii) any pronoun used in
this Agreement shall include the corresponding masculine, feminine and neuter
forms. References to "Contractors" of Lessee shall be deemed to include GLA as
well as local operators and other third parties under contract to GLA, CBC or
such local operators.
20.08 Survival of Representations and Warranties. All representations
and warranties contained herein or made by PanAmSat or Lessee in connection
herewith shall survive any independent investigation made by PanAmSat or Lessee.
20.09 No Third-Party Beneficiaries. The provisions of this Agreement
are for the benefit only of the parties hereto, and no third party may seek to
enforce, or benefit from, these provisions, except that both parties acknowledge
and agree that the provisions of Sections 7.02, 8, 9.01 and 9.02 are intended
for the benefit of both PanAmSat and all other Owners. Both parties agree that
any other such Owner shall have the right to enforce, as a third-party
beneficiary, the provisions of Sections 7.02, 8, 9.01 and 9.02, against Lessee
directly, in an action brought solely by such other Owner, or may join with
PanAmSat or any other Owner, in bringing an action against Lessee for violation
of such Sections. [***] In addition, if (i) PanAmSat ceases to provide to Lessee
use of the Lessee Transponders in breach of the terms of this Agreement, (ii)
Lessee is not in breach of its obligations under this Agreement and (iii) Lessee
has refused to take any action to attempt to restore its use of the Lessee
Transponders, then [***]
20.10 Non-Waiver of Breach. Either party hereto 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, at
any time, and upon notice given in writing to the breaching party, may 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.
20.11 Amendments. This Agreement may not be amended or modified in any
way, and none of its provisions may be waived, except by a writing signed by an
authorized officer of the
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-31
party against whom the amendment, modification or waiver is sought to been
enforced.
20.12 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.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-32
IN WITNESS WHEREOF, each of the parties hereto has duly executed and delivered
this Agreement as of the day and year first written above.
PANAMSAT CORPORATION
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
CALIFORNIA BROADCAST CENTER, LLC
By: DTVI One, Inc., its Managing Member
By:____________________________________
Name:
Title:
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-33
