1
EXHIBIT 10.3
Execution Copy
AMENDED AND RESTATED AGREEMENT
This Amended and Restated Agreement (the "Agreement") is entered into
this 1st day of May, 1998, by and among PanAmSat International Systems, Inc.
(formerly known as PanAmSat), a Delaware corporation ("PanAmSat"), Impsat S.A.
("Impsat"), and International Satellite Communication Holding Limited, a company
organized and existing under the laws of Liechtenstein ("Customer").
WHEREAS, PanAmSat, as successor in interest to Alpha Lyracom Space
Communications, Inc., and Impsat entered into that certain Domestic Data Service
Agreement dated May 30, 1991, as amended (the "First PAS-1 Agreement"); and
WHEREAS, Impsat assigned its rights and obligations under the First
PAS-1 Agreement to Customer on August 1, 1996 and agreed to remain liable to
PanAmSat for Customer's performance and payment obligations under the First
PAS-1 Agreement; and
WHEREAS, PanAmSat, as successor in interest to Alpha Lyracom Space
Communications, Inc., and Resis S.A. ("Resis") entered into that certain
Domestic Data Service Agreement dated April 7, 1992, as amended (the "Second
PAS-1 Agreement"); and
WHEREAS, Resis assigned its rights and obligations under the Second
PAS-1 Agreement to Customer on September 26, 1995 and agreed to remain liable to
PanAmSat for Customer's performance and payment obligations under the Second
PAS-1 Agreement; and
WHEREAS, the parties desire to amend, restate and consolidate the First
PAS-1 Agreement and the Second PAS-1 Agreement (collectively, the "PAS-1
Agreements") into a single agreement, to replace Resis as an obligor under the
Second PAS-1 Agreement with Impsat, and to enter into an agreement for provision
of satellite capacity via a follow-on satellite.
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NOW THEREFORE, in consideration of the above and other good and valuable
consideration acknowledged by the parties to have been given, the parties
mutually agree to amend and restate the PAS-1 Agreements as follows:
PREAMBLE
This Agreement covers the full time (24 hours a day, seven days a week)
lease of transponder capacity (the "Customer's Transponder Capacity") by
PanAmSat to Customer. The Customer's Transponder Capacity shall be supplied by
PanAmSat, in outerspace, initially from transponder capacity on the Central Beam
(the "Central Beam Capacity"), the North Beam (the "North Beam Capacity"), and
the Latin Beam (the "Latin Beam Capacity") of that certain Atlantic Ocean Region
Satellite referred to by PanAmSat as PAS-1 ("PAS-1"), and, subsequently, from
capacity on another Atlantic Ocean Region Satellite (the "Follow-On Satellite")
substantially comparable to the Latin Beam Capacity and meeting the requirements
set forth in Section 1.1(d) below (the "Follow-On Capacity"). References in this
Agreement to the "Customer's Transponder Capacity" shall be deemed, in context,
to refer to the Central Beam Capacity, the North Beam Capacity, the Latin Beam
Capacity and the Follow-On Capacity. The North Beam Capacity and the Latin Beam
Capacity shall be referred to collectively as the "PAS-1 Capacity." References
in this Agreement to the "Satellite" shall be deemed, in context, to refer to
PAS-1 and the Follow-On Satellite. The transponders on the Satellite and the
beams in which these transponders are grouped are referred to as
"Transponder(s)" and the "Beam(s)," respectively.
AGREEMENT
In consideration of the foregoing and of the mutual promises set forth
below, PanAmSat and Customer mutually agree as follows:
ARTICLE 1. THE LEASE.
1.1 The Customer's Transponder Capacity. PanAmSat leases, and agrees
to provide, to Customer, and Customer leases, and agrees to accept, from
PanAmSat, the Customer's Transponder Capacity meeting the applicable
"Performance Specifications" set forth in Appendix B for the applicable "Lease
Term" (as defined herein). If the
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Customer's Transponder Capacity is provided from a partial Transponder, the
Customer's Transponder Capacity shall be power and bandwidth limited, consisting
of a Transponder segment, equivalent to the amount of bandwidth (stated in
Appendix A) and associated power on the Transponder (a "Transponder Segment").
The Customer's Transponder Capacity is more particularly defined as follows:
(a) Central Beam Capacity meeting the "Performance
Specifications for PAS-1 C-Band Central Beam Transponders" (the "Central Beam
Performance Specifications") set forth in Appendix B. The Central Beam Capacity
shall consist of [ ]* MHz of bandwidth and associated power from C-band
Transponder capacity on the Central Beam of the PAS-1 Satellite, in accordance
with the parameters set forth in Table 1 of the Central Beam Performance
Specifications.
(b) North Beam Capacity meeting the "Performance
Specifications for PAS-1 C-Band North Beam Transponders" (the "North Beam
Performance Specifications") set forth in Appendix B. The North Beam Capacity
shall initially consist of [ ]* MHz of bandwidth and associated power from
C-band Transponder capacity on the North Beam of the PAS-1 Satellite, in
accordance with the parameters set forth in Table 1-B of the North Beam
Performance Specifications. As of the "Latin Beam Transition Date" (as defined
in Section 2.2(c) below), the North Beam Capacity shall be decreased to [ ]* MHz
of bandwidth and associated power from C-band Transponder capacity on the North
Beam of the PAS-1 Satellite, in accordance with Table 1-A of the North Beam
Performance Specifications.
(c) Latin Beam Capacity meeting the "Performance
Specifications for PAS-1 C-Band Latin Beam Transponders" (the "Latin Beam
Performance Specifications") set forth in Appendix B. The Latin Beam Capacity
shall be provided on a ramped basis, and shall initially consist of (i) a
Transponder Segment equivalent to [ ]* MHz of bandwidth and associated power
from C-band Transponder capacity on the Latin Beam of the PAS-1 Satellite, in
accordance with Table 1-A of the Latin Beam Performance Specifications, and (ii)
[ ]* MHz C-band Transponder from Latin Beam capacity of the PAS-1 Satellite, in
accordance with Table 1-C of the Latin Beam
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* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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Performance Specifications. As of the "Latin Beam Transition Date" (as defined
in Section 2.2(c) below), the Latin Beam Capacity shall be increased to consist
of (i) a Transponder Segment equivalent to [ ]* MHz of bandwidth and associated
power from C-band Transponder capacity on the Latin Beam of the PAS-1 Satellite,
in accordance with Table 1-B of the Latin Beam Performance Specifications, and
(ii) [ ]* MHz C-band Transponder from Latin Beam capacity of the PAS-1
Satellite, in accordance with Table 1-C of the Latin Beam Performance
Specifications.
(d) If the Agreement has not been earlier terminated in
accordance with Article 7, then upon the successful launch and placement into
assigned orbital position of the Follow-On Satellite, PanAmSat shall replace
Customer's PAS-1 Capacity with the Follow-On Capacity after the PAS-1 Satellite
is taken out of commercial operation at its assigned orbital location (in
accordance with Section 2.2 below). A "Follow-On Satellite" shall mean, for
purposes of this Agreement, another satellite containing C-band capacity that
PanAmSat places at the orbital location presently assigned to PAS-1 or at such
other orbital location to which the FCC may order the PAS-1 Satellite moved, as
provided in Section 13.1, prior to its being taken out of commercial operation.
The Follow-On Capacity shall be deemed substantially comparable to the PAS-1
Capacity if consisting of [ ]* MHz C-band Transponders, providing a minimum
saturated full-transponder EIRP in Buenos Aires of [ ]* dBW and a minimum EIRP
in Bogota of [ ]* dBW, +/- [ ]* dB (or better), with the applicable "Follow-On
Performance Specifications" to be provided by PanAmSat to Customer no less than
thirty (30) days prior to the commencement of the Lease Term for the Follow-On
Capacity. Follow-On Capacity shall be provided to Customer, if at all, in
accordance with the terms and conditions of this Agreement, amended as
appropriate to reflect any changes in technology and equipment employed, legal
requirements and other differences in circumstances that may reasonably require
modification in, or updating from, the terms and conditions stated herein (for
example, the transponder performance failure standard
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* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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may be modified to be consistent with the standard applied to other similarly
situated, full transponder customers on the Follow-On Satellite).
PanAmSat shall not preempt or interrupt the provision of the Customer's
Transponder Capacity to Customer, except as specifically permitted under this
Agreement. References in this Agreement to the "Performance Specifications"
shall, in context, be deemed to refer to the "Central Beam Performance
Specifications," the "North Beam Performance Specifications," the "Latin Beam
Performance Specifications" and the "Follow-On Performance Specifications."
1.2 Beam and Transponder Designation. The Beams, and subject to
Section 5.1 and Appendix B, the particular Transponder(s), or portion thereof,
that shall make up the Customer's Transponder Capacity shall be identified in
accordance with Appendices A and B. Initial Transponder assignment(s) shall be
specified by PanAmSat prior to the Commencement Date, as defined below.
1.3 Use for Multicarrier Digital Service. The Customer's Transponder
Capacity may be used by Customer solely for transmission of its own multicarrier
digital telecommunications services, which, for purposes of this Agreement
include the provision of value-added communications services by Customer to its
customers; provided that Customer is responsible for all facilities
communicating with the Customer's Transponder Capacity and for coordinating the
use of the Customer's Transponder Capacity with PanAmSat. In no event shall the
Customer's Transponder Capacity be used for the transmission of full-time,
part-time or occasional "Television Service," defined herein as video
programming, with associated audio signals, for broadcast, cable, direct to home
or similar mass distribution. Customer shall not employ the Customer's
Transponder Capacity for switched public international telecommunications
services, without PanAmSat's prior express written consent, such consent not to
be unreasonably withheld. If Customer interconnects the Customer's Transponder
Capacity, or any portion thereof, to the U.S. public switched network at a U.S.
common carrier's premises, Customer shall provide to PanAmSat such information
as may be required by the United States Federal Communications Commission
("FCC") as a result of such interconnection.
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1.4 Transmission Plan. Subject to PanAmSat's prior written approval
of Customer's transmission plan, Customer shall be permitted to transmit any
number of digital RF carriers to and from each Transponder or Transponder
Segment that constitutes the Customer's Transponder Capacity. Customer shall
also be permitted, subject to PanAmSat's prior written approval, to modify this
transmission plan from time to time. PanAmSat makes no representation, warranty,
or covenant regarding the efficacy of the use of any number of carriers or other
alternative uses of capacity provided under this Agreement.
ARTICLE 2. TERM, LEASE TERM.
2.1 Term. The term of this Agreement (the "Term") shall commence
upon the first date above written and, unless previously terminated in
accordance with its terms, shall remain effective until the end of the
applicable "Lease Term," as defined below.
2.2 Lease Terms.
(a) Central Beam Capacity Lease Term. The "Central Beam
Capacity Lease Term" shall start upon execution of this Agreement (the
"Commencement Date"). The Central Beam Capacity Lease Term shall continue until
the date that the PAS-1 Satellite is removed from commercial operation at its
assigned orbital location in accordance with Section 7.4 below (the "Out of
Service Date").
(b) North Beam Capacity Lease Term. The "North Beam Capacity
Lease Term" shall start upon the Commencement Date and shall continue until the
Out of Service Date of the PAS-1 Satellite.
(c) Latin Beam Capacity Lease Term. The "Latin Beam Capacity Lease
Term" shall start on the Commencement Date and shall continue until the Out of
Service Date of the PAS-1 Satellite.
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The "Latin Beam Transition Date" shall be the date that PanAmSat
certifies to Customer that [ ]* MHz of C-band Latin Beam Capacity is available
for migration of a portion of Customer's North Beam Capacity and capable of
meeting the Latin Beam Capacity Performance Specifications; provided that the
Latin Beam Transition Date shall occur, if at all, no later than sixty (60) days
after the Commencement Date.
It is understood and agreed by the parties that the availability of
capacity to increase the Latin Beam Capacity is contingent upon a variety of
conditions being met, including the election of certain existing Latin Beam
customers to transfer their service to alternative capacity, and certain
technical considerations regarding the loading of other services on Latin Beam
Transponders. The determination regarding the availability of capacity shall be
made by PanAmSat in its sole discretion; provided that, to the extent
technically feasible, PanAmSat shall make such determinations in accordance with
the order that each Customer receiving services from Latin Beam Transponders
executed a definitive agreement with PanAmSat for such capacity. In the event
the Latin Beam Transition Date does not occur, as specified above, the Latin
Beam Capacity shall continue to consist of a [ ]* MHz Transponder Segment and
[ ]* MHz Transponder until the end of the Latin Beam Capacity Lease Term.
(d) Follow-On Capacity Lease Term. The "Follow-On Capacity
Lease Term" shall commence, if at all, on the Out of Service Date of the PAS-1
Satellite provided, on such Out of Service Date, the Follow-On Capacity is
actually available for use by Customer as described in Section 1.1(d) of this
Agreement (the "Follow-On Capacity Lease Commencement Date"), and shall continue
until the twelve (12) year anniversary of the Follow-On Capacity Lease
Commencement Date. If, on such Out of Service Date, such Follow-On Capacity is
not available for use by Customer, and Customer elects not to terminate this
Agreement in accordance with Section 7.1, the parties shall mutually agree on
the Follow-On Capacity Lease Commencement Date. References in this Agreement to
the "Commencement Date" shall, in the context of the
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* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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Follow-On Capacity, be deemed to refer to the "Follow-On Capacity Lease
Commencement Date."
References in this Agreement to the "Lease Term" shall, in context, be
deemed to be references to the "Central Beam Capacity Lease Term," the "North
Beam Capacity Lease Term," the "Latin Beam Capacity Lease Term" and the
"Follow-On Capacity Lease Term."
ARTICLE 3. CUSTOMER PAYMENTS.
3.1 Lease Fee. For each month of the Lease Term beginning on the
Commencement Date, Customer agrees to pay the monthly "Lease Fee" [ ]*. If
the Lease Term of this Agreement commences on a day other than the first day of
a calendar month, or ends on a day other than the last day of a calendar month,
then the Lease Fee for such fractional month shall be prorated for each day of
such fractional month. Customer shall deposit with PanAmSat the Lease Fee for
two months on or before execution (the "Deposit"). This Deposit shall be
applied to the Lease Fee for the first month and the last month of the Lease
Term. Customer shall make each and all other payments of the Lease Fee, in
advance, no later than the first business day of each month of the Lease Term.
3.2 Guarantee. Within thirty (30) days of execution of this
Agreement and continuing throughout the remaining Term of this Agreement,
Customer's obligations to PanAmSat under this Agreement shall be secured by a
guarantee of Impsat in the form set out in Appendix D (the "Guarantee").
3.3 Manner Of Payment. All payments by Customer shall be made in
U.S. dollars without offset (unless explicitly authorized by PanAmSat under
Section 5.2 below) or withholding; shall be deemed to be made only upon receipt
by PanAmSat of collected funds; and shall be made by bank wire transfer to such
bank account as PanAmSat may designate by notice to Customer, or by cashier's or
certified check, from
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* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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a U.S. bank, delivered to PanAmSat at its principal place of business, as
designated in Section 14.5(b).
3.4 Late Payment. Any payment due from Customer to PanAmSat that is
not received by PanAmSat on the date that it is due shall be subject to a
delinquency charge (liquidated damages) at the rate of one and a half percent
(1-1/2%) per month, or the highest rate permitted by law, if less, on such
overdue amount from the due date until it is actually received by PanAmSat.
Customer acknowledges that such delinquency charge is reasonable under all the
circumstances existing as of this date.
3.5 Taxes. Customer is solely responsible for any taxes, charges
(including universal service fund contribution charges, if any), levies, duties,
withholding, or usage fees (collectively "Taxes") which may be asserted by any
local, state, or national governmental entity with respect to this Lease, the
Customer's Transponder Capacity, or the Lease Fees, with the exception of any
U.S. income taxes on PanAmSat. If any Taxes are asserted with respect to the
Satellite itself, the frequencies employed, or for the point of space that it
occupies and are not specifically applicable or attributable to particular
transponders or payments made with respect to its use, then Customer shall be
responsible for a proportionate amount, calculated as the total number of
Transponders (or portion thereof) that are leased hereunder divided by the total
number of Transponders on the Satellite.
ARTICLE 4. CUSTOMER'S OBLIGATIONS IN USING THE CUSTOMER'S TRANSPONDER CAPACITY.
4.1 Non-interference and Use Restrictions. Customer's transmissions
to and from the Satellite and its use of the Customer's Transponder Capacity
shall comply with all applicable governmental laws, rules and regulations.
PanAmSat reserves the right to require that any programming service or other
transmission be encrypted. Customer will follow established practices and
procedures for frequency coordination and will not use the Customer's
Transponder Capacity, or any portion thereof, in a manner which would or could
be expected to, under standard engineering practice, harm the Customer's
Transponder Capacity or interfere with the use of or harm any portion of the
Transponder from which the Customer's Transponder Capacity is provided that is
not assigned to Customer, any other Transponder, the Satellite, or any other
in-orbit satellite or
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transponder on such satellite. Customer shall also comply with the operational
requirements (the "Operational Requirements") set forth in Appendix C, as the
same may be modified from time to time by PanAmSat, in its reasonable
discretion.
4.2 No Terrestrial Facilities. Customer shall be responsible for the
provision, installation, operation, maintenance of, and for securing all
necessary authorizations for all earth station facilities and equipment
("Customer-Provided Facilities"), for transmitting signals to, or receiving
signals from, the Satellite in accordance with the requirements set forth in
this Agreement. Any provision by PanAmSat to Customer of earth station or other
terrestrial facilities or services shall be the subject of a separate agreement.
4.3 Customer's Transmitting Stations. Customer will configure, equip
and operate its transmit facilities so that the interface of these facilities,
in space, with the Satellite shall conform to the characteristics and technical
parameters of the Satellite. Customer will follow PanAmSat's procedures for
initiating, or terminating any transmission to the Satellite. Customer will
operate all transmit facilities in a manner that allows for cessation of, and
will cease, transmission immediately upon receiving notice from PanAmSat under
Section 14.5(a) ("Telephone Notices"). Customer will furnish 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.
PanAmSat shall have the right, but not the obligation, to
inspect any Customer-Provided Facilities together with associated facilities and
equipment used by Customer, or by a third party under the authority of Customer,
to transmit to any of the Customer's Transponder Capacity. PanAmSat will use all
reasonable efforts to schedule inspections to minimize the disruption of the
operation of the facilities, and Customer shall make the facilities available
for inspection at all reasonable times. Customer shall, upon PanAmSat's request,
provide measured proof that any transmit facility meets or exceeds the sidelobe
envelope described in Appendix C.
4.4 Customer Uplink Providers. Customer shall be permitted to
contract with other parties to transmit its signals to, or receive its signals
from the Satellite; provided, that, Customer requires its contractors to comply
with all of the requirements of
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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 Customer retains third parties as permitted by the previous
sentence, these third parties' facilities shall be deemed to be
Customer-Provided Facilities and the acts and omissions of these third parties
in connection with the transmission or reception of Customer's signals shall be
deemed to be the acts and omissions of such third parties and of Customer.
4.5 Third Party Use. Without implying any right of Customer to
permit any third party use of the Customer's Transponder Capacity, Customer
shall be responsible to PanAmSat for any third party use or transmissions that
is permitted by Customer to the same extent as it would be for Customer's own
use or transmissions and references in this Agreement with respect to Customer's
responsibilities to PanAmSat regarding Customer's use or transmissions shall be
interpreted accordingly.
ARTICLE 5. OUTAGES.
5.1 Failure of Capacity. If, after the Commencement Date, the
Customer's Transponder Capacity fails to meet the Performance Specifications
for: (a) any period of six (6) consecutive hours, or (b) a cumulative period of
twelve (12) hours during any consecutive 30-day period, or (c) any period of
time following a catastrophic event under circumstances that make it clearly
ascertainable that a failure described in clauses (a) or (b) will occur, the
Customer's Transponder Capacity shall be deemed to have suffered a "Confirmed
Failure," unless such failure is the result of circumstances specified in
Sections 6.1 or 8.1, in which event the consequences of such a failure shall be
governed under said Sections. Any such failure must be confirmed by PanAmSat. If
confirmed, the failure shall be measured as commencing from the later to occur
of (i) Customer's cessation of use of the affected Customer's Transponder
Capacity and (ii) notice from Customer to PanAmSat of such failure. Any such
failure shall be deemed to have ended upon the earlier to occur of (i)
Customer's resumption of use of the Customer's Transponder Capacity and (ii)
notice by PanAmSat to Customer that the affected Customer's Transponder Capacity
meets the Performance Specifications.
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In the event of a Confirmed Failure of the Customer's
Transponder Capacity, PanAmSat shall, as soon as possible and to the extent
technically feasible, employ certain redundant equipment units on the Satellite
("Spare Equipment") on a first-needed, first-served basis as among Customer and
other Transponder owners, customers, and users, including without limitation,
those who may take service via Satellite capacity provided by PanAmSat, but who
may have no direct right to access the capacity themselves, such as compressed
digital channel customers ("Protected Parties"), as a substitute for an
equipment unit which has failed; provided, that PanAmSat may elect to use
"Substitute Capacity" (as provided below), if available, in lieu of using Spare
Equipment.
Customer acknowledges and agrees that the Spare redundancy plan
of the Satellite may require PanAmSat to reassign certain SSPAs or TWTAs, as
applicable, among Transponders to make use of a Spare. In circumstances in which
a spare SSPA or TWTA is required to be employed for any Protected Party and to
do so requires a change in the SSPA or TWTA assigned to Customer, Customer
shall, on notice from PanAmSat, cease transmitting to the Satellite to allow the
SSPA or TWTA that is assigned to its Transponder to be reassigned and a
different unit (that meets the Performance Specifications) to be put in its
place.
If: (a) the Customer's Transponder Capacity suffers a Confirmed
Failure, and (b) the Spare Equipment associated with such Customer's Transponder
Capacity is not available, and (c) equivalent capacity on another Transponder
meeting the Performance Specifications in the same Beam(s) of the Satellite as
such Customer's Transponder Capacity and designated by PanAmSat for non
-Television Service use (the "Substitute Capacity"), is available and its use by
Customer in accordance with PanAmSat's Operational Requirements is not predicted
to interfere with the use or rights of others using the Satellite, in each case
as determined by PanAmSat in its sole discretion, acting in good faith, then
PanAmSat shall, as soon as possible and to the extent technically feasible,
employ such Substitute Capacity for the Customer's Transponder Capacity to
satisfy PanAmSat's obligations under this Agreement. In the event that PanAmSat
employs such Substitute Capacity for the failed Customer's Transponder Capacity,
such Substitute Capacity shall be deemed to be Customer's Transponder Capacity
for all purposes under this Agreement. Any Transponder or
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equipment unit that is replaced by PanAmSat under this Agreement shall cease
being Customer's Transponder Capacity at the time of such replacement.
In the event that two or more Transponders simultaneously fail
to meet their respective service or performance specifications and are entitled
to restoration under any applicable agreement with PanAmSat, then the Protected
Party (or its predecessor in interest) who first executed a binding agreement
committing to take capacity on the affected Satellite with PanAmSat or its
predecessors in interest shall, to the extent technically feasible, have
priority as to use of the Spare Equipment or the Substitute Capacity; provided
that, if a Transponder is employed by more than one Protected Party, PanAmSat's
decision may be made in accordance with the order that the earliest Protected
Party(ies) (or their predecessors in interest) using the Transponder(s) executed
agreements with PanAmSat or its predecessors in interest. For the avoidance of
doubt, if Customer takes additional capacity from PanAmSat, the date that
Customer entered into such binding commitment for such additional capacity (and
not the date of this Agreement), is the applicable date for determining the
priority for such additional capacity to which Customer is entitled to
restoration in the event of a simultaneous failure. As used in this Section 5.1,
the term "simultaneously" shall be deemed to mean occurring within a 12-hour
period. All determinations as to when failures requiring protection shall have
occurred, for purposes of determining whether the failures are "simultaneous,"
shall be made by PanAmSat in its sole discretion acting in good faith.
5.2 Outage Credits. If for any particular month during the Lease
Term there is a Confirmed Failure of the Customer's Transponder Capacity,
PanAmSat shall credit to Customer's next payment an "Outage Credit" that shall
be determined, on a Transponder by Transponder basis, (or, if applicable, by
Transponder Segment) by the following formula:
Outage Credit equals:
N multiplied by S;
---
M
where,
N = the number of hours (or portion thereof) during a month
that a particular Transponder (or Transponder Segment)
that is part of
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the Customer's Transponder Capacity has failed to meet
its Performance Specification
M = the number of hours in the month, and
S = Customer's Lease Fee, applicable to the affected
Transponder (or Transponder Segment, if applicable), for
said month
5.3 Satellite Power Constraint. As the Satellite increases in age,
because of an overall power constraint 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, PanAmSat will,
as between the Transponder(s) that constitute the Customer's Transponder
Capacity and other Transponders on the Satellite, deactivate Transponders in
reverse order of the priority stated in Section 5.1 above (i.e., last signed,
first off). If the Customer's Transponder Capacity will be affected, and such
action can be anticipated, PanAmSat will give Customer at least thirty days'
notice or such lesser period of notice as is practical under the circumstances.
The deactivation of a Transponder that is part of the Customer's Transponder
Capacity under this Section 5.3 shall be treated as a failure of the capacity to
meet the Performance Specifications.
5.4 Performance at Particular Locations. The city tables that are
provided in the Performance Specifications show minimum anticipated power at
particular locations. In the event of a bona fide dispute regarding whether the
performance specifications are being met, PanAmSat will take measurements from
one of its U.S. teleports or at other convenient locations and extrapolate data
for the particular city table locale. For the avoidance of doubt, the city table
references are given for engineering purposes only and do not constitute a
representation or warranty by PanAmSat with respect to the existence (or lack
thereof) of legal restrictions that may prevent or limit the use of the
Customer's Transponder Capacity at particular locations.
5.5 Customer Cooperation. If the Customer's Transponder Capacity
fails to meet the Performance Specifications, Customer shall use all reasonable
efforts to cooperate and aid PanAmSat in curing such failure by modifying the
terrestrial facilities so that there is no net loss in performance, in which
event the Performance Specifications shall be deemed still to be met; provided
that all reasonable efforts can be done at no
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expense to Customer, unless reimbursed by PanAmSat. These obligations of
Customer shall include, but shall not be limited to, the following:
(a) At the request of PanAmSat, if there is a problem that
can be compensated for by increasing the power of its transmission to the
Satellite, without affecting its use of the Customer's Transponder Capacity,
Customer shall do so to the extent it can with existing equipment; and
(b) Permitting PanAmSat, at PanAmSat's option, and at
PanAmSat's cost and expense, to upgrade the Customer-Provided Facilities.
5.6 Application to Individual Transponders. All determinations as to
Confirmed Failures, Outage Credits, and protection rights to be made under this
Article 5 shall be made on an individual Transponder by Transponder (or
Transponder Segment, if applicable) basis.
ARTICLE 6. PREEMPTIVE RIGHTS.
6.1 Preemptive Rights In Abnormal Circumstances. Customer recognizes
that it may be necessary, in unusual or abnormal technical situations or other
unforeseen conditions, for PanAmSat deliberately to preempt or interrupt
Customer's use of, the Customer's Transponder Capacity, solely in order to
protect the overall health and performance of the Satellite. Such decisions
shall be made by PanAmSat in its sole discretion. To the extent technically
feasible, PanAmSat shall give Customer at least 24 hours' notice of such
preemption or interruption and will use all reasonable efforts to schedule and
conduct its activities during periods of such preemption or interruption so as
to minimize the disruption to users of the Satellite. Customer shall immediately
cease transmissions to the affected Transponder(s) at such time as its
Customer's Transponder Capacity is preempted or interrupted pursuant to this
Section. To the extent that such preemption results in a loss to Customer of the
use of the Customer's Transponder Capacity that otherwise would be sufficient to
constitute a Confirmed Failure, Customer shall have all of the rights and
remedies regarding Outage Credits and termination that are set forth in Articles
5 and 7.
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6.2 Testing in the Event of Customer's Transponder Capacity Failure.
If a Transponder that is part of Customer's Transponder Capacity is not meeting
Performance Specifications, but Customer elects to continue to use (and pay for)
such Customer's Transponder Capacity, as degraded, PanAmSat may interrupt
Customer's use as necessary to perform testing or take any other action that may
be appropriate to attempt to restore the affected Transponder to its 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 Customer of the use of the Customer's Transponder Capacity that is
sufficient to constitute a Confirmed Failure, Customer shall have all of the
rights and remedies regarding Outage Credits and termination that are set forth
in Articles 5 and 7.
6.3 Transponder Degradation. If the Customer's Transponder Capacity
includes a Transponder Segment from the Transponder that degrades such that
some, but not all, of the uses of the Transponder can be maintained at the
applicable performance or service specifications, and there is no available
Spare Equipment or Substitute Capacity, PanAmSat shall provide capacity or
service to Customer and/or other owners, lessees, and users of said Transponder
or any portion thereof, including, without limitation, PanAmSat and its
predecessors in interest, in accordance with the priorities stated in Section
5.1 above.
ARTICLE 7. TERMINATION RIGHTS.
7.1 Termination for Delay in Follow-On Capacity Lease Commencement
Date. PanAmSat shall keep Customer reasonably apprised of changes in the
anticipated Follow-On Capacity Lease Commencement Date. If the Follow-On
Capacity Lease Commencement Date does not occur: (a) on the Out of Service Date
of the PAS-1 Satellite, as defined in Section 2.2(a), or (b) on or before
January 1, 2002, or such later date as Customer may have previously agreed (in
either case, the "Latest Anticipated Follow-On Commencement Date"), then
Customer may terminate this Agreement on the Out of Service Date of the PAS-1
Satellite, or the Latest Anticipated Follow-On Commencement Date, as applicable.
7.2 Reserved.
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7.3 Termination For Confirmed Failure. If there is a Confirmed
Failure of any of the Transponders (or Transponder Segments) that constitute the
Customer's Transponder Capacity or, if on the Commencement Date, any of such
Transponders or Transponder Segments do not meet their Performance
Specifications, this Agreement shall automatically terminate as to such failed
Transponder(s) or Transponder Segment(s) unless, within thirty days of such
failure, PanAmSat restores such capacity to the Performance Specifications
including through the use of Spare Equipment or Substitute Capacity. In the
event this Agreement is terminated under this Section 7.3 for all of Customer's
Transponder Capacity (i.e., all such Capacity has suffered Confirmed Failure(s),
without restoration as provided above), this Agreement shall terminate in its
entirety.
7.4 Taking the Satellite Out Of Commercial Operation. PanAmSat may
determine to take the Satellite out of commercial operation: (a) if, in
PanAmSat's judgment, the remaining fuel on board the Satellite is no longer
sufficient to maintain geosynchronous orbit within plus or minus 0.05 degrees,
allowing sufficient fuel for de-orbiting the Satellite, or (b) if one half or
more of the Transponders that constitute either the C-band or Ku-band payload of
the Satellite no longer meet their applicable performance specifications, or (c)
the Satellite has fewer than 24 nominal 36 MHz equivalent Transponders (out of a
total of 36 nominal 36 MHz equivalent Transponders) that meet their applicable
performance specifications, or, (d) as to the PAS-1 Satellite, at any time after
May 1, 1999 (the "Design Date"). In the event of such a determination, PanAmSat
shall notify Customer of the date the Satellite will be taken out of commercial
operation no less than [ ]* in advance of such date; provided, if such
notice is not technically feasible, PanAmSat shall give such notice as soon as
technically feasible thereafter. On the date that the Satellite is taken out of
commercial operation, this Agreement shall automatically terminate; provided
that, on the date the PAS-1 Satellite is taken out of commercial operation,
subject to Sections 7.1 and 7.3 above, this Agreement shall continue in full
force and effect as to capacity provided via the Follow-On Satellite.
----------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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7.5 Termination By PanAmSat For Cause. PanAmSat may terminate this
Agreement, declare immediately due and payable the Lease Fee for each month that
would have remained in the Lease Term pursuant to Article 2 (based upon the then
anticipated fuel life of the Satellite) on and after the date of such
termination, and apply the Deposit held under Section 3.1, against the
termination liability, if: (a) Customer fails to make payment of any amount due
and such amount remains unpaid within [ ]* days after receiving from PanAmSat
a notice of such nonpayment, or (b) Customer fails to cease any activity in
violation of Sections 4.1, 6.1 or 7.6 upon receiving notice from PanAmSat in
accordance with Section 14.5(a) (provided that PanAmSat shall not be entitled
to terminate this Agreement under this clause (b) if all of the following
requirements are met: (i) Customer is (and remains) in compliance with Section
14.5(a), and the operator on duty mistakenly did not implement PanAmSat's
initial notice; (ii) the mistake was rectified as soon as it became apparent;
(iii) appropriate steps are taken to prevent a future recurrence of the mistake
and the problem is not recurring; and (iv) no damage occurred as a result of
the mistake), or (c) Customer fails to cease any other activity in violation of
Customer's obligations under this Agreement within thirty (30) days after
receiving from PanAmSat a notice of such violation. In the event of such
termination, in addition to all of PanAmSat's other remedies at law or in
equity, PanAmSat shall be entitled to use the Customer's Transponder Capacity
for whatever purpose PanAmSat sees fit, and Customer shall not be entitled to
any equitable relief with respect to such use or any refund of amounts paid to
PanAmSat. Customer acknowledges that the foregoing rights of PanAmSat: (i) are
reasonable under all of the circumstances existing as of this date; (ii)
constitute liquidated damages for the loss of a bargain; and (iii) do not
constitute a penalty.
7.6 Right to Deny Access.
(a) PanAmSat may deny access by Customer to the Customer's
Transponder Capacity in any circumstance in which PanAmSat would have the right
to terminate this Agreement for cause under Section 7.5 above provided that any
notice that would be required for termination under Section 7.5 is also given
for any such denial of access.
----------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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(b) PanAmSat may also deny access to Customer if, in any
circumstance that arises out of Customer's use of the Customer's Transponder
Capacity, PanAmSat or any member of the "PanAmSat Group" (as defined in Section
9.3 below): (A) is indicted, (B) is otherwise charged as a criminal defendant,
(C) becomes the subject of any criminal proceeding, or (D) becomes the subject
of any other governmental action or threat of any action by any governmental
entity or representative thereof which potentially could result in the
revocation, suspension, or loss of any license, ability or right to provide
capacity or service to any customer or loss of any customer's right or ability
to use the capacity or service provided to it. PanAmSat may also deny access to
Customer if Customer's signal 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
Customer, use all reasonable efforts through all available legal avenues to
cause such jamming to be stopped as soon as possible; provided that nothing
herein shall be construed so as to require either party to institute legal
proceedings against any third party.
(c) Customer shall cease transmissions to the Satellite upon
notice of denial of access by PanAmSat under this Section 7.6. PanAmSat may
continue to deny Customer access under this Section 7.6 until any breach of the
Agreement by Customer is cured and, in the case of any denial of access pursuant
to clause (b) above, until any action or threat of action is resolved in
PanAmSat's favor or removed and, in each case, until assurances are given to
PanAmSat's reasonable satisfaction that the matter(s) giving rise to a denial of
access will not reoccur.
(d) If it is determined by final judicial order that
PanAmSat prevented Customer from accessing any or all of Customer's Transponder
Capacity at a time when PanAmSat did not have the right to do so under this
Section 7.6, then Customer shall be entitled to Outage Credits for the period
during which access was denied, which shall be calculated in accordance with
Section 5.2. Except as provided in the preceding sentence, a denial of access
made by PanAmSat under this Section 7.6 shall not result in any Outage Credit to
Customer for Lease Fee payments, which shall continue to be due and payable.
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7.7 Rights and Obligations Upon Termination. Upon termination of
this Agreement in accordance with any of Sections 7.1, 7.2, 7.3, or 7.4 above,
or Sections 7.8 or 8.1 below, PanAmSat shall promptly refund to Customer any
portion of the Lease Fee previously paid (including any applicable portion of
the Deposit) applicable to any period after the date of such termination plus
any unapplied Outage Credits to which Customer was entitled prior to
termination. The termination of this Agreement for any reason shall extinguish
all of PanAmSat's obligations to provide, and Customer's obligations to accept,
the Customer's Transponder Capacity, but shall not relieve either party of any
obligation that may have arisen prior to such termination, including (without
limitation), under Section 7.5 above, nor shall termination affect the parties'
obligations under Article 9 (Limitation of Liability and Indemnification) and
Article 11 ("Confidentiality") that shall survive the termination of this
Agreement.
[
]*
ARTICLE 8. FORCE MAJEURE.
8.1 Failure To Commence Customer's Transponder Capacity Or To
Perform. Any failure or delay in the performance by PanAmSat of its obligation
to commence or to continue to provide Customer's Transponder Capacity shall not
be a breach of this Agreement, if such failure or delay results from any Act of
God, governmental action (whether in its sovereign or contractual capacity), or
any other circumstance reasonably beyond the control of PanAmSat, including, but
not limited to, receive earth station sun outage, meteorological or astronomical
disturbances, earthquake, hurricane, snowstorm, fire, flood, strikes, labor
disputes, war, civil disorder, epidemics, quarantines, embargoes, or acts or
omissions of Customer or any third parties. The foregoing notwithstanding,
PanAmSat shall provide Customer with Outage Credits in circumstances in which
PanAmSat is unable to perform because of force majeure conditions, with the
exception of force majeure conditions that are attributable to sun outages,
meteorological or
----------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
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astronomical disturbances, or acts or omissions of Customer or its employees,
agents, or contractors. Subject to the following sentences, either party shall
be permitted to terminate this Agreement, as to the affected Customer's
Transponder Capacity, if, because of force majeure conditions: (a) Customer's
Transponder Capacity meeting the Performance Specifications cannot be provided
for sixty (60) consecutive days; or (b) the nature of the force majeure event
makes it clearly ascertainable that Customer's Transponder Capacity meeting the
Performance Specifications will not be able to be provided within this sixty
(60) - day period. Customer shall not be permitted to terminate this Agreement
if PanAmSat's inability to perform is due to acts or omissions of Customer or
its employees, agents, or contractors or for intermittent failure of Customer's
Transponder Capacity due to sun outages, meteorological or astronomical
disturbances. In the event of any conflict between the termination rights set
forth in this Section 8.1 and Section 7.3 above, Section 7.3 governs in the
event of an equipment failure on board an in orbit satellite and Section 8.1
governs in all other circumstances.
ARTICLE 9. LIMITATION OF LIABILITY AND INDEMNIFICATION.
9.1 Limitation Of PanAmSat's Liability. ANY AND ALL EXPRESS AND
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR ANY PURPOSE OR USE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. IT IS
EXPRESSLY AGREED THAT PANAMSAT'S SOLE OBLIGATION AND CUSTOMER'S EXCLUSIVE
REMEDIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT
UNDER ANY THEORY OF LAW OR EQUITY ARE LIMITED TO THOSE SET FORTH IN SECTION 5.2
AND ARTICLE 7 AND ALL OTHER REMEDIES, INCLUDING (WITHOUT LIMITATION) ANY THAT
MIGHT OTHERWISE APPLY UNDER ANY UNIFORM COMMERCIAL CODE OF ANY KIND ARE
EXPRESSLY EXCLUDED. In no event shall PanAmSat be liable for any incidental or
consequential damages or loss of revenues, whether foreseeable or not,
occasioned by any defect in the Satellite, the Transponders or the provision of
Customer's Transponder Capacity to Customer, any delay in the provision of
Customer's Transponder Capacity to Customer, any failure of PanAmSat to provide
Customer's Transponder Capacity, or any other cause whatsoever.
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9.2 Limitation Of Liability Of Others. Without limiting the
generality of the foregoing, Customer acknowledges and agrees that it shall have
no right of recovery for the satisfaction of any cause whatsoever, arising out
of or relating to this Agreement, against (a) any 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 Customer's
Transponder Capacity, or the provision of Customer's Transponder Capacity to
Customer in any circumstances in which PanAmSat would be obligated to indemnify
the supplier, or (c) any officer, director, employee, agent, partner or
shareholder of PanAmSat or any PanAmSat Company.
9.3 Indemnification. Customer shall indemnify and save harmless the
"PanAmSat Group" (defined herein to mean PanAmSat, all PanAmSat Companies, and
all officers, employees, agents, partners and shareholders of PanAmSat and/or
the PanAmSat Companies) from any claims, liabilities, losses, costs, or damages,
including attorneys' fees and costs, arising out of (a) Customer's use of the
Customer's Transponder Capacity, including any actual or alleged libel, slander,
obscenity, indecency, infringement of copyright, breach in the privacy or
security of transmissions; or (b) Customer's breach of its obligations under
Section 4.1, 6.1, or 7.6; or (c) disputes between or among Customer and its
transmission recipients or its programs or other transmission content suppliers;
or (d) any warranty, representation, or statement Customer may make to a third
party in connection with transmissions over the Satellite. The limitations of
liability set forth in this Article 9 shall apply to, and the indemnifications
set forth in this Article 9 shall run in favor of, the PanAmSat Group.
ARTICLE 10. SUBORDINATION AND ASSIGNMENT.
10.1 No Property Interest Created. This Agreement does not grant, and
Customer shall not assert, any right, interest, or lien upon the property or
assets of PanAmSat, including in the Customer's Transponder Capacity or in any
satellite or related equipment which it may own.
10.2 Subordination. Customer acknowledges and agrees that this
Agreement is subject to the provisions shown in Appendix E-2 (First Trust
National Association).
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Customer acknowledges and agrees that PanAmSat may grant security interests in
the Transponders and/or the Satellite to other parties, subject to the secured
party's agreement to grant quiet enjoyment in accordance with provisions that
are substantially similar to those set forth in Appendix E.
10.3 PanAmSat's Right To Assign. Customer agrees that PanAmSat may
assign its rights and interests under this Agreement and to the Satellite and
any or all sums due or to become due under this Agreement to an assignee for any
reason. Customer agrees that upon receipt of notice from PanAmSat of such
assignment, Customer shall perform all of its obligations directly for the
benefit of the assignee and shall pay all sums due or to become due directly to
the assignee, if so directed. Upon receipt of notice of such assignment,
Customer agrees to execute and deliver to PanAmSat such documentation as
assignee may reasonably require from PanAmSat. As used in this Section 10.3,
assign shall mean to grant, sell, assign, encumber or otherwise convey directly
or indirectly, in whole or in part.
10.4 Customer Assignment. Customer may assign its rights under this
Agreement, only in whole, and only after securing PanAmSat's express prior
written consent, which consent may be withheld or conditioned in PanAmSat's sole
discretion. As used in this Section 10.4, assign shall mean to grant, sell,
assign, encumber, otherwise convey, license, lease, sublease, or permit the
utilization of, directly or indirectly, in whole or in part.
10.5 Successors. Subject to all the provisions concerning
assignments, above, this Agreement shall be binding on and shall inure to the
benefit of any successors and assigns of the parties, provided that no
assignment of this Agreement shall relieve either party of its obligations to
the other party. Any purported assignment by either party not in compliance with
the provisions of this Agreement shall be null and void and of no force and
effect.
10.6 No Resale. The Customer's Transponder Capacity is provided for
Customer's own use and in no event shall Customer be permitted to resell in any
manner the Customer's Transponder Capacity, in whole or in part, to any other
person or entity, except as expressly provided under Section 1.3 of this
Agreement as part of a value added communications Services to Customer's
customers, in circumstances in which Customer
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provides to its customers substantially more communications facilities than bare
space segment capacity.
ARTICLE 11. CONFIDENTIALITY.
11.1 Non-disclosure. PanAmSat and Customer shall hold in confidence
the information contained in or exchanged in connection with this Agreement.
Notwithstanding the foregoing, disclosure, on a confidential basis, by either
party is permitted: (a) to its principals, auditors, attorneys, investors,
lenders, insurance agents, and proposed and actual successors in interest and
(b) to comply with law and enforce its rights and perform its obligations under
this Agreement.
ARTICLE 12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Subject to the understanding that certain applications may be pending or
subsequently filed by PanAmSat with the FCC or other applicable governmental
entity as to which PanAmSat's obligations are set forth in Article 13, PanAmSat
and Customer each represents and warrants to, and agrees with, the other that:
12.1 Authority. It has the right, power and authority to enter into
and perform its obligations under this Agreement.
12.2 Partnership And Corporate Approvals. It has taken all requisite
partnership or corporate action, as applicable, to approve execution, delivery
and performance of this Agreement, and this Agreement constitutes a legal, valid
and binding obligation upon itself.
12.3 Consents. The fulfillment of its obligations will not constitute
a material violation of any existing applicable law, rule, regulation or order
of any governmental authority, or contract to which it is subject. All public or
private consents, permissions, agreements, licenses or authorizations necessary
for the performance of its obligations under this Agreement to which it is
subject have been obtained, or it will use all reasonable efforts to obtain, in
a timely manner.
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12.4 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.
ARTICLE 13. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF PANAMSAT.
13.1 Orbital Location. PanAmSat constructs, launches, and operates
its satellites under the authority of the FCC. PanAmSat has been authorized by
the FCC to construct, launch and operate the Satellite in geostationary orbit at
45 degrees West Longitude (the "Planned Orbital Location). PanAmSat shall use
such orbital location (or, to the extent that PanAmSat obtains FCC authority to
do so, any location within five degrees of the Planned Orbital Location), unless
prevented by subsequent order of the FCC, in which event PanAmSat shall use such
orbital position closest to the range identified above that the FCC may
designate. Until the Design Date, PanAmSat shall use all reasonable efforts to
resist any move of the Satellite from outside the orbital range specified above;
thereafter, PanAmSat may relocate the Satellite to any orbital location. In the
event that PanAmSat changes the Satellite's orbital location, such change shall
not affect the continuing validity of this Agreement, except to the extent such
change prevents PanAmSat from providing Customer's Transponder Capacity that
meets the Performance Specifications, in which event the termination provision
set forth in Article 7 shall apply.
13.2 Government Authorizations. PanAmSat shall use all reasonable
efforts to obtain and maintain all necessary U.S. governmental authorizations or
permissions to operate the Satellite and to comply in all material respects with
all FCC and other U.S. (and, to the extent that it may be required under its
U.S. authorizations, other) governmental regulations regarding the operation of
the Satellite.
13.3 Reports and Communications. PanAmSat shall provide Customer with
the following reports regarding the operation of the Satellite and the
Customer's Transponder Capacity:
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(a) Operational Reports/Communications. Following execution
of this Agreement, PanAmSat shall keep Customer reasonably apprised of changes
in the projected construction completion date and launch date of the Follow-On
Satellite.
(b) Anomalous Operation Notification. PanAmSat shall notify
Customer as soon as practicable of any significant incidents which have a
material effect on the Customer's Transponder Capacity or materially reduce the
projected life of the Satellite.
ARTICLE 14. MISCELLANEOUS.
14.1 Applicable Law And Entire Agreement. This Agreement shall be
interpreted according to the laws of the State of Connecticut, U.S.A. and where
applicable, the FCC's regulations, and any action or proceeding arising out of
this Agreement shall be submitted to arbitration as provided in Section 14.1A.
Any request for injunctive relief or to enforce an arbitration award granted
under this Section 14.1 shall be brought and maintained in Connecticut. Customer
consents to the jurisdiction of courts located in Connecticut, solely for such
an action or proceeding as described above. Each party agrees that service of
process in any action or proceeding shall be deemed sufficient if mailed, first
class, postage prepaid, to Customer at the address set forth in Section 14.5(b),
as the same may be changed in accordance with that Section.
14.1A Arbitration.
(i) Except as provided in Section 14.1 above, if any claim or dispute
arises out of this Agreement as to the obligation or liabilities of the parties
or any other matter whatsoever, then, without prejudice to any rights of
suspension or termination under this Agreement, the dispute shall be submitted
to arbitration, applying the substantive law of the State of Connecticut, before
the International Chamber of Commerce (the "ICC"). The place of arbitration
shall be New York, New York.
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(ii) The arbitration shall be conducted in accordance with the rules of
Conciliation and Arbitration of the ICC by three (3) arbitrators, of whom one
(1) each will be chosen by each party, and the third, who will serve as
chairman, will be agreed between the parties, or in the absence of such
agreement, will be appointed by the Chairman of the ICC.
(iii) The arbitrator's award shall be final and binding on both parties,
and the parties hereby waive all rights of appeal in any jurisdiction.
(iv) The official language of the arbitration shall be English.
14.1B Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all previous understandings,
commitments or representations concerning its subject matter. This Agreement may
not be amended or modified in any way, and none of its provisions may be waived,
except by a prior writing signed by an authorized officer of each party.
14.2 Severability. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to law. If any
provision of this Agreement shall be invalid or unenforceable, the provisions of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to permit compliance with the minimum legal requirements.
14.3 No Third Party Beneficiary. The provisions of this Agreement are
for the benefit only of Customer and PanAmSat, and, except as may be provided
under Appendix E and Section 10.2, no third party may seek to enforce or benefit
from these provisions, except that both parties acknowledge and agree that the
non-interference requirements of Section 4.1 are intended for the benefit of
both PanAmSat and all other Protected Parties, and that the provisions of
Article 9 are intended for the benefit of the PanAmSat Group and that such
intended beneficiaries may separately, or in addition to the parties hereto,
seek to enforce such provisions.
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14.4 Non-Waiver Of Breach. Either party may specifically waive any
breach of this Agreement by the other party, provided that no such waiver shall
be binding or effective unless in writing and no such waiver shall constitute a
continuing waiver of similar or other breaches. A waiving party may at any time,
upon notice given in writing to the breaching party, direct future compliance
with the waived term or terms of this Agreement, in which event the breaching
party shall comply as directed from such time forward.
14.5 Notices.
(a) Telephone Notices. For the purpose of receiving notices
from PanAmSat regarding preemption, interference or other technical problems,
including with respect to Transponder failure and restoration, Customer shall
maintain at each earth station transmitting signals to the Satellite a telephone
that is continuously staffed at all times during which Customer is transmitting
signals to the Satellite and an automatic facsimile machine in operation and
capable of receiving messages from PanAmSat at all times. THOSE PERSONS STAFFING
THE EARTH STATION, FOR THE PURPOSES OF RECEIVING SUCH MESSAGES FROM PANAMSAT,
MUST HAVE THE TECHNICAL CAPABILITY AND ABSOLUTE AUTHORITY IMMEDIATELY TO
TERMINATE OR MODIFY THE TRANSMISSION IF NOTIFIED BY PANAMSAT. PanAmSat shall
also maintain a telephone that is continuously staffed for the purposes of
receiving notices regarding the matters identified above. All such notices shall
be made in English and shall be effective upon the placement of a telephone call
from one party to the other. Each party shall promptly confirm all telephone
notices that may be given under this Agreement in writing in accordance with
Section 14.5(b) below.
(b) General Notices. All notices and other communications
from either party to the other, except as otherwise stated in this Agreement,
shall be in English writing and, shall be deemed received upon actual delivery
or completed facsimile addressed to the other party as follows:
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To PanAmSat International PanAmSat International Systems, Inc.
Systems, Inc. by mail One Pickwick Plaza
or by personal delivery to Xxxxxxxxx, Xxxxxxxxxxx 00000
its principal place of Attention: General Counsel
business:
To PanAmSat if by facsimile: 000-000-0000
Attention: General Counsel
With a copy to:
---------------
If by mail or by personal Goldberg, Godles, Wiener & Xxxxxx
delivery to its principal 0000 Xxxxxxxxxx Xxxxxx, X.X.
place of business: Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxxx
If by facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxx
To Customer if by mail or International Satellite Communication Holding Ltd
by personal delivery to its Xxxxxxx Xxxxxx 000
xxxxxxxxx xxxxx xx (0000) Xxxxxx Xxxxx, Xxxxxxxxx
business: Attention: Sr. Xxxxx Xxxxxxxxxx
To Customer if by facsimile: 000-000-000-0000
Attention: Sr. Xxxxx Xxxxxxxxxx
With a copy to:
---------------
If by mail or by personal
delivery to its principal
place of business:
If by facsimile:
Each party will advise the other of any change in the address, designated
representative or telephone or facsimile number.
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14.6 Headings. The descriptive headings of the Articles and sections
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
14.7 Documents. Each party agrees to provide information and to
execute, and, if necessary, to file with the appropriate governmental entities
and international organizations, such documents as the other party shall
reasonably request in order to carry out the purposes of this Agreement.
14.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one and the same instrument.
14.9 Replacement of Agreements. The parties acknowledge and agree
that this Agreement supercedes and replaces the PAS-1 Agreements in their
entirety.
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Each of the parties has duly executed and delivered this Agreement as of
the day and year first written above.
PANAMSAT INTERNATIONAL SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
----------------------------------------
Title:
---------------------------------------
INTERNATIONAL SATELLITE
COMMUNICATION HOLDING LIMITED
By: /s/ X. Xxxxxxxxx /s/ X.Xxxxxx
------------------------------------------
Name: X. Xxxxxxxxx K. Kindle
----------------------------------------
Title:
---------------------------------------
IMPSAT S.A.
By: /s/ Xxxxx Marine
------------------------------------------
Name: Xxxxx Marine
----------------------------------------
Title: GERENTE DE ADMINISTRACION
---------------------------------------
32
LIST OF APPENDICES
A. Customer's Transponder Capacity and Payment Schedule
B. Performance Specifications
C. Operational Requirements
D. Guarantee
E. Subordination Provision
E-2. First Trust National Association
33
APPENDIX A-1
CUSTOMER'S TRANSPONDER CAPACITY
CENTRAL BEAM CAPACITY
Satellite Band MHz Transponder #(1) Downlink Beam
--------- ---- --- ------------- -------------
PAS-1 C [ ] [ ]* Central
INITIAL PAS-1 CAPACITY
Satellite Band MHz Transponder #(1) Downlink Beam
--------- ---- --- ------------- -------------
PAS-1 C [ ]* [ ]* Latin
PAS-1 C [ ]*(2) [ ]* Latin
PAS-1 C [ ]*(2) [ ]* North
LATIN BEAM TRANSITION
Satellite Band MHz Transponder #(1) Downlink Beam
--------- ---- --- ------------- -------------
PAS-1 C [ ]* [ ]* Latin
PAS-1 C [ ]*(3) [ ]* Latin
PAS-1 C [ ]*(3) [ ]* North
--------------------
(1) Initial Transponder assignment, subject to change in accordance with the
provisions of Section 1.2 and Appendix B.
(2) For purposes of calculating the monthly Lease Fee, the [ ]* MHz Latin Beam
Transponder Segment and the [ ]* MHz North Beam Transponder Segment shall be
considered as one (1) [ ]* MHz Transponder Segment.
(3) For purposes of calculating the monthly Lease Fee, the [ ]* MHz Latin Beam
Transponder Segment and the [ ]* MHz North Beam Transponder Segment shall be
considered as one (1) [ ]* MHz Transponder Segment.
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
34
-2-
FOLLOW-ON CAPACITY
Number of
Satellite Transponders Band MHz Transponder #(1) Downlink Beam
--------- ------------ ---- --- ---------------- -------------
Follow-On [ ]* C [ ]* XXX XXX
--------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
35
APPENDIX A-2
PAYMENT SCHEDULE FOR CENTRAL BEAM CAPACITY
The monthly Lease Fee for the Central Beam Capacity is set forth below:
For each month during the
calendar year, following
the Commencement Date Monthly Lease Fee
--------------------- -----------------
1998 through the US$ [ ]*
Out of Service Date
of the PAS-1 Satellite
PAYMENT SCHEDULE FOR PAS-1 CAPACITY AND FOLLOW-ON CAPACITY
The monthly Lease Fee per Transponder (or 36 MHz Transponder Segment)
for the PAS-1 Capacity and the Follow-On Capacity is set forth below:
For each month during the
calendar year, following Monthly Lease Fee per Transponder
the Commencement Date (or 36 MHz Transponder Segment)
--------------------- -------------------------------
1998 - 2000 US$ [ ]* (US$ [ ]*/ annum)
2001 US$ [ ]* (US$ [ ]*/ annum)
2002 through the US$ [ ]* (US$ [ ]*/ annum)
twelfth anniversary of
the Follow-On Lease
Commencement Date
- If for any reason, prior to the transition to the Follow-On Satellite,
either the North Beam Capacity or the Latin Beam Capacity Transponder
Segment(s) suffers a Confirmed Failure, for purposes of Lease Fee and
Outage Credit determinations, the pricing will be broken out as follows:
Allocated percentage of monthly
Capacity Lease Fee per Transponder
-------- -------------------------
North Beam [ ]* MHz [ ]*%
---------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
36
North Beam [ ]* MHz [ ]*%
Latin Beam [ ]* MHz [ ]*%
Latin Beam [ ]* MHz [ ]*%
For the avoidance of doubt, such pricing will only remain in effect for the
duration of any Confirmed Failure, and shall return to 100% of the full
Transponder pricing upon restoration of the affected capacity to its applicable
Performance Specifications, or upon the commencement of the follow-On Capacity
Lease Term, whichever occurs first.
---------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
37
APPENDIX B
PERFORMANCE SPECIFICATIONS FOR
PAS-[ ]* C-BAND NORTH BEAM TRANSPONDERS
([ ]* MHZ AND [ ]* MHZ ALLOCATION)
[
]*
---------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
38
-2-
APPENDIX C
EARTH STATION AND OPERATIONAL REQUIREMENTS
FOR ANALOG AND DIGITAL SERVICES
VIA PAS-1 C-BAND AND KU-BAND TRANSPONDERS
1.0 INTRODUCTION
This Appendix contains the earth station requirements and associated operational
procedures for transmission via C-band and Ku-band transponders on the PAS-1
satellite.
2.0 EARTH STATION REQUIREMENTS
The earth stations used by Customer to transmit analog or digital carriers in
C-or Ku-Band transponders must meet the requirements listed in Sections 2.0,
3.0, and 4.0.
2.1 Earth Station EIRP
For full transponder (36 or 72 MHz) operations, Customer earth stations must be
capable of transmitting a modulated carrier with a maximum EIRP sufficient to
achieve the nominal satellite SFD given in Appendix B with a margin of at least
2 dB. For partial transponder allocations and services, the actual assigned
operating EIRP for a given earth station will be determined by PanAmSat in
consultation with Customer, taking into account the actual transponder
performance and loading prior to the time of the transmission.
2.2 EIRP Stability
The EIRP in the direction of the PAS-1 satellite must, under clear sky
conditions, be maintained to within +/- 0.5 dB of the assigned operating EIRP
(upon agreement of all users within a multi-carrier transponder and approval of
PanAmSat, additional EIRP variation may be permitted). Under no circumstances
may the EIRP exceed the assigned value by more than 1 dB.
2.3 Earth Station Transmit Gain Requirement
The gain of the transmit antenna must be sufficient to yield the maximum EIRP,
as defined in SFD given in Appendix B with a margin of at least 2 dB (note 1).
If antenna size resulting from above requirement is excessive, PanAmSat may
reduce requirement provided that adjacent satellite flux density limits are
maintained.
2.4 HPA Requirement
In determining the HPA size for a given earth station, it is necessary not only
for Customer's transmitting earth station to meet the maximum EIRP requirements,
but also to meet the emission constraints set forth in Section 3.4 and 4.2.
39
-3-
2.5. Antenna Sidelobes
All earth stations shall satisfy the following transmit sidelobe performance
envelopes:
G < = 29 - 25 log (0) dBi 1(degrees)< 0 = 7(degrees)
10
G < = 8 dbi, 7(degrees) 0 < = 9.2(degrees)
G < = 32 - 25 log (0) dBi 9.2(degrees)< 0 < = 48(degrees)
10
G < = -10 dBi, 0 > 48(degrees)
where G is the gain of the sidelobe envelope, relative to an isotropic antenna,
in the direction of the geostationary orbit and 0 is the angle in degrees
between the main beam axis and the direction considered. For 0 greater than 7
degrees, the envelope may be exceeded by 10% of the sidelobes, but no individual
sidelobe may exceed the envelope by more than 3 dB.
While not mandatory, it is recommended that the receive sidelobes also conform
to the envelope described above for the transmit sidelobes. As a minimum,
however, the receive sidelobes must sidelobes must satisfy the envelope defined
by:
G = 30 - 25 log (0) dBi
where G and 0 are as previously defined.
2.6 Transmit Earth Station Polarization
Earth stations used for PAS-1 C- and Ku-band transmissions must be linearly
polarized on both the uplink and downlink. Specific uplink and downlink
polarizations are determined by transponder assignments and are further
specified in Appendix B. The earth station cross-polarization isolation must be
a minimum of 30 dB within the main beam of the earth station's transmit antenna
pattern.
3.0 VIDEO SERVICE REQUIREMENTS
3.1 Video Exciter Requirements
Customer may use any video exciter which meets the minimum requirements listed
in Sections 3.3 through 3.5.
3.2 RF Bandwidth
The RF bandwidth must be 27 MHz or less for dual video carriers transmitted
simultaneously within a 54 MHz transponder, and 32 MHz or less for dual video
carriers transmitted simultaneously within a 64 MHz transponder. Other bandwidth
restrictions may be imposed in
40
-4-
shared transponder operation where more than two carriers are in simultaneous
use. Where the Customer has full use of the Transponder (36 MHz) any RF
bandwidth may be chosen.
3.3 IF Transmit Filter
An IF filter must be provided in the transmit path for each TV/FM carrier in
order to reduce video color crosstalk and to minimize adjacent transponder
interference. The specific filter used for this purpose must be approved by
PanAmSat in consultation with the Customer in consideration of the specific
loading of the transponder.
The group delay response characteristics of the filter, while not specified by
PanAmSat, should take into consideration both the total group delay of the
Satellite Transponder (as specified in the attached Appendix B) as well as the
group delay produced by the transmit earth station IF and RF equipment.
3.4 Emission Constraints
The transmit earth station must be equipped and operatied in such a manner that
spurious emission at the output of the antenna due to all sources does not
exceed 4dBW/4 kHz outside of the assigned carrier bandwidth.
3.5 Energy Dispersal
A low-frequency symmetrical triangular energy dispersal waveform must be added
to the baseband signal prior to the FM modulator. A video signal must be present
at all times and the peak-to-peak deviation of the energy dispersal modulation
must be TBD MHz when video is present.
3.6 Carrier Frequency Assignments
The uplink carrier frequency for video transmission within a transponder or
allocation is assigned by PanAmSat based on coordination agreements reached by
PanAmSat with other networks. Earth stations must be capable of operating at any
frequency within the Transponder. For analog video transmission, frequencies
will be assigned to the nearest 0.250 MHz. It is recommended that all transmit
earth stations further be capable of operation across the entire satellite
uplink frequency band.
3.7 Audio and Data Subcarriers
Customer may add one or more audio or data subcarriers to the normal video
baseband, provided that: (1) the EIRP of the composite carrier does not exceed
the value specified in Appendix B and; (2) the emission constraints set forth in
Section 3.4 are met.
41
-5-
4.0 DATA SERVICE REQUIREMENTS
4.1 Modem Requirements
The Customer may use any digital, SCPC/PSK, MCPC/PSK satellite modem that meets
their particular requirements, subject to the following constraints which are
designed to ensure excess interference is not experienced by adjacent satellites
or by other users of PAS-1:
a) Digital Modems - Scrambling must be provided to ensure that uniform
spectral spreading is applied to the transmitted carrier at all times. A data
scrambler built in accordance with CCITT Rec. V.35, or a functionally equivalent
unit with similar spectrum spreading characteristics, must be employed.
b) SCPC and MCPC/PSK - In general, any SCPC or MCPC/PSK modem which
meets all relevant CCIR and CCITT recommendations is allowed, subject to prior
approval by PanAmSat.
c) Other Modems - The use of other modem types is subject to approval
by PanAmSat.
4.2 Emission Constraints
The transmit earth station must be equipped and operated in such a manner that
spurious emission at the output of the antenna due to all sources does not
exceed 4 dbW/4 kHz outside of the assigned transponder bandwidth.
The EIRP density of each carrier, outside the bandwidth allocation of the
transponder or partial transponder, which results from spectral regrowth due to
earth station non-linearities shall be at least 26 dB below the main carrier
spectral density, and shall not exceed 4 dBW in any 4 kHz band within the C-and
Ku-band frequency range of the satellite.
4.3 Carrier Frequency Assignments
The assigned center frequency of each carrier will be determined by PanAmSat in
consultation with the Customer. The customer will submit a Transmission Plan to
PanAmSat for approval at least 10 working days before the start of service or
change in transmission parameters. It may on occasion be necessary for PanAmSat
to change carrier frequency assignments, either to meet unforeseen changes in
the Customer's requirements or to avoid mutual interference with carriers in
adjacent or co-frequency transponders.
Transmitting earth stations must be capable of operating at any assigned
frequency within the Transponder or allocation. For digital data transmission,
frequencies will be assigned to the nearest 0.025 MHz. It is recommended that
all transmit earth stations further be capable of operation across the entire
satellite uplink frequency band.
42
-6-
Unless specifically approved by PanAmSat, the aggregate allocated bandwidth of
carriers within a multi-carrier transponder or allocation should not exceed 90%
of the total available bandwidth in order to provide flexibility in carrier
assignments and to reduce the effects of intermodulation noise, adjacent carrier
interference, co-channel interference, and adjacent satellite interference.
5.0 UPLINK REQUIREMENTS
5.1 Uplink Requirements
Before a transmit station may access a PAS-1 Transponder for video or data
transmission, it must demonstrate compliance with the technical requirements set
forth in Sections 2.0, 3.0, and 4.0, and with PanAmSat Access Requirements for
transmissions to PAS-1, to be provided by PanAmSat to the Customer and as
PanAmSat may modify from time to time.
5.2 Uplink Restrictions
Except as may be permitted by PanAmSat during a coordinated test period, no
earth station operator shall transmit an unmodulated carrier through a
Transponder. The operation of each earth station must be in strict adherence
with the Transmission Plan submitted by the Customer and approved by PanAmSat as
specified in Section 4.3. Any deviation from that Transmission Plan must be
approved in advance by PanAmSat. Under no circumstances shall the earth station
transmit an RF carrier to PAS-1 on a frequency not authorized by PanAmSat,
whether or not that frequency is in use by other stations.
6.0 ADDITIONAL CONTRACTUAL REQUIREMENTS WITH RESPECT TO THE UPLINK
6.1 Non-interference Restrictions
Customer's radio transmissions to and from the Satellite shall comply with all
applicable governmental laws, rules and regulations. Customer will follow
established practices and procedures for frequency coordination and will not use
the transponder, or any portion thereof, in a manner which would or might under
standard engineering practice, interfere with the use of any other Transponder,
the Satellite, or any other satellite or transponder on such satellite, or cause
physical harm to the Service Transponder, any other Transponder, the Satellite,
or any other in-orbit satellite or transponder on such satellite.
6.2 Customer's Transmitting Stations
Customer will configure, equip and operate its transmit facilities so that the
interface of these facilities, in space, with the Satellite shall conform to the
characteristics and technical parameters of the Satellite. Customer will follow
PanAmSat's procedures for initiating or terminating any transmission into the
Satellite. Customer will operate all transmit facilities in a manner that allows
for cessation of, and will cease transmission immediately upon receiving
telephone or telecopy notice from PanAmSat. Customer will furnish information on
a continuing basis as
43
-7-
required by PanAmSat to prepare for, initiate, provide, maintain and immediately
discontinue the use of the Service upon notice by PanAmSat.
PanAmSat shall have the right, but not the obligation, to inspect any Customer
transmit facilities, together with associated facilities and equipment. PanAmSat
will use its reasonable best efforts to schedule such inspections to minimize
the disruption of the operation of such facilities, and Customer shall made such
facilities availabe for inspection at all reasonable times. Customer shall, upon
PanAmSat's request, provide a measured proof that any such Customer transmit
facility meets or exceeds the side envelope described in Section 2.5, above, and
PanAmSat may require antenna verification testing to confirm the antenna and
uplink equipment complies with the requirements specified in this Appendix and
all other applicable regulations.
6.3 Interference and Preemption Notices
Customer shall maintain, at each Customer transmit facility, and shall provide
PanAmSat with a telephone number that is continuously staffed, at all times
during which customer is transmitting or receiving signals to or from the
Satellite, and an automatic telecopy number that shall be maintained in
operation and capable of receiving messages from PanAmSat, at all times. Said
telephone and telecopy shall be maintained for the purpose of receiving notices
from PanAmSat regarding interference or other problems arising out of the
provision of Service on, or Customer's or any Assignee's use of the Service
Transponder, including, without limitation, any decision by PanAmSat to preempt
or interrupt Service to Customer pursuant to the Agreement. IT IS MANDATORY THAT
THE PERSON WHO RECEIVES SUCH MESSAGES HAS THE TECHNICAL CAPABILITY AND ABSOLUTE
AUTHORITY TO IMMEDIATELY TERMINATE OR MODIFY THE TRANSMISSION IF NOTIFIED BY
PANAMSAT PURSUANT TO THE FOREGOING. All such notices shall be effective upon the
placement of the telephone call or transmission of a telecopier message by
PanAmSat to Customer. If, for any reason, Customer's telephone is not answered
and its telecopier is incapable of receiving transmission, PanAmSat's notice
shall be deemed to have occurred at the time it attempts to place a telephone
call or transmit a telecopier message to Customer. PanAmSat shall promptly
confirm telephone notices in writing.
END OF APPENDIX C
44
-8-
APPENDIX D
GUARANTEE
This Guarantee by Impsat Corporation (the "Guarantor"), a Delaware
corporation, is for the benefit of the PanAmSat International Systems, Inc.,
("PanAmSat"), a Delaware corporation.
In consideration of International Satellite Communication Holding
Limited ("ISCH") entering into the Full-Time Transponder Lease Agreement with
PanAmSat, dated April 20, 1998, (the "Agreement") and in order to induce
PanAmSat to enter into the Agreement, Guarantor hereby irrevocably and
unconditionally guarantees the prompt payment when due to PanAmSat of all
amounts and obligations payable by ISCH under the Agreement.
This Guarantee is a guarantee of payment and not of collection and
Guarantor hereby waives notice of acceptance of this Guarantee and any and all
legal requirements that PanAmSat shall institute a legal action against ISCH
with respect to the Agreement as a condition precedent to bringing any action
against Guarantor. No invalidity, irregularity or unenforceability of all or
part of the Agreement and no waiver, modification, extension, forbearance or
delay on the part of PanAmSat with respect to the enforcement of the Agreement
shall operate to release or be deemed a legal or equitable defense to the
obligations of the Guarantor under this Guarantee. Regardless of whether
PanAmSat is prevented from enforcing any of the obligations as a result of
bankruptcy or similar proceedings against ISCH, PanAmSat shall be entitled to
receive the sums which would have been otherwise due.
This Guarantee may not be modified or amended except by an agreement in
writing signed by PanAmSat and Guarantor, shall be construed in accordance with
the laws of Connecticut and shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, legatees, personal
representatives, successors and assigns. Any action or proceeding in connection
with this Guarantee may be brought by PanAmSat in any federal or state court
with appropriate jurisdiction over the subject matter established or sitting in
the State of Connecticut. Guarantor consents to the jurisdiction of any court
and shall not raise in connection with any proceeding in any such court, and
hereby waives, any defenses based upon the venue, the inconvenience of the
forum, the lack of personal jurisdiction, the sufficiency of service of process
(as long as notice of such action or suit is furnished in accordance with the
provisions of this Guarantee) or the like in any such action or suit brought in
the State of Connecticut. Nothing herein shall be deemed to prevent Guarantor
from exercising any right to remove any action from a state court to a federal
court in the State of Connecticut.
Any notice, demand or request to Guarantor hereunder shall be in writing
and shall be deemed to have been duly given or made if mailed by registered or
certified mail, return receipt requested, to Impsat Corporation, c/o Impsat USA,
Xxx Xxxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, XX 00000, Attn: ________________. Guarantor
hereby agrees that process may be served against it in any suit, action or
proceeding referred to above by sending the same by first class mail, return
receipt requested or by overnight courier service, to the address listed in the
immediately preceding sentence.
45
-9-
IN WITNESS WHEREOF, the undersigned Guarantor has duly executed this
Guarantee this ____, day of __________, 1998
IMPSAT CORPORATION
By:
--------------------------------
Its:
-------------------------------
46
APPENDIX E-2
SUBORDINATION TO FIRST TRUST NATIONAL ASSOCIATION
Collateral Trustee
(a) Customer hereby acknowledges that this Agreement and all
rights granted to Customer hereunder are subject and subordinate to a security
interest and lien in favor of First Trust National Association (the "Trustee"),
as the same may be assigned (the "Security Interest") in and to the
Transponder(s) that may be owned and operated by PanAmSat and which are the
subject of this Agreement (and/or the proceeds from the sale or other
disposition of all or any portion thereof, or any insurance that may be received
by PanAmSat as a result of any loss or destruction of, or damage to, the
Transponders identified above). The Security Interest shall be deemed to arise
under all security agreements, indentures, mortgages, pledge agreements and
other collateral documents between Trustee and PanAmSat, including all renewals,
modifications, consolidations or replacements thereto (collectively, the
"Collateral Documents"). Notwithstanding the Security Interest, the Trustee
agrees that Customer shall continue to have the benefits of this Agreement
notwithstanding any default on the part of PanAmSat under the Collateral
Documents, so long as (i) Customer is not in default under the terms and
conditions of this Agreement, (ii) Customer shall not pay any of its obligations
under this Agreement more than 30 days prior to their scheduled payment date
under this Agreement, (iii) this Agreement is not supplemented, amended or
extended or otherwise modified in any manner which adversely affects the
interests of the Trustee on behalf of the holders of the Senior Secured Notes
(as defined in the Collateral Documents) in a degree greater than the manner in
which it adversely affects PanAmSat, and (iv) after receipt of notice from the
Trustee of a default by PanAmSat under the Collateral Documents, Customer agrees
to make, and makes, all payments thereafter as instructed by the Trustee.
(b) Customer acknowledges and consents to the foreclosure, should
it occur, upon this Agreement by the Trustee or its designee, successor or
assignee, and the consequent replacement of PanAmSat under this Agreement by the
Trustee, its designee, successor or assignee, or another purchaser or assignee,
provided that any successor to PanAmSat under this Agreement (i) expressly
assumes PanAmSat's obligations hereunder for the benefit of Customer, and (ii)
succeeds to substantially all of the right, title, and interest in and to all
assets of PanAmSat reasonably necessary for such successor to perform its
obligations under this Agreement. Upon such succession and assumption by a party
other than the Trustee, the Trustee and its successors under this Agreement,
other than the ultimate successor, shall be released from any further liability
under this Agreement.
47
(c) The Trustee shall be entitled to exercise all rights and to
cure any defaults of PanAmSat under this Agreement, within such cure period as
may be available to PanAmSat under this Agreement. Upon receipt of notice from
the Trustee, Customer agrees to accept such exercise and cure by the Trustee and
to render all or any part of the performance due by Customer under this
Agreement to the Trustee.
(d) The Trustee shall be deemed an express third party
beneficiary of this Appendix E-2. This Appendix E-2 shall be self-operative and
no further instrument of subordination shall be required by any security
agreement, mortgage or other document reflecting the Security Interest to make
this subordination effective. In confirmation of such acknowledged
subordination, Customer shall execute promptly any instrument or certificate
which PanAmSat or the Trustee may reasonably request.
