Exhibit 4.11
Digitalizado
19 APR 04
(SATMEX LOGO) Contract No. 319-I
Page 1 of 73
SERVICE DESCRIPTION
AGREEMENT BETWEEN
XXXXXX NETWORK SYSTEMS
AND
SATMEX
CONCERNING SATMEX SPACE SEGMENT CAPACITY SERVICE
This Agreement (the "Agreement") is made this 20 day of January, 2000 by and
between Xxxxxx Electronics Corporation, a corporation organized and existing
under the laws of the Sate of Delaware; through its division, Xxxxxx Network
Systems and having its primary place of business at 00000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 (hereinafter referred to as "CUSTOMER" which term shall
include its successors and permitted assigns) and Satelites Mexicanos, S.A. de
C.V., a corporation organized and existing under the laws of Mexico, and having
a place of business at Blvd. Xxxxxx Xxxxx Xxxxxxx, No. 40, piso 23, Colonia
Xxxxx xx Xxxxxxxxxxx, X.X. 00000, Xxxxxx, D.F. (hereinafter referred to as
"SATMEX" which term shall include its successors and permitted assigns).
WITNESSETH:
WHEREAS, SATMEX has satellite capacity available on *** 36 MHz Ku1 Band
transponder, in the NAFTA beam of the Satmex 5 satellite located 116.8 degrees
West Longitude ("Satmex 5") for the purpose of providing such capacity of
CUSTOMER;
WHEREAS, CUSTOMER desires to obtain service on *** Ku1-Band transponder in the
NAFTA beam of Satmex 5; and,
(R)SATMEX is a registered trademark of SATELITES MEXICANOS, S.A. DE C.V.
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WHEREAS, CUSTOMER intends to condition its obligations under this Agreement on
obtaining the Regulatory Approval (as defined below) for such usage as provided
in this Agreement.
WHEREAS, CUSTOMER declares that it shall comply with the applicable legislation
in the countries within the region(s) where it shall utilize the Satmex 5
satellite service, and that it shall obtain the necessary authorization(s) from
the corresponding regulating institutions to install, operate or exploit the
transmitting and/or receiving ground station(s) prior to doing so.
WHEREAS, CUSTOMER is acquainted with the established legal framework in the
Mexican and international settings to which the service provided by this
Agreement is subject, and is bound to use the service rendered by SATMEX within
that applicable legal framework.
WHEREAS, this Agreement shall be in effect and the satellite services provided
hereunder shall be provided by SATMEX to CUSTOMER on a non common carrier basis
such that the terms and conditions of the use of these services are governed
solely by this Agreement and the Satellite Concession (as defined below).
NOW, THEREFORE, CUSTOMER and SATMEX, in consideration of the mutual covenants
expressed herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, agree as follows:
1. SATMEX SERVICES
1.1 SATMEX agrees to provide CUSTOMER with the Space Segment Capacity
service on the terms and conditions established herein and to perform
its other obligations hereunder. CUSTOMER agrees to xxx SATMEX for
providing such service, the price established in Section 2 herein
(Rate and Term of Service) and to perform its other obligations
hereunder.
The service provided under this Agreement shall be provided during the
Term (as defined below) as an international service of signal
conduction via satellite, through the Mexican Satellite System, by
means of *** meeting the "Performance Parameters" (as set forth in
Exhibit A), as a Non-Preemptible service, in the Ku1 Band, and in the
"NAFTA" region beam, of the Satmex 5 satellite (the "Space Segment
Capacity"). The Space Segment Capacity initially shall consist of ***
transponder of 36 MHz (the "Basic Capacity").
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1.2 CUSTOMER shall have the option (the "Upgrade Option") to increase the
Basic Capacity by *** additional transponder of 36 MHz each, in
increments of *** or *** transponder (any such additional ***
transponder, the "Additional Capacity"), subject to the conditions
established in Section 3 (Options or Special Terms) and *** outlined
in Section 2.2. Additional Capacity may be added to the Space Segment
Capacity, by exercise of the Upgrade Option as provided in Section 3,
in accordance with the following schedule:
For a *** month term ***: more transponders, starting on ***
For a *** month term ***: more transponders, starting on ***
For a *** month term ***: more transponders, starting on ***
For a *** month term ***: more transponders, starting on ***
2. RATE AND TERM OF SERVICE
2.1 CUSTOMER shall pay SATMEX a monthly rate for the Space Segment Capacity
service, in accordance with Paragraph 2 of the General Terms and Conditions
which are attached to and incorporated into this Agreement by reference for all
purposes, and the following table:
QUANTITY
(TOTAL # OF
TRANSPONDERS IN MONTHLY RATE
SPACE SEGMENT PER TRANSPONDER
CAPACITY) (U.S. DOLLARS)
--------------- ----------------
*** ***
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2.2 Additionally, CUSTOMER shall pay to SATMEX *** additional transponders for
possible addition to the Space Segment Capacity through the exercise of the
Upgrade Option as follows ***
MONTHLY RATE
PER
ADDITIONAL ADDITIONAL TRANSPONDER TRANSPONDER
TRANSPONDERS *** PERIOD SERVICE START DATE (U.S. DOLLARS)
------------ ---------- ---------------------- --------------
*** *** *** ***
Notwithstanding the foregoing provision of this Section 2.2, no *** If service
on any additional transponder starts Additional Transponder Service Start Date,
SATMEX shall give CUSTOMER ***
CUSTOMER shall have the option, exercisable on one or more occasions, ***. In
that event, CUSTOMER shall continue paying for the following *** for such
relinquished transponder(s) in accordance with this Section 2.2 herein.
Notwithstanding the exercise of any such option to cease ***, during the Term
and subject to Availability, Customer shall retain the right to elect to use
such transponders as part of the Space Segment Capacity in accordance with this
Agreement.
***
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If prior to the commencement of service on any additional transponders
constituting the Additional Capacity, one or more Ku1 Band transponders in the
NAFTA beam of Satmex 5 fails, and SATMEX no longer will able to provide service
on all of such additional transponders to CUSTOMER in accordance with *** set
forth in Section 1.2, then (A) *** shall be due with respect to such failed
transponder from the date of such Failure until the earlier to occur of (i) such
transponder is restored to the Performance Parameters, or (ii) SATMEX is able to
meet such service dates with respect to such failed transponder by substituting
another KU1 Band transponder in the NAFTA beam of Satmex 5 meeting the
Performance Parameters, and (B) SATMEX shall refund to CUSTOMER the *** paid in
advance for such failed transponder the period after such Failure.
If the *** has not been *** by the *** by April 30, 2000, as set forth in
Section of this Service Description, and as a consequence CUSTOMER decides to
terminate this Agreement, SATMEX shall ***
Notwithstanding anything to the contrary in this Agreement, if CUSTOMER has ***
as to any additional transponder, and this Agreement is terminated wholly or
partially or an Upgrade Option expires, and any such termination is not due a
material breach by CUSTOMER, ***
CUSTOMER shall pay SATMEX the amount established in this Section 2.2 for ***
within thirty (30) days after written notification of ***
3. OPTIONS OR SPECIAL TERMS
3.1 CUSTOMER may exercise any Upgrade Option for *** transponder by proving
written notice to SATMEX at least sixty (60) days prior to the starting date for
service on such transponders specified in Section 1.2.
CUSTOMER may start service on the Additional Capacity prior to the starting
dates specified in Section 1.2 herein, subject to Availability. "Availability"
means in respect of any transponder, that such transponder is not subject to a
binding agreement between SATMEX and a third party for its lease, sales or use
and its use by CUSTOMER hereunder is not otherwise restricted by any Mexican
law, rule or regulation applicable to SATMEX.
Each Upgrade Option for *** transponder is separately and independently
exercisable in respect of each Upgrade Option and each transponder.
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If an upgrade Option is not exercised by CUSTOMER at least sixty (60) days
before the relevant starting date specified in section 1.2, CUSTOMER's right
to *** such Upgrade Option will be subject to Availability ***
3.2 SPECIAL CONDITIONS
If CUSTOMER has not started service on ***, all remaining Upgrade Options shall
expire and no from and after such date.
If CUSTOMER has not started service on ***, all remaining Upgrade Options shall
expire and *** from and after such date.
3.3 CUSTOMER will have the option to extend the Team for an *** To exercise this
option, CUSTOMER must provide a written notice to SATMEX at least *** prior to
the end of the original Term, and on or before ***.
4. TRANSPONDER LOADING
The Space Segment Capacity service includes transponder management for the
uplink of carriers within power and bandwidth constraints of each transponder.
Any changes to CUSTOMER's initial loading plan ("Initial Loading Plan") as set
forth in Exhibit "C" shall be subject to any applicable intersatellite
coordination and the provisions of Paragraph 8 ("USE OF THE TRANSPONDERS") of
the General Terms and Conditions. Subject to SATMEX having achieved
intersatellite coordination with affected Administrations that permits such use,
which SATMEX will use its commercially reasonable efforts to achieve, CUSTOMER
may use the Space Segment Capacity with the transmitting remote terminals
described on Exhibit C, Sections 4 and 5. SATMEX acknowledges that such two-way
service would involve a network of widely deployed consumer transmit antennas,
and agrees to work in good faith with CUSTOMER to make appropriate modifications
to Exhibit D to accommodate such plans of CUSTOMER.
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5. TERM
The "Term" of this Agreement is ***, from January 20, 2000 through January 19,
2005, subject to extension pursuant to Section 3.3 above.
6. ***
Customer and SATMEX agree, that with LORAL SKYNET's assistance each will work in
good faith to explore ***. If both parties reach an agreement on a *** before
March 15, 2000, the *** shall be modified in accordance with such agreement. If
the Parties do not reach an agreement on a *** before March 15, 2000, the ***
will remain as set forth in ***.
7. NOTICES
All notices, demands, requests, or other communications which may be or are
required to be given, served, or sent by one party to the other party pursuant
to this Agreement (except as otherwise specifically provided in this Agreement)
shall be in writing and shall be delivered by confirmed facsimile, confirmed
overnight mail, by hand or mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
(i) If to CUSTOMER: Xxxxxx Network Systems
00000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxx Xxxxxxxxx
Copy to: Xxxxxx Network Systems
00000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxx X'Xxxxx
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(ii) Billing Contact: Xxxxxx Network Systems
00000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Accounts Payable
Copy to: Xxxxxx Network Systems
00000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxx X'Xxxxx.
(ii) If to SATMEX: Satelites Mexicanos, S.A. de C.V
Blvd. X. Xxxxx Xxxxxxx
Xx. 00, xxxx 00
Xxxxxxx Xxxxx xx Xxxxxxxxxxx
C.P. 11000
ATTN: Xxxx Xxxxxx Xxxxxx
Executive Director - Sales and Marketing
Phone: (000) 000-0000
Copy to: Satelites Mexicanos, S.A. de C.V
Blvd. X. Xxxxx Xxxxxxx
Xx. 00, xxxx 00
Xxxxxxx Xxxxx xx Xxxxxxxxxxx
ATTN: Xxxxxx Xxxxx A.
General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
Either party may designate by notice in writing a new address or addressee, to
which any notice, demand, request, or communication may thereafter be so given,
served or sent. Each notice, demand, request, or communication which shall be
delivered, shall be deemed sufficiently given, served, sent or received for all
purposes at such time as it is delivered to the addressee named above as to each
party, with the signed messenger receipt, return receipt, or the delivery
receipt being deemed presumptive evidence of such delivery.
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8. RELIABILITY:
The Space Segment Capacity shall be available twenty-four (24) hours per day,
every day during the Term, except for interruptions expressly permitted under
this Agreement. *** An "Annual Period" means a period of twelve (12) consecutive
months commencing on, as the case may be, either (i) the date hereof or (ii) any
anniversary of the date hereof.
9. ***
***
Notwithstanding anything to the contrary in this Agreement, if the *** has not
been obtained on or before April 30, 2000, then CUSTOMER may, at its option,
terminate this Agreement by giving written notice to SATMEX within sixty (60)
days after April 30, 2000, without incurring any obligation to ***. If CUSTOMER
elects to so terminate this Agreement, neither party shall thereafter have any
rights or obligations hereunder except for those obligations incurred prior to
the date of such termination.
10. ENTIRE AGREEMENT
This Agreement along with the General Terms and Conditions and Exhibits A, B, C
and D, all of which are incorporated herein by reference, constitutes the entire
agreement between CUSTOMER and SATMEX relative to the Space Segment Capacity
service, and this Agreement can be altered, amended or revoked only by an
instrument in writing signed by both CUSTOMER and SATMEX. CUSTOMER and SATMEX
agree hereby that any prior or contemporaneous oral and written agreements
between and among themselves and their agents and representatives relative to
the subject of this Agreement are superseded and replaced by this Agreement. Any
provision of this Agreement found to be unenforceable or invalid by a court of
competent jurisdiction shall in no way affect the validity or enforceability of
any other provision except that if such invalid or unenforceable provision
provided a material benefit to a party hereto, such party shall have the right
to terminate the Agreement without liability to the other party, except for
payment allowance or service obligations incurred prior to such termination.
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11. REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
Each of the CUSTOMER and SATMEX represents and warrants to the other that:
a) Authority, No Breach. It has the right, power and authority to enter
into, and perform its obligations under, this Agreement. The execution, delivery
and performance of this Agreement will not result in the breach or
non-performance of any agreement it has with third parties or to which any of
its assets is subject.
b) Corporate Action. It has taken all requisite corporate action to approve
the execution, delivery and performance of this Agreement, and this Agreement
constitutes a legal, valid and binding obligation upon itself in accordance with
its terms.
c) Litigation. To the best of its knowledge, there is no outstanding or
threatened judgement, threatened or pending litigation or proceeding, involving
or affecting the transactions provided for in, or contemplated by, this
Agreement.
d) No Broker. There is no broker, finder or intermediary involved on its
behalf in connection with the negotiations and discussions incident to the
execution of this Agreement, nor any broker, finder or intermediary who might be
entitled to a fee or commission upon the consummation of the transactions
contemplated by this Agreement.
(e) ***. The Parties shall use commercially reasonable efforts, and
cooperate in good faith, to obtain the ***. CUSTOMER shall furnish to SATMEX all
necessary technical data as is reasonably requested in connection with ***
12. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF SATMEX.
SATMEX further represents and warrants to, and covenants with, CUSTOMER that:
(a) Authority of SATMEX. SATMEX holds the legal right and authority from
the applicable Mexican regulators, pursuant to the provision of the Mexican
Federal Telecommunication Law ("Ley Federal de Telecommunicaciones") and of the
Mexican Regulations of Communication Via Satellite ("Reglamento de Comunicacion
Via Satelite"), to occupy the 116.8 degrees West Longitude Geostationary orbit
position with Satmex 5, to exclusively exploit the "C" and "Ku" frequency bands,
to transmit and receive signals in such frequency bands, and to provide the
Space Segment Capacity to CUSTOMER in accordance with the terms of this
Agreement (the "Satellite Concession"). SATMEX shall use its reasonable efforts
to
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maintain throughout the Term, the Satellite Concession and all other applicable
governmental licenses, permits and other approval, and shall comply with all
applicable government regulations regarding the operation of Satmex 5, the Space
Segment Capacity and this Agreement.
(b) Right to Receive the Service. SATMEX will provide the Space Segment
Capacity to CUSTOMER in accordance with the terms and conditions established in
this Agreement free from any and all liens, charges, claims or encumbrances of
any third party.
(c) Interference. SATMEX has no knowledge as of the date of this Agreement
of any third party or of any device or transmission of any kind, that can
reasonably be expected to cause or result in Interference with the use of any of
the Space Segment Capacity or cause physical harm to any of the Space Segment
Capacity. "Interference" means any unwanted energy that is received along with
the transmitted signal that disrupts, causes degradation or otherwise decreases
the quality of CUSTOMER's signal. SATMEX will use its reasonable efforts to
minimize adjacent channel and adjacent satellite interference. SATMEX has not
and will not contract to provide service to any third party that (i) while
operating under the terms of a contract with SATMEX, can reasonably be expected
to cause or result in interference with the use of any of the Space Segment
Capacity or cause physical harm to any of the Space Segment Capacity, or (ii)
would otherwise prevent SATMEX from fulfilling its obligations hereunder.
(d) Coordination. Satmex 5 has been coordinated with the applicable
governing bodies of the United States, Canada and all other relevant
jurisdictions and administrations for the provision of the Space Segment
Capacity in accordance with this Agreement, except to the extent that the
Regulatory Approval is necessary to accommodate CUSTOMER's particular intended
use of the Space Segment Capacity.
(e) Further Assurances. SATMEX will use commercially reasonable efforts to
assist CUSTOMER in CUSTOMER's efforts to obtain any and all appropriate
governmental licenses, consents, concessions, permits and other approvals
related to the CUSTOMER's use of the Space Segment Capacity.
(f) Performance of Space Segment Capacity. As of the date hereof, the ***
Ku1 Band transponder in the NAFTA beam of Satmex 5 that constitute the Space
Segment Capacity meet the Performance Parameters.
13. FORCE MAJEURE.
No failure delay in the performance of a party hereunder shall be a breach of
this Agreement if such failure or delay results from a Force Majeure Event.
"Force Majeure Event" means any cause or aggregation of causes that, even after
a party's reasonable efforts to overcome such cause or causes, renders such
party wholly or partially unable to perform its obligations under
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this Agreement due to acts of God, war, riots, civil insurrections, labor
disputes, governmental orders, adverse weather conditions, fires, explosions,
earthquakes, epidemics, or plagues, or any other events or circumstances beyond
the reasonable control of such party. No force Majeure Event affecting SATMEX,
shall relieve SATMEX of its obligation to provide credit allowances, or to make
refunds to CUSTOMER of service payments ***, as otherwise provided hereunder; or
no Force Majeure Event affecting CUSTOMER shall relieve CUSTOMER of its payment
or other obligations due under this Agreement.
14. CONFLICT.
In the event of any conflict between the terms of this Service Description and
the attached General Terms and Conditions or Exhibits A, B, C, and D, the terms
of this Service Description shall prevail.
15. INJUNCTIVE RELIEF.
Nothing in this Agreement shall be construed as limiting in any way the right of
a party to seek from a court of competent jurisdiction injunctive relief with
respect to any actual or threatened breach of this Agreement.
16. SURVIVAL.
Each of the warranties, representations and covenants of the parties contained
or made pursuant to this Agreement shall survive the execution and delivery of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
January 20, 2000, and agree to the terms and conditions set forth herein.
CUSTOMER SATMEX
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx Xxxxxx
--------------------------------- ------------------------------------
Title: AVP - HNS Title: Chief Executive Officer
Date: 1/20/00 Date: 2/01/00
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GENERAL TERMS AND CONDITIONS
OF THE
AGREEMENT BETWEEN
CUSTOMER
AND
SATMEX
CONCERNING SATMEX SPACE SEGMENT CAPACITY
1. WARRANTY EXCLUSIONS
SATMEX WARRANTS TO CUSTOMER THAT SATMEX WILL PERFORM THE SPACE SEGMENT
CAPACITY SERVICES DESCRIBED HEREIN IN ACCORDANCE WITH GENERALLY ACCEPTED
INDUSTRY STANDARDS. SUBJECT TO THE ABOVE, SATMEX, ITS PARENT, THEIR SUBSIDIARIES
AND THEIR AFFILIATES, SUBCONTRACTORS AND SUPPLIERS MAKE NO WARRANTY, EXPRESS OR
IMPLIED, REGARDING THE PERFORMANCE OF THE SERVICE (AS DEFINED BELOW), AND
SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
2. PAYMENT OF CHARGES
A monthly charge applies each month or fraction thereof that Space Segment
Capacity service is furnished hereunder ("Service"). Monthly charges start on
the first day the Service begins pursuant to Section 1, ("SATMEX SERVICES") of
the main agreement between SATMEX and CUSTOMER (the "Service Description") to
which these General Terms and Conditions are attached, together with the
Exhibits attached thereto (collectively, this "Agreement"). Charges accrue
through and include the day that the Service is discontinued. If the billing
date and the date that the Service is started, changed, or discontinued do not
coincide, the charges will be adjusted to reflect the fractional part of the
month involved. Monthly charges will be billed 30 days in advance. For billing
purposes each month is considered to have thirty (30) days. Payment is due on or
before the first day of each month for Services to be provided that month, as
specified on the xxxx. Service may be discontinued for nonpayment of a xxxx ten
(10) days after notice of such nonpayment is sent.
All refunds to CUSTOMER provided for in this Agreement, shall be made by SATMEX
within thirty (30) days of the event giving rise to such refund.
3. INTEREST ON LATE PAYMENTS
Any late payments by either party of amounts due and payable hereunder
(including but not limited to, specified payments, damages, and indemnification)
to the other party shall be with interest at the rate of *** per annum, or the
highest legally permissible rate of interest, whichever is higher, and all
interest or discounting shall be compounded on a monthly basis. Such late
payments, including interest, shall be payable with the amount due and
calculated from the date payment was due until the date it is received by the
correspondent party.
4. TAXES
The parties agree that each party shall pay the taxes and tariffs
applicable to such Party in connection with this Agreement, according to the
legal ordinances in force in their respective countries.
5. TYPE OF SERVICE
NON-PREEMPTIBLE SERVICE
Except as provided in Paragraph 7 ("RESTORATION OF A FAILED TRANSPONDER")
herein, "Non-Preemptible" transponders are not protected in the event of failure
and are not subject to preemption to restore any other customer's protected
service.
6. TRANSPONDER INTERRUPTION OF FAILURE
(R)SATMEX is a registered trademark of SATELITES MEXICANOS
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For the purposes of this Agreement; (i) an interruption ("Interruption"
shall be defined as any period during which a transponder fails to meet the
Performance Parameters set forth in Exhibit A) and (ii) a failure ("Failure")
shall be defined as any of the following:
a) the inability, for any period of three (3) consecutive hours, to pass
signals through a transponder when it is illuminated with any
authorized transmitted carrier,
b) an Interruption for any period of twenty four (24) consecutive hours,
or
c) ten (10) or more Interruptions of at least one (1) minute or longer
per occurrence within any period of thirty (30) consecutive days.
For purpose of this Agreement, measurement of periods of Interruption or Failure
shall commence upon the earlier of CUSTOMER's written notification to SATMEX's
Iztapalapa Earth Station or SATMEX's knowledge of the Interruption or Failure,
and CUSTOMER shall vacate its signal from the affected transponder to permit
SATMEX's verification of the existence of the Interruption or Failure. An
Interruption or Failure period ends when the affected transponder is operative
and meets the Performance Parameters. If CUSTOMER reports a transponder to be
interrupted or failed but declines to release it for testing and repair, it is
considered to be impaired, but not Interrupted or Failed.
7. RESTORATION OF A FAILED TRANSPONDER
NON-PROTECTED TRANSPONDER
In the event any non-protected transponder provided hereunder experiences a
Failure, or an event occurs that makes a Failure certain to arise after the
passage of time (as determined by SATMEX), CUSTOMER shall, as soon as possible,
notify SATMEX, confirmation in writing to follow, and SATMEX immediately will
endeavor to, subject to Availability, using commercially reasonable efforts, and
giving CUSTOMER priority other all over users that do not have Protected
Capacity and that contracted for service after the date of this Agreement, take
the following actions in the order of priority listed: (i) restore the service
on the affected transponder by using spare equipment on Satmex 5; or (ii)
restore the Service on an Available transponder of the same frequency band and
in the same coverage beam as that of the failed transponder on Satmex 5
(provided that transponder meets the Performance Parameters, it will thereafter
become the non-protected transponder, through which the Service will be
provided); or (iii) restore the Service by taking reasonable measures such as
those described under the heading "Other Capacity" below. "Protected Capacity"
means the space segment capacity that has total back-up in the same satellite or
in another SATMEX satellite, except when Failure or Interruption is due to
user's action or omission that is not a SATMEX guideline.
SATMEX will not, voluntarily allow any Interruption or Failure to occur, unless
such Interruption is necessary to maintain the health of the satellite, or is
otherwise required by governmental authorities, as reasonably determine by
SATMEX. SATMEX shall make reasonable efforts to provide advance notice and
coordinate with CUSTOMER any Interruption due to maintaining the health of the
satellite, and SATMEX shall use commercially reasonably efforts to ensure that
any Interruption due to maintaining the health of the satellite causes the least
possible interference inconvenience or damage to CUSTOMER.
OTHER CAPACITY
If any portion of the Space Segment Capacity fails to meet the Performance
Parameters due to a Failure of Satmex 5, including without limitation, any such
Failure resulting from a Force Majeure Event, the SATMEX shall use commercially
reasonable efforts to find alternate satellite capacity suitable for CUSTOMER,
including the provision of intersatellite protection, if available, at rates to
be agreed upon by both parties. In such event, CUSTOMER may, in its sole
discretion accept or reject such alternative satellite capacity within
twenty-four (24) hours of SATMEX having offered such alternate satellite
capacity to CUSTOMER, and SATMEX shall have no liability whatsoever.
If Customer declines such alternate satellite capacity, it shall have the option
to terminate this Agreement pursuant to Paragraph 18.2 hereof.
8. USE OF THE TRANSPONDERS
The Service includes transponder management for the uplink of carriers as
set forth in Section 4 ("TRANSPONDER LOADING") of the Service Description, to
each of the transponders provided hereunder.
For purposes of this Agreement the carriers will be classified and defined as
follows:
(1) Digital Carriers: A "Digital Carrier" is a radio signal whose carrier
phase and or amplitude takes on discrete values during a modulation
symbol in
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response to balanced amplitude modulation by a raised cosine (or other
industry standard) filtered impulse train representing digital
information for any purpose including but not limited to video, voice,
or data. Digital Carrier types include Binary Phase Shift Keying
Quadrature Phase Shift Keying, 8 state Phase Shift Keying, 16 state
Quadrature Amplitude Modulation and other industry standard data
carrier types.
If CUSTOMER desires to transmit to any transponder provided under the
Service Description in any manner different ("Different Loading Plan") than as
specified in such transponder's initial loading plan, then the following shall
apply.
(i) If the Different Loading Plan involves Digital Carriers, then CUSTOMER
may implement such Different Loading Plan at any time, provided that
CUSTOMER shall provide the Different Loading Plan to SATMEX, no later than
fourteen (14) days after the start date of such Different Loading Plan,
identifying its characteristics. In the event that SATMEX is required to
perform any maintenance or troubleshooting activity involving the affected
transponder, CUSTOMER must furnish the Different Loading Plan on demand,
and
(ii) Notwithstanding anything in the Service Description to the contrary,
CUSTOMER may request SATMEX's authorization for more than one Different
Loading Plan for any transponder provided hereunder, for any period of
time, during the term of the Agreement, and SATMEX may grant or deny such
request in its reasonable discretion.
9. LIMITATION OF LIABILITY
9.1 SATMEX SHALL ONLY BE LIABLE FOR ***
9.2 SATMEX'S LIABILITY TO CUSTOMER FOR CREDITS, REIMBURSEMENTS OR OTHER
PAYMENTS OF ANY NATURE WHATSOEVER, ***
9.3 EXCEPT FOR CASES INVOLVING SATMEX'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE,
SATMEX SHALL NOT INCUR ANY LIABILITY WHATSOEVER FOR DAMAGES SUFFERED BY
CUSTOMER OR THIRD PARTIES, DUE TO ANY FAILURE OR INTERRUPTION OF SERVICE OR
OTHERWISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER THE SAME
ARE DERIVED FROM FORCE MAJEURE EVENTS, DELAY IN DELIVERY, DEFICIENT
FUNCTIONING, FAILURES THAT MIGHT APPEAR IN THE SPACE SEGMENT CAPACITY, OR
SERVICE INTERRUPTIONS IN THE PART CORRESPONDING TO THE SPACE SEGMENT
CAPACITY OR EQUIPMENT OWNED BY SATMEX OR CUSTOMER, OR ANY OTHER REASON.
9.4 WITHOUT LIMITING THE GENERALITY OR PARAGRAPH 9.3, SATMEX IS NOT LIABLE FOR
DAMAGES ASSOCIATED WITH NOR SHALL IT HAVE ANY OBLIGATION WITH RESPECT TO
SERVICE CHANNELS, OR EQUIPMENT, WHICH SATMEX DOES NOT FURNISH.
9.5 SATMEX, ITS PARENT, THEIR SUBSIDIARIES AND AFFILIATES, AND THE DIRECTORS,
EMPLOYEES, AGENTS AND SUBCONTRACTORS OF ALL OF THEM, SHALL BE INDEMNIFIED,
DEFENDED, AND HELD HARMLESS BY CUSTOMER AGAINST ALL CLAIMS, LOSSES, OR
DAMAGES RESULTING FROM THE USE OF SERVICES FURNISHED PURSUANT TO THIS
AGREEMENT INVOLVING:
9.5.1. CLAIMS FOR LIBEL, SLANDER, INVASION OF PRIVACY, INFRINGEMENT OF
COPYRIGHT, OR ANY CLAIM BASED ON THE CONTENT OF ANY TRANSMISSION
ARISING FROM ANY COMMUNICATION USING THE SPACE SEGMENT CAPACITY DURING
THE TERM;
9.5.2. CLAIMS FOR PATENT INFRINGEMENT ARISING FROM COMBINING OR USING THE
SERVICE FURNISHED HEREUNDER BY SATMEX IN CONNECTION WITH FACILITIES OR
EQUIPMENT FURNISHED BY OTHERS; OR
SATMEX PROPRIETARY
*** Confidential treatment requested by Satmex.
(SATMEX LOGO) Contract No. 319-I
Page 16 of 73
***
9.6 NO LICENSE UNDER PATENTS (OTHER THAN THE LIMITED LICENSE TO USE) IS GRANTED
BY SATMEX OR SHALL BE IMPLIED OR ARISE BY ESTOPPEL, WITH RESPECT TO ANY
SERVICE OFFERED UNDER THIS AGREEMENT.
9.7 NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE FOR
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST
PROFITS, SAVINGS OR REVENUES OF ANY KIND, REGARDLESS OF WHETHER IS ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, THIS EXCLUDES CUSTOMER's OBLIGATION FOR
EARLY TERMINATION PAYMENT.
9.8 CUSTOMER, its parent, their subsidiaries and affiliates, and the directors,
and employees, agents and subcontractors of all of them, shall be
indemnified, defended, and held harmless by SATMEX against all claims,
losses or damages resulting form the use of the Space Segment Capacity
furnished pursuant to this Agreement involving claims for infringement of
copyright, patent or any other intellectual property rights, caused by any
satellite communications equipment, software or other protected material
used by SATMEX in providing service to CUSTOMER under this Agreement.
10. CREDIT ALLOWANCES
*** For calculation of such credit allowance each month is considered to
have thirty (30) days. Such credit allowance will be given for ***:
***
11. CONTENT OF TRANSMISSIONS
CUSTOMER is solely responsible for the content of transmissions using
the transponder and related service.
12. SCRAMBLING
Prior to commencing use of the Service provided under this Agreement,
CUSTOMER, at its expense, shall provide SATMEX with end user equipment that
reasonably may be required for signal monitoring.
13. REFUSAL OF SERVICE
SATMEX may terminate, prevent or restrict any communications using the Service
provided hereunder as a means of transmission if such actions (1) are undertaken
at the direction of a governmental agency with jurisdiction (including the U.S.
Federal Communications Commission and Mexican Telecommunication Federal
Commission "COFETEL") or (2) are taken subsequent to the institution against
SATMEX, CUSTOMER or any permitted assignees, any legal entity affiliated with
any of them, or any of the directors, officers, agents or employees of the
parties, permitted assignees or their affiliates, of criminal, or administrative
proceedings or investigations based upon the content of such communications,
other than civil proceedings, SATMEX will not terminate, prevent or restrict
CUSTOMER's transmissions pursuant to such clause if, immediately upon
notification by SATMEX of the institution of
SATMEX PROPRIETARY
*** Confidential treatment requested by Satmex.
(SATMEX LOGO) Contract No. 319-I
Page 17 of 73
such proceedings, CUSTOMER is able to satisfy SATMEX subject to SATMEX's
reasonable discretion that within forty-eight (48) hours the aforementioned
proceedings will be resolved to SATMEX's reasonable satisfaction or the relevant
transmissions will terminate in the relevant jurisdiction and that they will not
reoccur in the relevant jurisdiction. Nothing in this Paragraph shall affect any
other term or condition hereof including without limitation any obligation under
Paragraph 9 ("LIMITATION OF LIABILITY") or any obligation to pay the rates
applicable to this Agreement.
14. ASSIGNMENT/RESALE
14.1 ASSIGNMENT
14.1.1 CUSTOMER's ASSIGNMENT:
CUSTOMER shall have the express right to assign this Agreement without SATMEX's
consent in connection with the merger of CUSTOMER or the sale of substantially
all of Xxxxxx Network Systems' VSAT and/or DIRECPC business, provided that, (1)
CUSTOMER shall give SATMEX thirty (30) day's prior written notification, and (2)
any third parties which survive such merger or sale shall comply with the
requirements stated in next paragraph. CUSTOMER acknowledges and agrees that
notwithstanding anything to the contrary contained in this Agreement, CUSTOMER
shall not transfer, nor assign any of its rights or obligations under this
Agreement to any third parties. *** without SATMEX's prior written consent,
which shall not be unreasonably withheld or delayed.
Any such third parties must comply with all of SATMEX's legal, technical,
economic and other conditions and requirements under this Agreement.
14.1.2 SATMEX's ASSIGNMENT:
SATMEX shall have the express right to assign this Agreement including its
rights, duties and obligations hereunder, to its parent corporation or any
present or future affiliate or subsidiary of SATMEX, or in connection with the
merger or acquisition of its satellite business; provided, that in any such
case, such assignee also is capable of and has the right to operate Satmex 5 and
the Space Segment Capacity, and complies with the Satellite Concession to
provide the service, and possesses all other rights and assets needed to perform
this Agreement.
14.2 RESALE
In the event CUSTOMER desires to resell all or part of the capacity (part
of capacity can be resold only as part of complete transponders), CUSTOMER must
first give written notice to SATMEX.
CUSTOMER may only resell the entire Space Segment Capacity or complete
transponders constituting the Space Segment Capacity to any third party, if (i)
such resale contains a material value added component and is therefore, not a
pure resale of any portion of the capacity (for example, as part of the
provision of a VSAT network or as part of the provision of a service similar to
DIRECPC); and (ii) if such third parties agree in writing to comply with all the
legal, technical and financial conditions of this Agreement, including the
parameters and recommendations established in Paragraph 15 (NON-INTERFERENCE),
herein. With the prior written consent of SATMEX, CUSTOMER may resell the entire
Space Segment Capacity or complete transponders constituting the Space Segment
Capacity without regard to the foregoing restrictions, such consent not to be
unreasonably withheld or delayed, provided that SATMEX does not have Ku1 Band
capacity Available at the time of such resale in the NAFTA beam of Satmex 5.
15. NON-INTERFERENCE
CUSTOMER'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, or otherwise)
statues, 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 transponder, and any backup
transponders to which CUSTOMER is given access pursuant to this Agreement and
shall not interfere with the use of any transponder or cause physical harm to
the Space Segment Capacity to which CUSTOMER is given access pursuant to this
Agreement, any other transponders, or to the satellite on which the Transponder
is located. Further, CUSTOMER will coordinate with (and will require its
uplinking agents to coordinate with) SATMEX, in accordance with procedures
reasonably established by SATMEX 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. For purposes of
this Paragraph 16, interference shall also mean acts or omissions, which cause a
transponder to fail to meet its transponder performance parameters. Nothing in
the foregoing shall prevent CUSTOMER from using the Space Segment Capacity in
accordance with Exhibits hereto.
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
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Page 18 of 73
Notwithstanding the aforementioned, the ground station(s) through which the
service is provided shall satisfy the technical specifications and features set
forth in the Exhibits hereto and shall fulfill among others, recommendation
ITU-R. S.580-5 and operate with agile and fractionary step frequency
synthesizers. The above are described in the technical Exhibits hereto.
16. IMPROPER ILLUMINATION.
SATMEX transmission parameters are as set forth in Exhibit B ("Ku1-Band
TRANSMISSION PARAMETERS"). In the event improper illumination of any transponder
provided under the Service Description is detected by SATMEX, CUSTOMER shall be
notified and CUSTOMER shall take immediate corrective action to stop the
improper illumination within five (5) minutes of notification from SATMEX.
Improper Illumination shall include transmissions which are other than as
described in Exhibit B ("TRANSMISSION PARAMETERS") and C ("PARAMETER
SPECIFICATIONS FOR MASTER GROUND STATIONS AND REMOTE EARTH STATIONS"),
transmissions at an incorrect frequency, transmissions at excessive power levels
or any illumination which can cause harm or interference to any transponder or
to any satellite. Nothing in the foregoing shall prevent CUSTOMER from using the
Space Segment Capacity in accordance with Exhibits hereto. Charge of ***
dollars per minute, to a maximum equal to twelve months billing per applicable
transponder per incidence, may apply for improper illumination that continues
beyond a thirty (30) minute period after notification, or attempted notification
if there is no answer at the telephone number provided by CUSTOMER. SATMEX will
exercise reasonable good faith in determining whether to apply the charge
described herein, which determination will take into consideration whether
CUSTOMER used its reasonable best efforts to resolve the problem as quickly as
possible. Furthermore, if immediate corrective action is not taken by CUSTOMER,
SATMEX shall have the right to take immediate action to protect its services or
its interests, including but not limited to suspending CUSTOMER's service on the
affected transponder, until CUSTOMER resolve such problem.
17. GENERAL OBLIGATIONS
In the event CUSTOMER breaches any of its obligations in connection with
the usage procedures established in Exhibit "D" and the restrictions described
in the Agreement, including, without limitation, transponder usage,
non-interference, government regulations, preemptive rights, and no-transfer,
then SATMEX may, in its sole discretion and in addition to the exercise of its
other rights against CUSTOMER, require CUSTOMER to cease transmissions to any or
all of the affected transponder(s) provided hereunder and take any actions
necessary to enforce SATMEX's rights. CUSTOMER will pay to SATMEX all expenses
(including attorney's fees) incurred in connection with SATMEX's enforcement
against CUSTOMER arising out of CUSTOMER's use of the affected transponder(s) in
violation of this Agreement.
18. TERMINATION
The Agreement may be terminated prior to the end of its Term as follows:
18.1 In the event of the breach of any of the material terms and
conditions, representations and warranties contained herein, the
non-breaching party may terminate upon written notice to the other, if
the breaching Party does not cure its breach within thirty (30) days
after notice thereof.
18.2 In the event of a Failure, of a Non-Preemptible transponder for which
SATMEX does not provide an acceptable restoration, as provided in
Paragraph 7, within 10 days, the CUSTOMER may terminate this Agreement
with references to that transponder, without liability except for such
services as have already been received, which shall be paid to SATMEX
in accordance with this Agreement. The termination date will be
considered to be the date of the Failure.
In the event of any termination of this Agreement, SATMEX shall ***
18.3 In the event CUSTOMER does not take immediate corrective action to
stop improper illumination as established in Paragraph 16 ("IMPROPER
ILLUMINATION").
19. EARLY TERMINATION CHARGE
Except as set forth in Paragraphs 18.2 ("TERMINATION"), 20 ("CHANGES IN
OPERATIONS OR PROCEDURES"), and 22 ("FCC COMPLIANCE") hereof and Section 8 and 9
of the Service
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 19 of 73
Description, no early termination date is provided under the Agreement.
Therefore, in the event CUSTOMER orders the discontinuance of Service, for any
other reason, effective on any date prior to the termination date set forth in
Section 5 of the Service Description, or if the Agreement is terminated by
SATMEX due to CUSTOMER's breach with respect to the Service provided under the
Agreement prior to the termination date set forth in Section 5 of the Service
Description, an early termination charge ("Early Termination Charge") shall
apply as follows: The Early Termination Charge shall be an amount equal to the
lesser of *** or (ii) the aggregate rate for Service through the end of the Term
of Service for the affected transponder(s). Early Termination Charges shall be
due and payable upon receipt by CUSTOMER of an invoice for such charges. Early
termination charges apply regardless of whether or not Service has begun, except
if service has not been provided because *** has not been obtained in accordance
with Section 9 of the Service Description, in which case CUSTOMER shall not be
liable for the Early Termination Charge.
In the event of partial termination, the aforementioned payment shall be
applied only to the affected transponder(s).
Payment of the Early Termination Charge shall be SATMEX's sole and
exclusive remedy hereunder for any event giving rise thereto, provided, however,
that any such advance termination shall not release CUSTOMER from outstanding
balances which includes but is not limited to billed amounts, moratorium
interests and any other charges.
SATMEX reserves the right to assign the satellite capacity released due to
advance cancellation or termination to another interested party, as of the day
following the termination or cancellation date.
20. CHANGES IN OPERATIONS OR PROCEDURES
Except to the extent necessary to allow CUSTOMER to use the space segment
capacity in accordance with the Exhibits hereto, SATMEX shall have no obligation
to change or modify any of its components, operations, or procedures to be
compatible with CUSTOMER. Prior to making any changes in SATMEX's operations,
procedures, or Transmission Parameters that will or are reasonably expected to
(i) materially affect any facilities, CUSTOMER equipment, or CUSTOMER
communications system, or (ii) require their modification in order to be used
with any transponder provided pursuant to this Agreement, SATMEX shall seek
CUSTOMER'S consent, which consent will not be unreasonably withheld. SATMEX
shall notify CUSTOMER of any such proposed change and the expected impact no
less than thirty (30) days prior to its proposed implementation. CUSTOMER and
SATMEX shall engage in good faith discussions regarding the proposed change to
find a suitable solution. Notwithstanding the above, SATMEX may implement those
changes required in order to protect the health of the satellite or transponders
provided under this Agreement and will provide CUSTOMER with as much advance
notice of such change(s) as is possible. However, if such changes would
materially affect CUSTOMER's use of the Service, CUSTOMER shall have the right,
at its option and as its exclusive remedy, within thirty (30) days after its
receipt of notice of such change, and upon thirty (30) days' notice to SATMEX,
to terminate this Agreement without liability for any Early Termination Charge.
However, If SATMEX eliminates such material effects within the thirty (30) day
notice period, the Agreement will not terminate as provided in this Paragraph
21.
21. TRANSPONDER ALLOCATION
Assignment of the specific Ku-1 Band transponder in the NAFTA beam that meet the
Performance Parameters on Satmex 5 to be used for the Service remains the sole
prerogative of SATMEX. During the term of this Agreement SATMEX shall have the
right to change any of the Ku-1 Band transponder assignments in the NAFTA beam
of Satmex 5, but shall do so only if there is a valid operational concern,
interference caused by CUSTOMER, or, in order to protect the health of the
satellite on which Service is being provided and only if the new transponder
meets the Performance Parameters. If required, SATMEX will use reasonable
efforts to give CUSTOMER not less than thirty (30) days prior written notice to
CUSTOMER.
22. FCC COMPLIANCE
If, at any time a Party can no longer comply fully with all material provisions
of this Agreement because of changes to existing (as of the date of this
Agreement) U.S. Federal Communication Commission rules and International or
national regulations which are inconsistent with this Agreement, the other Party
may either (1) terminate immediately the Agreement without any liability
whatsoever by giving notice in writing within sixty (60) days of such action or
(2) negotiate with the first Party to modify the Agreement to conform with the
new commission rules and regulations.
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 20 of 73
If either Party elects to terminate pursuant to this Section 22, SATMEX shall
refund promptly any sums previously paid to SATMEX for Service not rendered and
CUSTOMER shall pay all due payments, with the correspondent accrued interest,
*** and any other such charges.
Each Party represents and warrants that, as of the date of this Agreement, it is
not aware of any rules and regulations of the authorities referenced in this
Paragraph 22 which are inconsistent with this Agreement and which could prevent
such Party from fully complying with all of its material obligations under this
Agreement, except for the Regulatory Approval.
23. NO POSSSESSORY INTEREST, BANKRUPTCY
CUSTOMER has, and will have, no possessory or other interest in the
transponder(s) provided pursuant to this Agreement. CUSTOMER acknowledges that:
(1) it has been advised of and fully understands the conditions and the
consideration pursuant to which SATMEX provides and CUSTOMER accepts the Service
and (2) the rates for the Service, as well as the termination charges as
provided for in Paragraph 19 ("EARLY TERMINATION CHARGE") hereof, are fair and
reasonable at the market on the date of commitment to the Service and the date
of the Agreement. SATMEX and CUSTOMER recognize that transponder space for the
provision of the service contemplated under the Agreement is a commodity in
limited supply and that those using full time transponder service, similar to
the Service provided under the Agreement, usually enter into long-term
commitments with service providers. Therefore, CUSTOMER understands that its
acceptance of the Service precludes SATMEX from accepting any other CUSTOMER for
service on the transponder(s) being used to provide Service to CUSTOMER. Because
of this, CUSTOMER concedes that a failure to fulfill CUSTOMER's obligations
under the Agreement would irreparably harm SATMEX.
24. INDEPENDENT CONTRACTOR
Nothing herein contained shall create any association, partnership, joint
venture, the relation of principal and agent, or the relation of employer and
employee between the parties hereto, it being understood that SATMEX shall
perform all services hereunder as an independent contractor.
25. PUBLICITY AND ADVERTISING
25.1 Unless SATMEX expressly consents in writing in advance for each item
of advertising or publicity, which consent shall not be unreasonably
withheld or delayed, CUSTOMER shall not in any way or in any form
disclose, publicize or advertise in any manner(i) the fact that it is
obtaining services from SATMEX pursuant to this Agreement, (ii) the
existence of this Agreement, or (iii) the pricing, terms and
conditions of this Agreement. The foregoing prohibition shall include
but not be limited to news releases, letters, correspondence,
literature, promotional materials or displays of any nature or form.
Each request for approval hereunder shall be submitted in writing to
the representative designated in writing by SATMEX; and approval, in
each instance, shall be effective only if in writing and signed by
said representative. Notwithstanding the foregoing, CUSTOMER may refer
to the fact that it is securing services from SATMEX without SATMEX's
prior approval so long as such statements are limited to a statement
of such fact and are not an endorsement of any product or service by
SATMEX.
25.2 Unless CUSTOMER expressly consents in writing in advance for each item
of advertising or publicity, which consent shall not be unreasonably
withheld or delayed, SATMEX shall not in any way or in any form
disclose, publicize or advertise in any manner (i) the fact that it is
providing services to CUSTOMER pursuant to this Agreement, (ii) the
existence of the Agreement, (iii) the pricing, terms, and conditions
of the Agreement, or (iv) information similar to that described in (i)
- (iv) above regarding any customer of CUSTOMER who is receiving
services from a SATMEX transponder. The foregoing prohibition shall
include but not be limited to news releases, letters, correspondence,
literature, promotional materials of displays of any nature of form.
Each request for approval hereunder shall be submitted in writing to
the representative designated in writing by CUSTOMER; and approval, in
each instance, shall be effective only if in writing and signed by
said representative. Nothing herein shall prevent SATMEX from
providing the COFETEL or any other governmental agency, information
concerning this Agreement as required by Law or in response to a
request for information by such Governmental Agency. Notwithstanding
the foregoing, SATMEX may refer to the fact that it is providing the
service to CUSTOMER without CUSTOMER's prior approval so long as such
statements are limited to a statement of such fact and are not an
endorsement of any product or service by CUSTOMER.
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
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26. GOVERNING LAW AND LANGUAGE
This Agreement shall be governed by and construed under the laws of the State of
New York, without giving effect to its principles of conflict of laws, except to
the extent that the application of any such laws would (i) contravene any
obligation of SATMEX to comply with the Satellite Concession, or (ii) contravene
any obligation of CUSTOMER to comply with any of the governmental permits with
which it operates in its countries of operation. The parties hereby submit to
the exclusive jurisdiction of the United States District Court for the Southern
District of New York (or the courts of the State of New York if such United
States federal court does not have jurisdiction) for purposes of the subject
matter of this Agreement, and waive any right to claim that any such court in an
inconvenient or inappropriate forum; provided, however, that nothing in this
sentence shall be construed to prevent SATMEX from providing information or
reporting to COFETEL or any other part of the Mexican government.
The language of this Agreement is English and all communications and notices
between the Parties shall be in the English language.
27. HEADINGS
The headings used throughout this Agreement are for convenience only and
are not a part of this Agreement and shall have no effect upon the construction
and interpretation of this Agreement.
28. WAIVERS
A waiver by either party of any of the terms and conditions of the
Agreement in any instance shall not be deemed or construed to be a waiver of
such term or condition for the future, or of any subsequent breach thereof.
29. CONFIDENTIALITY
This Agreement shall be kept strictly confidential for five years in excess of
the Term, except for disclosure (1) to the extent required by the law, legal
process, or the rule of any public securities exchange, in which case the
parties shall seek confidential treatment of this Agreement and the information
contained herein, (2) if said information is deemed to be of public knowledge.
The parties may use the confidential information only by means of prior written
consent from the other party.
30. SUCCESSION
The Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties hereto.
31. NONDISCLOSURE OF INFORMATION
31.1 Each Party to the Agreement may find it beneficial to disclose to the
other Party documentation or other information which the disclosing
Party considers proprietary ("Information"). Such Information may
include but is not limited to, engineering, hardware, software or
other technical information concerning the project or the SATMEX
network, CUSTOMER's use of the Space Segment Capacity and financial,
accounting or marketing reports, analysis, forecasts, predictions or
projections relating to this project or the business of SATMEX or
CUSTOMER generally.
31.2 If is specifically understood and agreed that information disclosed
pursuant to the Agreement shall be considered proprietary either
because 1) it has been developed internally by the disclosing Party,
or because 2) it has been received by the disclosing Party subject to
a continuing obligation to maintain the confidentiality of the
information.
31.3 Information that is provided in a tangible form shall be marked in a
manner to indicate that it is considered proprietary or otherwise
subject to limited distributions provided herein. If the Information
is provided orally, the disclosing party shall clearly identify it as
being proprietary at the time of disclosure, and within five (5)
working days of such disclosure, confirm the disclosure in writing to
the other party. With respect to information, the Party to whom the
information is disclosed and its employees shall:
a. hold the Information in confidence and protect it in
accordance with the security regulations by which it
protects its own proprietary or confidential information,
which it does not wish to disclose;
SATMEX PROPRIETARY
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b. restrict disclosure of the Information solely to those
employees with a need to know and not disclose it to any
other persons;
c. advise those employees of their obligations with respect to
the Information; and
d. use the Information only in connection with implementing the
Agreement and in continuing discussions and negotiations
between the parties concerning the Service.
31.4 The party to whom Information is disclosed shall have no obligations
to preserve the proprietary nature of any Information that:
a. was previously known to it free of any obligations to keep it
confidential;
b. is disclosed to third parties by the disclosing party without
restriction;
c. is or becomes publicly available by other than unauthorized
disclosure; or
d. is independently developed by the receiving party.
31.5 The receiving party may disclose the Information pursuant only to a
court order or other governmental or regulatory compulsion provided
that the disclosing party shall be given prompt notice of the receipt
of such order or other compulsion.
31.6 The receiving Party agrees that all of its obligations undertaken
under this non-disclosure agreement shall survive and continue after
any termination of this Agreement, for a period of three (3) years.
The Information shall be deemed the property of the disclosing party and, upon
request the other party will return all Information that is in tangible form to
the disclosing party or destroy all such information.
33. ARBITRATION
If any dispute arises from or relates to this Agreement or its
infringement, the Parties agree to submit it to a final and binding arbitration
under the Rules of Conciliation and Arbitration of the American Arbitration
Association ("AAA").
The arbitration hearing must take place according to the procedural rules
of the "AAA" in force at the time of signing this Agreement. The arbitrator must
not limit, extend or in any other way alter the terms and conditions of this
Agreement. In no event will any Party be liable for any consequential exemplary
or punitive damages or any award of legal fees in connection with its
performance or non-performance under this Agreement.
The arbitration hearing, including arguments and allegations, shall take
place in English in New York, State of New York. The award shall be made in US
Dollars. The arbitration award may be entered and enforced in any Court that
possesses jurisdiction. Each of the parties shall pay their own costs (including
legal fees) and should equally share the costs of such hearing. The parties,
their representatives, other participants and the arbitrator(s) must maintain
the existence, content and result of the arbitration confidential.
Nothing stipulated in this clause should be interpreted in such way that it
impedes either of the parties from appearing before any court of law with the
aim of protecting its rights derived from the arbitration proceeding pending
resolution. The petition of either of the parties to a court of law for the
protection of its rights, shall not be considered as resignation of the
obligation to submit the dispute to arbitration.
SATMEX PROPRIETARY
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Page 23 of 73
EXHIBIT A
SECTION 1
SERVICE SPECIFICATIONS
SPACE SEGMENT CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Vertical/horizontal
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 24 of 73
SPACE SEGMENT CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Vertical/horizontal
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 25 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Horizontal/vertical
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 26 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Horizontal/vertical
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 27 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization vertical/Horizontal
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 28 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Vertical/horizontal
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO)
EXHIBIT A (AMENDED 1)
SERVICES SPECIFICATIONS
SPACE SEGMENT CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Horizontal/vertical
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
3
(SATMEX LOGO)
1/3
SECTION 2
CONTOUR MAPS
COVERAGE MAPS
Contour Map
(MAP)
***
4
*** Confidential treatment requested by Satmex.
(SATMEX LOGO)
2/3
Contour Map
(MAP)
***
5
*** Confidential treatment requested by Satmex.
(SATMEX LOGO)
3/3
Contour Map
***
(MAP)
6
*** Confidential treatment requested by Satmex.
(SATMEX LOGO) Contract No. 319-I
Page 30 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Vertical/horizontal
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 31 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Vertical/horizontal
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 32 of 73
ADDITIONAL CAPACITY
Satellite SATMEX 5
Orbital Location 116.8 degrees W
Region Covered Ku 1 Beam
Bandwidth 36 MHz (nominal)
Transponder Power 132 Watt (nominal)
Service Category Non Preemptible
Assigned Frequency Transponder *** on SATMEX 5,
Center Frequency *** MHz
Connectivity ***
EIRP ***
G/T ***
SFD ***
Polarization Horizontal/vertical
Nominal Attenuator Setting ***
Maximum Interference Level
Adjacent Satellite ***
Adjacent Channel
*** Confidential treatment requested by Satmex.
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(SATMEX LOGO) Contract No. 319-I
Page 33 of 73
EXHIBIT A
SECTION 2
CONTOUR MAPS
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 34 of 73
***
(MAP)
Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 35 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 36 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 37 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 38 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 39 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 40 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 41 of 73
***
(MAP)
*** Confidential treatment
requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 42 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 43 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 44 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 45 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 46 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 47 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 48 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 49 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 50 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 51 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 52 of 73
***
(MAP)
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 53 of 73
EXHIBIT B
KU-BAND TRANSMISSION PARAMETERS
SATMEX 5
TRANSPONDER TRANSMISSION PARAMETERS - To assure that signals transmitted via a
SATMEX Ku1-Band Transponder will not damage or impair other signals transmitted
over SATMEX and/or adjacent satellites or other SATMEX-provided transponders,
the following transmission parameters apply:
A. TRANSMITTED CARRIERS - The transmitted carrier(s) for 36 MHz transponders
shall be within accepted industry standards and shall be confined to the usable
bandwidth of 36 MHz centered on the transponder center frequency, unless
otherwise assigned.
B. TRANSMIT POWER - SATMEX shall authorize a particular transmit power by the
transmitting earth station. For transponders operating in the saturated mode,
the authorized transmit power shall be no more than the transmit power necessary
to saturate the transponder. For transponders operating in a mode where the
power is backed off below saturation, this authorized transmit power shall not
be exceeded. During rain fades an earth station with Automatic Level Control may
exceed the transmit power authorized by the company by the amount necessary to
overcome the additional uplink loss caused by the rain.
C. POLARIZATION ISOLATION (TRANSMITTING EARTH STATION) - Isolation between
orthogonal cross-polarized signals shall be higher than *** and shall cause no
harmful interference into the cross-polarized frequencies. The polarization
adjustment of the earth station antenna relative to the satellite shall be
maintained to an accuracy of *** when polarization tracking is not employed.
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO)
Exhibit C, (Amended 1)
Initial Loading Plan
TRANSPONDER TRANSPONDER
DATE NUMBER ALLOCATED RESTRICTION
---- ----------- ----------- -----------------------------------------
*** *** *** 2 TRANSPONDERS ANY POLARIZATION,
SEPARATED BY AT LEAST 1 TRANSPONDER
*** *** *** 2 TRANSPONDERS ON THE OTHER POLARIZATION,
SEPARATED BY AT LEAST 1 TRANSPONDER
*** *** *** NONE
*** *** *** NONE
*** *** *** NONE
*** Confidential treatment requested by Satmex.
7
(SATMEX LOGO) Contract No. 319-I
Page 55 of 73
EXHIBIT C
SECTION 2
PARAMETER SPECIFICATIONS FOR MASTER GROUND STATIONS
AND REMOTE EARTH STATIONS
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 56 of 73
***
SATMEX shall not be responsible or liable if CUSTOMER does not obtain the
permits, licenses or other authorizations for the utilization of CUSTOMER's
antennas in the respective countries in which CUSTOMER intends to conduct
business.
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 57 of 73
(CHANNEL MASTER(R) LOGO)
Antenna Laboratory Antenna Pattern
(GRAPH)
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 58 of 73
(CHANNEL MASTER(R) LOGO)
Antenna Laboratory Antenna Pattern
(GRAPH)
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 59 of 73
(CHANNEL MASTER(R) LOGO)
Antenna Laboratory Antenna Pattern
(GRAPH)
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 60 of 73
(CHANNEL MASTER(R) LOGO)
Antenna Laboratory Antenna Pattern
(GRAPH)
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 61 of 73
(CHANNEL MASTER(R) LOGO)
Antenna Laboratory Antenna Pattern
(GRAPH)
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 62 of 73
(CHANNEL MASTER(R) LOGO)
Antenna Laboratory Antenna Pattern
(GRAPH)
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 63 of 73
EXHIBIT C
SECTION 3
TECHNICAL INFORMATION FOR PERMANENT SERVICE
OF DIGITAL SIGNAL TRANSMISSION
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 64 of 73
CARRIER INFORMATION:
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 65 of 73
EXHIBIT C
SECTION 4
PARAMETER SPECIFICATIONS FOR REMOTE TRANSMIT EARTH STATIONS
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 66 of 73
EXHIBIT C
SECTION 5
TECHNICAL INFORMATION FOR PERMANENT SERVICE
OF DIGITAL SIGNAL TRANSMISSION THROUGH TWO WAY REMOTE TERMINALS
***
CARRIER INFORMATION:
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 67 of 73
***
*** Confidential treatment requested by Satmex.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 68 of 73
EXHIBIT D
ACCESS AND INTERFERENCE MANAGEMENT PROCEDURES
SATMEX MEXICAN SATELLITE SYSTEM
AUGUST 1999
ACCESS PROCEDURE:
INTRODUCTION
In order to minimize harmful interference and ensure quality transmission on
SATMEX satellites, the Communication Control Center (Satmex CCC) at Iztapalapa
(PCC) and Hermosillo (ACC) will function as control stations for the SATMEX
CUSTOMER networks.
SATMEX Satellite Operations monitors SATMEX transponders to identify any
performance that deviates from the parameters prescribed by SATMEX Satellite
Engineering.
All customer-owned and operated earth stations are required to contact SATMEX
CCC prior to the start of any transmission to a SATMEX transponder. SATMEX CCC
is required to order a customer to cease transmission if such customer's signal
is interfering with or otherwise degrading other service on the spacecraft.
This document defines the procedures for introduction of new carriers into
SATMEX transponders and the steps to follow when reporting system problems to
CCC personnel and outlines the operating criteria for transmitting through
SATMEX transponders.
A list of CCC contacts and telephone numbers for use by SATMEX customers is
included.
USER PROCEDURES
ESTABLISHING NEW CARRIERS
All customers establishing new carriers for transmissions through SATMEX
Satellites, whether temporary or permanent, are required to comply with the
following procedure:
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 69 of 73
a) Provide all the required information to SATMEX Satellite Engineering for
the definition of the transmission parameters, estimated system performance
and allocated interference margin for the system to be transmitted through
SATMEX transponders. These parameters should be provided in writing before
the system is placed in operation for information and review. It should be
noted that all transmission should have proper authorization from
Government authorities and SATMEX.
b) CALL SATMEX'S CCC (00 0) 000-0000 (OR 00 000 000 SATM IF IN MEXICO OR
1-877-SATMEX1 TOLL FREE NUMBER FROM THE U.S.) for scheduling an antenna
line up with the satellite. For each new or modified antenna over 3 meters
in diameter, an on-site antenna pattern test should be performed.
Explain the nature of the carrier to be established: e.g., Video, Single
Channel Per Carrier, Modulation, Time Division Multiple Access, etc. and
have the following information available.
1. Downlink frequency
2. Spacecraft
3. Transponder and polarization
4. Downlink E.I.R.P.
5. Antenna data sheet (if applicable)
6. Phone number of uplink station and name of contact
NOTE: INCLUDE 24-HOUR CONTACT IF CARRIER IS PERMANENT
c) Prior to contacting SATMEX CCC at the appointed time, the uplink station
should perform the following without transmitting any signal to SATMEX
transponders.
1. Peak antenna on appropriate SATMEX spacecraft.
NOTE: Antenna pointing is the responsibility of the uplink station.
Antenna must be properly pointed prior to calling SATMEX CCC. An
improperly pointed antenna, one peaked on a sidelobe for instance,
cannot achieve correct Polarization alignment.
2. Adjust polarization as closely as possible by observing received
signals.
d) CONTACT SATMEX CCC (00 0) 000-0000 (OR 1 800 800 SATM, IF IN MEXICO OR
1-877-SATMEX1 FROM THE U.S.).
e) At the direction of SATMEX CCC, the carrier, frequency and power will be
established and the following parameters will be measured
1. Downlink power
2. Polarization isolation
3. Frequency
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 70 of 73
4. Bandwidth
5. Spurious emissions
6. Modulation
7. Data rate & FEC (if applicable)
The carrier must conform to prescribed parameters. If specifications cannot
be met, SATMEX CCC will direct the Transmit Station to cease radiating.
f) In the event of the Initial Loading Plan changes as stated on Exhibit C
Section 1, SATMEX will collaborate in reasonably commercial efforts with
CUSTOMER to accommodate all the operational concerns that may affect the
appropriate development of customer business.
INTERFERENCE REPORTING
All interference incidents will be reported directly to SATMEX CCC. Timely
reporting of interference problems increases the chance of identification. The
following procedure is to be used by the customer:
a) Obtain the transmission parameters, estimated system performance and
allocated interference margin for the system experiencing the interference.
This information will be required for analyzing and resolving the
interference problems.
b) Prior to initiating an interference report, customers shall check all
uplink facilities under their control or their customer's control to insure
that the problem is not self-induced.
c) Check interference level against carrier level. Refer to system design
criteria. Insure that the affected carrier has sufficient carrier-to
interference margin.
d) If possible, check with a second earth station to confirm the interference.
If the customer does not have a second earth station, SATMEX CCC will
confirm such interference.
e) Have the following information available:
1. Satellite, transponder, polarization
2. Date and time discovered or started
3. Frequency
4. Traffic affected - type and customer
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 71 of 73
It is important to provide as much information as possible, as SATMEX shall
report all incidents to COFETEL (as defined in Paragraph 13 of the General
Terms and Conditions). SATMEX CCC personnel will also log the incident and
begin troubleshooting procedure to identify and eliminate, If possible, the
source of the interfering signal.
f) Report the incident to SATMEX CCC (00 0)000-0000 (or 0 000 000 SATM if in
Mexico or 1-877-SATMEX1 FROM THE U.S.).
g) At the direction of SATMEX CCC some tests may be performed.
SYSTEM OPERATION CRITERIA
- CROSS-POLARIZATION ISOLATION
The earth station cross polarization isolation for uplink and downlink
should be > or = 30 dB on axis.
- ANTENNA RADIATION PATTERN
The antennas should comply with the CCIR-580 recommendation.
SATMEX ESCALATION LIST:
Xxxxxxxxx Xxxxxx Xxxxxx
Gerente de Comunicaciones
(000) 0000000
Xxxxxx xxxxxxxx Xxxxxxx
Subdirector de Comunicaciones y Monitoreo
(000) 00000 00
Xxxxxxx Xxxxxxxxxx
Director de Ingenleria Satelital
(000) 0000000
Xxxx Xxxxxx Xxxxxxx Zea
Vicepresidencia de Ingenieria y Operacion
(000) 0000000
CUSTOMER ESCALATION LIST:
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 72 of 73
CUSTOMER's 24/7 DIRECPC operations center number is: 000-000-0000.
CUSTOMER's technically responsible person(s) in charge of its company's
satellite network are as follows
Xxxxx Xxxxx NOC Manager office 000-000-0000
pager 000-000-0000 pin 1255710
Xxxx Xxxxxxxxx RF Engineer office 000-000-0000
pager 000-000-0000 pin 91209
Xxxx Xxxxxxxxx DirecPC Services office 000-000-0000
pager 000-000-0000 pin 2125136
Should any of this contact data change, CUSTOMER shall immediately notify SATMEX
in writing of the changes.
SATMEX PROPRIETARY
(SATMEX LOGO) Contract No. 319-I
Page 73 of 73
TRANSMITTER LOCATION SYSTEM SERVICE (TLS).
The process of locating interfering signals usually starts with a call from
a customer advising the satellite operator that their traffic is being
disrupted. At this point, the satellite operator usually performs a quick
check of the Customer's transponder to see if anything else is amiss, as
discussed above. If the CCC monitor personnel cannot find the interference
source quickly, then it is time to begin a TLS search for an interfering
signal. Interferometry Department (I.D.). will take action on this matter.
The TLS technique employs signals propagated through the affected satellite
and an adjacent satellite to determine crossing lines of position on the
Earth, thus locating the interferor.
There are several parameters to be considered and met to perform positive
location using the TLS technique.
Satellite ephemeredes data (intf. & adj.).
External forces.
Calibrators will be near interferor.
Sidelobe level must be high enough.
Interference must be at Ku Band.
No presence of signal in adjacent satellite.
Database up dated.
Modulation of signal
Signal bandwidth.
Interferometry Department (I.D.). will then investigate the IRF situation and
respond to the earth station operator to keep him advised of the situation with
a formal message whenever significant progress has been made.
I.D.: Telephone: (00) 0 000 00 00
Fax: (00) 0 000 00 00
e-mail xxxxxxx@xxxxxx.xxx.xx
SATMEX PROPRIETARY
Digitalizado
(SATMEX LOGO) 06 MAR 06
TENTH AMENDMENT TO
AGREEMENT 319-I
ON THIS 1st DAY OF DECEMBER, 2005 (THE "EXECUTION DATE"), THIS TENTH AMENDMENT
TO AGREEMENT NUMBER 319-I, IS ENTERED INTO BY AND BETWEEN XXXXXX NETWORK
SYSTEMS, LLC, A LIMITED LIABAILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS
OF THE STATE OF DELAWARE; SUCCESSOR IN INTEREST TO XXXXXX NETWORK SYSTEMS, A
DIVISION OF XXXXXX ELECTRONICS CORPORATION. WHICH SHALL HEREINAFTER BE NAMED
"THE CLIENT", REPRESENTED IN THIS ACT BY XX. XXXXXX X. X'XXXXX, IN HIS CAPACITY
AS ASSISTANT VICE-PRESIDENT, AND AS THE OTHER PARTY BY SATELITES MEXICANOS, S.A.
DE C.V., WHICH SHALL HEREINAFTER BE NAMED "SATMEX", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF MEXICO, REPRESENTED BY XX. XXXXXX XXXXXX XXXXX XXXXXX
MAZA, IN HIS STATUS AS CHIEF EXECUTIVE OFFICER (C.E.O.), PURSUANT TO THE
FOLLOWING.
ANTECEDENTS
1.- On January 20, 2000, SATMEX and XXXXXX ELECTRONICS CORPORATION, through
THE CLIENT, executed the agreement number 319-I, hereinafter the
"Agreement".
2.- On May 16, 2000, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT amended the Agreement, hereinafter the "First Amendment", in order
to substitute the transponder *** for *** and ***.
3.- On January 1, 2001, SATMEX and XXXXXX ELECTRONICS CORPORATION, through
THE CLIENT entered into a second amendment to the Agreement, hereinafter
the "Second Amendment", in which XXXXXX'X obligation to take the ***
transponder changed from ***.
4.- On March 1, 2001, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into a third amendment to the Agreement, hereinafter the
"Third Amendment", in which XXXXXX'X obligation to take the ***.
5.- On May 20, 2001, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into a fourth amendment to the Agreement, hereinafter the
"Fourth Amendment", in which the parties agreed to substitute transponder
***.
6.- On January 1, 2002, SATMEX and XXXXXX ELECTRONICS CORPORATION, through
THE CLIENT entered into a fifth amendment to the Agreement, in which the
parties *** transponder hereinafter the "Fifth Amendment".
7.- On February 3, 2003, SATMEX and XXXXXX ELECTRONICS CORPORATION entered
into a sixth amendment to the Agreement in which the parties agreed to
***, hereinafter the "Sixth Amendment".
8.- On March 24, 2003, SATMEX and XXXXXX ELECTRONICS CORPORATION through THE
CLIENT entered into a seventh amendment to the Agreement in which, among
others, THE CLIENT ***, hereinafter the "Seventh Amendment".
9.- On May 1, 2003, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into an eighth amendment to the Agreement in which, among
others, THE CLIENT exercised the *** under the Second clause of the
Seventh Amendment, hereinafter the "Eighth Amendment".
10.- On September 7, 2004, SATMEX and XXXXXX ELECTRONICS CORPORATION through
THE CLIENT executed into an ninth amendment to the Agreement in which,
among others, THE CLIENT *** in Satmex 5 satellite, transponder ***, in
band *** hereinafter the "Ninth Amendment".
CONFIDENTIAL
1
*** Confidential treatment requested by Satmex.
(SATMEX LOGO)
After effected the foregoing antecedents, the parties agree to enter into this
Tenth Amendment and its Annex and bind themselves pursuant to the following:
CLAUSES
FIRST.- THE CLIENT *** in Solidandad 2 satellite, *** band *** from *** in
accordance with Annex I-B. This capacity will be applied to CLIENT'S
*** THE CLIENT *** and THE CLIENT will use such capacity ***
The prices to capacity shall be of USD$ *** in Solidaridad 2 satellite.
Once the Satmex 6 satellite is fully operational, SATMEX will provide a
written notification to THE CLIENT and THE CLIENT may migrate the
capacity herein from Solidaridad 2 to Satmex 6 satellite within a
fifteen (15) day period after such notification and upon such migration
SATMEX will maintain a price of USD$ *** during the Term of this
Amendment.
SECOND.- CLIENT shall pay SATMEX, for the *** an amount of USD$: *** by bank
wire transfer to *** in favor of SATELITES MEXICANOS, S.A DE C.V. and
in the same currency as that shown on the corresponding invoice.
THE CLIENT will start ***
THIRD.- THE CLIENT ***
FOURTH.- The term of this Tenth Amendment shall commence from the Execution Date
and shall terminate on ***
FIFTH.- For the application and interpretation of the present agreement, the
Parties decide to apply the Arbitration established in article 33 of
the Contract
SIXTH.- The parties agree, that except as specifically amended hereby the
Agreement and all its amendments shall remain in full force and effect
in accordance with its terms.
This Tenth Amendment along with its Annex I-B is signed in counterparts, one
copy remaining in possession of each party, in Mexico City, as of the Execution
Date first written above.
FOR THE CLIENT FOR SATMEX
/s/ XXXXXX XXXXXX XXXXX XXXXXX MAZA
------------------------------------- ----------------------------------------
XXXXXX X. X'XXXXX XXXXXX XXXXXX XXXXX XXXXXX MAZA
ASSISTANT VICE PRESIDENT CHIEF EXECUTIVE OFFICER
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ANNEX I-B
Client: XXXXXX NETWORK SYSTEMS
CONTRACT NO.: 319-I
SERVICE OPERATION INFORMATION
Satellite Solidaridad 2
Band: ***
Region ***
Transponder ***
Service Category ***
Connectivity ***
Polarization ***
CARRIER INFORMATION
***
***
TOTAL BANDWIDTH: ***
This Annex is signed in two copies, one copy remaining in possession of each
party, in Mexico City, on December 1st, 2005.
FOR THE CLIENT FOR SATMEX
/s/ XXXXXX XXXXXX XXXXX XXXXXX MAZA
------------------------------------- ----------------------------------------
XXXXXX X. X'XXXXX XXXXXX XXXXXX XXXXX XXXXXX MAZA
ASSISTANT VICE PRESIDENT CHIEF EXECUTIVE OFFICER
*** Confidential treatment requested by Satmex.
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(SATMEX LOGO) 03 MAY, 06
TWELFTH AMENDMENT TO
AGREEMENT 319-I
ON THIS 1st DAY OF FEBRUARY, 2006 (THE "EXECUTION DATE"), THIS ELEVENTH
AMENDMENT TO AGREEMENT NUMBER 319-I, IS ENTERED INTO BY AND BETWEEN XXXXXX
NETWORK SYSTEMS, LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER
THE LAWS OF THE STATE OF DELAWARE; SUCCESSOR IN INTEREST TO XXXXXX NETWORK
SYSTEMS, A DIVISION OF XXXXXX ELECTRONICS CORPORATION. WHICH SHALL HEREINAFTER
BE NAMED "THE CLIENT", REPRESENTED IN THIS ACT BY XX. XXXXXX X. X'XXXXX, IN HIS
CAPACITY AS VICE-PRESIDENT, AND AS THE OTHER PARTY BY SATELITES MEXICANOS, S.A.
DE C.V., WHICH SHALL HEREINAFTER BE NAMED "SATMEX", A CORPORATION ORGANIZED AND
EXISTING UNDER THE LAWS OF MEXICO, REPRESENTED BY XX. XXXXXX XXXXXX XXXXX XXXXXX
MAZA, IN HIS STATUS AS CHIEF EXECUTIVE OFFICER (C.E.O.), PURSUANT TO THE
FOLLOWING.:
ANTECEDENTS
1. - On January 20, 2000, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT, executed the agreement number 319-I, hereinafter the "Agreement".
2. - On May 16, 2000, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT amended the Agreement, hereinafter the "First Amendment", in order
to substitute transponder *** for *** and ***.
3. - On January 1, 2001, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into a second amendment to the Agreement, hereinafter the
"Second Amendment", in which XXXXXX'X obligation to take the ***
transponder changed from ***.
4. - On March 1, 2001, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into a third amendment to the Agreement, hereinafter the
"Third Amendment", in which XXXXXX'X obligation to take ***.
5. - On May 20, 2001, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into a fourth amendment to the Agreement, hereinafter the
"Fourth Amendment", in which the Parties agreed to substitute transponder
***.
6. - On January 1, 2002, SATMEX and XXXXXX ELECTRONICS CORPORATION, through THE
CLIENT entered into a fifth amendment to the Agreement, in which the
Parties *** transponder hereinafter the "Fifth Amendment".
7. - On February 3, 2003, SATMEX and XXXXXX ELECTRONICS CORPORATION entered into
a sixth amendment to the Agreement in which the Parties agreed to ***,
hereinafter the "Sixth Amendment".
8. - On March 24, 2003, SATMEX and XXXXXX ELECTRONICS CORPORATION through THE
CLIENT entered into a seventh amendment to the Agreement in which, among
others, THE CLIENT ***, hereinafter the "Seventh Amendment".
9. - On May 1, 2003, SATMEX and XXXXXX ELECTRONICS CORPORATION through THE
CLIENT entered into an eighth amendment to the Agreement in which, among
others, THE CLIENT exercised the *** under the Second clause of the
Seventh Amendment, hereinafter the "Eighth Amendment".
10.- On September 7, 2004, SATMEX and XXXXXX ELECTRONICS CORPORATION through THE
CLIENT executed into a ninth amendment to the Agreement in which, among
others, THE CLIENT *** in Satmex 5 satellite transponder ***, in band ***
hereinafter the "Ninth Amendment".
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11. - On December 1, 2005, SATMEX and XXXXXX ELECTRONICS CORPORATION through THE
CLIENT executed into an tenth amendment to the Agreement in which, among
others, THE CLIENT *** will be applied to CLIENT'S Bottom of Social
Cover Program ("FONCOS") hereinafter the "Tenth Amendment".
12. - On January 20, 2006, SATMEX and XXXXXX ELECTRONICS CORPORATION through THE
CLIENT executed into an eleventh amendment to the Agreement in which,
among others, THE CLIENT *** on Satmex 5 satellite for ***, hereinafter
the "Eleventh Amendment".
13. - SATMEX and LORAL SKYNET ("LORAL SKYNET") A DIVISION OF LORAL SPACECOM CORP
entered into an Agreement for *** on Satmex 5, hereinafter the ***.
14. - On September 7, 2005, SATMEX entered into a company's reorganization under
Mexican reorganization law called "Concurso Mercantil" according to
sentence dictated by Judge Second of District in Civil Matter, in the
Federal District.
After effected the foregoing antecedents, the Parties agree to enter into this
Twelfth Amendment and bind themselves pursuant to the following:
CLAUSES
FIRST.- As of the Execution Date, THE CLIENT and SATMEX agree to extend the term
of the capacity contracted under clause First of the "Eleventh Amendment"
in accordance with the following table:
BANDWIDTH
SATELLITE BAND TXDRS REGION MHZ PERIOD
--------- ---- ----- ------ --------- ------
Satmex 5 *** *** *** *** ***
SECOND.- SATMEX SERVICES
THE CLIENT agree to *** TRANSPONDER. *** THE CLIENT agrees to fulfill this ***.
THE CLIENT agrees to pay SATMEX for the provisioning of such service, the price
established in the clause Third herein (Rate and Term of Service) and to perform
its other obligations hereunder.
The service provided under the Contract shall be provided during the *** as an
international service of signal conduction via satellite, through the Mexican
Satellite System, meeting the "Performance Parameters" (as set forth in Exhibit
A), as *** in the *** Band, and in the "NAFTA" region beam. The Space Segment
Capacity initially shall consist of *** transponder on the Satmex 5 Satellite of
*** each (the BASIC CAPACITY).
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***
THIRD.- RATE AND TERM OF SERVICE
Both parties agree that the following table defines the RATE CARD that applies
for Satmex 5 and Satmex 6 satellites:
QUANTITY
(TOTAL # OF MHZ EQUIVALENT MONTHLY RATE MONTHLY RATE
TRANSPONDERS USED) PER TRANSPONDER PER MHZ
IN SATMEX 5 & SATMEX 6 (U.S. DOLLARS) (U.S. DOLLARS)
-------------------------- --------------- --------------
*** *** ***
***
THE CLIENT agrees that it should pay SATMEX for the Satmex 5 services the
minimum total amount of USD ***. This amount could be higher according to the
RATE CARD
FORTH.- ***
***
***
The term "CPI" shall mean the percentage increase (if any) in the
Customer Price index-U.S. City Average (all items), as published by the
Department of Labor, Bureau of Labor Statistics.
FIFTH - ***
***
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***
SIXTH.- PAYMENT OF THE SERVICE:
THE CLIENT shall pay SATMEX *** for the Space Segment Capacity Service
calculated by applying the RATE CARD established in the Third Clause of this
amendment
As of the "Execution Date" the billing of transponder will be made
directly by *** to THE CLIENT and its payment shall be made directly by THE
CLIENT to *** to the following bank account.
Bank name: ***
Bank Account #: ***
***
SWIFT CODE: ***
Payment by THE CLIENT to *** with respect to transponder *** shall be according
to the same terms as for the other capacity leased by THE CLIENT from SATMEX
hereunder. THE CLIENT and SATMEX acknowledge and agree that if THE CLIENT is
delinquent in making payment to *** may take any such action in its own right,
including but not limited to legal action, as it deems appropriate to collect
payment, and SATMEX shall take such action as *** shall request to terminate,
suspend, or disrupt THE CLIENT'S use of 15K transponder, consistent with the
rights and remedies of SATMEX with respect to other capacity leased by THE
CLIENT under the Agreement
SEVENTH.- TERM
The term of this Twelfth Amendment shall commence from the Execution Date and
shall terminate ***
EIGHTH.- ***
***
NINTH.- NOTICES
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All notices to be provided under this Amendment shall be in writing and shall be
delivered either (i) personally with the corresponding acknowledgment of
receipt; (ii) by registered mail with acknowledgment of receipt; (iii) by an
electronic fax transmission with confirmation via email; or (iii) by any
electronic mean with acknowledgement of receipt, to the following addresses, fax
numbers or e-mail addresses:
TWELFTH AMENDMENT TO AGREEMENT 319-I DATED 1ST OF FEBRUARY OF 2006
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If to THE CLIENT:
XXXXXX NETWORK SYSTEMS, INC.
00000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx XX 00000, XXX
Phone: x(000) 000 0000
Fax: x(000) 000 0000
E-Mail: xxxxxxxx@xxx.xxx
Attn: Xxxxxxx Xxxxxxxx
Senior Manager Satellite
Billing Contact:
XXXXXX NETWORK SYSTEMS, INC.
00000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx XX 00000, XXX
Phone: x(000) 000 0000
Fax: x(000) 000 0000
E-Mail: xxxxxxxxx@xxx.xxx
Attn: Xxxxx Satloukal
Vice-President Operations
If to SATMEX:
SATELITES MEXICANOS, S.A. DE C.V.
Xxxxxxx Xxxxx No. 86, Piso 4.
Colonia Xxxxx xx Xxxxxx
X.X. 00000, Xxxxxx, Distrito Federal
Phone: x(00 00) 00 00 00 00
Fax: x(00 00) 00 00 00 00
E-Mail: xxxx.xxxxxxxxxxx@xxxxxx.xxx
Attn: Xxxx Xxxxx Grovas Xxxxxxxx
Sales Director
Billing Contact:
SATELITES MEXICANOS, S.A. DE C.V.
Xxxxxxx Xxxxx No. 86, Piso 4
Colonia Lomas xx Xxxxxx,
X.X. 00000, Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx.
Phone: x(00) 00 0000-0000 Ext. 717
x(00) 00 0000-0000
Fax: x(00) 00 0000-0000
E-Mail: xxxxx@xxxxxx.xxx
xxxxx@xxxxxx.xxx
Attn: Xxxxxx Real Xxxxxxx, o
Xxxxxx Xxxx Xxxxxx
Billing and Collection Manager
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THE CLIENT shall notify SATMEX in writing of any modification to the information
provided above, within the following five (5) days of any modification.
TENTH.- The Parties agree that no modification is possible in this Twelfth
Amendment.
ELEVENTH.- For the application and interpretation of this agreement, the Parties
decide to apply the Arbitration established in article 33 of the Contract
TWELFTH.- The Parties agree that except as specifically amended hereby the
Agreement and all its amendments shall remain in full force and effect in
accordance with its terms.
This Twelfth Amendment along is signed in counterparts, one copy remaining in
possession of each party, in Mexico City, as of the Execution Date first written
above.
FOR THE CLIENT FOR SATMEX
/s/ XXXXXX X. X'XXXXX /s/ XXXXXX XXXXXX XXXXX XXXXXX MAZA
------------------------------------- ----------------------------------------
XXXXXX X. X'XXXXX XXXXXX XXXXXX XXXXX XXXXXX MAZA
VICE PRESIDENT CHIEF EXECUTIVE OFFICER
TWELFTH AMENDMENT TO AGREEMENT 319-I DATED 1ST OF FEBRUARY OF 2006
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