EXHIBIT 10.56
TRANSPONDER SERVICE AGREEMENT
-----------------------------
This Agreement (the "Agreement") is entered into this 8th day of
February, 1999, by and between PanAmSat International Systems, Inc., a Delaware
corporation, formerly known as PanAmSat Corporation ("PanAmSat") and Corporacion
de Radio y Television del Norte de Mexico, S. A. de C.V., a sociedad anonima de
capital variable ("Customer"). This Agreement covers the provision of
twenty-four hour fixed term non-preemptible satellite signal reception and
retransmission service (the "Service") by PanAmSat to Customer from twelve (12)
Ku-band transponders (referred to generally as the "Service Transponders") in
the "Mexico Beam" (identified in Appendix C) of the Atlantic Ocean Region
Satellite referred to by the parties as PAS-XX ("PAS-XX"* or the "Satellite").
The Service Transponders are more particularly identified in Appendix A and the
Satellite is described in Appendix B of this Agreement. The Service shall be
supplied by PanAmSat in outerspace. The transponders on the Satellite and the
beams in which these transponders are grouped are referred to as
"Transponder(s)" and the "Beam(s)," respectively.
AGREEMENT
In consideration of the foregoing and of the mutual promises set forth
below, PanAmSat and Customer mutually agree as follows:
ARTICLE 1. PROVISION OF SERVICE
1.1 The Service. PanAmSat agrees to provide, and Customer agrees
to accept, the Service. Except as otherwise specifically permitted under this
Agreement, PanAmSat shall not preempt or interrupt Customer's use of the
Service. In no event shall these exceptions be construed so as to permit
PanAmSat to preempt Customer's use of the Service so as to allow PanAmSat to use
the Service Transponders to provide Transponder capacity for itself or for
another customer.
1.2 Backhaul Transponder Service. From the date of this Agreement
through the earliest of: (i) sixty (60) days after the "Service Date" for PAS-XX
under this Agreement; (ii) the date that this Agreement is terminated under any
provision of this Agreement other than Sections 7.1 or 7.2; or (iii) sixty (60)
days after the earlier of notice of an event giving rise to termination or
termination of this Agreement under Sections 7.1 or 7.2, PanAmSat agrees to
provide Customer with "Backhaul Service," meeting the "Backhaul Requirements"
shown in
---------
* Name to be determined
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Appendix E from four 36 MHz transponders (or equivalent capacity), initially
operating at the parameters shown in Appendix E from the Ku-band Mexico Beam of
PAS-5, but subject to change, in PanAmSat's discretion, on sixty (60) days'
notice by PanAmSat to Customer to any other C-band or Ku-band 36 MHz
transponders (or equivalent capacity) on any satellite, as long as the Backhaul
Requirements can be met from said such transponders and provided that, at any
one time, all of the Backhaul Transponders are provided in the same frequency
band of the same satellite. [ * * * * * * * * * * * * * * * * * * * * * * * * *
* ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].
The Backhaul Service shall be provided from capacity [ * * *
**] and [ * * * * * * * * * * ]. [ * * * * * * * * * * * * * * * * * * * ] will
apply if one or more of the transponders used to provide the Backhaul Service
fails to meet the Backhaul Requirements. Further, while it is PanAmSat's right
to substitute transponders from another satellite, [ * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * ] under any circumstances. References to
the "Service," the "Service Transponders," the "Satellite" and the "Service
Specifications" shall, as applied in context, be deemed to refer also to the
Backhaul Service, the transponders and satellite employed therefor, and the
Backhaul Requirements in the following Sections: 1.1, 1.4(d), (e) and (f), 1.5,
3.5, 4.1, 4.2, 4.3, 4.4, 5.3 (subject to the priority stated in this Section
1.2; further, there is no right to "Substitute Capacity" even if available,
except, if the Backhaul Service is being provided from PAS-5, Customer shall
have the right to Substitute Capacity from any other available PAS-5 Ku-band
Transponder in accordance with the conditions stated in Section 5.3), 5.4 (but
not the second parenthetical or last sentence and subject to the priority stated
in this Section 1.2; it being further understood that power limitations on PAS-5
may require deactivation of some or all of the transponders used to provide
Backhaul Service during Spring and Fall solar eclipse periods, including the
upcoming one this Spring), 5.6, 6.1 (but not as to Customer remedies stated
therein), Sections 7.3 (first sentence), 7.4 (first two sentences), 7.5 and 7.6
(provided that termination of this Agreement as to the Backhaul "Service" or any
Backhaul "Service Transponder," any Backhaul Service "Satellite," except under
Section 7.5, shall not result in the termination of this Agreement for any other
purpose, nor shall the mitigation provisions apply to the Backhaul Service), 8.1
(except for the last sentence), Section 13.2, Section 13.3, and in the following
Articles: 9, 10, 12 and 15 of this Agreement.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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Customer shall use the Backhaul Service solely for the point
to point delivery of programming from its Miami Lakes, Florida teleport to its
Mexico City teleport for transmission for use by "Customer's DTH Service," as
defined below. To the extent that Customer may cease to require some or all of
the capacity used to provide the Backhaul Service for this purpose, it shall
promptly notify PanAmSat and such capacity not so required by Customer shall
revert to PanAmSat, with Customer having no further right to Backhaul Service
therefrom.
PanAmSat shall promptly notify Customer if PanAmSat determines
that the Backhaul Service will not be able to be provided as specified above.
1.3 Intentionally Deleted.
1.4 Covenants on Use. Customer acknowledges and agrees that the
provision of Service that is the subject of this Agreement is being made in
consideration, among other things, of Customer's agreement and promise to use
the Service for particular purposes. In this regard, Customer agrees as follows:
(a) DTH Service. Except as otherwise provided herein, the
Service shall be used to meet the satellite transmission requirements of
Customer's direct to home service, which for purposes of this Agreement, except
for the specific purposes of Section 1.8, means video and audio programming that
is provided on a pay or subscription basis, together with associated audio and
data signals (e.g., authorization codes) and any other direct broadcast or
interactive or multimedia service (including, without limitation, internet
access and video games) and that is intended for direct reception (or by means
of SMATV) by, and is made available primarily to, end user recipients in the
home or business via "Ku-band" satellite transponders in the "Territory" ("DTH
Service"). Other uses of the Service shall be permitted to the extent provided
under this Section 1.4 and Section 1.6 below. References in this Agreement to
Customer's "transmissions" and, except where specifically limited to "video,"
references to Customer's "programming" shall be deemed to include all permitted
video and non-video applications. As used in this Agreement, the "Territory"
means Mexico, the Dominican Republic, Costa Rica, Cuba, Guatemala, Nicaragua,
Honduras, El Salvador, Puerto Rico, Panama [ * * * * * * * * * * * * * * * * * *
* * * * * * * * * ] and the United States, Canada, Belize, the British Virgin
Islands, and all other islands in the Caribbean located in whole or in part
north of 12(degree) North Latitude. "Ku-band" means the frequency band between
10.7 and 17.8 GHz, excluding minor overlaps of other bands to the extent
generally recognized as falling outside the "Ku-band" designation and also
excluding authorizations that may be granted (on a general
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applicability basis) for minor portions of the band solely for use in connection
with frequencies located outside of the band.
(b) Customer's DTH Service. As used in this Agreement, the
reference to "Customer's DTH Service" shall be deemed to include any DTH Service
that is owned, operated or managed by Customer or any entity that is directly or
indirectly "Controlled" by a combination of one or more of the "Approved
Participating Companies" that also, directly or indirectly, Control the
Customer. The Approved Participating Companies mean any one or more of the
following companies that directly or indirectly has an equity holding,
investment, or other economic interest in the Customer: The News Corporation
Limited ("News"), Grupo Televisa, S.A. ("Televisa"), Tele-Communications
International, Inc. ("TINTA"), Globo Comunicacoes e Participacoes ("Globo"),
and/or any of the "Approved Companies" that are identified in Appendix I. News
and Televisa are also referred to herein as the "Founding Partners." At
Customer's request, the list of Approved Companies may be expanded, subject to
PanAmSat's prior written consent, not to be unreasonably withheld, conditioned,
or delayed; provided that, in appropriate circumstances, PanAmSat may limit its
consent to the involvement of an Approved Company: (i) so that Control of
Customer is retained by other Approved Participating Companies, (ii) to exclude
separate programming rights under Section 1.4(c) below, and/or (iii) to exclude
rights to be an assignee under Section 10.5 of this Agreement. PanAmSat shall
make all decisions required under this paragraph in good faith based upon the
financial qualifications and programming practices (i.e., with respect to
considerations identified in Section 10.5 below) of a proposed Approved Company.
For purposes of this Agreement, "Control" means voting control over ordinary
business activities (positive or negative) that may be exercised directly or
indirectly. As a condition for their interest in Customer and participation in
Customer's DTH Service, Customer shall require each of the Approved
Participating Companies to agree to and to comply with the terms and conditions
of the Agreement as they relate to them and shall make PanAmSat a third party
beneficiary entitled to enforce such provisions directly against the Approved
Participating Companies. It is understood that Customer's DTH Service may carry
programming provided to it by third parties.
Customer may permit video programming signals (with associated
audio and data signals) that are being carried on the same Service Transponder
as part of Customer's DTH Service also to be received (the same feed), on an
ancillary basis, by cable head ends, SMATV and MMDS outlets and other non-DTH
facilities that may be developed for the distribution of video programming
("Non-DTH Outlets").
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(c) Non-DTH Use. Customer, each Founding Partner (as long as
it directly or indirectly, owns or has an investment or economic interest in
Customer or in Customer's DTH Service), each Approved Participating Company that
has a minimum 10% voting equity in the Customer, and each entity that is an
Affiliate of any of the foregoing entities is referred to herein as a "Customer
Company." [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
*]. As used in this Agreement, "Affiliate" means, with respect to any entity
(which for this purpose does not include natural persons), any entity directly
or indirectly, through one or more intermediaries, Controlling, Controlled by,
or under common Control with such entity. For purposes of this paragraph,
"Affiliates" of the Founding Partners shall also be deemed to include (except
for purposes of making determinations under clause (iii) that follows) entities
in which all of the following are the case: (i) a Founding Partner individually
owns, directly or indirectly, at least 25% of the equity of the entity; (ii) the
Founding Partner has a board seat or comparable management participation in the
entity; and (iii) if the entity or its Affiliates has ever entered into a
satellite transponder transaction with PanAmSat, the Founding Partner has had
liability exposure to PanAmSat thereunder, either as a general partner of the
entity or as guarantor (in whole or in part) of the entity's obligations to
PanAmSat.
To the extent that the capacity provided by the Service
Transponders exceeds the requirements of the Customer Companies for the
satellite transmission of DTH Service in the [ * * * * * * * * ] Territory (as
they reasonably determine) and, except as permitted under Section 1.8(c), the
Customer Companies are not using other Ku-band satellite capacity in lieu of the
Service Transponders, to meet such requirements for the [ * * * * * * * * ]
Territory, the Customer Companies may use the Service Transponders for their own
needs with respect to the transmission of video, audio, data and teletext
signals and any other electronic information, including (without limitation)
interactive video applications, however transmitted, whether in the form of
data, teletext or packets.
(d) Use by Others. In any circumstances in which Customer is
permitted above to allow the Service Transponders to be used by other Customer
Companies, or in circumstances in which Customer's DTH Service may carry
programming services provided to it by others, Customer shall remain ultimately
responsible to PanAmSat for all such use. In such circumstances, Customer's
responsibilities to PanAmSat with respect to Customer's use of
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Service Transponders, Customer's transmissions to the Satellite, Customer's
programming and the responsibilities of Customer to PanAmSat for other
activities hereunder shall be read to include the use, transmissions,
programming, and activities of any such other entity.
(e) International PSN Restriction. In no event may the Service
Transponders (except to the extent that they are remarketed by PanAmSat, as
provided below) be used for switched public international telecommunications
services.
(f) Intent of Third Party Use. Customer acknowledges and
agrees that it is the parties' intent, in allowing the carriage of programming
services provided by others, to further Customer's ability to develop the DTH
market, but not to allow Customer to resell or otherwise make the Service
Transponder(s) available to others at a profit solely on the capacity itself,
and that Customer shall not, through the permission granted or through any other
agreement or arrangement, enter into any agreement to, or use the Customer
Transponder(s) in any way that would, materially conflict with this intent.
1.5 Transmission Plan for Transponders. Customer's transmissions
to the Satellite (which may be performed by one or more third party uplink
providers, as provided in Section 4.2 below) shall conform to digital
transmission plans to be submitted by Customer to PanAmSat and that shall be
subject to PanAmSat's prior written approval. The transmission plan shall
include such information as called for in the form of transmission plan that is
attached hereto as Appendix M and such other technical information as PanAmSat
may require in its reasonable engineering judgment to manage the operation of
its satellites. Customer shall be permitted to modify these transmission plans
from time to time, subject to PanAmSat's prior written approval. PanAmSat shall
not unreasonably withhold its approval of a transmission plan or modification to
such a plan, which approval shall be based solely upon the considerations
identified in Section 4.1 below. PanAmSat makes no representation, warranty, or
covenant regarding the efficacy of the use of any number of carriers or other
alternative uses of capacity provided under this Agreement. If not otherwise
provided by PanAmSat pursuant to separate agreement, Customer will provide
PanAmSat, at no cost to PanAmSat, with equipment necessary to decode its
signals. It is understood that, in some circumstances, PanAmSat may provide
uplink services to Customer, in which event Customer shall not be responsible to
PanAmSat for the technical operation or performance of such PanAmSat-provided
uplinks under this or other sections of this Agreement.
1.6 Marketing by PanAmSat of Customer's Capacity.
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(a) At Customer's request, PanAmSat shall market Service from
Service Transponders for use by third parties on an interim basis until Customer
requires them for Customer's DTH Service; provided that, after six months from
the Service Date (the "Initial Six Months") such marketing shall be limited to a
maximum of [ * * * * * * * ] Service Transponders. In such circumstances,
PanAmSat shall use all reasonable efforts to market services from the Service
Transponders made available for this purpose (which Customer would thereafter
cease to employ) for the interim period to other potential customers for video,
data, or other uses, as market demand and technical considerations may warrant,
as reasonably determined by PanAmSat in consultation with Customer, and subject
to PanAmSat's reasonable discretion with regard to the terms and conditions of
service and selection of appropriate customers, which shall be consistent with
its general practices in this regard, and Customer's consent rights set forth in
clause (b) of this Section. In such event, PanAmSat shall actively market
services from the Service Transponders in good faith, provided that PanAmSat
shall not be obligated to use the Service Transponders ahead of any other
capacity that PanAmSat may also have available for comparable service. During
the Initial Six Months, PanAmSat shall market service from the Service
Transponders made available under this Section for occasional use; thereafter,
unless otherwise agreed, marketing shall be for full-time, fixed term uses.
(b) With the exception of the marketing of the Service
Transponders for occasional use during the Initial Six Months, all contracts
regarding possible use by third parties of Service Transponders, as permitted
under this Section 1.6, shall be promptly forwarded by PanAmSat to Customer for
specific written approval, rejection, or proposed modification by Customer, it
being understood that neither PanAmSat nor a third party customer shall be
required to accept Customer's proposed modifications, but also may not go
forward with an unmodified agreement for Service Transponders under this Section
1.6 that Customer has not approved. Customer shall also have the right to
approve or reject any particular customers for service from Service Transponders
that are made available under this Section. In addition, subject to the
considerations stated above, if Customer identifies to PanAmSat a potential
customer who desires to purchase service from PanAmSat that employs the Service
Transponders, PanAmSat shall seek, in good faith, promptly to enter into a
service agreement with said customer, provided that if PanAmSat was already in
negotiations with said potential customer for other PanAmSat capacity, PanAmSat
shall not be required to discontinue such negotiations; and
(c) PanAmSat shall credit against Customer's next monthly
"Service Fee" (as defined below) (which shall continue to be due and payable),
during this period, such amounts that are actually received from other customers
for service from the Service Transponders for the previous month (less costs
reasonably incurred by PanAmSat for which PanAmSat is not
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separately reimbursed for providing any related services and equipment that may
be associated with the provision of such service, e.g., turnaround, compression,
or other terrestrial services or facilities ("Additional Facilities Costs") and
costs (including reasonable attorneys' fees) reasonably incurred by PanAmSat in
marketing such services to, or negotiating a service agreement with, third
parties) ("Transaction Costs") up to the amount of the Service Fee paid by
Customer for the applicable period for the Service Transponders made available
by Customer to PanAmSat for remarketing under this Section 1.6. For purposes of
marketing for occasional use, the parties agree that PanAmSat's Transaction
Costs shall be deemed to equal [ * * * * * * * ] of the revenues actually
received from such effort. In addition, after deducting the Additional
Facilities Costs, if any, and Transaction Costs specified above, if the [ * * *
* * * * * * * * * * * * * * * * * * * * * ] by PanAmSat for service from the
Service Transponders [ * * * * * * * * * * * * * * * * * * * * ] to PanAmSat by
Customer for [ * * * * * * * * * * * * * * * * * * * *] (the [ * * * * * * * * *
* * * ]) in [ * * * * * * * ] to crediting the next month's Service Fee payment,
PanAmSat shall [ * * * * * ], as an [ * * * * * * * * * * * * * * * * * * * * ]
of such [ * * * * * * * * * * *] and shall [ * * ] Customer [ * * * * * * ] of
such [ * * * * * * * * * * *].
1.7 Reserved.
1.8 [* * * * * * * * * *]
(a) (i) PanAmSat. Subject to the exceptions stated in this
Section 1.8, PanAmSat agrees that, during the "Term" of this Agreement (as
defined below), neither it nor any "PanAmSat Company" (defined herein as an
Affiliate of PanAmSat) will:
(A) use or enter into any transponder
contract (service, lease, purchase, or other vehicle) that does [ * * * * * * *
* * * * * * *] the [ * * ] of any Ku-band Transponder on any satellite which (x)
is owned, operated or managed by PanAmSat or any PanAmSat Company, (y) is
located in the [ * * * * * * * * * * * * *], and (z) has Ku-band coverage over
the [ * * * * * * * *] Territory (other than by a [ * * * * * * * * * * * * * *
* *]) for the purpose of delivering any DTH Service in the [ * * * * * * * * * *
* *] and, in such contracts that provide Ku-band coverage over the [ * * * * * *
* * * * * *] for [ * * * * * * * * * * * * *], specifying Customer as a [ * * *
* * * * * * * * * * * * * * ] entitled to [ * * * * * * * *] such [ * * * * * *
* * * * *];
(B) if PAS-XX is built with a steerable
Ku-band spot Beam, use or enter into any Transponder contract (service,
purchase, or other vehicle) for the full-time, long term use of the Ku-band
Transponders on said steerable PAS-XX Ku-band spot Beam, if oriented for
coverage over [ * * * * * * * * * * * ] Territory, for use in the [ * * * * * ]
[***] Filed separately with the Commission pursuant to a request for
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Xxxxxxxxx without [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]
(C) [ * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * ]
(D) [ * * * * ] its [ * * * * ] for any
satellite located in [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]
unless the assignee agrees to be bound by the provisions of the previous clause
(A); if the [ * * * * * * * * * * * * ], the assignee must also agree to be
bound to clause (B); and if the [ * * * * * * * * * * ] and will be [ * * * * *
* * * * * * * * * * * ], the assignee must agree to be bound by clause (C).
The foregoing notwithstanding, neither PanAmSat nor any PanAmSat Company shall
be required to place [ * * * * * * * * ] on Ku-band Transponders that [ * * * *
* * * ] the [ * * * * * * * * * * * * ] of transmissions [ * * * * * * * * * * *
* ] in the [ * * * * * * * ] Territory as part of a satellite delivery service
that is not marketed for this purpose and that is used primarily for other
purposes (e.g., [ * * * * * * * * * * * * * * * * ]), nor shall PanAmSat or any
PanAmSat Company be required to place [ * * * * * * * * ] on the use of Ku-band
Transponders whose [ * * * * * * * * * * * * * * * * * * * * ] of the [ * * * *
* * * ] Territory but that may have spillover coverage (in terms of [ * * * * *
* * * ] for DTH service) over a [ * * * * * * * * ] of the applicable area. For
the avoidance of doubt, none of the restrictions on PanAmSat or any PanAmSat
Company that are stated in this Section 1.8 shall apply to any satellite that is
[ * * *
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* * * * * * * * * * * * * * * * * * * * * ], with the sole exception of the
restrictions that apply to PAS-5 (if [ * * * * * * * * * * * * * * * * * * * * *
* * * ]) under Section 1.8(a)(i)(C) above.
(ii) Customer. Subject to the exceptions stated in
this Section 1.8, Customer agrees that, during the Term of this Agreement,
neither it nor any Customer Company will:
(A) [ * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * ]
(B) use [ * * * * * * * * * * * * * * * * ]
with coverage over the [ * * * * * * * * * * * * ], other than that provided by
[ * * * * * * * * ] pursuant to this [ * * * * * * * * ], for the [ * * * * * *
* * ] of [ * * * * * * * * * * * * * * * * * * * * * * * * ].
(iii) General Exceptions. It is understood and agreed
that nothing herein shall prohibit: (A) PanAmSat or a PanAmSat Company or
Customer or a Customer Company from [ * * * * * * * * * * * * * * * * * * * * *
* * * ] Sky Multi-Country Partners or its "DTH Service," as defined in its
"Transponder Service Agreement" with PanAmSat; (B) PanAmSat or a PanAmSat
Company from [ * * * * * * * * * * * * * * * * * * * * ] Customer, a Customer
Company, or [ * * ] Customer's DTH Service; nor (C) Customer or any Customer
Company from [ * * * * * * * * * * * * * * * * ] PanAmSat or a PanAmSat Company.
(b) Customer Exceptions. Subject to Section 1.8(g) below
(Survival), this Section 1.8 shall cease to apply to Customer or any Customer
Company in the following circumstances: [ * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]
Customer acquires or enters into a binding agreement to acquire such
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-11-
[ * * * * * * * * * * * * *]. PanAmSat shall keep Customer reasonably apprised
of its efforts in response to a written request under this clause and shall
notify Customer at any such time that PanAmSat reasonably determines that it [ *
* * * * ] meet such request within the [ * * * * * * * ] period provided.
(c) [* * * * * * * * * * * * * *] In addition to the above
exceptions, Customer shall be permitted to [ * * ] its Transponder capacity on [
* * * * * * * * * * * * * ], provided that its DTH Service is [ * * * * * * * *
* * * * * * ] capacity provided by PanAmSat as soon as reasonably practical.
(d) [ * * * * * * * * * * * * * * * * * * *] At Customer's
option, the provisions of this Section 1.8 shall [ * * * * * * * * ] to a [ * *
* * * * * * * * * * * * ] on and after such date that it [ * * * * *] to have or
be Affiliated with an entity that has any direct or indirect ownership,
investment or other economic interest in the Customer or its DTH Service;
provided as follows: (i) in [ * * * * * * * ] shall more than [ * * ] of the [ *
* * * * * * * * * * ] or Affiliates of more than [ * * ] of them, directly or
indirectly, own, invest in, or otherwise hold an economic interest in the [ * *
* ] DTH Service operating within the [ * * * * * * * * * * * * * * ] (other than
the Customer's DTH Service); and (ii) Customer shall, and shall contractually
require the [ * * * * * * * * * * * *] to, notify PanAmSat at such time that a
Founding Partner (or any of its (their) Affiliates) enters or takes any material
step toward entering (e.g., securing [ * * * * * * * * * * * * * * ] or [ * * *
* * * * * * * *] for a DTH Service) the business of providing DTH Service [ * *
* * * * * * * * * * * * ] or acquires, direct or indirectly, an ownership,
investment or other economic interest in another DTH Service operating or which
has taken or takes material steps toward operating within [ * * * * * * * * * *
* * * ] (any such event being referred to herein as a [ * * * * * * * * * * * *
* * * * * * * * * ]).
(e) Intentionally Deleted.
(f) Notices. Each party shall promptly notify the other
of an event that gives rise to a right to [* * * * * * * * * * * * * * * *] of
this Section 1.8 in relevant part. Within [* * * * * * * * * *] (or, in the
case of clause 1.8(b)(i), [* * * * * * * * *]) of the later of: (i) the date
that such notice is received, or (ii) the [* * * * * * * * *] for PAS-XX, the
party receiving such notice must [* * * * *] the right granted or it shall be
[* * * * * * * *] as to the event giving rise thereto (but not as to any future
independent circumstances that may give rise to a separate right).
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-12-
(g) Survival. The [ * * * * * * * * * ] provisions of this
Section 1.8 shall not relieve Customer, the Customer Companies, and, even if no
longer a Customer Company, the Founding Partners from the obligations stated in
Section 1.8(d)(ii).
(h) [ * * * * * * * * * * * * * * ] of DTH Service. For
purposes of this Section 1.8, [ * * * * * * * * * * * * * * * * ] do [ * * * * *
* * * * *] DTH Service. In addition, for purposes of this Section 1.8, the
definition of "DTH Service" is [ * * * * * *] to [ * * * * * * * * * * * * * * ]
with associated [ * * * * ] and [ * * * * * * * * * * ] that is intended for [ *
* * * * * * * * * * * * * ] via satellite by [ * * * * * * * * * * * * * * * * *
* * * ] in the home.
(i) Successors in Interests. For the avoidance of doubt and
not for limitation, the provisions of this Section 1.8 shall be binding upon any
entity that acquires all or substantially all of the assets of an entity that is
otherwise subject to the provisions to the same extent that the provisions would
be applicable to the entity being acquired.
(j) Individual Conduct. If any individual(s) who Controls an
entity that is subject to this Section 1.8 or any entity that is directly or
indirectly Controlled by such individual(s) takes an action, including (without
limitation) material steps toward doing so, of the kind described in Section
1.8(d)(ii) above, that would be prohibited under this Section, if said
individual were an entity, then the party that is not (if such individual(s)
were an entity) Affiliated with such individual may [ * * * * * * * ] the [ * *
* * * * * * * * ] of this Section 1.8 on notice to the other party. In addition,
the conduct of such an individual, if he or she, if an entity, would be that of
an Affiliate of a Founding Partner, shall have the same additional consequences
under Sections 1.8(d) and Article 16 of this Agreement as if that Founding
Partner were a Founding Partner in Competition.
1.9 Requested Cofetel Clarifications. It is understood that only
Customer has the capability to control individual subscriber receipt of its DTH
Service by either allowing or prohibiting such reception and that PanAmSat has
no such capability. PanAmSat hereby agrees to permit the cessation of
transmissions via any Service Transponder from which Customer is entitled to
Service hereunder as Customer directs, provided that any such cessation will not
affect Customer's obligations for Service Fees as provided in Article 3. The
definition of "Ku-band" contained in Article 1.4(a) is solely for purposes of
the [ * * ] provisions of [ * * * * * * * * * *] and the [ * * * * * * * * * * ]
provisions of Section [ * * ] and is not intended in any way to affect any
governmental authorization that may be held in connection with Customer's DTH
Service.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-13-
ARTICLE 2. TERM, SERVICE TERM, DEGRADED SERVICE
2.1 Term, Service Term. The term of this Agreement (the "Term")
shall commence upon the first date above written and, unless previously
terminated in accordance with the provisions of this Agreement, shall, subject
to Section 16.1(f), remain effective until the end of the "Service Term," as
defined below. The "Service Term" shall start on the date that PAS-XX has been
placed in its assigned orbital position, with at least the "Minimum Complement"
of Service Transponders meeting the "Service Specifications" set forth in
Appendix C, and PanAmSat so certifies to Customer unless Customer agrees to
accept Service from fewer Service Transponders than the Minimum Complement.
PanAmSat shall give the certification to Customer required for Service to
commence from PAS-XX, if it would be true and correct, when PAS-XX is placed
into commercial service. The date that Service is commenced is referred to in
this Agreement as the "Service Date." The "Minimum Complement" of Service
Transponders on PAS-XX is [ * * * * * *]. The Service Date for PAS-XX is
currently anticipated to occur no later than [ * * * * * * * ], the "Latest
Anticipated Service Date." Subject to Section 2.4 below, any Service Transponder
that does not meet the Service Specifications at the time that the Service Date
occurs for one or more other Service Transponders on the same Satellite shall at
that time [ * * * * * * * * * ] a Service Transponder or [ * * * * * * * * * * *
* * * * * ]. Unless sooner terminated under Article 7 below, the Service Term
shall end upon the earlier of: (a) 23:59 Greenwich Mean Time on the date that is
one day earlier than the [ * * * * * * * * * * ] anniversary of the Service
Date, and (b) the date that PAS-XX is taken out of commercial service (or
relocated in the case of Section 7.4(c)) in accordance with Section 7.4 below.
For the avoidance of doubt, the anticipated life of the Satellite after launch
shall not be considered for purposes of determining whether the Service
Specifications are being met. PanAmSat shall use commercially reasonable efforts
to cause Service from each of Service Transponders to be commenced on or before
the applicable Latest Anticipated Service Date.
2.2 Intentionally Deleted.
2.3 Intentionally Deleted.
2.4 Degraded Service. Either before or after the Service Date,
if a Service Transponder, while operational, does not meet the Service
Specifications, Customer shall have the right, within ten (10) days of being
notified of this condition, provisionally to waive the Service Specifications to
the extent that they are not met.
If Customer gives such a provisional waiver, Customer shall
have an additional fifty (50) days (for a total of sixty from being notified of
the condition) in which to determine
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-14-
whether to accept the degraded capacity and grant a permanent waiver of the
Service Specifications to reflect the affected Transponder(s)' current operating
level, or not. The applicable termination provisions of Section 7.3 shall also
be stayed during any period in which Customer is considering electing a
permanent waiver.
If Customer gives a provisional waiver, it shall take and pay
for the affected degraded capacity, as if provided in accordance with the
Service Specifications until the conclusion of the sixty day period specified
above. On or before the end of this sixty-day period, either Customer shall
grant a permanent waiver of the Service Specifications or the termination
provisions of this Agreement, as to the capacity that does not meet the Service
Specifications shall, at that time, apply.
If a permanent waiver is given, it shall be deemed to apply
retroactively to the time of such failure to meet the Service Specifications (so
that, for example, the Service Date shall be deemed to have occurred on the same
day as the Service Date of the other Service Transponders on the Satellite that
meet their Service Specifications). In such event the Service Specifications for
the affected Service Transponder(s) shall be reduced to reflect the current
operating level of the affected Service Transponder(s); provided that PanAmSat
shall continue, if there are further steps that may practically be taken, to use
reasonable efforts to restore the affected Transponder to meet the Service
Specifications. For the avoidance of doubt, a waiver given under Section 2.4
shall not, unless otherwise agreed by Customer, be deemed to apply to any
further reduction in performance from the operating level of the affected
Service Transponders at the time that the waiver was given.
2.5 Pre-Service Testing. To the extent that testing may be
conducted at the orbital slot at which the Satellite is to be located, PanAmSat
shall use all reasonable efforts to coordinate with its satellite manufacturer
(who conducts the pre-Service in-orbit check out of PAS-XX), to allow Customer,
in consultation with PanAmSat, to test Customer's transmit and receive equipment
to be used with PAS-XX on a noncommercial basis during the post-launch,
pre-Service period; provided that such tests do not interfere with the in-orbit
testing, maneuvers, or other related activities that are being conducted or,
without limitation, with use of any other satellite that may be being replaced
by the Satellite. PanAmSat shall cooperate with Customer in carrying out such
testing. Customer shall comply with all of the provisions of this Agreement
regarding such transmissions and any other additional restrictions of which it
may be notified vis-a-vis the requirement not to interfere with the in-orbit
tests or related activities relative to PAS-XX. Customer shall be responsible
for any damage caused by its failure to abide by any of these conditions.
-15-
ARTICLE 3. CUSTOMER PAYMENTS.
3.1 Monthly Service Fees. For each month of the Service Term
beginning on the Service Date, Customer agrees to pay a monthly service fee (the
"Monthly Service Fee") of [ * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] per
Transponder. Customer shall make each and all payments of the Monthly Service
Fee, in advance, no later than the first business day of each month of the
Service Term. Payments due for Service under this Agreement are more generally
referred to as "Service Fee(s)."
3.2. Service [ * * * * * ]. In consideration of [ * * * * * * * * *
* * * * * * * * * ] related to Customer's use of the Service, Customer shall [ *
* * * * * * * * * * * * * * * * * * * * * * * * ] Service Fees otherwise payable
hereunder [ * * * * * * * * * * * * * * ]. For the avoidance of doubt, said [ *
* * * *] shall apply [ * * * * * * * * * * * * * * * * * * * * * * * * * ] to
PanAmSat by Customer hereunder and shall [ * * ] be [ * * * * * * * * * ] by
Customer if this Agreement is [ * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].
3.3 Manner Of Payment. All payments by Customer shall be made in
U.S. dollars; shall be deemed to be made only upon receipt by PanAmSat of
collected funds; and shall be made by bank wire transfer to such bank account as
PanAmSat may designate by notice to Customer, or by cashier's or certified
check, from a U.S. bank, delivered to PanAmSat at its principal place of
business, as designated in Section 14.5(b).
3.4 Late Payment. Any payment due from Customer to PanAmSat that
is not received by PanAmSat on the date that it is due shall be subject to a
delinquency charge (liquidated damages) at the rate of [ * * * * * * * * * * * *
* * * * * * * * * * * * * * * * ] on such overdue amount from the due date until
it is actually received by PanAmSat. Customer acknowledges that such delinquency
charge is reasonable under all the circumstances existing as of this date.
3.5 Taxes. Customer shall be responsible for, and shall indemnify
PanAmSat against, all Taxes that may be asserted as a result of the Service
provided to Customer and/or Customer's use of the Service, except for U.S.
income, property, or employment taxes imposed on PanAmSat; provided, that, to
the extent that Taxes may be imposed with respect to the Satellite itself,
Customer shall be responsible for a pro rata share (to be reasonably determined
by PanAmSat) in proportion to the capacity of the Satellite used by Customer,
but in no event greater than a fraction equal to the number of Service
Transponders divided by the number of
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-16-
Transponders on the Satellite. For purposes of this Agreement, "Taxes" shall
mean all foreign, federal, state, provincial, and local income, franchise,
sales, use, receipts, value added, transfer, profits, excise, stamp, withholding
and property taxes, duties or assessments and governmental charges of any kind
whatsoever (including interest, penalties and additions with respect thereto). [
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].
ARTICLE 4. CUSTOMER'S OBLIGATIONS IN USING THE SERVICE TRANSPONDERS.
4.1 Non-interference and Use Restrictions. Customer's
transmissions to and from the Satellite and its use of the Service shall comply
with all applicable governmental laws, rules and regulations, and with the
operational requirements (the "Operational Requirements") set forth in Appendix
D, as the same may be modified from time to time by PanAmSat, in its reasonable
discretion, but only for good technical cause(s). Customer will follow
established practices and procedures for frequency coordination and will not use
the Service Transponders, or any portion thereof, in a manner which would or
could reasonably be expected to, under standard engineering practice, interfere
with the use of any other Transponder, the Satellite, or any other satellite or
transponder on such satellite, or cause physical harm to the Service
Transponders, any other Transponder, the Satellite, or any other in-orbit
satellite or transponder on such satellite. Provided that Customer's
transmissions conform with the transmission plans approved by PanAmSat under
Section 1.5 above, Customer complies with the Operational Requirements, as the
same may be modified as provided above, and Customer immediately ceases any
transmission upon being notified by PanAmSat of any violation of this Section
4.1 (even if such transmission is in conformity with the Operational
Requirements), Customer shall not be deemed to be in breach of its obligations
under the preceding sentence.
4.2 No Terrestrial Facilities. Subject to the exception stated in
Section 1.5 above with respect to PanAmSat-provided uplinks, if any, Customer
shall be responsible for the provision, installation, operation and maintenance
of all earth station facilities and equipment ("Customer-Provided Facilities"),
for transmitting signals to, or receiving signals from, the Satellite in
accordance with the requirements set forth in this Agreement. Customer shall
also be responsible for acquiring all authorizations necessary for installation
and operation of Customer-Provided Facilities. Customer shall be permitted to
contract with third parties to transmit its signals to, or receive its signals
from the Satellite; provided, that, Customer requires its
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-17-
contractors to agree to comply with all of the requirements set forth in this
Agreement regarding transmissions to, or reception from, the Satellite. If
Customer retains third parties (other than PanAmSat) as permitted by the
previous sentence, these third parties' facilities shall be deemed to be
Customer-Provided Facilities and the acts and omissions of these third parties
in connection with the transmission or reception of Customer's signals shall be
deemed to be the acts and omissions of such third parties and of Customer. Any
provision by PanAmSat (or by an affiliated company) to Customer of earth station
or other terrestrial facilities or services shall be the subject of a separate
agreement.
[ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].
4.3 Customer's Transmitting Stations. Customer will configure,
equip and operate its transmit facilities so that the interface of these
facilities, in space, with the Satellite shall conform to the characteristics
and technical parameters of the Satellite. Customer will follow PanAmSat's
procedures for initiating or terminating any transmission to the Satellite.
Customer will operate all transmit facilities in a manner that allows for
cessation of, and will cease, transmission immediately upon receiving notice
from PanAmSat under Section 15.5(a) ("Telephone Notices"). Customer will furnish
information on a continuing basis as reasonably required by PanAmSat to prepare
for, initiate, provide, maintain and immediately discontinue the use of the
Service Transponders upon notice by PanAmSat.
PanAmSat shall have the right, but not the obligation, subject
to such reasonable confidentiality and use restrictions as Customer may impose,
to inspect any Customer-Provided Facilities together with associated facilities
and equipment used by Customer, or by a third party under the authority of
Customer, to transmit to the Service Transponders. PanAmSat will use all
reasonable efforts to schedule inspections to minimize the disruption of the
operation of the facilities, and Customer shall make the facilities available
for inspection at all reasonable times. Customer shall, upon PanAmSat's request,
provide measured proof that any transmit facility meets or exceeds the sidelobe
envelope described in Appendix D.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-18-
4.4 Consistent Application of Satellite Operating Procedures.
PanAmSat shall have similar (but not necessarily identical) restrictions not to
interfere with or cause physical harm to the Satellite, its Transponders, and
other satellites and their transponders, as contained in this Agreement with all
other customers, including any of its Affiliates, having a right to uplink to
the Satellite and shall enforce these restrictions (and, to the extent it may
use the Satellite for its own services, follow these restrictions itself) in a
consistent and nondiscriminatory manner vis-a-vis Customer and the other
customers with a right to uplink to the Satellite. Allowing for the fact
(understood and accepted by Customer) that technical variations in the kinds of
transmissions that different customers may employ, different performance
characteristics of different Transponders, differences in the use of adjacent
frequencies or the same frequencies on other satellites, other technical
factors, and the use of different uplink providers and facilities may require
the application of different restrictions to achieve the same non-interference
and satellite protection goals, PanAmSat shall not require Customer to follow
Operational Requirements or transmission procedures that are more stringent than
those imposed upon other customers on the same Satellite in comparable technical
circumstances.
ARTICLE 5. TRANSPONDER FAILURE, PROTECTION.
5.1 Confirmed Outage. There shall be deemed to have occurred a
"Confirmed Outage" of a Service Transponder if a Service Transponder fails to
meet the Service Specifications for a continuing and uninterrupted period of [ *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * ] and such failure is confirmed by PanAmSat. Any "Outage Credit" (as
defined below) shall be measured in accordance with the procedures set forth in
Section 5.2.
5.2 Outage Credit. If there is a Confirmed Outage of a Service
Transponder, PanAmSat shall credit to Customer's next Service Fee payment an
"Outage Credit" that shall be determined by the following formula:
Outage Credit equals:
[ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-19-
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * ]
Customer shall not be entitled to any Outage Credit for any Transponder failure
that does not constitute a Confirmed Outage. For purposes of determining Outage
Credits, each failure that is confirmed by PanAmSat shall be measured as
commencing from the later to occur of (i) Customer's cessation of use of the
affected Service Transponder and (ii) notice from Customer to PanAmSat of such
failure (provided that the affected Service Transponder is, in fact, not meeting
the Service Specifications). Any such failure shall be deemed to have ended upon
the earlier to occur of (i) Customer's resumption of use of the affected Service
Transponder and (ii) notice to Customer from PanAmSat that the affected Service
Transponder has been restored to the Service Specifications (provided that the
affected Customer's Transponder is, in fact, meeting the Service
Specifications).
5.3 Transponder Failure. If, after the Service Date, a Service
Transponder fails to meet the Service Specifications for: (a) any period of [ *
* * * * * * * * * * * * * * * * * * * ]; (b) a [ * * * * * * * * * * * * * * * *
* * * * * * * * * ] during any consecutive [ * * * * * * * * * * * *], or (c)
any [ * * * * * * * * * * * * ] following a [ * * * * * * * * * * * * * * ]
under circumstances that make it [ * * * * * * * * * * * * * * * * ] that a [ *
* * * * *] described in clause (a) or (b) will occur, such Transponder shall be
deemed to have failed on a "Confirmed Basis." Any such failure must be confirmed
by PanAmSat, which it shall take steps to do as expeditiously as possible. If
confirmed, the failure shall be measured as commencing from notice from Customer
to PanAmSat of such failure (provided that the affected Service Transponder is,
in fact, not meeting the Service Specifications). Any such failure shall be
deemed to have ended upon notice from PanAmSat to Customer that the affected
Service Transponder is capable of meeting the Service Specifications (provided
that the affected Service Transponder is, in fact, meeting the Service
Specifications); provided, further, that if PanAmSat enters into an agreement to
provide Ku-band capacity from the Satellite on which a Service Transponder is
located and such agreement provides that, for purposes of employing said "Spare
Equipment" on the Satellite, failure on a Confirmed Basis shall be deemed to
have occurred in less than the applicable time periods specified above, PanAmSat
shall determine whether a failure on a Confirmed Basis has occurred for Service
Transponder on the same Satellite under this Agreement using the time periods
specified in such other agreement.
In the event a Service Transponder fails on a Confirmed Basis,
PanAmSat shall, as soon as possible and to the extent technically feasible,
employ certain redundant equipment units, as described in Appendix B ("Spare
Equipment") on a first-needed, first-served basis as
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-20-
among Customer and other Transponder owners, lessees, and users, including
without limitation, PanAmSat and its predecessors in interest ("Protected
Parties"), as a substitute for a Service Transponder equipment unit which has
failed; provided, that PanAmSat may elect to use "Substitute Capacity" on the
same Satellite as the failure shall have occurred (as provided below), if
available and not subject to any additional operational restrictions that
Customer is not willing to accept, in lieu of using Spare Equipment..
Customer acknowledges and agrees that the Spare redundancy
plan of the Satellite may require PanAmSat to reassign certain traveling wave
tube amplifiers ("TWTAs") among Transponders to make use of a TWTA. In
circumstances in which a spare TWTA is required to be employed for any customer
and to do so requires a change in the TWTA assigned to Customer, Customer shall,
on notice from PanAmSat, cease transmitting to the applicable Service
Transponder(s) to allow the TWTA that is assigned to its Transponder(s) to be
reassigned and a different unit (that meets the Service Specifications) to be
put in its place. PanAmSat shall use all reasonable efforts to keep to a minimum
the time during which Customer is required to cease transmitting under this
paragraph, in accordance with good engineering practices, to make the shift in
the assignments.
If (a) a Service Transponder fails to meet its Service
Specifications on a Confirmed Basis, and (b) the Spare Equipment associated with
such Service Transponder is not available, and (c) equivalent capacity on
another Transponder meeting the Service Specifications in same Beam of the same
Satellite as the failure shall have occurred and designated by PanAmSat for DTH
use (the "Substitute Capacity"), is available, and its use by Customer in
accordance with PanAmSat's Operational Requirements would not be predicted to
interfere with the use or rights of others using the Satellite, then PanAmSat
shall, as soon as possible and to the extent technically feasible, employ such
Substitute Capacity for the failed Service Transponder to satisfy PanAmSat's
obligations under this Agreement. PanAmSat may condition its provision of
Substitute Capacity on Customer's acceptance, in writing, of such additional
restrictions on its use that PanAmSat believes in good faith are necessary so as
to protect other Protected Parties from interference. If Customer does not
accept such conditions, PanAmSat shall not be obligated to provide Customer with
Service from the Substitute Capacity. In the event that PanAmSat employs such
Substitute Capacity for a Service Transponder, such Substitute Capacity shall be
deemed to be a Service Transponder for all purposes under this Agreement.
In the event that [ * * * * * * * * ] Transponders [ * * * * *
* * * * * * * * * * ] to meet their respective [ * * * * * * * * * * * * * * * *
* * * * * * * * * * ] and are entitled to
[***] Filed separately with the Commission pursuant to a request for
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[ * * * * * * * *] under any applicable agreement with PanAmSat, then the
Protected Party who first executed a definitive agreement as to the affected
Satellite with PanAmSat or its predecessors in interest shall, to the extent [ *
* * * * * * * * * * * * *], have [ * * * * * *] as to use of the [ * * * * * * *
* * * * * *]; provided that, if [ * * * * *] from a Transponder is provided to
more than [ * * ] Protected Party (for example, if there are [ * * ] customers
each taking service from [ * * * * * ] of a Transponder), PanAmSat's decision
may be made in accordance with the order that the earliest Protected Party(ies)
using the Transponder(s) [ * * * * * * * * * * * * * * * ] with PanAmSat or its
predecessors in interest. As used in this Section 5.3, the term [ * * * * * * *
* * * * * * * * *] shall be deemed to mean [ * * * * * * * * * * * * * * * * * *
* * * * * ]. All determinations as to when [ * * * * * * * * * * * * * * * * * *
* * ] shall have occurred, for purposes of determining whether the failures are
[ * * * * * * * * * * * * * *] shall be made by [ * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * ]. For purposes of this Section 5.3, PanAmSat hereby
confirms that Customer's definitive agreement hereunder shall be deemed to be
the first definitive agreement executed for the PAS-XX Satellite.
5.4 Reduction in Number of Transponders as Overall Power on the
PAS-XX Satellite is Decreased. Customer acknowledges that it has been advised by
PanAmSat that as the PAS-XX Satellite increases in age, because of an overall
power constraint on the Satellite, it may be necessary to cease operating (or
interrupt operation of) one or more Transponders (not anticipated [ * * * * * *
* * * * * * * * * * * * * * ]), so that the remaining Transponders continue to
meet their applicable performance or service specifications. Provided that it is
consistent with protecting the overall health and performance of the Satellite,
as between the Service Transponders and other Transponders on the Satellite,
PanAmSat shall deactivate Transponders that are necessary to address this power
constraint in reverse order of their right to protection under Section 5.3
above. The deactivation of a Service Transponder under this Section 5.4 shall
count toward determining whether service on the applicable Transponder has
failed on a Confirmed Basis.
5.5 Customer Cooperation. If a Service Transponder fails to meet
the Service Specifications, Customer shall use all reasonable efforts to
cooperate and aid PanAmSat in curing such failure; provided that all reasonable
efforts can be done at no cost to Customer. These obligations of Customer shall
include, but not be limited to, the following:
(a) At the request of PanAmSat, if there is a problem that can
be compensated for by increasing the power and/or changing other parameters of
its transmission to the Satellite, without affecting its Customer's use of the
Service, Customer shall do so to the extent it can with existing equipment; and
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-22-
(b) Permitting PanAmSat, at PanAmSat's option, and at
PanAmSat's cost and expense, to upgrade the Customer-Provided Facilities.
5.6 Application to Individual Service Transponders. All
determinations of failures on a Confirmed Basis and protection rights and
Confirmed Outages to be made under this Article 5 shall be made on an individual
Service Transponder by Service Transponder basis.
ARTICLE 6. PREEMPTIVE RIGHTS.
6.1 (a) Preemptive Rights In Abnormal Circumstances. Customer
recognizes that it may be necessary, in unusual or abnormal technical situations
or other unforeseen technical conditions, for PanAmSat deliberately to preempt
or interrupt Service to Customer from, and Customer's use of, one or more of the
Service Transponders, solely in order to protect the overall health and
performance of the Satellite. Such decisions shall be made by PanAmSat in its
sole discretion, exercised in good faith. To the extent technically feasible,
PanAmSat shall give Customer at least 24 hours' notice of such preemption or
interruption and will use all reasonable efforts to schedule and conduct its
activities during periods of such preemption or interruption so as to minimize
the disruption of the services on the Satellite. Customer shall immediately
cease transmissions to the Service is at such time as its use of the Service
Transponder(s) preempted or interrupted pursuant to this Section. To the extent
that such preemption results in a loss to Customer of its use of a Service
Transponder sufficient to constitute a Confirmed Outage or a failure on a
Confirmed Basis, Customer shall have all the rights and remedies regarding
Outage Credits and termination set forth in Articles 7.
(b) Testing in the Event of Failure. If the Service is not
meeting Service Specifications, but Customer elects to continue to use (and pay
for) the Service, as degraded, PanAmSat may, with Customer's reasonable consent
as to the time such action will be taken, interrupt Customer's use as necessary
to perform testing or take any other action that may be appropriate to attempt
to restore the affected Transponder(s) to the Service Specifications. In such
event, PanAmSat shall coordinate activities with affected customer(s) and shall
use all reasonable efforts to minimize the overall disruption of use to the
affected customer(s). If Customer refuses to provide the consent referred to in
the first sentence of Section 6.1(b) when such consent is requested, the
availability of remedies for failure to meet Service Specifications, including
the use of Spare Equipment and Substitute Capacity and termination for failure
to meet Service Specifications shall be commensurately delayed.
-23-
ARTICLE 7. TERMINATION RIGHTS.
7.1 Termination for Delay in Launch of PAS-XX. If PanAmSat
notifies Customer that the Service Date of PAS-XX will not occur (which PanAmSat
will do if circumstances make it clearly ascertainable that this is the case) or
if the Service Date does not occur, on or before [ * * * * * * * * * * * * * * *
* ] (or within [ * * * * * * * * * * * ] of such later date as Customer may have
been previously notified by which the Service Date was anticipated to occur
without exercising its termination right within thirty (30) days of the notice),
Customer may terminate this Agreement on notice to PanAmSat. PanAmSat shall also
be permitted to terminate this Agreement on notice to Customer, if the
construction or launch of PAS-XX has been substantially delayed by force majeure
conditions and PanAmSat determines because of force majeure conditions not to
proceed with the construction or launch of PAS-XX. In such event, PanAmSat shall
give Customer immediate notice of PanAmSat's determination, which determination
shall be made promptly following the event(s) of force majeure that lead to such
a determination.
7.2 Other Pre-Service Date Terminations. This Agreement shall
also terminate in either of the following events: (i) PAS-XX suffers a Launch
Failure (defined herein as an event, prior to the PAS-XX Service Date, that
results either in destruction of the applicable satellite or the declaration of
said satellite as a total loss under PanAmSat's launch or in orbit insurance
policy) or (ii) if, after a launch, which is not a Launch Failure but before the
Service Date, the Minimum Complement of the Service Transponders are not (once
the Satellite is located at its designated orbital assignment hereunder) capable
of meeting the Service Specifications unless Spare Equipment or Substitute
Capacity is provided by PanAmSat in accordance with Section 5.3 so that the
Minimum Complement of the Service Transponders is provided in accordance with
their Service Specifications; provided that, if one or more (but not the Minimum
Complement) of the Service Transponders are capable of being provided in
accordance with their Service Specifications termination under this clause (ii)
shall be at Customer's [ * * * * * * * * ] exercisable (if at all) within
fifteen (15) days of Customer's receiving notice of this condition. If Customer
fails to exercise the termination right set forth in the previous sentence
within the time specified, the Service Transponders meeting the Service
Specifications shall be deemed accepted under Section 2.1 above.
7.3 Termination For Failure After the Service Date. Subject to
Section 2.4, on a Transponder by Transponder basis, this Agreement shall
automatically terminate if, after the Service Date, a Service Transponder fails
on a Confirmed Basis, unless, within thirty days of such failure, PanAmSat
restores the Transponder to its Service Specifications using, if required,
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-24-
any available Spare Equipment or replaces the Transponder with Substitute
Capacity from the same Satellite; [ * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ]. In the event one or more of the Service Transponders fails on a
Confirmed Basis and PanAmSat does not restore or replace the Transponder so that
the Service Specifications are met, but one or more of Service Transponder(s)
still meet the Service Specifications, this Agreement shall continue as to the
remaining Service Transponder(s), so long as the Minimum Complement of
Transponders (or, on and after the date that is [ * * * * * * * * * * * * * *]
after the Service Date, such lesser number of Service Transponders as Customer
was actually using for the provision of DTH Service to the Territory immediately
prior to such failure, which for purposes of this Section 7.3 would then be
deemed to be the Minimum Complement) continues to meet their applicable Service
Specifications. If the applicable Minimum Complement cannot be provided (subject
to the cure period set forth above), Customer shall be permitted to terminate
this Agreement as to the remaining Transponders on the Satellite. Said
termination right shall be exercised, if at all, no later than [ * * * * * * * *
*] after the occurrence of such event. Termination shall be effective
immediately on notice to PanAmSat; provided that, at Customer's option, if
within said [ * * * * * * * * *] period, Customer enters into a binding
agreement to take transponder capacity for the provision of its DTH Service from
PanAmSat or another provider, Customer may, in its notice of termination, make
its termination effective upon the date that such other capacity is available to
Customer; provided that, Customer shall have first sought such capacity from
PanAmSat, but PanAmSat was unable to provide the requested capacity within a
comparable time period. In such event, Customer shall notify PanAmSat of the
projected date of such availability and of any change thereto. If Customer fails
to exercise the termination right for the loss of the Minimum Complement within
the period specified, this Agreement shall continue, with the number of Service
Transponders that continue to meet their applicable Service Specifications, [ *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].
7.4 Satellite [* * * * * * * * * * * * * *]. PanAmSat may
determine to take the Satellite [ * * * * * * * * * *] or, in the case of clause
(c), relocate it to other use if: (a) in PanAmSat's [ * * * * * * * * * * * * *
* *], the remaining [ * * * ] on board the Satellite is [ * * * * * * * * * * *
* *] to maintain [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * ], allowing sufficient [ * * * * * * * * * * *
* * * *] the Satellite;
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-25-
(b) the Satellite [ * * * * * * * * * * * ] to meet their applicable performance
or service specifications of [ * * * * * * * * * * *] C-band Transponders or [ *
* * * * * * * * * * * * * ] its Ku-Band Transponders; or (c) if Customer has
agreed to acquire capacity on a Successor Satellite, at such time that said
Successor Satellite is ready to be placed into commercial service. In such
event, PanAmSat shall promptly notify Customer of such determination and of the
date the Satellite will be taken out of service. The foregoing notwithstanding,
in the case of clause (b), if: (i) Customer agrees to enter into a [ * * * ]
Service Agreement for "Mexico Ku-band Transponders" [ * * * * * * * * * * * * *
* * * * * ] as defined in and determined in accordance with Article 16 of this
Agreement, (ii) [ * * * * * * * * * * * * * * *] Service Fees required to be
paid under this Agreement, [ * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] of the
Satellite after the occurrence of the [ * * * * * * * *] otherwise giving rise
to PanAmSat's rights under clause (b), and (iii) permitting [ * * * * * * * * *
* * * * * * * * * * * ] PanAmSat's [ * * * * * * * * * * * * * * * * * * * * * *
* * * * * * ] for the Satellite (other than as to the Service Transponders that
would still be [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]),
PanAmSat will not take [ * * * * * * * * * * * * * * * * * * * * ] pursuant to
this clause (b) until the [ * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * ]. On the date that the
Satellite is [ * * * * * * * * * * * * * * * * * ], this Agreement shall [ * * *
* * * * * * * * * * * * * * * ].
7.5 Termination By PanAmSat For Cause. PanAmSat may terminate
this Agreement if Customer fails: (a) to make payment of any amount due and such
amount remains unpaid within ten (10) business days after receiving from
PanAmSat a notice of such nonpayment (but only if the payment is at least twenty
(20) business days past due at the time of termination), or (b) to cease any
activity in violation of Section 4.1 or 6.1 upon receiving telephone or
facsimile notice from PanAmSat (provided that PanAmSat shall not be entitled to
terminate the Agreement under this clause (b) if all of the following
requirements are met: (i) Customer is (and remains) in compliance with Section
15.5(a), and the operator on duty mistakenly did not implement PanAmSat's
initial notice; (ii) the mistake was rectified as soon as it became apparent to
Customer; (iii) appropriate steps are taken to prevent a future recurrence of
the mistake and the problem is not recurring; and (iv) no damage occurred as a
result of the mistake or Customer immediately reimburses and indemnifies
PanAmSat for all such damage, or (c) to cease any other activity in violation of
Customer's material obligations under this Agreement other than any part of
Section 1.8 of this Agreement within thirty (30) days after receiving from
PanAmSat a notice of such violation.
In the event of a termination under Section [ * * * * ],
PanAmSat may declare immediately due and payable the remaining Monthly Service
Fees for each month that would
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-26-
have remained in the Service Term under Section 2.1 above or for the
then-predicted life of the Satellite, if less, [ * * * * * * * *] for [ * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] from
the date paid to the date otherwise due in the absence of termination. In the
event of a termination under Section [ * * * * * * * * * * * * ] Customer shall
be responsible for payments of the remaining [ * * * * * * * * * * * *] for all
of the Service Transponders that would be otherwise due and as they would
otherwise become due on and after the date of such termination; provided that if
Customer fails to make payment of any such amount due and such amount remains
unpaid within ten (10) business days after receiving from PanAmSat a notice of
such nonpayment (but only if payment is at least twenty (20) business days due
at the time of termination), then PanAmSat may declare immediately due and
payable the remaining Service Fees [ * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * ] as provided above.
In the event of such termination, in addition to all of
PanAmSat's other remedies at law or in equity, PanAmSat shall be entitled to [ *
* ] the Service Transponders or to [ * * * * * * * * * * * *] on such
Transponders to [ * * * * * * * * * *] PanAmSat [ * * * * * * * *], and Customer
shall [ * * * * * * * * * * * ] to any [ * * * * * * * * * * * ] with respect to
such [ * * ] or any [ * * * * * *] of amounts paid to PanAmSat; provided, as
follows: In the event that Customer has paid (and, if applicable, continues
timely to pay to) PanAmSat all amounts due hereunder including, without
limitation, pursuant to the preceding paragraphs of this Section 7.5 (the
"Termination Payment(s)"), PanAmSat shall use all [ * * * * * * * * * * ] to [ *
* * * * * * * ] the Service Transponders and in the event PanAmSat subsequently
reaches an agreement to provide service to [ * * * * * * * * * * * * * * * *] a
Service Transponder during the period that Service from said Service Transponder
would have otherwise been available to Customer hereunder, PanAmSat shall remit
to Customer as a [ * * * * * *] of the Termination Payment(s) any [ * * * * * *
* * * *] it receives from [ * * * * * * * * * * * * *] with respect to such
Service Transponder during such period, up to the Termination Payment(s) paid by
Customer for such Service Transponder over and above all Service Fees that were
paid or due prior to the date that this Agreement was terminated, less (i) any
amounts owed by Customer to PanAmSat under this Agreement; (ii) any [ * * * * *
* * * * * * * * * * *] (including [ * * * * * * * * * * * * * * * * * * * ])
incurred by PanAmSat in [ * * * * * * * * * * * * * * * * *] such amounts from
Customer; (iii) any other [ * * * * * * * * * * * * * * * * * * ] by PanAmSat as
a result of Customer's breach of its obligations hereunder; (iv) any [ * * * * *
* * * * * * * * * * *] (including [ * * * * * * * * * * * * * * * * * * * * ])
incurred by PanAmSat in [ * * * * * * * * ] such Service Transponder to, or [ *
* * * * * * ] a [ * * * * * * * * * * * * * ] with, [ * * * * * * * * * *]; and
(v) any [ * * * * * * * * * * * * * * * * * * ] by PanAmSat in [ * * * * * * * *
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-27-
* * * * * * * * * * ] and equipment for which PanAmSat is not [ * * * * * * * *
* * * * * * * * * ] that may be associated with the provision of such service in
addition to those agreed to be provided under this Agreement. Nothing herein
shall be [ * * * * * * * * * * * * * * * * * * ] PanAmSat to [ * * * * * * ]
such [ * * * * * * * * * * * * * * ], if the [ * * * * * *] of the party, the
party's proposed use of the transponder or [ * * * * * * ] for terms and
conditions for service, or other reasonable and appropriate factors, lead
PanAmSat [ * * * * * * * * * * * * * * * * * * * * ] to determine not to enter
such a service agreement; nor shall PanAmSat be obligated to [ * * ] the
capacity formerly used to provide Service to Customer [ * * * * ] of any other [
* * * * * * *] that PanAmSat may also have available. Customer acknowledges that
the foregoing rights of PanAmSat: (i) are [ * * * * * * *] under all of the
circumstances existing as of this date; (ii) constitute [ * * * * * * * * * * *
* * * *] for the [ * * * ] of a [ * * * * * * * ]; and (iii) do [ * * * * * * *
* * * * * * * * * *].
7.5A The foregoing notwithstanding, PanAmSat shall not be permitted
to terminate this Agreement under Section 7.5(a) if, for reasons beyond the
reasonable control of Customer and any Customer Company, Customer is prohibited
by a law of general applicability from making payments to PanAmSat (a "Payment
Force Majeure") and all of the following conditions are met: (i) regardless of
any Payment Force Majeure, Customer (or a third party on Customer's behalf)
makes payment, including late payment charges, of all unpaid amounts within
either (A) sixty (60) days of the date otherwise due, or (B) ninety (90) days of
the date otherwise due (without regard to the application of the letter of
credit specified below) if prior to the Payment Force Majeure event, Customer
shall have caused a New York commercial bank, acceptable to PanAmSat, to provide
PanAmSat with a letter of credit, in form and substance acceptable to PanAmSat,
for one month's payment (as measured as of the time of the Payment Force
Majeure), entitling PanAmSat to draw down payment upon notification to it by
Customer of the existence of a Payment Force Majeure and PanAmSat shall, in
fact, have been permitted to draw down such amount (so that Customer's total
permitted late payment under this paragraph is no more than sixty (60) days);
(ii) Customer promptly notifies PanAmSat of the existence of the Payment Force
Majeure (in all cases within any grace period for nonpayment otherwise permitted
under Section 7.5(a)), uses all reasonable efforts to have the condition giving
rise to the Payment Force Majeure removed as soon as possible, and (iii)
Customer uses all commercially reasonable and legal methods to have payment made
as soon as possible, from sources (including, on Customer's behalf, from
Customer Companies) as to which the Payment Force Majeure does not apply, and
keep PanAmSat promptly apprised of such efforts.
If all of the conditions set forth above, except (i) are met,
PanAmSat shall still have the right to exercise all of the remedies stated in
Section 7.5; provided that, in such
[***] Filed separately with the Commission pursuant to a request for
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-28-
circumstances, if within one hundred and eighty (180) days of the permitted
termination of this Agreement, Customer is able to make payments, including for
the period during which this Agreement was terminated (less any payment PanAmSat
may have received from third parties for the relevant capacity during this
period), to the extent that PanAmSat has not already committed the Service
Transponders to other customers, it shall permit Customer to recommence the
operation of this Agreement, upon payment of such amounts, the next monthly
payment due, and late payment charges.
7.6 Rights and Obligations Upon Termination. The termination of
this Agreement for any reason in accordance with this Agreement shall extinguish
all of PanAmSat's obligations to provide, and Customer's obligations to accept
and pay for, the Service under this Agreement, but shall not relieve either
party of any obligation that may have arisen prior to such termination,
including (without limitation), under Section 7.5 above, nor shall termination
affect the parties obligations under Article 11 ("Confidentiality") or Section
15.1A (Termination of PAS-5 Agreement) that shall survive termination of this
Agreement.
7.7 Termination for Patent Infringement. In the event that: (a)
PanAmSat's provision of the Service infringes upon the patents or intellectual
property rights of third parties; (b) such infringement exists independent of
the combination of the Service with any Customer-Provided Facilities; and (c) as
a result, Customer cannot use the Service Transponders without infringing upon
the patent or intellectual property rights of third parties, Customer may
terminate this Agreement upon thirty (30) days' notice to PanAmSat, unless (i)
such infringement ceases to exist within this thirty (30)-day notice period; or
(ii) PanAmSat agrees (to the extent that Customer is not protected under the
indemnity provided by PanAmSat's Satellite manufacturer) to indemnify and hold
harmless Customer from any claim or suit based on such infringement and arising
from PanAmSat's continued provision and Customer's continued use of the Service
Transponders on and after the date that PanAmSat agrees to so indemnify
Customer. In this latter instance, Customer agrees to cooperate with PanAmSat
and the Satellite manufacturer, as applicable, in the defense of such claim and
specifically agrees, as a condition to this indemnity, to take all steps within
its power that are required of it and/or that are necessary for PanAmSat to take
in order to receive the benefits of the Satellite manufacturer's indemnify, in
accordance with the relevant provisions of PanAmSat's contract with the
Satellite manufacturer.
ARTICLE 8. FORCE MAJEURE.
8.1 Failure To Commence Service Or To Perform. Any failure or
delay in the performance by PanAmSat of its obligation to commence or to
continue to provide Service shall
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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not be a breach of this Agreement, if such failure or delay results from any Act
of God, governmental action (whether in its sovereign or contractual capacity),
or any other circumstance reasonably beyond the control of PanAmSat, including,
but not limited to, receive earth station sun outage, meteorological or
astronomical disturbances, earthquake, hurricane, snowstorm, fire, flood,
strikes, labor disputes, war, civil disorder, epidemics, quarantines, embargoes,
or acts or omissions of Customer or any third parties (except that the acts or
omissions of third parties acting on behalf of PanAmSat, including PanAmSat's
Satellite manufacturer and launch contractor, shall not constitute a force
majeure unless their acts and omissions are themselves the result of force
majeure conditions of the kind set forth above). Subject to the following
sentence, either party shall be permitted to terminate this Agreement, as to the
affected Service Transponder(s), if, because of force majeure conditions: (a)
after the Service Date, PanAmSat does not make Service in accordance with the
Service Specifications available, the Service Transponders meeting the Service
Specifications and their availability cannot be recommenced within sixty (60)
days; or (b) the nature of the force majeure event makes it clearly
ascertainable that PanAmSat's ability to make available the Service from the
Service Transponders meeting the Service Specifications will not be able to
recommence within this sixty (60) day period. The foregoing notwithstanding,
Customer's rights to terminate under Sections 7.1 and 7.2 and, to the extent a
failure to provide Service results from a malfunction of the Satellite, under
Section 7.3, shall be governed by those Sections. Customer shall not be
permitted to terminate this Agreement if PanAmSat's inability to perform is due
to acts or omissions of Customer or its employees, agents, or contractors that
are not in conformance with Appendix D or for intermittent failures due to any
or all of the following: sun outages, meteorological or astronomical
disturbances. In addition, in circumstances that are not governed by Sections
7.1, 7.2 or 7.3 and that are not due to events described in the previous
sentence, if Service is not made available by PanAmSat in accordance with the
Service Specifications due to a force majeure condition, provided that Customer
ceases use of the affected Service Transponders during such period (except in
coordination with PanAmSat to determine if the Service can be restored to the
Service Specifications), Customer shall [ * * * * * * * * * * * * * * * * * * *
* ] for the affected Service Transponders.
ARTICLE 9. LIMITATION OF LIABILITY AND INDEMNIFICATION.
9.1 Limitation Of PanAmSat's Liability. ANY AND ALL EXPRESS AND
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR ANY PURPOSE OR USE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. IT IS
EXPRESSLY AGREED THAT PANAMSAT's SOLE OBLIGATION AND CUSTOMER'S EXCLUSIVE
REMEDIES FOR ANY CAUSE
[***] Filed separately with the Commission pursuant to a request for
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WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT ARE LIMITED TO THOSE SET
FORTH IN SECTIONS 5.2, 5.3, 8.1, 9.4, AND 9.5 AND ARTICLE 7 AND ALL OTHER
REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED. In no event shall PanAmSat be
liable for any incidental or consequential damages or loss of revenues, whether
foreseeable or not, occasioned by any defect in the Satellite, the Transponders
or the provision of the Service Transponders to Customer, any delay in the
provision of Service to Customer, any failure of PanAmSat to continue to provide
Service, or any other cause whatsoever.
9.2 Limitation Of Liability Of Others. Without limiting the
generality of the foregoing, Customer acknowledges and agrees that it shall have
no right of recovery for the satisfaction of any cause whatsoever, arising out
of or relating to this Agreement, against (a) any supplier of services or
equipment to PanAmSat in connection with the construction, launch, operation,
maintenance, tracking, telemetry and control of the Satellite or the Service
Transponder(s), or the provision of the Service Transponders to Customer in any
circumstances in which PanAmSat would be obligated to indemnify the supplier, or
(b) any officer, director, employee, agent or partner of (i) PanAmSat or (ii)
any service or equipment provider under 9.2(a). Except as provided in Article 17
and Appendix L and subject to PanAmSat's rights as a third party beneficiary
under Section 1.4(b) of this Agreement, PanAmSat acknowledges and agrees that it
shall have no right of recovery for the satisfaction of any cause whatsoever,
arising out of or related to this Agreement, against any officer, director,
employee, agent or partner of Customer, except with respect to any partner or
agent to the extent arising out of the transmission of signals to the Satellite
by it or on its behalf.
9.3 Indemnification. Customer shall defend and indemnify the
"PanAmSat Group" (defined herein to mean PanAmSat and all officers, directors,
employees, agents and partners of PanAmSat) from any claims, liabilities,
losses, costs, or damages, including attorneys' fees and costs, arising out of
the provision of Service to Customer from, or Customer's use of, the Satellite
or the Service Transponder(s), that (a) is caused by the fault or negligence of
Customer, (b) arises under a warranty, representation, or statement by Customer
to any third party in connection with transmissions carried on the Service
Transponders, (c) arises out of the content of programming, including any libel,
slander, obscenity, indecency, pornography, religious fanaticism, or political
advocacy, infringement of copyright, infringement of patents, breach in the
privacy or security of transmissions; or (d) arises out of disputes between or
among Customer and any program supplier and/or its program recipients. The
limitation of liability set forth in this Article 9 shall apply to, and the
indemnifications set forth in this Article 9 shall run in favor of, the PanAmSat
Group.
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9.4 Equitable Relief. Nothing contained in this Article 9 or
elsewhere in this Agreement shall preclude either party from seeking injunctive
relief to prevent a willful breach or to compel performance in the event of a
willful failure to comply with this Agreement.
9.5 Patents, Copyrights, Mask Work Rights and Proprietary Computer
Programs. To the extent that the manufacturer of the Satellite or any part
thereof may be obligated to indemnify PanAmSat for any infringement of any
patent, copyright, "mask work" (as defined in the Semiconductor Chip Protection
Act, 17 U.S.C. Secs. 901-14) right or other proprietary computer right with
respect to the manufacture of, or provision of services from the Satellite and
the Service Transponders and such indemnification obligations may be passed
through to protect PanAmSat's customers, PanAmSat shall pass such protection
through to Customer; provided, that PanAmSat makes no representation or warranty
that any manufacturer's indemnification obligation exists or will continue to
exist or may be passed through; and provided further that, to the extent such
indemnification rights are limited, PanAmSat may equitably share such
indemnification protections for the common benefit of PanAmSat and its
customers.
9.6 Indemnitor Rights. If Customer is obligated to provide
indemnification pursuant to this Article 9 or PanAmSat undertakes to indemnify
Customer under Section 7.7, the indemnifying party (the "Indemnitor") shall
promptly defend any claims against the party entitled to indemnification (the
"Indemnitee") with counsel of Indemnitor's choosing at its own cost and expense.
The Indemnitee shall allow the Indemnitor to control the defense and cooperate
with, and assist as reasonably requested by, Indemnitor in the defense of any
such claim, including the settlement thereof on a basis stipulated by Indemnitor
(with Indemnitor being responsible for all costs and expenses of defending such
claim or making such settlement); provided, however, that (1) Indemnitor will
not, without the Indemnitee's consent, settle or compromise any claim or consent
to any entry of judgment which does not include the giving by the claimant or
the plaintiff to the Indemnitee of an unconditional release from all liability
for which the Indemnitor does not fully indemnify the Indemnitee with respect to
such claim, (2) the Indemnitee shall be entitled to participate at its sole
expense in support of Indemnitor's action in the defense of any such claim and
to employ counsel at the Indemnitee's own expense to assist in the handling of
such claim, and (3) the Indemnitee shall have the right to pay, settle or
compromise any such claim as to itself, provided that in such event Indemnitor
shall be relieved of any liability or obligation which would otherwise then or
thereafter have existed or arisen in respect of such claim.
9.7 Limitation of Liability [ * * * * * * * * * * * * * * * * * *
* * ]. Customer's money damages exposure to PanAmSat with respect to any breach
of obligations under Section
[***] Filed separately with the Commission pursuant to a request for
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[ * * * * * * * * * * * * * * *] shall be no greater than would be PanAmSat's
liability exposure to Customer for a breach by PanAmSat of its obligations under
that Section; i.e., [ * * * * * * ] is [ * * * * * * * * * * * * * * ] and
neither party is precluded from seeking injunctive relief in the event of a
willful breach.
ARTICLE 10. SUBORDINATION AND ASSIGNMENT.
10.1 Intentionally Deleted.
10.2 Intentionally Deleted.
10.3 Subordination to Other Entities. Customer acknowledges and
agrees that PanAmSat may grant security interests in the Transponders and/or the
Satellite. In such event, provisions that are the same as attached to this
Agreement as Appendix J or, to the extent that changes are requested by another
secured party, similar provisions shall apply.
10.4 PanAmSat's Right To Assign. Customer agrees that PanAmSat may
assign its rights and interests under this Agreement and to the Satellite and
any or all sums due or to become due under this Agreement to an assignee for any
reason; provided that, except with respect to the granting of a security
interest or the assignment of a right to payment, such assignee agrees in
writing to assume all of the duties and obligations of PanAmSat hereunder.
Customer agrees that upon receipt of notice from PanAmSat of such assignment,
Customer shall perform all of its obligations directly for the benefit of the
assignee and shall pay all sums due or to become due directly to the assignee,
if so directed. Upon receipt of notice of such assignment, Customer agrees to
execute and deliver to PanAmSat such documentation as assignee may reasonably
require from PanAmSat. As used in this Section 10.4, assign shall mean to grant,
sell, assign, encumber or otherwise convey directly or indirectly, in whole or
in part.
10.5 Customer Assignment. Customer may assign its rights under
this Agreement only in whole, only to an Approved Participating Company (or any
entity Controlled by one or more of the Approved Participating Companies), and
only if the following conditions are satisfied: (a) the proposed assignee in
writing assumes all of Customer's obligations with respect to this Agreement and
agrees to be treated as Customer for all purposes under this Agreement; (b) such
written undertaking is delivered to PanAmSat at least thirty (30) days in
advance of the assignment; (c) Customer guarantees assignee's performance of
payment obligations which obligations shall also continue to be subject to the
guarantee requirements stated under Article 17 below; and (d) either (i) the
assignee agrees in writing to continue the programming practices of Customer, or
(ii) the assignee is one of the Approved Participating Companies as to whom (as
[***] Filed separately with the Commission pursuant to a request for
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shown in Appendix I) PanAmSat has consented and said assignee agrees to follow
the assignor's current programming practices (as exist as of the date of this
Agreement) with respect to the use of the Service Transponders, or (iii)
PanAmSat consents to such assignment in advance and in writing, such consent not
to be unreasonably withheld or delayed; it being understood that PanAmSat may
withhold its consent only if PanAmSat determines, in good faith, that some or
all of the assignee's programming may be pornographic, involve religious
fanaticism or political advocacy, obscene, indecent, slanderous, or in violation
of any governmental programming restrictions. Without limitation, any assignee
shall be required to use the Transponders assigned in accordance with Section
1.4.
10.6 Successors. Subject to all the provisions concerning
assignments, above, this Agreement shall be binding on and shall inure to the
benefit of any successors and assigns of the parties. The foregoing
notwithstanding, no assignment of this Agreement shall relieve either party of
its obligations to the other party, without the express written consent of the
other party, not to be unreasonably withheld. Any purported assignment by either
party not in compliance with the provisions of this Agreement shall be null and
void and of no force and effect.
10.7 No Resale. Except as expressly permitted in Sections 1.4, 1.6,
and 10.5, the Service Transponders are being provided for Customer's own use and
in no event shall Customer be permitted to resell them, in whole or in part, to
any other person or entity. This Section 10.7 shall not be construed to prohibit
the Customer from subleasing capacity to the extent permitted in Section 1.4
hereof, for usage that is consistent with Customer's obligations to PanAmSat
under this Agreement.
ARTICLE 11.
11.1 Publicity. The terms of this Agreement, the transactions
contemplated herein, and the information exchanged in their connection shall be
kept strictly confidential by the parties and their advisors and shall be used
solely for the purposes contemplated by this Agreement and specifically not in
any way for purpose of competing with any party hereto or any of its Affiliates;
provided, however, that the parties may disclose such information: (i) to their
respective shareholders, directors, officers, partners, lenders, insurance
agents, accountants, and advisors on an as needed and confidential basis and the
foregoing agree (or are subject to agreement or other obligations of
professional responsibility (e.g., lawyers)) to keep such information
confidential; (ii) to regulatory authorities or the general public if and to the
extent a party is required by law or securities exchange rules or regulations to
make such disclosures (including, but not limited to, in connection with a
public offering); (iii) to actual and proposed
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potential partners, investors, lenders, and successors in interest; and (iv)
News, Televisa, TINTA, Globo, Sky Multi-Country Partners, entities under any of
their Control and such venture as some or all of them may form in connection
with the provision of DTH services on an as needed and confidential basis.
Subject to the proviso of the preceding sentence, the parties will mutually
agree on the timing and substance of the initial announcement of this Agreement
to the general public. To the extent practicable, any other disclosures to the
general public will be coordinated and approved by the parties prior to release.
ARTICLE 12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
PanAmSat has or will use all reasonable efforts to obtain by the
Service Date and maintain all consents and authorizations from the FCC and other
governmental entities that may be necessary to provide the Service as
contemplated in this Agreement; provided that, except as it may relate to
actions that may need to be taken with third parties or non-U.S. governmental
agencies, a "best efforts" standard shall apply to PanAmSat's activities before
the FCC with respect to PAS-XX. Subject to the understanding that certain
consents and authorizations have not yet been obtained and that certain
applications in this regard may be pending or subsequently filed with the FCC or
other applicable governmental entity, PanAmSat and Customer each represents and
warrants to, and agrees with, the other that:
12.1 Authority. It has the right, power and authority to enter
into and perform its obligations under this Agreement. The execution, delivery
and performance of this Agreement shall not result in the breach or
non-performance of any document, instrument or agreement by which it is bound.
12.2 Partnership And Corporate Approvals. It has taken all
requisite partnership or corporate action, as applicable, to approve execution,
delivery and performance of this Agreement, and this Agreement constitutes a
legal, valid and binding obligation upon itself in accordance with its terms.
12.3 Consents. The fulfillment of its obligations will not
constitute a material violation of any existing applicable law, rule, regulation
or order of any governmental authority. All necessary or appropriate public or
private consents, permissions, agreements, licenses or authorizations necessary
for the performance of its obligations under this Agreement to which it is
subject have been obtained, or it will use all reasonable efforts to obtain, in
a timely manner.
12.4 Litigation. To the best of its knowledge, there is no
outstanding or threatened judgment, pending litigation or proceeding, involving
or affecting the transactions provided for
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in this Agreement, except as set forth in the "Disclosure Schedule" set forth in
Appendix G or as has been previously disclosed in writing by either party to the
other.
12.5 No Broker. It does not know of any broker, finder or
intermediary involved in connection with the negotiations and discussions
incident to the execution of this Agreement, or of any broker, finder or
intermediary who might be entitled to a fee or commission upon the consummation
of the transactions contemplated by this Agreement.
12.6 Good Faith. Each party shall carry out its obligations under
this Agreement, including (without limitation) with respect to all matters
requiring that a consent be given, in good faith.
ARTICLE 13. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF
PANAMSAT.
13.1 Orbital Location, Frequencies. PanAmSat shall prepare and
file application(s) with the FCC to launch and operate PAS-XX in geostationary
orbit at 58(degree) West Longitude and/or at the [ * * * * * * * * * * * * * * *
* * * * * ] (as defined in Section [ * * * ]), as PanAmSat determines is best to
proceed, consistent with the intent of this Agreement including Section [ * * *
]. PanAmSat shall use the orbital location that it receives authorization from
the FCC for the Satellite [ * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * ]unless prevented by subsequent order of the FCC, in
which event PanAmSat shall use such orbital position(s) closest to the range
identified above that the FCC may designate. PanAmSat shall use all reasonable
efforts to resist any move of the Satellite from outside the orbital range
specified above. In the event that PanAmSat is required to change the
Satellite's orbital location, such change shall not affect the continuing
validity of this Agreement, except to the extent such change prevents PanAmSat
from providing Customer with Transponders that meet the Service Specifications,
in which event the termination provision set forth in Section 7.3 shall apply.
The foregoing notwithstanding, the parties agree that the placement of the
Satellite [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * ] shall, for purposes of
Section 7.3, constitute a failure of the Service Transponders to meet their
Service Specifications. Further, any Transponder with downlink frequencies [ * *
* * * * * *] of the [ * * * * * * * * * * * * * * *] shall not be deemed to meet
the Service Specifications.
13.2 Government Authorizations. PanAmSat shall use all reasonable
efforts to obtain and maintain all necessary governmental authorizations or
permissions to operate the Satellite and to comply in all material respects with
all FCC and other governmental regulations regarding
[***] Filed separately with the Commission pursuant to a request for
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the operation of the Satellite; provided that, except as it may relate to
actions that may need to be taken with third parties or non-U.S. governmental
agencies, a "best efforts" standard shall apply to PanAmSat's activities before
the FCC with respect to PAS-XX.
PanAmSat will, as Customer may reasonably request, cooperate
with and assist Customer in compliance with Customer's obligations under the [ *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]
in connection with Customer's use of the Service provided hereunder; provided
such actions required of PanAmSat under this paragraph will not (a) subject it
to the jurisdiction of any governmental entity of the [ * * * * * * * * * * * *
* * * * * * * * ], or (b) result in the incurrence by PanAmSat of any material
costs or liabilities.
13.3 Operational Reports. PanAmSat shall provide Customer a
quarterly written operational report concerning the Satellite which shall
include information regarding the status of Spare Equipment and updated
projections regarding the predicted life of the Satellite. PanAmSat shall also
notify Customer as soon as practicable of any significant anomalies with respect
to the Satellite which have a material effect on the Service Transponder(s) or
materially reduce the projected life of the Satellite.
13.4 [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
[***] Filed separately with the Commission pursuant to a request for
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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * ]
ARTICLE 14.
14.1 Progress Reports. Beginning not later than ninety (90) days
after the date of execution of this Agreement and continuing until the Service
Date, PanAmSat shall furnish to the Customer on a quarterly basis a written
progress report that shall state PanAmSat's projected scheduled launch date and
projected date that Service will commence for PAS-XX. PanAmSat shall notify
Customer as soon as possible of any significant change in the then-anticipated
Service Date, including any anticipated delay beyond the applicable Latest
Anticipated Service Date or any change in the month of anticipated launch for
PAS-XX beyond [ * * * * * * * * ], and of any formal notification of a delay in
construction or launch of PAS-XX that PanAmSat may receive from its construction
or launch contractors. PanAmSat shall keep Customer informed periodically of
written communications to PanAmSat from the FCC which materially affect
PanAmSat's ability to fulfill its obligations to Customer under this Agreement
and to timely provide the Service, and shall promptly deliver copies to Customer
of any such written communications.
14.2 Inspection Rights of Customer. PanAmSat shall give Customer
reasonable notice of the commencement of pre-commercial service in-orbit testing
for PAS-XX. Subject to the consent of PanAmSat's manufacturer, which PanAmSat
shall seek to obtain and Customer's execution of any additional proprietary data
agreement that the applicable manufacturer may require, Customer shall be given
access to the test data from such tests that are relevant to the Service
Specifications of Service Transponders and Customer shall be allowed to be
present during such in-orbit testing.
In addition, again subject to the consent of the manufacturer and the
execution of any necessary proprietary data agreement that the manufacturer may
require, PanAmSat shall give Customer access to pre-commercial service test
information and reports relevant to the Service Transponders, allow Customer to
inspect the work in progress at reasonable times and upon reasonable notice, and
allow Customer to be present during pre-commercial service testing for which
PanAmSat also has access. It is understood, in this regard, that the
implementation of this
[***] Filed separately with the Commission pursuant to a request for
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paragraph is intended to be implemented at a cooperative level largely between
the respective engineers of the parties and that formal notice of events or
information will not be required.
ARTICLE 15. MISCELLANEOUS.
15.1 Applicable Law And Entire Agreement. This Agreement shall be
interpreted according to the laws of the State of New York, U.S.A. Subject to
the following sentence, the parties agree that the appropriate and exclusive
forum for any disputes arising under this agreement shall be the United States
District Court for the Southern District of New York. Each party consents to the
jurisdiction of this court, but, if that court determines it lacks jurisdiction,
consents to the jurisdiction of the State courts of New York. The parties agree
to waive any or all rights they may have to a jury trial with respect to
disputes arising under this Agreement. Each party agrees that service of process
in any action or proceeding shall be deemed sufficient if mailed, first class,
postage prepaid, to the other at the address set forth in Section 15.5(b), as
the same may be changed in accordance with that Section. This Agreement
constitutes the entire agreement between the parties and supersedes all previous
understandings, commitments, or representations concerning its subject matter.
This Agreement may not be amended or modified in any way, and none of its
provisions may be waived, except by a prior writing signed by an authorized
officer of each party.
15.1A Termination of PAS-5 Agreement. This Agreement supersedes
that certain "Transponder Service Agreement," by and between the parties dated
April 30, 1998, regarding PAS-5 (the "PAS-5 Agreement"). The PAS-5 Agreement is
hereby terminated. PanAmSat shall be entitled to [* * * * * * * * * * * * * * *]
paid by Customer under the PAS-5 Agreement.
Each party waives any and all claims that it or anyone who may
claim to derive rights from it may assert, whether known or unknown, against the
other party under the PAS-5 Agreement or any other representation or agreement
as related to the subject matter of the PAS-5 Agreement.
15.2 Severability; Reconstitution. Nothing contained in this
Agreement shall be construed so as to require the commission of any act contrary
to law. In the event that the transactions set forth in this Agreement are
challenged before a court or regulatory body of competent jurisdiction by other
persons or entities not parties hereto, PanAmSat and Customer agree that each
will use its all reasonable efforts before such court or regulatory body to
support the continuing operation of this Agreement by its terms. If any
provision of this Agreement shall be invalid or unenforceable, the provisions of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to permit compliance with the minimum legal requirements;
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-39-
provided that if the effect is such so that the economic relationships or
benefits and burdens contemplated under the Agreement are substantially
affected, the parties shall seek and use all reasonable efforts to reconstitute
this Agreement so as best possible to restore to each party to the economic
position contemplated in this Agreement.
15.3 No Third Party Beneficiary. The provisions of this Agreement
are for the benefit only of Customer and PanAmSat, and, except as provided under
Sections 10.3 and 17.1 and Appendix J, no third party may seek to enforce or
benefit from these provisions, except that both parties acknowledge and agree
that the provisions of Sections 9.2 and 9.3 are intended for the benefit of the
PanAmSat Group. Any member of the PanAmSat Group shall have the right to
enforce, as a third party beneficiary, the provisions of Sections 9.2 and 9.3
either by (a) an action brought solely by itself, or (b) joining PanAmSat, or
other members of the PanAmSat Group in bringing an action against Customer for
violation of Sections 9.2 or 9.3. The foregoing notwithstanding, both parties
acknowledge and agree that the non-interference requirements of Section 4.1 are
intended for the benefit of both PanAmSat and all other Protected Parties,
except that no Protected Party who has the right to uplink to the Satellite
shall be entitled to third party beneficiary rights to enforce Section 4.1
against Customer, unless the agreement giving such other Protected Party the
right to uplink to the Satellite also gives Customer comparable third party
beneficiary rights against it. Any other Protected Party shall have the right,
as a third party beneficiary (a) to enforce the non-interference requirements of
Section 4.1, against Customer directly, in an action brought solely by itself,
or (b) to join with PanAmSat or any other Protected Parties in bringing an
action against Customer for violation of the non-interference requirements of
Section 4.1.
15.4 Non-Waiver of Breach. Either party may specifically waive any
breach of this Agreement by the other party, provided that no such waiver shall
be binding or effective unless in writing and no such waiver shall constitute a
continuing waiver of similar or other breaches. A waiving party may at any time,
upon notice given in writing to the breaching party, direct future compliance
with the waived term or terms of this Agreement, in which event the breaching
party shall comply as directed from such time forward.
15.5 Notices.
(a) Telephone Notices. For the purpose of receiving notices
from PanAmSat regarding preemption, interference or other technical problems,
including with respect to Transponder failure and restoration, Customer shall
maintain at each earth station transmitting signals to the Satellite a telephone
that is continuously staffed at all times during which customer
-40-
is transmitting signals to the Satellite and an automatic facsimile machine in
operation and capable of receiving messages from PanAmSat at all times. THOSE
PERSONS STAFFING THE EARTH STATION, FOR THE PURPOSES OF RECEIVING SUCH MESSAGES
FROM PANAMSAT, MUST HAVE THE TECHNICAL CAPABILITY AND ABSOLUTE AUTHORITY
IMMEDIATELY TO TERMINATE OR MODIFY THE TRANSMISSION IF NOTIFIED BY PANAMSAT.
PanAmSat shall also maintain a telephone that is continuously staffed for the
purposes of receiving notices regarding the matters identified in the first
sentence of this Section 15.5(a). All such notices shall be made in English and
shall be effective upon the placement of a telephone call from one party to the
other. Each party shall promptly confirm all telephone notices that may be given
under this Agreement in writing in accordance with Section 15.5(b) below. Any
unsuccessful efforts to reach a party by telephone shall be followed by telecopy
and telephone calls to other contact points, e.g., the corporate headquarters of
the other party, that said party may have provided the notifying party.
(b) General Notices. All notices and other communications from
either party to the other, except as otherwise stated in this Agreement, shall
be in English writing and, shall be deemed received upon actual delivery or
completed facsimile addressed to the other party as follows:
To PanAmSat if by recognized courier PanAmSat International Systems, Inc.
service or by personal delivery to One Pickwick Plaza
its principal place of Xxxxxxxxx, Xxxxxxxxxxx 00000
business: Attention: General Counsel
To PanAmSat if by facsimile: 000-000-0000
Attention: General Counsel
With a copy to:
If by recognized courier service or Goldberg, Godles, Wiener & Xxxxxx
by personal delivery to its principal 0000 Xxxxxxxxxx Xxxxxx, X.X.
place of business: Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxxx
If by facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxx
-41-
To Customer if by recognized courier c/o Innova, S. de X.X.
service or by personal delivery to its Insurgentes Sur 000
xxxxxxxxx xxxxx xx Xxxx 0
business: Xxx. Xxx Xxxxx 00000
Xxxxxx
To Customer if by facsimile: (000)-000-0000
Attention: Chief Executive
Officer
With a copy to:
If by recognized courier service or by The News Corporation Limited
personal delivery to its principal 1211 Avenue of the Americas
place of business: Xxx Xxxx, Xxx Xxxx 00000
Attention: Group General
Counsel
If by facsimile: 000-000-0000
and
The News Corporation/Sky
Latin America
00000 Xxxx Xxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
If by facsimile: 000-000-0000
Attention: President,
Satellite
Distribution
and
If by facsimile: 000-000-0000
Attention: Executive Vice
President, Legal
Affairs
and
Televisa International LLC
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
If by facsimile: 000-000-0000
-42-
and
Grupo Televisa S.A.
Xxxxxxx Xxxxx xx Xxxxxxx #0000
0xx Xxxx, Xxxxxxx Xxxxx Xx
Xxxxxx, D.F. 01210
Attention: Chief Financial
Officer
If by facsimile: (000)-000-0000
and
Xxxxxx X. Xxxxxxxxx
Xxxxxxxxx Xxxxxx & Xxxxxx P.L.L.C.
0000 X Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
If by facsimile: (000)-000-0000
and
Tele-Communications
International, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000
If by facsimile: 000-000-0000
Attention: General Counsel
and
If by facsimile: 000-000-0000
Attention: Chief Financial
Officer
Each party will advise the other of any change in the address, designated
representative or telephone or facsimile number.
For the avoidance of doubt, notices and certifications given by either
party to the other while relevant to the timing of further action by the
notified party shall not be deemed in and of themselves to establish the fact
stated in the notice. So, for example, under Section 5.3, the fact that Customer
notifies PanAmSat that a Transponder does not meet the Service Specifications
and/or that PanAmSat notifies Customer that a Transponder has been restored to
its Service Specifications shall not be deemed conclusive evidence, in and of
itself, of failure and/or restoration. Each party shall timely notify the other
if said party believes that any such notice is inaccurate.
15.6 Headings. The descriptive headings of the Articles and
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
-43-
15.7 Documents. Each party agrees to execute, and, if necessary,
to file with the appropriate governmental entities and international
organizations, such documents as the other party shall reasonably request in
order to carry out the purposes of this Agreement.
15.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one and the same instrument.
15.9 Absence of Partnership. The relationship between the parties
shall not be that of partners and nothing in this Agreement shall be construed
to create a partnership between such parties.
ARTICLE 16. SUCCESSOR OR COLLOCATED SATELLITES.
16.1 Successor or Collocated Satellite.
(a) PanAmSat Elects to Launch.
(i) In the event that PanAmSat, or a PanAmSat
Company (collectively referred to as "PanAmSat" for purposes of this Section
16.1) determines to launch a new "Collocated Satellite" or a "Successor
Satellite" (each as defined herein) during the Term hereof or during the
survival period specified in clause (f) below, with Ku-band transponders
covering [ * * * * * * * * * * *] the [ * * * * * * * * * * * * ] as the Service
Transponders (and with primary coverage focused over the [ * * * * * * * * * * *
* * ]) that are [ * * * * * * * * * * * * * * * ] to or [ * * * * * * * * * * *
* * ] from the Service Transponders ("Mexico Ku-Band Transponders"), PanAmSat
shall give Customer the right to [ * * * * * * * * * * ] or enter into a [ * * *
* * * * * * * * * * * * * ] with respect to, at Customer's election, some or all
(but in no event less than the lesser of (A) [ * * * * * * ], and (B) an amount
equal to [ * * * * * * * ] of the [ * * * * ] Ku-band [ * * * * * ] on such
satellite, a "[ * * * ] Service Agreement") of the Mexico Ku-Band Transponders
or [ * * * * * * * * * * * * * ] on such Collocated and/or Successor Satellite
at a price to be negotiated but not to [ * * * * * * * * * * * * * * * * * ] as
determined below, and on other terms and conditions to be negotiated in good
faith, but which shall be [ * * * * * * * * * * * * * * ], in relevant part, to
this Agreement, [ * * * * * * * *] as appropriate to reflect [ * * * * * ] in [
* * * * * ], changes in [ * * * * * * * *] and [ * * * * * * * * * * * * * * * *
* * * * * ] and other [ * * * * * * * * * * * ] in circumstances that reasonably
require [ * * * * * * * * * * ] in, or [ * * * * * * * * * *] from, the terms
and conditions stated herein. The negotiation period for each Collocated or
Successor Satellite shall be for [ * * * * * * * * * *], during which time each
party agrees to negotiate in good faith exclusively with the other party
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-44-
(i.e., PanAmSat with respect to the Mexico Ku-band Transponders subject to
negotiation and Customer and the Customer Companies with respect to transponder
capacity to be used for the provision of DTH Service to the [ * * * * * * * *]
Territory).
(ii) During the [ * * * * * * * * * * * * *]
negotiating period, PanAmSat agrees to [ * * * * * ] Customer an end of life
service contract with service fees for a [ * * * ] Service Agreement on the
applicable satellite that shall, subject to the qualifications stated below, be
[ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * ] per Transponder increased for [ * * * * * * * * *] by a percentage
equal to the increase in the [ * * * ] (as defined below) from October, 1997 to
the month and year of the Service Date of the applicable Successor or Collocated
Satellite (with adjustment as necessary to reflect the change in the [ * * * ]
from the time of the negotiation to the Service Date of such Successor or
Collocated Satellite). [ * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * ]. If such [ * * * ] shall be discontinued, the foregoing calculations shall
be made using a reasonably equivalent successor or comparable measure of [ * * *
* * * * * * * * * * * * * * * * * * * ] in the United States as reasonably
determined by PanAmSat. The price per Transponder as determined under this
clause (ii), modified, if applicable, under clause (iii) below, is referred to
in this Agreement as the [ * * * * * * * * * * * *].
(iii) The foregoing notwithstanding, PanAmSat
shall be permitted to [ * * * * * * ] the service fees above that stated above
with respect to the [ * * * ] to reflect any extraordinary and substantial
increase in its [ * * * ] and [ * * * * * * ] in [ * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ] a Successor or Collocated Satellite relative to such costs related
to the PAS-5 satellite program, including increases in [ * * * * * * * * * * * *
] or the need to purchase [ * * * * * * * * * * * ], increases in launch [ * * *
* * * * * * ] rates in excess of [ * * * ] of the [ * * * * * * * * ] value
(unless the [ * * * * * * * * * * * * ] of launch [ * * * * * * * * ] is less
than [ * * * * * * * * * ] to [ * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * ], because the [ * * * * * * * * * ] are [ * * * * * ]) or other
extraordinary factors the failure to take into account of which would frustrate
the intent of this [ * * * * * * * * * * * * ], which is to [ * * * * * * * * *
* * * ] that allows PanAmSat to earn a [ * * * * * * * * * * * * * * * * * * * *
* * * * * * * ]. PanAmSat shall also be permitted to [ * * * * * * * * * * * * *
] to reflect any [ * * * * * * * * * * * * * * * ] that result from [ * * * * *
* * * * * ] a satellite above and beyond the [ * * * * * * * * * * * * * * * ]
of PAS-XX adjusted to reflect then [ * * * * * * * * * * ] technological
standards.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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(iv) The [* * * * * * * * * * *] negotiating
period may be initiated by either party on notice to the other at any time
within the time period set forth below. Each negotiation period (per Collocated
or Successor Satellite) shall not begin earlier than the date on which both of
the following conditions have been satisfied: (A) PanAmSat notifies Customer of,
or publicly announces, a [ * * * * * * * * * ] to launch a Collocated or
Successor Satellite; and (B) [ * * * * * * * * * * ] prior to the proposed
launch of the Collocated or Successor Satellite. Each negotiation period shall
not commence, if at all later than [ * * * * * * * * * ] prior to the date that
the applicable Collocated or Successor Satellite is scheduled to be launched. If
negotiations are not initiated by such date or successfully concluded with a
binding purchase or service agreement within the [ * * * * * * * * * ]
negotiation period, unless Customer has given PanAmSat a "Customer's Offer" (as
defined below), neither party shall have any further obligation pursuant to this
Section 16.1. The conclusion or failure to conclude such an agreement for a
transponder or transponders on a Collocated or Successor Satellite shall not
otherwise affect the parties' obligations hereunder.
(v) At any time prior to the end of the
applicable negotiation period specified above, Customer shall have the right to
make to PanAmSat Customer's [ * * * * * * * * * * * * * * * ] ("Customer's
Offer") of the [ * * * ] and other [ * * * * * * * * ] terms and conditions
(sufficiently detailed, if accepted, to form a binding contract) on which it is
willing to [ * * * * * * * ] or enter into an [ * * * * * * * * * * * * * * * *
* * * * * * * ] for a [ * * * * * * ] number of [ * * * * * * ] Ku-band
Transponders on the applicable Collocated or Successor Satellite.
(vi) If Customer makes the Customer's Offer, for
as long as it is held open (i.e., that it may be accepted by PanAmSat without
Customer's subsequent right to withdraw it), until [ * * * * * * * * * * * ]
after the launch of the Collocated or Successor Satellite, PanAmSat will not,
without [ * * * ] offering the Customer the [ * * * * * * * * * * ] to do so,
and for a period of [ * * * * * * * * * * * * * * * ] following notice of such
offer to Customer, enter into a [ * * * * * * * ] or [ * * * * * * * * * * * * *
* * * * * * * * * * * * * * ] for the [ * * * * * * * * * * * * * * * * * * ]
Ku-band Transponders on the same Satellite than stated in Customer's Offer that,
overall, taking into account the price (which, for purposes of comparison, will
be calculated on a [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
] by PanAmSat, but notified to Customer so that Customer may make an [ * * * * *
* * * * * * ] in its offer to reflect this [ * * * * * * * * * * * ]) and
material terms and conditions (but not [ * * * * * * * * * * * ] individual
terms and conditions) are [ * * * * * * * * * * * * * * * * * * * * * * ] to
PanAmSat than, Customer's Offer.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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(b) Related Collocated Satellite Rights. PanAmSat shall notify
Customer of any determination by PanAmSat to launch a Collocated Satellite, even
if the Satellite will [ * * ] have [ * * * * * * * ] transponders that fall
within the definition of clause(a)(i) above for which Customer's rights under
this Article 16 apply, if the [ * * * * * * ] of the [ * * * ] would [ * * * * *
* ] the [ * * ] of the [ * * * * * * * * * * * * * ] on the Collocated Satellite
for the provision of Service to Customer for use in the [ * * * * * * * * ]
Territory on a future Collocated Satellite. (For the avoidance of doubt, in no
event shall PanAmSat be permitted to launch a Collocated Satellite which uses
frequencies that would [ * * * * * * * ] with the Service Transponders so as to
[ * * * * * * ] their meeting their Service Specifications.) Before committing
to such a Collocated Satellite that would [ * * * * * * * ] the use of such [ *
* * * * * * * * * * * * * * * * * * * * * * ] by Customer in the [ * * * * * * *
] Territory, PanAmSat shall give Customer the opportunity to exercise its
rights, if still extant, under clause (c) below to require PanAmSat to launch a
Collocated Satellite, subject to applicable [ * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * ], employing such [ * * * * * * * * * * * * * * * ]
with Ku-band [ * * * * * * * * ] for use in the [ * * * * * * * ] Territory.
Customer shall have until the later of: (i) [ * * * * * * * * * * ] from
PanAmSat's notice to Customer, or (ii) until the [ * * * * * * * * * * * * * * *
* * * ] specified below, to exercise such rights.
Customer shall not be required to make any decision
regarding [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * ] either under this clause (b) or clause (a) above prior to
[ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ],
as to any [ * * * * * * * * * * * * * ] that is placed into commercial service
before that date (the "Decision Period"). In addition, PanAmSat will not require
Customer to make a decision whether [ * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * ] (and the "Decision Period"
will be so extended), unless PanAmSat [ * * * * * * * * * * * * * * * * * * ] to
[ * * * * * * * * * * * * * * * * * * * * * * ] that it acquires on a [ * * * *
* * * * * * * * * * * ] to any third party for any lawful purpose, subject to
Customer's ultimate obligations therefore, consistent with Section 10.6 of this
Agreement (i.e., an [ * * * * * * * * * * * * * * * ]the [ * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] without
the consent of the other party).
Accordingly, by way of example, if PanAmSat notifies
Customer in [ * * * * * * * * * ] of PanAmSat's [ * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * ] either with Mexico Ku-band Transponders or [ * *
* * * * * * * * * * * * * ] Transponders that would have a [ * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] to have
Mexico Ku-band Transponders, Customer [ * * * * * * * * * * * * * * * ] whether
to [ * * * * * * * * ] an agreement to [ * * * * * * * * * * * * ] on such
Satellite or [ * * * * * * * *
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-47-
* * * * * * * ] of a Satellite employing such frequencies for Mexico Ku-band
Transponders until [ * * * * * * * * * * * * * * * ]; such [ * * * * * * * * * *
* ] could not be placed into [ * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ], unless Customer's right to so decide is extended until [ * * * * *
* * * * * * * * * * ]; and, unless PanAmSat allows Customer the right specified
above to sublease or assign, Customer will have until [ * * * * * * * * * * * *
* * * ], to make a decision, effectively [ * * * * * * * * * * ] PanAmSat from
committing to any [ * * * * * * * * * * * ] of such [ * * * * * * * * * * * * *
* * * * * * * ].
The foregoing notwithstanding, if Customer requests
PanAmSat to provide [ * * * * * * * * * * * * * * * * * * * ] under Section
1.8(b)(ii) above, Customer shall [ * * * * * ] to have the right to [ * * * * ]
a decision to [ * * * * * * * * * * ] from a [ * * * * * * * * * * * * * * * ].
Informal discussions or exchange of correspondence by the parties regarding the
possibility of a [ * * * * * * * * * * * * * * * ], including (without
limitation), consultation under clause (d) below, that does not clearly state
that it is intended as a notice under this clause or a request under Section
1.8(b)(ii) shall not be deemed to give rise to rights under this or related
provisions.
(c) PanAmSat Obligated to Launch. Customer may [ * * * * * * *
* * * * * * * * ] to [ * * * * * * * * * * * * * * * ] with the [ * * * * * * *
* * * * * * * * * * * * * * * * * * * * ] of a [ * * * * * * * * * ] and/or, a [
* * * * * * * * * * * * * * * ] under the following circumstances:
(i) The obligation may be applied only to a [ *
* * * * * * * * * * * ] for PAS-XX, [ * * * * * * * * * * * * * * * ] and, if
Customer agrees to [ * * * * * * * * * * * ] on a [ * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * ] of the Service Date of PAS-XX, the [ * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * ], each with at least [ * * *
* ] "Mexico Ku-band Transponders," meeting the criteria set forth in clause (a)
above;
(ii) Customer shall use all reasonable efforts to
coordinate its exercise of rights under this Section 16.1 with other users of
PAS-XX so that the same Collocated Satellite may be used to satisfy the needs of
each entity, but placement into service of such Satellite shall not be
unreasonably delayed to accommodate such coordination;
(iii) Customer must commit to purchase or enter
into an end of life service contract for at least twelve (12) Ku-band
transponders on each satellite that PanAmSat is required to cause to be
constructed, launched, and operated provided that PanAmSat may require Customer
to commit to up to 18 Ku-band transponders if Customer is otherwise unwilling to
do so, but only if PanAmSat grants Customer the right to assign to any third
party for any lawful
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-48-
purpose the number of transponders above 12 ("Extra Transponders") that Customer
is required to take (subject to Customer's ultimate obligations as under Section
10.6) and PanAmSat agrees to use reasonable efforts to assist Customer in
assigning its rights to such capacity;
(iv) Except under circumstances in which Customer is
acting in response to a notice given to it by PanAmSat under clause (b) of this
Section 16.1 of PanAmSat's intention to launch a Collocated Satellite, all or
substantially all of the capacity provided to it under this Agreement must be in
use for Customer's DTH Service and, at the time that such required Satellite is
placed in service, all capacity provided under this Agreement, with the
exception of any Extra Transponders that Customer may be required to take under
the previous clause (iii), may only be used for the provision of DTH Service;
(v) PanAmSat shall not be obligated to proceed with
construction until all necessary or appropriate licenses or other
authorizations, coordinations and determinations of technical feasibility have
been obtained or resolved. PanAmSat shall use all reasonable efforts to obtain
such licenses or other authorizations and to resolve such other issues, provided
that PanAmSat will use efforts in respect of Customer's capacity at least as
great as it has used or uses during the prelaunch period for other capacity. If
permitted by law, PanAmSat will go forward in advance of such resolution if
Customer pays for and bears the full risk (e.g., expenses and termination
liability) of proceeding along such a course);
(vi) PanAmSat may require Customer to pay, as and in
advance of the date that particular payment(s) are due, some or all of
PanAmSat's costs in constructing and launching the Satellite (including, without
limitation, the costs of acquiring all necessary or appropriate licenses or
other authorization and launch insurance). In such event, PanAmSat shall credit
such up front payments against the service fees otherwise due for the Collocated
or Successor Satellite discounted to present value at a rate of nine percent per
annum;
(vii) If Customer requires PanAmSat to proceed with
the construction, launch and operation of a Successor or Collocated Satellite,
the purchase price or service fees for transponders on such satellite, unless
otherwise agreed, shall be set in accordance with the Capped Price established
under Section 16.1(a) above. Other terms of the agreement to acquire such
capacity shall be negotiated between the parties in good faith, shall be
substantially similar, in relevant part, to this Agreement, modified as
appropriate to reflect changes in price, whether payment is fixed or variable,
changes in technology and equipment employed, legal requirements and other
differences in circumstances that reasonably require modification in, or
updating from, the terms and conditions stated herein; and
-49-
(viii) If Customer exercises its rights under this
Section 16.1(c) to require the construction of a Successor Satellite, it shall
do so sufficiently in advance so that: (A) a Successor Satellite for PAS-XX can
be scheduled to be available by fifteen (15) years after the Service Date of
PAS-XX, and (B) a Successor Satellite for a Collocated Satellite, if any, can be
scheduled to be available by the time that such Collocated Satellite is to be
taken out of Service.
(d) Consultation. PanAmSat will consult with Customer on the
planning and design of Successor and Collocated Satellites (including, without
limitation, the Ku-band transponders, footprints, etc.) intended for primary
coverage over Mexico; it being understood that custom designs work (e.g., extra
switching) that adds costs may be passed on to Customer at cost above and beyond
the price cap stated in clause 16.1(a)(ii) above, if applicable.
(e) Condition of Exclusivity. Customer shall cease to have any
rights under this Article 16 if there is any Founding Partner In Competition,
unless a majority of the voting equity of Customer remains with the Founding
Partner(s), which shall include Televisa, who, as of April 30, 1998, held a
majority of the voting equity of the Customer. Customer shall cease to have
rights under clause (c) above if Customer ceases to have any obligations under
Section 1.8(a)(ii)(B). If Customer ceases to have obligations under Section
1.8(a)(ii)(B), Customer shall cease to have any further rights under this
Section 16.1 vis-a-vis Collocated Satellites other than with respect to rights
to capacity on such satellite(s) that may be already subject to a separate
purchase or service contract between PanAmSat and Customer at that time.
(f) Survival. The termination of this Agreement under Section
7.4 or, if the number of Service Transponders that meet their Service
Specifications falls below [ * * * ], under Section 7.3, shall not extinguish
the parties rights and obligations under Section 16.1, until such time, if it
has not already done so, as PanAmSat makes available to Customer for purchase or
end of life lease a [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]. If Customer
then enters into a Bulk Service Agreement, the substantive rights and
obligations of this Section 16.1 shall be carried forward (but not extended) in
that agreement, provided that in no right shall such rights extend beyond [ * *
* * * * * * * * * ]. At such time as such Bulk Service Agreement is entered or
at the end of the "Negotiation Period" (as defined in Section 16.1) without such
a Bulk Service Agreement being entered (except for the operation of Section
16.1(a)(vi) as to the satellite that had been under negotiation, if a Customer's
Offer was made), this Section 16.1 shall cease to be effective.
(g) Definitions. For purposes of this Agreement, the term
"Successor Satellite" shall mean any satellite containing Ku-band capacity that
PanAmSat launches or
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-50-
causes to be launched to replace PAS-XX (or, if Customer makes a Bulk Service
Agreement for capacity on a Collocated Satellite, to replace such Collocated
Satellite) at its then-assigned location or at such other orbital location to
which the FCC may authorize PAS-XX to be moved, or, to the extent that this
Section 16.1 survives the termination of this Agreement under clause (f) above,
the last orbital location of PAS-XX from which Customer used the capacity
provided under this Agreement. For purposes of this Section 16.1, the term
"Collocated Satellite" shall mean any new Satellite (i.e., not one that has
already been launched as of the date of this Agreement), other than successor
satellite(s) to previously launched satellites, containing Ku-band capacity that
PanAmSat launches or causes to be launched to be in the same Orbital Slot as
PAS-XX while PAS-XX is still in commercial service, or, to the extent that this
Section 16.1 survives the termination of this Agreement under clause (f) above,
the last orbital location of PAS-XX from which Customer used the capacity
provided under this Agreement.
(h) No Rights to Other Frequencies Employed on PAS-XX. For the
avoidance of doubt, Customer's rights vis-a-vis [ * * * * * * * * * * * * * * *
* * * * * * * * * * * ] do not extend to the frequencies employed by
Transponders on the PAS-XX Ku-band payload that are not assigned to Customer,
either on the Satellite or [ * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * ].
ARTICLE 17. GUARANTIES.
17.1 The Guaranties. Each party's entry into this Agreement is
expressly conditioned upon the contemporaneous execution and delivery to
PanAmSat of the several guaranties of Televisa, News and TINTA (the "Original
Guarantors") in the form set out in Appendix L. If said Guaranties are not
executed and delivered to PanAmSat on the date of this Agreement, this Agreement
shall be null and void. PanAmSat agrees that, if the [ * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * ] in Customer is [ * * * * * * ], PanAmSat
shall, subject to PanAmSat's prior written consent, not to be unreasonably
withheld, conditioned or delayed, allow [ * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * ] to reflect their interests by substituting for the [ * *
* * * * * * * * * * * * * * * * ] the guarantees of [ * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * ] (so that [ * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ]
obligations of Customer under this Agreement), provided that the [ * * * * * * *
* * * * * ] are of [ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * ] (as of the date hereof) and provide PanAmSat
with their guaranties in the form set out in Appendix K. PanAmSat acknowledges
and agrees that the guarantors under this Section 17.1 are third party
beneficiaries of the provisions of this Section 17.1 regarding
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
-51-
adjustments to guaranteed amounts and are entitled to enforce said provisions
directly against PanAmSat.
Each of the parties has duly executed and delivered this Agreement as
of the day and year first written above.
PANAMSAT INTERNATIONAL SYSTEMS, INC.
By:_________________________________
Name:____________________________
Title:___________________________
CORPORACION DE RADIO Y TELEVISION
DEL NORTE DE MEXICO, S. A. DE C.V.
By:_________________________________
Name:___________________________
Title:__________________________
LIST OF APPENDICES
A. Service Transponders
B. Satellite Description and Spare Equipment
C. Service Specifications
D. Operational Requirements
E. Backhaul Requirements
F. Intentionally Deleted
G. Disclosure Schedule
H. Intentionally Deleted
I. Approved Companies
J. Sample Subordination Provision
K. Intentionally Deleted
L. Form of Guaranty
M. Form of Transmission Plan
APPENDIX A
SERVICE TRANSPONDERS
(PAS-XX, MEXICO BEAM)
--------------------------------------------------------------------------------
TRANSPONDER # MHZ BAND DOWNLINK BEAM
POL
--------------------------------------------------------------------------------
1K 36 KU V Mexico
2K 00 XX X Xxxxxx
0X 00 XX X Xxxxxx
4K 00 XX X Xxxxxx
0X 00 XX X Xxxxxx
6K 00 XX X Xxxxxx
0X 00 XX X Xxxxxx
8K 00 XX X Xxxxxx
0X 00 XX X Xxxxxx
10K 00 XX X Xxxxxx
00X 00 XX X Xxxxxx
12K 36 KU H Mexico
--------------------------------------------------------------------------------
APPENDIX G
DISCLOSURE SCHEDULE
Comsat Corporation has filed (and amended) a complaint against The News
Corporation Limited, PanAmSat Corporation, and Grupo Televisa, S.A., Civil
Action No. CV-96-7528-KMW (CTx), in the United States District Court for the
Central District of California. The complaint alleges, among other things, that
the entry into the Letter Agreement constituted tortious interference with a
contract that Comsat alleges to have had with News.
APPENDIX I
APPROVED COMPANIES (1)(2)
The Xxxx Disney Company (including Cap Cities/ABC)
Seagrams Inc. (including MCA)
Viacom Inc. (including Paramount Pictures)
Time-Warner Inc.
Sony Entertainment (including Sony Pictures)
MGM/UA Inc.
Westinghouse (including CBS)
General Electric (including NBC)
MCI Communications Corporation (3)
Microsoft Corporation (3)
Bertelsmann Group (3)
Canal Plus (3)
Xxxxx Xxxxx (3)
US West Inc. (3)
Ameritech Corp. (3)
Nynex Corp.-Xxxx Atlantic Corp. (3)
SBC Communications-Pacific Telesis Group (3)
BellSouth Corp. (3)
Xxxxxx Communications (3)
AT&T (3)
Televisao Abril (3)
Xxxxxxxx Group (3)
-------------
(1) References to companies are intended to refer to primary entity
generally known by the names stated.
(2) Approval does not constitute a waiver of the conditions of exclusivity
stated in Section 1.8 of the Agreement. Accordingly, divestment of other
interests may be required for certain of the entities identified above to become
Approved Participating Companies.
(3) Control of Customer must remain with other Approved Participating
Companies. Approval is not granted to an assignment to the entity under
Section 10.5.
APPENDIX J
SAMPLE SUBORDINATION PROVISION
Collateral Trustee.
(a) Customer hereby acknowledges that this Agreement and all
rights granted to Customer hereunder are subject and subordinate to a security
interest and lien in favor of __________ (the "Trustee"), as the same may be
assigned (the "Security Interest") in and to the Transponder(s) that may be
owned and operated by PanAmSat and which are the subject of this Agreement
(and/or the proceeds from the sale or other disposition of all or any portion
thereof, or any insurance that may be received by PanAmSat as a result of any
loss or destruction of, or damage to, the Transponders identified above). The
Security Interest shall be deemed to arise under all security agreements,
indentures, mortgages, pledge agreements and other collateral documents between
Trustee and PanAmSat, including all renewals, modifications, consolidations or
replacements thereto (collectively, the "Collateral Documents"). Notwithstanding
the Security Interest, the Trustee agrees that Customer shall continue to have
the benefits of this Agreement notwithstanding any default on the part of
PanAmSat under the Collateral Documents, so long as (i) Customer is not in
default under the terms and conditions of this Agreement, (ii) Customer shall
not pay any of its obligations under this Agreement more than 30 days prior to
their scheduled payment date under this Agreement, (iii) this Agreement is not
supplemented, amended or extended or otherwise modified in any manner which
adversely affects the interests of the Trustee on behalf of the holders of the
Senior Secured Notes (as defined in the Collateral Documents) in a degree
greater than the manner in which it adversely affects PanAmSat, and (iv) after
receipt of notice from the Trustee of a default by PanAmSat under the Collateral
Documents, Customer agrees to make, and makes, all payments thereafter as
instructed by the Trustee.
(b) Customer acknowledges and consents to the foreclosure,
should it occur, upon this Agreement by the Trustee or its designee, successor
or assignee, and the consequent replacement of PanAmSat under this Agreement by
the Trustee, its designee, successor or assignee, or another purchaser or
assignee, provided that any successor to PanAmSat under this Agreement (i)
expressly assumes PanAmSat's obligations hereunder for the benefit of Customer,
and (ii) succeeds to substantially all of the right, title, and interest in and
to all assets of PanAmSat reasonably necessary for such successor to perform its
obligations under this Agreement. Upon such succession and assumption by a party
other than the Trustee, the Trustee and its successors under this Agreement,
other than the ultimate successor, shall be released from any further liability
under this Agreement.
-2-
(c) The Trustee shall be entitled to exercise all rights and
to cure any defaults of PanAmSat under this Agreement, within such cure period
as may be available to PanAmSat under this Agreement. Upon receipt of notice
from the Trustee, Customer agrees to accept such exercise and cure by the
Trustee and to render all or any part of the performance due by Customer under
this Agreement to the Trustee.
(d) Provided that Customer performs its payment and other
obligations under this Agreement, after payment in full of the Purchase Price
for the Customer's Transponders, Trustee shall release its lien upon the
Customer's Transponders.
(e) The Trustee shall be deemed an express third party
beneficiary of this ______. This ______ shall be self-operative and no further
instrument of subordination shall be required by any security agreement,
mortgage or other document reflecting the Security Interest to make this
subordination effective. In confirmation of such acknowledged subordination,
Customer shall execute promptly any instrument or certificate which PanAmSat or
the Trustee may reasonably request.
APPENDIX L
FORM OF GUARANTY
FOR VALUE RECEIVED, [Guarantor Name], a corporation organized and
existing under the laws of [country] and having principal offices at
_____________________(the "Guarantor"), as primary obligor and not as surety
merely, hereby irrevocably and unconditionally guarantees to [PANAMSAT
INTERNATIONAL SYSTEMS, INC., a Delaware corporation with offices at Xxx Xxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("PanAmSat")], that any and all obligations
of [Contracting Party], a corporation organized and existing under the laws of
[country] and having principal offices at [__________________], (the "Obligor")
that are or may become due and owed to PanAmSat under or by virtue of that
certain agreement entitled "Transponder Service Agreement", dated , 1999 (the
"Agreement") between PanAmSat and Obligor pursuant to which Obligor agrees to
take Service from the Service Transponders, as therein defined (the obligations
of the Obligor under the Agreement being hereinafter referred to as the
"Guaranteed Obligations"), shall be promptly paid and/or performed in full when
due and in accordance with the terms thereof, by acceleration or otherwise, or
if renewed or subjected to extension, in accordance with the terms of any such
renewal or extension.
Upon any default in payment and/or performance of a Guaranteed
Obligation by Obligor, the liability of the Guarantor hereunder shall be
effective immediately and performable and/or payable on demand without the
necessity of any suit or action against Obligor or any other guarantor or in
respect of any collateral.
The Guarantor is directly or indirectly the holder of ___ percent
(___%) of the equity interests in Obligor, and, as an inducement for PanAmSat to
enter into the transactions giving rise to the Guaranteed Obligations, the
Guarantor is willing to guaranty payment and/or performance of the Guaranteed
Obligations as herein provided. The Guarantor hereby acknowledges that this
Guaranty is also being given in consideration of having received from PanAmSat
the sum of One Dollar ($1.00) and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged.
The obligations of the Guarantor hereunder shall be unconditional
irrespective of, and the Guarantor hereby consents to and waives all notice with
respect to: (i) the genuineness, validity, regularity or enforceability of any
of the Guaranteed Obligations, (ii) any modification, amendment or variation in
or addition to the terms of any of the Guaranteed Obligations, (iii) any
extension or postponement of time for or waiver of payment or performance by
Obligor, or any
-2-
failure or omission by PanAmSat to enforce any right with respect to any of the
Guaranteed Obligations, (iv) any substitution, exchange, release or impairment
of collateral, or all or any part thereof, or any taking or release of other
guarantees, or (v) any other circumstances which may or might in any manner
constitute a legal or equitable discharge of a surety or guarantor; it being the
intent hereof that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances (including granting of an
automatic stay in the event of the bankruptcy of Obligor) and shall not be
discharged except by payment and/or performance of Guaranteed Obligations in
accordance with their respective terms.
The Guarantor hereby waives demand, presentment, protest and notice of
the acceptance of this Guaranty and of any extension of credit or indulgence
made, extensions granted or other action taken in reliance hereon, and all other
demands and notices of any description in connection with this Guaranty, the
Guaranteed Obligations, or otherwise.
The Guarantor hereby furthermore acknowledges that the Guaranteed
Obligations as well as this Guaranty constitute portions of a commercial
transaction. Nothing contained herein shall negate that this is a guaranty of
payment.
The Guarantor agrees that all payments on account of any indebtedness
comprising Guaranteed Obligations made by Obligor shall, when made, be final and
further agrees that if any such payment is recovered from or repaid by PanAmSat,
in whole or in part, in any bankruptcy, insolvency or similar proceeding
instituted by or against Obligor, this Guaranty shall continue to be fully
applicable to the Guaranteed Obligations to the same extent as though the
payment so recovered or repaid had never been originally made.
The Guarantor agrees that PanAmSat shall have no duty to collect or
protect any collateral or any income thereon, nor to preserve any rights against
other parties, and that PanAmSat may proceed under this Guaranty immediately
upon Obligor's default in payment and/or performance of any Guaranteed
Obligation, without resorting to or regard to any collateral or any other
guaranty or source of payment.
The Guarantor further agrees that it shall not be subrogated, in whole
or in part, to the rights of PanAmSat against Obligor with respect to any of the
Guaranteed Obligations until the obligations of Obligor with respect thereto
shall have been paid and/or performed in full.
-3-
This Guaranty may be assigned by PanAmSat to any assignee of PanAmSat's
rights and interests under the Agreement, provided no such assignment shall be
effective against Guarantor until Guarantor has been given written notice
thereof.
This Guaranty shall inure to the benefit of PanAmSat and its successors
and assigns, and it shall be binding upon the Guarantor and its successors and
assigns.
The Guarantor hereby represents and warrants to PanAmSat that: (i) as
of the date of this Guaranty, and without limiting the right of Guarantor in the
future to make transfers of [shares] of Obligor (which transfers shall have no
effect upon this Guaranty or Guarantor's liability hereunder), Guarantor is
indirectly the holder of at least [___]percent (___%) of the equity interests in
Obligor, (ii) such Guarantor has full power and authority to execute, deliver
and perform its obligations under this Guaranty, (iii) this Guaranty has been
duly executed and delivered by Guarantor and constitutes a legal, valid and
binding obligation of Guarantor enforceable in accordance with its terms, and
(iv) the execution, delivery and performance of this Guaranty by Guarantor will
not violate or constitute a breach of or a default under any agreement,
instrument, document or judicial or governmental order to which Guarantor is a
party or by which Guarantor's property may be bound or affected.
The invalidity or unenforceability of any term or provision of this
Guaranty shall not affect the validity or enforceability of the remaining terms
or provisions of this Guaranty or any part hereof.
This Guaranty is intended to take effect as a sealed instrument and
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be wholly performed within said
State. The parties agree that the execution of this Guaranty and performance of
its obligations hereunder shall be deemed to have a New York situs. Subject to
the following sentence, the parties agree that the appropriate and exclusive
forum for any disputes arising under this Agreement shall be the United States
District Court for the Southern District of New York. Each party consents to the
jurisdiction of this court, but, if that court determines it lacks jurisdiction,
consents to the jurisdiction of the State Courts of New York. In connection
therewith, Guarantor irrevocably and unconditionally (a) agrees to be bound by
any judgment rendered or order granted by any of such courts and agrees that
suit may be brought upon any such judgment in any court having jurisdiction; (b)
consents to service of process on Guarantor in any such proceeding by the
mailing thereof by PanAmSat by United States Postal Service registered or
certified mail, postage prepaid, to the address of Guarantor
-4-
specified herein, and that failure of Guarantor to receive such service of
process shall not affect the validity thereof or of any judgment or order in any
proceeding based thereon; (c) agrees that nothing herein shall affect the right
of PanAmSat to serve process in any other manner permitted by any law or to
begin and continue legal proceedings in any other courts or jurisdictions; (d)
consents to the removal and change of venue to any of the aforesaid courts, as
PanAmSat may elect, of any legal proceeding brought by Guarantor in any other
court other than that elected by PanAmSat; and (e) waives to the fullest extent
permitted by law, in any adversary proceeding between Guarantor and PanAmSat,
the right to trial by jury.
Notwithstanding any provision of this Guaranty to the contrary, the
liability of the Guarantor for payment and/or with respect to the performance of
the Guaranteed Obligations shall be several (and not joint) and shall be limited
to [__] % of the amount of such Guaranteed Obligations.
-5-
Guarantor acknowledges that the Obligor has certain rights in the
Agreement to assign its rights to third parties upon consent of PanAmSat.
Guarantor's liability under this Guaranty shall not be affected by any such
assignment.
Dated _________________ 1999
[GUARANTOR]
By:________________________
Name:______________________
Title:__________________
Accepted and agreed to this ___ day of _______, 1999
PANAMSAT INTERNATIONAL
SYSTEMS, INC.
By:________________________
Name:______________________
Title:_________________
APPENDIX M
FORM OF TRANSMISSION PLAN
A Transmission Plan must be submitted prior to start of Service or before any
change in transmission parameters. The Transmission Plan must include all
carriers which will be used in the transponder.
Transponder:
Bandwidth:
Number of Carriers:
Modulation Type:
FEC Rate:
Occupied Bandwidth:
Allocated Bandwidth:
Uplink Beam:
Uplink Polarization:
Uplink Location:
Uplink ES Size, Tx Gain:
Uplink EIRP:
Uplink Center Frequency:
Downlink Polarization:
Downlink Center Frequency:
