Exhibit 10.63.
GALAXY IIIC
TRANSPONDER LEASE AGREEMENT
BETWEEN
PANAMSAT CORPORATION
AND
CALIFORNIA BROADCAST CENTER, LLC
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[***] Filed separately with the Commission pursuant to a request for
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TABLE OF CONTENTS
1. The Satellite....................................................... 1
1.01 Satellite.................................................. 1
1.02 Orbital Position........................................... 2
1.03 Certain Transponder-Related Definitions.................... 2
1.04 Transponders Components and Certain Specifications......... 2
2. Lease of Transponders; Lease Term................................... 2
2.01 Term....................................................... 2
2.02 [***]...................................................... 3
2.03 Redelivery of Lessee Transponders.......................... 4
3. Lease Rate.......................................................... 4
3.01 Lease Price Components Description......................... 4
3.02 Monthly Base Lease Rate; TT&C Fee.......................... 4
3.03 Place of Payment........................................... 4
3.04 Deposit.................................................... 5
4. Conditions; Acceptance.............................................. 5
4.01 Condition to Lessee's Right to Lease....................... 5
4.02 Acceptance................................................. 5
5. Representations and Warranties...................................... 6
5.01 Authority, No Breach....................................... 6
5.02 Corporate Action........................................... 6
5.03 Consents................................................... 6
5.04 Litigation................................................. 7
5.05 No Broker.................................................. 7
6. Additional Representations, Warranties and Obligations of PanAmSat.. 7
6.01 Authorization Description.................................. 7
6.02 Transponder Performance Specifications..................... 8
6.03 Right to Lease............................................. 8
6.04 Government Regulations..................................... 8
6.05 Not a Common Carrier....................................... 8
6.06 TT&C....................................................... 8
6.07 Outage Allowance........................................... 8
6.08 [***]...................................................... 9
6.09 [***]...................................................... 10
6.10 [***]...................................................... 10
6.11 Backup Transponders........................................ 11
7. Additional Representations, Warranties and Obligations of Lessee.... 11
7.01 Compliance by Customers.................................... 11
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7.02 Non-Interference........................................... 11
7.03 Laws....................................................... 12
7.04 Terrestrial Facilities..................................... 12
7.05 Lessee's Transmitting Stations............................. 12
7.06 Lessee's Uplink Providers.................................. 12
7.07 [***]...................................................... 13
7.08 Additional Usage Representation, Warranties and
Obligations................................................ 13
8. Preemptive Rights................................................... 13
9. Transponder Spares.................................................. 14
9.01 Use of Transponder Spares.................................. 14
9.02 Simultaneous Failure-- Priority with Respect to the Use of
Transponder Spares......................................... 15
9.03 PanAmSat's Ownership of Transponders....................... 15
10. Termination Rights.................................................. 15
10.01 Termination by Lessee...................................... 15
10.02 Termination by PanAmSat.................................... 16
10.03 PanAmSat's Right to Transfer............................... 17
10.04 Prompt Repayment........................................... 17
10.05 Termination by Lessee or PanAmSat.......................... 17
10.06 Right to Deny Access....................................... 17
11. Force Majeure....................................................... 20
11.01 Failure of Performance..................................... 20
12. Limitation of Liability/Breach of Warranty.......................... 21
12.01 Liability of PanAmSat...................................... 21
12.02 Confirmed Failure.......................................... 21
12.03 Repayment for Failed Transponder........................... 21
12.04 Limitation of Liability.................................... 22
12.05 Obligations of Lessee to Cooperate......................... 24
13. Limitations on Transfer by Lessee................................... 25
14. Utilization of Transponders for Services............................ 25
15. Monthly Satellite Reports........................................... 25
15.01 Reports.................................................... 25
15.02 Anomalous Operation Notification........................... 25
15.03 Maneuver Notification...................................... 26
16. Confidentiality and Press Releases.................................. 26
16.01 Confidential Information................................... 26
16.02 Notice Proceeding; Compelled Disclosure.................... 27
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16.03 Press Releases............................................. 27
16.04 Compliance with U.S. Export Laws........................... 27
17. Disposition of Satellite............................................ 27
18. Documents........................................................... 28
19. Conflicts........................................................... 28
20. Miscellaneous....................................................... 28
20.01 Interest................................................... 28
20.02 Applicable Law and Entire Agreement........................ 28
20.03 Notices.................................................... 28
20.04 Severability............................................... 30
20.05 Taxes...................................................... 31
20.06 Successors................................................. 31
20.07 Rules of Construction...................................... 31
20.08 Survival of Representations and Warranties................. 31
20.09 No Third-Party Beneficiaries............................... 31
20.10 Non-Waiver of Breach....................................... 32
20.11 Amendments................................................. 32
20.12 Counterparts............................................... 32
Exhibit A Transponder Performance Specifications
Exhibit B Operational Requirements
Exhibit C Transponder Priority List
Exhibit D [***]
Exhibit E [***]
[***] Filed separately with the Commission pursuant to a request for
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GALAXY IIIC TRANSPONDER LEASE AGREEMENT
This GALAXY IIIC TRANSPONDER LEASE AGREEMENT (as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms set forth herein, this "Agreement") is made and entered into as of
June 30, 2000, by and between PanAmSat Corporation, a Delaware corporation
("PanAmSat"), and California Broadcast Center, LLC, a Delaware limited liability
company ("Lessee").
RECITALS
A. PanAmSat plans to construct a communications satellite, model HS-702,
to be known as Galaxy IIIC, carrying a payload of 52 Ku-Band
transponders, one Ku-Band TCN transponder and 24 C-Band transponders,
as more specifically described in Section 1.04 (collectively, the
"Transponders"), and certain redundant equipment.
B. Subject to the approval of the Federal Communications Commission (the
"FCC"), PanAmSat currently anticipates that Galaxy IIIC will be
launched during the second quarter of 2001 and intends to cause such
satellite to be co-located in the 95 Degrees West Longitude orbital
location along with the satellite known as Galaxy VIII(i) (although the
parties recognize that schedule delays may occur).
C. The "Lessee Transponders" (as defined in Section 2.01(a) below) are
capable of providing signals to Mexico, Central America, South America
and the Caribbean (collectively, the "Territory").
D. Lessee desires to lease from PanAmSat and PanAmSat desires to lease to
Lessee the Lessee Transponders upon the terms and conditions set forth
in this Agreement.
E. Concurrently herewith, PanAmSat and Lessee desire to amend and restate
that certain Galaxy VIII(i) Transponder Lease Agreement (as so amended
and restated, the "Galaxy VIII(i) Lease Agreement") and to amend that
certain Galaxy IIIR Transponder Sublease Agreement, each dated as of
April 21, 1997, between PanAmSat (as assignee of Hughes Communications
Galaxy, Inc.) and Lessee.
AGREEMENT
In consideration of the mutual promises set forth below and other
valuable consideration the receipt and adequacy of which are hereby
acknowledged, PanAmSat and Lessee hereby mutually agree as follows:
1. The Satellite
1.01 Satellite. Subject to the approval of the FCC, PanAmSat plans to
construct and
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launch the satellite which is referred to hereinafter as "Galaxy IIIC" or the
"Satellite." PanAmSat shall use commercially reasonable efforts to cause the
Satellite to be constructed and launched no later than [***], and shall not take
any action to delay the completion or launch of the Satellite in order to
advance the launch of any other satellite being built for PanAmSat by Hughes
Space and Communications Company or launched for PanAmSat by the Galaxy IIIC
launch provider. Notwithstanding the foregoing, PanAmSat makes no representation
or warranty with respect to such schedule for construction and launch of the
Satellite, and Lessee understands that technical issues related to the
construction or launch of the Satellite beyond the reasonable control of
PanAmSat may occur which could prevent such schedule from being maintained. In
the event that one or more such technical issues occur, PanAmSat shall have the
right to take such actions as may be available to optimize the construction and
launch schedule of other satellites, but upon resolution of such technical
issue(s), PanAmSat shall use commercially reasonable efforts to cause the
construction and launch of the Satellite to be completed as soon as technically
and contractually feasible thereafter.
1.02 Orbital Position. Subject to the approval of the FCC, the
orbital position of Galaxy IIIC will be 95 Degrees West Longitude.
1.03 Certain Transponder-Related Definitions. As used in this
Agreement, (i) "Owner" shall include the actual owner of a Transponder,
including PanAmSat if there remain any unsold Transponders, or any permitted
assignee of such owner's Transponder, or any lessee or licensee of PanAmSat's
(including, without limitation, Lessee), or any entity to which PanAmSat (or any
affiliate of PanAmSat) provides service using the Transponders; (ii) the term
"purchase" shall include the execution of an agreement with PanAmSat for a lease
of Transponders for a term equal to at least 75% of the Satellite's Useful
Commercial Life (as defined in Section 2.01 below); and (iii) "affiliate" shall
mean, with respect to any entity, any corporation or other entity controlling or
controlled by or under common control with such entity.
1.04 Transponders Components and Certain Specifications. Exhibit A to
this Agreement sets forth the "Transponder Performance Specifications," which
are certain technical specifications for the Lessee Transponders, including
values for each Transponder for polarization isolation, interference between
Transponders, frequency response, group delay, amplitude non-linearity, spurious
outputs, phase shift, cross talk, stability, transmit EIRP, uplink saturation
flux density, and G/T. PanAmSat shall make copies of the antenna range gain
contour test data available to Lessee promptly upon written request of Lessee
after the tests related thereto are completed.
2. Lease of Transponders; Lease Term
2.01 Term. Unless otherwise terminated earlier in accordance with
this Agreement, including, without limitation, pursuant to Sections 5.03, 6.01,
10 or 17, this Agreement shall be for the following term (the "Term"):
(a) on and as of the Delivery (as defined in Section 4.02) of
Galaxy IIIC (the "Galaxy IIIC Lease Commencement Date"), PanAmSat shall
lease to Lessee, and Lessee
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shall lease from PanAmSat, [***] Ku-band Transponders, plus [***]
Ku-Band TCN Transponder (each Transponder then being leased to Lessee
is a "Lessee Transponder" and, collectively, such Transponders
constitute the "Lessee Transponders") for the period (the "Base Term")
commencing as set forth above and terminating immediately after 74.0%
of the Satellite's anticipated Useful Commercial Life has expired.
"Useful Commercial Life" means the Satellite's estimated useful
economic life as of the date on which the Satellite is ready to be
placed in service as indicated by the "Acceptance Test Plan" (as
defined in Section 4.02), as determined by PanAmSat in its reasonable
discretion.
(b) provided that Lessee has performed all of its obligations
hereunder, Lessee may, at its option, not less than 540 days prior to
the anticipated expiration of the Base Term, give PanAmSat notice (the
"Renewal Notice") of Lessee's irrevocable intention to renew this
Agreement in respect of all, but not less than all, of the Lessee
Transponders for a period commencing upon the expiration of the Base
Term and extending through the last day of the Useful Commercial Life
of the Satellite (the "Renewal Term"). If Lessee shall fail timely to
deliver the Renewal Notice, then Lessee shall be deemed to have elected
not to renew this Agreement. Galaxy Latin America, LLC, a Delaware
limited liability company ("GLA"), shall be deemed to be an intended
third party beneficiary of this Section 2.01(b).
2.02 [***]
(a) PanAmSat agrees that if (i) PanAmSat terminates this
Agreement pursuant to Sections 10.02 or 10.05 hereof, desires to
Transfer the Lessee Transponders to a third party or accelerates
remaining payments pursuant to Section 10.02 due to Lessee's breach or
default of the terms hereof; and (ii) [***]
(b) Nothing in this Section 2.02, [***] shall prevent PanAmSat
and Lessee from modifying or amending this Agreement at any time or in
any manner (an "Amendment"); [***]
2.03 Redelivery of Lessee Transponders. Subject to Section 2.02, upon
the expiration, termination, or cancellation of this Agreement as to any Lessee
Transponder for any reason whatsoever (including, without limitation, expiration
of this Agreement in accordance with its terms or cancellation of this Agreement
by PanAmSat as a result of a breach by Lessee), such Lessee Transponder shall be
deemed, without any further action by any party, to be redelivered to PanAmSat
and PanAmSat shall be entitled to immediate possession thereof. PanAmSat shall
thereafter have the right to utilize such redelivered Lessee Transponder in any
manner it determines.
3. Lease Rate
3.01 Lease Price Components Description. The monthly lease rate for
the Lessee Transponders shall be the "Monthly Base Lease Rate" set forth in
Section 3.02. In addition, Lessee shall pay to PanAmSat a fee (the "TT&C Fee")
for the tracking, telemetry and control services described in Section 6.06.
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3.02 Monthly Base Lease Rate; TT&C Fee. During the Base Term, the
Monthly Base Lease Rate for the Lessee Transponders shall be [***] per month
and, together with the TT&C Fee, shall be due and payable in advance on (i) the
Galaxy IIIC Lease Commencement Date, and (ii) the first day of each month
thereafter through the last day of the Base Term [***] During the Renewal Term,
if any, the Monthly Base Lease Rate for Lessee Transponders shall be [***] for
such Transponders and shall be due and payable in advance on the first day of
the Renewal Term and the first day of each month thereafter through the last day
of the Term. If one of the Lessee Transponders becomes a Failed Transponder (as
defined in Section 12.01), Lessee's rights and obligations to continue making
Monthly Base Lease Rate payments with respect to such Failed Transponder shall
be governed by Sections 12.01 and 12.03. Payments for any partial month shall be
pro-rated. [***] The TT&C Fee shall be [***] per month based on a base year of
2000 and the TT&C Fee for each subsequent year shall be adjusted at a rate equal
to [***]
3.03 Place of Payment. All payments by Lessee (i) shall be made in
immediately available funds to PanAmSat at its principal place of business, as
designated in Section 20.03, or by wire transfer to the account of PanAmSat
designated by PanAmSat pursuant to written notice given as set forth in Section
20.03 and (ii) shall be deemed to be made only upon actual receipt by PanAmSat.
Any refunds by PanAmSat (a) shall be made in immediately available funds to
Lessee at its principal place of business as designated in Section 20.03, or by
wire transfer to the account of Lessee designated by Lessee pursuant to written
notice given as set forth in Section 20.03 and (b) shall be deemed to be made
only upon actual receipt by Lessee.
3.04 Deposit. Lessee shall pay to PanAmSat a deposit in the amount of
[***] in immediately available funds on or before the Galaxy IIIC Lease
Commencement Date. Except as set forth in Sections 6 and 10 hereof, such deposit
is non-refundable and Lessee shall not be entitled to interest on any portion
thereof. PanAmSat shall apply such deposit in partial or in full satisfaction
(as the case may be) of Lessee's Monthly Base Lease Rate payments for the last
[***] of the Base Term (if Lessee fails to timely give a Renewal Notice), the
Renewal Term, or as required to meet any delinquent Monthly Base Lease Rate
payments, as determined by PanAmSat in its sole discretion.
4. Conditions; Acceptance
4.01 Condition to Lessee's Right to Lease. A condition to PanAmSat's
obligation to lease the Lessee Transponders to Lessee, and of Lessee's right to
lease the Lessee Transponders from PanAmSat, shall be Lessee's timely payment,
on or before the Galaxy IIIC Lease Commencement Date, of the Monthly Base Lease
Rate and the TT&C Fee for the first month hereof and the deposit referred to in
Section 3.04.
4.02 Acceptance. PanAmSat will test each of the Lessee Transponders
in accordance with the acceptance test plan (the "Acceptance Test Plan")
prepared by PanAmSat prior to the launch of Galaxy IIIC, a copy of which
Acceptance Test Plan shall be provided to Lessee upon written request of Lessee
after such Acceptance Test Plan is prepared. Lessee agrees that if such
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tests indicate that the Lessee Transponders (i) have passed all tests set forth
in the Acceptance Test Plan, (ii) meet the Transponder Performance
Specifications and (iii) are available for service, then acceptance and Delivery
of the Lessee Transponders by Lessee shall be deemed to occur on the later of
PanAmSat's] delivery to Lessee of a certification that the foregoing clauses (i)
and (ii) have been met and the date on which PanAmSat makes the Transponders
available to Lessee for Lessee's commercial use; provided that if [***] or more
but not all of the Lessee Transponders meet the Transponder Performance
Specifications, then acceptance and Delivery shall be deemed to occur with
respect to such Lessee Transponders (provided that clauses (i) and (iii) above
have also been met) and the Monthly Base Lease Rate shall be prorated
accordingly based upon the number of Lessee Transponders meeting the Transponder
Performance Specifications as a percentage of the total number of Lessee
Transponders; provided further that the TCN Transponder shall not be considered
for purposes of the foregoing calculation. PanAmSat shall keep Lessee reasonably
informed of the expected date of such Delivery and upon written request of
Lessee shall provide Lessee with a written copy of Acceptance Test Plan results
promptly after PanAmSat's receipt thereof from the manufacturer of the
Satellite. To the extent any Lessee Transponders are not deemed accepted and
Delivered, the amounts of the Monthly Base Lease Rate payments will be
proportionately reduced (based on the assumption that all of the Lessee
Transponders have equal value) and "Lessee Transponders" shall be deemed to be
comprised of only the Lessee Transponders that have been accepted and Delivered;
provided that the TCN Transponder shall not be considered for purposes of
calculating any such reduction.
5. Representations and Warranties
PanAmSat and Lessee each, except as expressly indicated herein,
represent and warrant to, and agree with, the other that:
5.01 Authority, No Breach. It has the corporate or other
organizational right, power and authority to enter into, and perform its
obligations under, this Agreement. The execution, delivery and performance of
this Agreement will not result in the breach or non-performance of any
agreements it has with third parties.
5.02 Corporate Action. It has taken all requisite corporate or other
organizational action necessary to approve execution, delivery and performance
of this Agreement, and this Agreement constitutes a legally valid and binding
obligation upon itself in accordance with its terms.
5.03 Consents.
(a) The fulfillment of its obligations hereunder will not
constitute a material violation of any existing applicable law, rule,
regulation or order of any governmental authority. Except as set forth
in Section 6.01, all material necessary or appropriate public or
private consents, permissions, agreements, licenses, or authorizations
to which it or any Lessee Transponder or, in the case of PanAmSat, the
Satellite may be subject have been or shall be obtained in a timely
manner; provided, however, that it shall be PanAmSat's sole
responsibility to obtain any regulatory approvals needed to enable it
to lease the Lessee Transponders as provided for in this Agreement,
other than
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the regulatory approvals described in Section 6.01(b) below, for which
the parties shall be responsible as set forth therein.
(b) Notwithstanding the final sentence of Section 5.03(a),
PanAmSat and Lessee acknowledge that the transactions set forth in this
Agreement may be challenged before the FCC or a court of competent
jurisdiction by other persons or entities not parties hereto. In such
event, PanAmSat and Lessee agree that PanAmSat shall use its best
efforts, and, at the reasonable request of PanAmSat, Lessee shall use
reasonable efforts, before the FCC, and the courts if an appeal from an
FCC order is taken, to support PanAmSat's right to lease and Lessee's
right to lease the Lessee Transponders and that they shall fully
cooperate with each other in these endeavors. Lessee alone shall have
the right to determine whether and to whom it will incur legal expenses
in connection with any proceeding arising out of its obligations under
this Section 5.03(b). If, however, by written order, the FCC or a court
of competent jurisdiction shall determine that PanAmSat may not lease
to Lessee and Lessee may not lease from PanAmSat the Lessee
Transponders on the terms and conditions set forth herein, then
PanAmSat and Lessee shall seek immediate review of such order before
the FCC or an appellate court or shall, if possible, reconstitute the
transaction to comply with such order. If an appellate court issues a
written order, which is no longer subject to further judicial rehearing
or review, upholding the determination of the FCC or a court or
competent jurisdiction that PanAmSat may not lease and Lessee may not
lease the Lessee Transponders, then PanAmSat and Lessee shall, if
possible, reconstitute the transaction as set out herein and, if they
are unable to do so, either party shall thereafter have the right to
terminate this Agreement (upon written notice to the other party) as
set forth in Section 10.05, without liability to the other, except for
obligations arising prior to the date thereof.
5.04 Litigation. There is no outstanding, or to the best of its
knowledge, threatened, judgment, pending litigation or proceeding, involving or
affecting the transactions provided for in this Agreement.
5.05 No Broker. It does not know of any broker, finder or
intermediary involved in connection with the negotiations and discussions
incident to the execution of this Agreement, or of any broker, finder or
intermediary who might be entitled to a fee or commission upon the consummation
of the transactions contemplated by this Agreement.
6. Additional Representations, Warranties and Obligations of PanAmSat
6.01 Authorization Description.
(a) PanAmSat shall file with the FCC an application, and will
promptly file any necessary amendments to such application
(collectively, the "Application"), to launch and operate the Satellite
at the 95 Degrees West Longitude orbital location and to permit the
Lessee Transponders to be used to provide fixed satellite services to
the Territory.
(b) Certain authorizations, consents, permissions, agreements,
licenses, registrations or approvals (collectively, "Authorizations")
from governmental bodies outside the
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United States have not yet been obtained and will need to be obtained
from such governmental bodies in order to: (i) authorize the Satellite
to be used to provide capacity for use in certain countries other than
the United States; and (ii) authorize the right to uplink signals to or
downlink signals from the Satellite and to provide a "Direct-To-Home
Service" (as defined in Section 6.10) using the Satellite to customers
in certain countries. PanAmSat and Lessee shall each use commercially
reasonable efforts to obtain and to assist the other in obtaining the
Authorizations as set forth in the immediately following sentence and
in a manner which minimizes legal risk, economic costs and tax exposure
to each of PanAmSat and Lessee. [***]
(c) If the FCC fails to approve the Application [***], then
this Agreement shall terminate at the election of either party (upon
written notice to the other party) and (i) PanAmSat shall have no
liability to Lessee, except for prepaid charges made by Lessee (if
any); and (ii) Lessee shall have no liability to PanAmSat, except for
previously incurred obligations.
6.02 Transponder Performance Specifications. Lessee Transponders,
upon Delivery, shall at least meet the Transponder Performance Specifications.
6.03 Right to Lease. On the Galaxy IIIC Lease Commencement Date and
subject to Section 4.01, Lessee shall be entitled to lease each of the Lessee
Transponders free from all liens, charges, claims or encumbrances (collectively,
"Encumbrances"), except: (i) Encumbrances resulting from (a) Lessee's lease of
the Lessee Transponders; (b) any actions taken by Lessee; or (c) the right and
interest of any financing entity pursuant to any transactions entered into in
connection with a sale and leaseback transaction involving the Satellite or
other financing by PanAmSat; and (ii) Encumbrances which do not have an adverse
effect on Lessee's rights hereunder. Notwithstanding the preceding sentence, for
so long as this Agreement is in full force and effect and for so long as Lessee
is not in default under this Agreement, PanAmSat shall not assign (including as
security) or otherwise grant any ownership interest in any Lessee Transponder
then being leased by Lessee pursuant to this Agreement without securing the
agreement of the party granted such an interest (the "Holder") that, (y)
provided Lessee is not in default under this Agreement, Lessee shall lawfully
and quietly hold and enjoy the benefits of this Agreement without hindrance or
molestation from PanAmSat, Holder or any person claiming through or under
PanAmSat or Holder, and (z) Holder shall not interfere with Lessee's use of any
of the Lessee Transponders in accordance with this Agreement notwithstanding any
default by PanAmSat under its agreement with Holder providing for such an
interest. [***]
6.04 Government Regulations. PanAmSat has used, and until disposition
of the Satellite pursuant to Section 17 will continue to use, its reasonable
best efforts to obtain and maintain, in all material respects, all applicable
United States federal, state and municipal and other non-governmental third
party authorizations or permissions to operate the Satellite, applicable to it
and the Satellite, and to comply, in all material respects, with all such
regulations regarding the operation of the Satellite and the Lessee Transponders
applicable to it.
6.05 Not a Common Carrier. Unless required to do so by the FCC,
PanAmSat shall not hold itself out, publicly or privately, as a provider of
common carrier communications services on
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the Satellite and is not purporting herein to provide to Lessee or to any other
party any such services with respect to Galaxy IIIC.
6.06 TT&C. Tracking, telemetry and control shall be provided by
PanAmSat. The TT&C Fee for the Satellite shall be as set forth in Section 3.01
hereof.
6.07 Outage Allowance. PanAmSat shall grant Lessee an Outage
Allowance as follows:
If an "Outage Allowance Failure Period" (as defined below) occurs, then
for each hour of such Outage Allowance Failure Period PanAmSat shall grant
Lessee a pro rata Outage Allowance based upon the monthly charge for the Lessee
Transponder experiencing the Transponder Capacity Failure, the length of the
Outage Allowance Failure Period, and a standard of 720 hours per month,
calculated pursuant to the equation below. Any such Outage Allowance shall be
applied to the next succeeding monthly billing to Lessee and shall not in any
case exceed one month's standard billing. "Outage Allowance Failure Period"
shall mean the aggregate period--only where such aggregation exceeds [***]
during any consecutive [***] period on such Lessee Transponder--during which a
Transponder Capacity Failure(s) occurs. A "Transponder Capacity Failure" shall
be deemed to occur if (i) after the Galaxy IIIC Commencement Date, a Lessee
Transponder fails to meet the applicable Transponder Performance Specifications
and (ii) PanAmSat is unable to furnish the necessary Transponder Spare as a
substitute for such Lessee Transponder pursuant to Section 9. A Transponder
Capacity Failure shall be measured from the time PanAmSat receives notice from
Lessee of a claimed Transponder Capacity Failure until the time the Lessee
Transponder has been restored to meeting the applicable Transponder Performance
Specifications, but shall not begin in any event until Lessee ceases to use such
Lessee Transponder. PanAmSat shall accept or reject such outage claim within
twenty-four (24) hours of notice from Lessee, or else such claim will be deemed
accepted.
Outage Allowance = Outage Allowance Failure (in Hours) x N
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720
where N = the Monthly Base Lease Rate then in effect divided by the
number of Lessee Transponders in operation immediately prior to
such Outage Allowance Failure Period.
In no case shall an Outage Allowance be made for any Transponder Capacity
Failure caused primarily by: (i) any failure on the part of Lessee to perform
its transmission or other material or operational obligations pursuant to this
Agreement; (ii) failure of any facilities provided by Lessee and/or its
contractors; (iii) reasonable periodic maintenance; provided, however, that
PanAmSat will inform Lessee of any proposed periodic maintenance in advance and
will use best reasonable efforts to agree upon the times at which such periodic
maintenance will be performed on the Lessee Transponders; (iv) interference from
sun outage or from third party transmissions or usage; (v) cooperative testing,
except where trouble or fault is found in the Lessee Transponder; or (vi) any
other act or failure to act by Lessee and/or its "Contractors" (as defined in
Section 20.07).
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6.08 [***]
6.09 [***]
6.10 [***]
6.11 Backup Transponders. Lessee shall have certain rights to lease
transponders on Galaxy VIII(i) ("Backup Transponders") as backup to Lessee
Transponders on the Satellite, as provided in the Galaxy VIII(i) Lease
Agreement. In the event that Lessee so leases a Backup Transponder on Galaxy
VIII(i) to replace a Failed Transponder on the Satellite, then such Failed
Transponder shall not be counted for purposes of determining whether a
termination right has arisen under Section 10.01, unless such Backup Transponder
becomes a Failed Transponder (as defined under the Galaxy VIII(i) Lease
Agreement) and cannot be replaced by another Backup Transponder.
7. Additional Representations, Warranties and Obligations of Lessee
7.01 Compliance by Customers. Lessee shall not allow any of its
customers or any other third party to utilize, directly or indirectly, any of
the Lessee Transponders in a manner that would constitute a breach of the terms
of this Agreement had such use been by Lessee on its own behalf. Without
implying any right of Lessee to permit any third party use of the Lessee
Transponders other than as expressly provided in this Agreement, Lessee shall be
responsible to PanAmSat for any third party use or transmission that is
permitted by Lessee to the same extent as it would be for Lessee's own use or
transmissions, and references in this Agreement with respect to Lessee's
responsibilities to PanAmSat regarding Lessee's use or transmissions shall be
interpreted accordingly.
7.02 Non-Interference. Lessee's radio transmissions (and those of its
uplinking agents) to the Satellite shall comply in all material respects with
all FCC and all other governmental (whether international, federal, state,
municipal, of a Territory Country (as defined in Section 7.04) or otherwise)
statutes, laws, rules, regulations, ordinances, codes, directives and orders, of
any such governmental agency, body, or court (collectively, "Laws") applicable
to it regarding the operation of the Satellite and the Lessee Transponders, and
with the operational requirements (the "Operational Requirements") set forth in
Exhibit B, as the same may be modified from time to time by PanAmSat in its
reasonable discretion. Lessee shall not utilize (or permit or allow any of its
uplinking agents to utilize) any of the Lessee Transponders in a manner that
will or may interfere with the use of any other Transponder or cause physical
harm to any Lessee Transponder, any other Transponder, or to the Satellite.
Further, Lessee will coordinate (and will require its uplinking agents to
coordinate) with PanAmSat, in accordance with procedures reasonably established
by PanAmSat and uniformly applied to all users of transponders on the Satellite,
its transmissions to the Satellite, so as to minimize adjacent channel and
adjacent satellite interference and mitigate potential or actual damage to any
Lessee Transponder, any other Transponder or the Satellite. For purposes of this
Section 7.02, interference shall also mean acts or omissions which cause a
Transponder to fail to meet its Transponder Performance Specifications. Without
limiting the
[***] Filed separately with the Commission pursuant to a request for
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generality of the foregoing, Lessee (and its uplinking agents) shall comply with
all FCC rules and regulations regarding use of automatic transmitter
identification systems (ATIS).
7.03 Laws. Lessee shall comply (and shall require its uplinking
agents to comply), in all material respects, with all Laws applicable to it
regarding the operation or use of the Satellite and the Lessee Transponders.
7.04 Terrestrial Facilities. Lessee shall be responsible for the
provision, installation, operation, maintenance of, and for securing all
necessary authorizations for all earth station facilities and equipment
("Lessee-Provided Facilities"), for transmitting signals to, or receiving
signals from, the Satellite in accordance with the requirements set forth in
this Agreement. Any provision by PanAmSat to Lessee of earth station or other
terrestrial facilities or services shall be the subject of a separate agreement.
The parties agree and acknowledge that the absence of terrestrial interference
is not part of the Transponder Performance Specifications.
7.05 Lessee's Transmitting Stations.
(a) Lessee will configure, equip and operate its transmit
facilities so that the interface of these facilities, in space, with
the Satellite shall conform to the characteristics and technical
parameters of the Satellite. Lessee will follow PanAmSat's procedures
for initiating, and terminating, and increasing or decreasing the power
levels of, any transmission to the Satellite. Lessee will operate all
transmit facilities in a manner that allows for cessation of, and will
cease, transmission immediately upon receiving notice from PanAmSat
under Section 20.03(a) ("Telephone Notices"). Lessee will furnish such
information regarding the technical parameters of its transmissions as
may be required by PanAmSat prior to commencing, during, and upon the
conclusion of any transmission to the Satellite.
(b) PanAmSat shall have the right, but not the obligation, to
inspect any Lessee-Provided Facilities together with associated
facilities and equipment used by Lessee, or by a third party under the
authority of Lessee, to transmit to any of the Lessee Transponders.
PanAmSat will use all reasonable efforts to schedule inspections to
minimize the disruption of the operation of the facilities, and Lessee
shall make the facilities available for inspection at all reasonable
times. Lessee shall, upon PanAmSat's request, provide measured proof
that any transmit facility meets or exceeds the sidelobe envelope
described in Exhibit B.
7.06 Lessee's Uplink Providers. Lessee shall be permitted to contract
with other parties to transmit its signals to, or receive its signals from the
Satellite; provided, that Lessee requires its contractors to comply with all of
the requirements of this Agreement regarding transmissions to, or reception
from, the Satellite and makes PanAmSat a third party beneficiary (or to the
extent that it may be required for enforceability, gives PanAmSat direct
privity) entitled to enforce said agreement. If Lessee retains third parties as
permitted by the previous sentence, these third parties' facilities shall be
deemed to be Lessee-Provided Facilities and the acts and omissions of these
third parties in connection with the transmission or reception of Lessee's
signals shall be deemed to be the acts and omissions of such third parties and
of Lessee.
[***] Filed separately with the Commission pursuant to a request for
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7.07 [***]
7.08 Additional Usage Representation, Warranties and Obligations.
(a) Lessee has not been convicted for the criminal violation
of, and has not been found by the FCC or other federal, state or local
governmental authority in the United States or by a Territory Country
(as defined below) with appropriate jurisdiction (a "Governmental
Authority") to have violated, any law or regulation concerning illegal
or obscene program material or the transmission thereof (the
"Obscenity/Content Laws"), and Lessee is not aware of any pending
investigation (including, without limitation, a grand jury
investigation) involving Lessee's programming related to the
Obscenity/Content Laws or any pending proceeding against Lessee for the
violation of any Obscenity/Content Laws. As used herein, "Territory
Country" shall mean any country located in the Territory.
(b) Lessee will notify PanAmSat as soon as it receives
notification of, or becomes aware of, any pending investigation by any
Governmental Authority, or any pending criminal proceeding against
Lessee, which investigation or proceeding concerns transmissions by
Lessee over the Transponders potentially in violation of any law,
including without limitation, Obscenity/Content Laws.
(c) Any use of the Lessee Transponders shall comply, in all
material respects, with all applicable laws of the United States and
each Territory Country regarding the operation or use of the Satellite
and the Lessee Transponders (including, but not limited to, any
Obscenity/Content Laws).
8. Preemptive Rights
8.01 Lessee recognizes that it may be necessary in unusual or abnormal
situations or conditions for PanAmSat deliberately to preempt or interrupt
Lessee's use of any or all of the Lessee Transponders, in order to protect the
overall performance of the Satellite. Such decisions shall be made by PanAmSat
in its sole discretion; provided, however, that, to the extent it is technically
feasible, as among the Lessee Transponders, PanAmSat shall preempt or interrupt
the use of Lessee Transponders in the order provided by Lessee in accordance
with Section 9.02. To the extent technically feasible, PanAmSat shall give
Lessee at least forty-eight (48) hours' notice of such preemption or
interruption, shall provide Lessee with information regarding the technical
circumstances and reasons for such preemption or interruption, and shall use its
reasonable best efforts to schedule and conduct its activities during periods of
such preemption or interruption so as to minimize the disruption to the use of
Lessee Transponders on such Satellite. To the extent that such preemption
results in a loss to Lessee of the use of the Lessee Transponders sufficient to
constitute a breach of PanAmSat's obligations as set forth in Section 12, Lessee
shall have all of the rights and remedies set forth in Sections 6.07, 9 and 12.
[***] Filed separately with the Commission pursuant to a request for
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8.02 If a Lessee Transponder is not meeting the applicable Transponder
Performance Specifications, but Lessee elects to continue to use (and pay for)
such Lessee Transponder, as degraded, PanAmSat may interrupt Lessee's use as
necessary to perform testing or take any other action that may be appropriate to
attempt to restore the affected Lessee Transponder to the applicable Transponder
Performance Specifications. In such event, PanAmSat shall coordinate activities
with affected users of the Satellite and shall use all reasonable efforts to
minimize the overall disruption. To the extent that any period of interruption
results in a loss to Lessee of the use of such Lessee Transponder that is
sufficient to constitute a Confirmed Failure, Lessee shall have all of the
rights regarding Outage Allowances that are set forth in Section 6.07.
8.03 Satellite Power Constraint. As the Satellite increases in age,
because of overall power constraints on the Satellite, it may be necessary to
cease operating (or interrupt operation of) one or more Transponders on the
Satellite. If such deactivation is required, to the extent consistent with
protecting the overall health and performance of the Satellite, and to the
extent technically feasible, PanAmSat will, as between the Lessee Transponders
and other Transponders on the Satellite, deactivate Transponders in reverse
order of the priority stated in Section 9.02 below. If any Lessee Transponder
will be affected, and such action can be anticipated, PanAmSat will give Lessee
at least thirty days' notice or such lesser period of notice as is practical
under the circumstances. The deactivation of a Lessee Transponder under this
Section 8.03 shall be treated as a failure of the capacity to meet the
applicable Transponder Performance Specifications.
9. Transponder Spares
9.01 Use of Transponder Spares. The Satellite contains certain
Ku-Band redundant equipment units (individually, a "Transponder Spare"), which
are designed as substitutes for equipment units the failure of which could cause
a Transponder to fail to meet the Transponder Performance Specifications.
PanAmSat, as soon as possible and to the extent technically feasible, shall
employ a Transponder Spare in the Satellite as a substitute for any Lessee
Transponder equipment unit that has caused any Lessee Transponder to suffer a
Confirmed Failure (as defined in Section 12.02) in order to enable such Lessee
Transponder to meet the Transponder Performance Specifications. To the extent
technically feasible, a Transponder Spare will be substituted for the faulty
equipment unit on a first-needed, first-served basis to satisfy PanAmSat's
obligations to Lessee and to other Owners or Users of Transponders on the
Satellite, if any, which have suffered Confirmed Failures; provided, however,
that PanAmSat's obligations to provide Transponder Spares shall continue until
such time as all of the Transponder Spares are committed to use as substitutes
for Transponders which have suffered Confirmed Failures. If PanAmSat furnishes a
Transponder Spare to Lessee as a substitute for an equipment unit that has
caused a Lessee Transponder to suffer a Confirmed Failure, then such Transponder
Spare shall become part of the Transponder which is leased to Lessee hereunder,
and Lessee, concurrently, shall no longer have any right to lease or otherwise
use the failed equipment unit. Any Lessee Transponder equipment unit which has
been returned shall be made available by PanAmSat, to the extent technically
feasible, to satisfy its obligations to any other Owners of Transponders on the
Satellite. Lessee agrees and acknowledges that the Transponder Spare redundancy
plan of the Satellite may require PanAmSat to reassign certain TWTAs among
Transponders to make use of spare equipment. In circumstances in which a
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Transponder Spare is required to be employed for any Owner and to do so requires
a change in the TWTA assigned to Lessee, Lessee shall, on notice from PanAmSat,
immediately cease transmitting to the Lessee Transponder using such TWTA to
allow such reassignment and for a different TWTA (which must meet or exceed the
applicable Transponder Performance specifications) to be assigned to such Lessee
Transponder. PanAmSat also shall have the right, until the Transponder Spares
are needed, to utilize such Transponder Spares in any manner PanAmSat
determines.
9.02 Simultaneous Failure -- Priority with Respect to the Use of
Transponder Spares. If Transponders of more than one Owner simultaneously
suffer a Confirmed Failure, then to the extent technically feasible, PanAmSat
shall allocate available Transponder Spare(s) among such Owners in PanAmSat's
sole discretion; provided that to the extent practicable and consistent with
PanAmSat's contractual obligations to provide Transponder Spares to Lessee and
to other Owners within a specified time after a Confirmed Failure, PanAmSat
shall discuss such allocation with Lessee prior to implementing such allocation.
In the event that one or more Lessee Transponders simultaneously suffer a
Confirmed Failure, then such Lessee Transponders shall have priority amongst
themselves as to the use of Transponder Spares according to the list set forth
in Exhibit C, to the extent technically feasible; provided, however, that Lessee
shall have the right at any time from time to time, by written notice to
PanAmSat, to change the priorities between and among any of the Lessee
Transponders. As used in this Section 9.02, the term "simultaneously" shall be
deemed to mean occurring within any 24-hour period.
9.03 PanAmSat's Ownership of Transponders. PanAmSat may retain or
acquire ownership of any Transponders (any Transponders so retained or acquired
by PanAmSat being referred to herein as "PanAmSat's Transponders"). In such
event, PanAmSat shall have the same right to use PanAmSat's Transponders as any
other Owner (taking into account such Owner's rights as set forth in the
relevant transponder purchase agreement, lease agreement or license agreement)
would have, including, without limitation, the right to utilize Transponder
Spares in the event PanAmSat's Transponders do not meet the Transponder
Performance Specifications. PanAmSat also shall have the right, but not the
obligation, to utilize PanAmSat's Transponders to satisfy PanAmSat's obligations
(i) to Lessee under this Agreement, or (ii) to any other Owners. PanAmSat's
priority under the provisions of this Section 9 and other sections of this
Agreement shall be determined in accordance with Section 9.02.
10. Termination Rights
10.01 Termination by Lessee. Provided that Lessee is not in default
of any of its material obligations under the Agreement, Lessee shall have the
right to terminate its obligations under this Agreement upon delivery of written
notice to PanAmSat at least thirty (30) days' prior to the effective date of
such termination, only if and when any of the following events shall have
occurred:
(a) If, prior to the last day of the Term, [***] or more of
the Lessee Transponders on Galaxy IIIC become Failed Transponders (as
defined in Section 12.01) and PanAmSat has not, within one (1) month of
such failure, restored such Failed Transponders to the applicable
Transponder Performance Specifications (including through the use of
Transponder
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Spares) or leased Backup Transponders to Lessee as replacement for such
Failed Transponders; provided that such failure does not result from a
force majeure condition (as set forth in Section 11.01, unless (i) such
force majeure condition continues for longer than one (1) month and
during such period all of such Lessee Transponders remain Failed
Transponders and (ii) such force majeure condition is not attributable
to acts or omissions of Lessee any of Lessee's contractors or "Users"
(as defined in Section 10.06) or the employees, directors or agents of
Lessee or of any of Lessee's contractors or Users); or
(b) If the Satellite is not completed and launched by [***];
or
(c) If (i) a launch failure of the Satellite occurs and (ii)
either (A) PanAmSat and Lessee do not execute a definitive lease
agreement for a Replacement Satellite within six (6) months of such
launch failure or (B) a Replacement Satellite is not constructed and
launched within twenty (20) months of execution of such definitive
lease agreement.
If Lessee terminates its obligations as to all Lessee Transponders as
set forth in this Section 10.01 (the "Terminated Transponders"), then Lessee
shall be entitled to a full refund, without interest, of all lease prepayments
made, if any, for each such Terminated Transponder, less any payments made by
PanAmSat to it on account of such Terminated Transponders pursuant to other
provisions of this Agreement, and Lessee and PanAmSat shall have no further
obligations to each other as to each such Terminated Transponder, except for (i)
obligations arising with respect to such Terminated Transponder prior to its
becoming a Failed Transponder, and (ii) Lessee's obligation to pay [***] for all
periods prior to such termination.
10.02 Termination by PanAmSat.
(a) Notwithstanding anything else set forth in this Agreement
and in addition to all other remedies PanAmSat may have, PanAmSat may
immediately terminate this Agreement if: (i) Lessee shall have failed
to pay any amount due and payable pursuant to the provisions of Section
3, and Lessee has been given written notice by PanAmSat of said failure
(and the Chief Financial Officer and General Counsel of GLA have been
given a copy of such notice) and Lessee shall have failed to pay the
amount due and payable within ten (10) business days after PanAmSat has
given such notice to Lessee; (ii) Lessee fails to cease any activity in
violation of Section 7.02, 8.01 or 10.06 upon receiving notice from
PanAmSat in accordance with Section 20.03(a); (iii) Lessee fails to
cease any other activity in violation of Lessee's obligations under
this Agreement within thirty (30) days after receiving from PanAmSat a
written notice of such violations; or (iv) PanAmSat terminates the
Galaxy VIII(i) Lease Agreement; provided that in the case of any of
(i), (ii) or (iii), GLA has not assumed and performed all of Lessee's
obligations pursuant to a GLA Assumption as set forth in Section 2.02
hereunder within the cure period specified in the applicable clause.
(b) In the event of a termination under clause (i) of Section
10.02(a), PanAmSat may accelerate and declare immediately due and
payable all remaining payments due under this Agreement through the end
of the Term. In the event of a termination under any of clauses (ii),
(iii) or (iv) of Section 10.02(a), Lessee shall continue to be
responsible for all
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remaining payments as they would otherwise have become due and payable
under this Agreement through the end of the Term but for such
termination; provided, that if Lessee fails to make payment of any such
amount such that a termination right would arise under clause (i) of
Section 10.02(a), then PanAmSat may accelerate and declare immediately
due and payable all remaining payments that would otherwise have become
due and payable under this Agreement through the end of the Term.
(c) Any late payments by Lessee to PanAmSat shall be with
interest calculated at the "Interest Rate" set forth in Section 20.01,
payable with the amount due and calculated from the date payment was
due until the date it is received by PanAmSat. PanAmSat shall have the
obligation to mitigate its damages in connection with any breach by
Lessee of this Agreement only to the extent mandated by the internal
laws of the State of California. As an indication only and not as a
limitation, PanAmSat shall not have any obligation to remarket the
Lessee Transponders prior to leasing or selling all transponders on
satellites either launched or expected to be launched by PanAmSat or
any of its affiliates.
10.03 PanAmSat's Right to Transfer. If, for any reason whatsoever,
(i) Lessee does not make the payments in the amounts and on the dates set forth
in Section 3 or any other event occurs which may give rise to a termination
right under 10.02 if uncured and (ii) if applicable, Lessee and GLA fail to cure
such default as set forth in Section 10.02, then, in addition to all of its
other remedies at law or in equity, PanAmSat shall be entitled immediately to
Transfer (as defined in Section 13) any or all of the Lessee Transponders to
whomever PanAmSat sees fit, Lessee shall not be entitled to any equitable relief
as a result thereof, and Lessee's exclusive remedy shall be limited to recovery
of any payments made to it by PanAmSat, without interest, less any claim
PanAmSat has against Lessee by reason of Lessee's default.
10.04 Prompt Repayment. All refunds provided for in this Section 10
to be made by PanAmSat shall be made within fifteen (15) business days of
receipt by PanAmSat of notice of termination by Lessee, and any late payment by
PanAmSat to Lessee shall be with interest calculated at the "Interest Rate" set
forth in Section 20.01, payable with the amount due and calculated from the date
payment was due until the date it is received by Lessee.
10.05 Termination by Lessee or PanAmSat. Notwithstanding anything
else set forth in this Agreement, either Lessee or PanAmSat may terminate its
obligations under this Agreement as to the Lessee Transponders, upon written
notice to the other party: (i) if the FCC shall have by Final Order (as defined
below), prevented PanAmSat from using the Satellite or the Transponders to
transmit to the Territory; (ii) on the Satellite Removal Date (as defined in
Section 17); or (iii) as provided under the provisions of Section 5.03. As used
herein, an order of the FCC becomes a "Final Order" when the FCC's action is no
longer subject to administrative or judicial reconsideration, rehearing, review,
stay, appeal or other similar actions which could be filed with the FCC or with
any court having jurisdiction to review said action.
[***] Filed separately with the Commission pursuant to a request for
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10.06 Right to Deny Access.
(a) If, in connection with using the Lessee Transponders,
(i) User (as defined below) is indicted or is otherwise
charged as a defendant in a criminal proceeding based upon, or
is convicted under, any Obscenity/Content Law or has been found
by any Governmental Authority to have violated any such law;
(ii) based on any User's use of the Transponders,
PanAmSat is indicted or otherwise charged as a criminal
defendant, becomes the subject of a criminal proceeding or a
governmental action seeking a fine, license revocation or other
sanctions, or any Governmental Authority seeks a cease and
desist or other similar order or filing;
(iii) the FCC has issued an order initiating a
proceeding to revoke PanAmSat's authorization to operate the
Satellite;
(iv) PanAmSat obtains a court order pursuant to Section
10.06(c) or a court or Governmental Authority of competent
jurisdiction orders PanAmSat to deny access to User or orders
User to cease transmission;
(v) PanAmSat receives written notice (the "Illegal
Programming Notice") from a Governmental Authority that such
authority considers Lessee and/or any other User's programming
to be in violation of Obscenity/Content Laws (the "Illegal
Programming"), and that if PanAmSat does not cease transmitting
such Illegal Programming, then PanAmSat and/or its affiliates
and/or any of their executives will be indicted or otherwise
charged as a criminal defendant, will become the subject of a
criminal proceeding or a governmental action seeking a fine,
license revocation or other sanctions, or that such Governmental
Authority will seek a cease and desist or other similar order or
filing (with PanAmSat being obligated, to the extent permitted
by law, to provide Lessee with a copy of such Illegal
Programming Notice);
(vi) PanAmSat has the right to terminate this Agreement
pursuant to Section 10.02 (provided that any notice that would
be required for termination under Section 10.02 shall also be
given for any such denial of access); or
(vii) Lessee's signal(s) is being "jammed" by a third
party (governmental or otherwise) and such jamming is
interfering with the use or threatens the health of the
Satellite; provided that PanAmSat shall, in cooperation with
Lessee, use its reasonable efforts through available legal means
to cause such jamming to be stopped as soon as possible;
provided further that the foregoing shall not require either
Lessee or PanAmSat to institute legal proceedings against any
third party;
[***] Filed separately with the Commission pursuant to a request for
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then, upon notice from PanAmSat to Lessee (the "Denial of Access
Notice"), User shall cease using the Lessee Transponders
immediately, in the case of a denial of access pursuant to
subparagraphs (i), (ii), (iii), (iv), (vi) or (vii) above, or
within 24 hours following receipt of such notice, in the case of
a denial of access pursuant to subparagraph (v), above; and if
User does not voluntarily cease using such capacity at the
appropriate time, then PanAmSat shall have the right to take
such steps as PanAmSat deems necessary to prevent User from
accessing the Lessee Transponders. Provided, however, that in
the case of an Illegal Programming Notice, if User has more than
one programming service, then the denial of access by PanAmSat
shall apply only to the Transponders used to provide the Illegal
Programming service, as best as can be determined by PanAmSat;
and provided further, however, that if, upon receipt of the
Denial of Access Notice from PanAmSat, User does not immediately
cease transmission of the alleged Illegal Programming service,
then PanAmSat shall have the right to take such steps as
PanAmSat deems necessary to prevent User from accessing the
Transponders used to transmit such Illegal Programming service
(and if, thereafter, Lessee transmits such Illegal Programming
service using any of the Lessee Transponders, then PanAmSat
shall have the immediate right, without further notification, to
take such steps as PanAmSat deems necessary to prevent Lessee
from accessing any Lessee Transponder). As used herein, "User"
shall mean Lessee and any person to whom Lessee Transfers all or
part of its right to use any of the Lessee Transponders,
including without limitation, a lessee, licensee or assignee.
Lessee agrees to maintain a properly operating facsimile machine
at all times to receive the Denial of Access Notice from
PanAmSat.
(b) If PanAmSat denies, or has given Lessee notice of its
intent to deny, access to the Lessee Transponders pursuant to the
provisions of this Section 10.06, and if Lessee does not believe the
conditions set forth in this Agreement to PanAmSat's denial of access
have been met, then Lessee shall have the immediate right to seek
injunctive relief, including a temporary restraining order on notice of
four (4) hours or more to PanAmSat, to prevent the denial or continuing
denial of such access by PanAmSat.
(c) PanAmSat shall also have the right to seek: (i) injunctive
relief, including a temporary restraining order on notice of four (4)
hours or more to Lessee, to prevent, suspend or otherwise limit User's
continued access to the Lessee Transponders where PanAmSat believes
such use has resulted or will result in a violation of any
Obscenity/Content Law; or (ii) declaratory relief to establish its
right to deny User's access to Lessee Transponders under this
Agreement.
(d) Either party shall be entitled to oppose the other's
attempt to obtain equitable relief. However, in order to enable either
party to obtain a resolution of any such dispute as expeditiously as
possible, both parties hereby agree that: (i) neither party will
contest the jurisdiction of, or the venue of, any action for equitable
relief brought by the other party in the following courts: the U.S.
District Court for the Southern District of New York and the U.S.
District Court for the Central District of California; (ii) the party
opposing equitable
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relief (the "Opposing Party") will make itself available to accept
service by telecopy or personal delivery on a 24 hour-a-day basis for
five (5) consecutive days following receipt by the Opposing Party of
the other party's notice of its intent to seek such equitable relief;
and (iii) if either party seeks a temporary restraining order and
provides notice to the Opposing Party at least four (4) hours before
the scheduled court hearing, then the Opposing Party will not challenge
the timeliness of such notice.
(e) If it is determined by final judicial order that PanAmSat
prevented Lessee from accessing any or all of the Lessee Transponders
at a time when it did not have the right to do so pursuant to this
Section 10.06, then Lessee's sole and exclusive remedy shall be
PanAmSat's payment to Lessee of liquidated damages equal to [***] for
the terminated capacity, such pro-ration to be based on the period of
time of loss of use of such capacity and the amount of capacity
affected. Except as provided in the immediately preceding sentence, a
denial of access made by PanAmSat under this Section 10.06 shall not
result in any Outage Allowance, refund or other damages to Lessee, and
all Monthly Base Lease Rate and TT&C Fee payments shall continue to be
due and payable.
(f) All remedies of PanAmSat set forth in this Section 10.06
shall be cumulative and in addition to, and not in lieu of, any other
remedies available to PanAmSat at law, in equity or otherwise, and may
be enforced by PanAmSat concurrently or from time to time.
(g) In addition to any other indemnification obligations found
elsewhere in this Agreement, Lessee shall indemnify and save PanAmSat,
its directors, officers, employees, and its affiliates from any
liability or expense arising out of or related to User's use of the
Lessee Transponders in violation (or alleged violation) of this Section
10.06. Lessee shall pay all expenses (including reasonable attorneys'
fees) incurred by PanAmSat in connection with all legal or other formal
or informal proceedings, instituted by any private third party or any
Governmental Authority, and arising out of or related to User's use of
the Lessee Transponders under this Section 10.06, and Lessee shall
satisfy all judgments, fines, penalties, costs, or other awards which
may be incurred by or rendered against PanAmSat as a result thereof, as
and to the extent permitted by law.
11. Force Majeure
11.01 Failure of Performance. Any failure in the performance of the
Transponders, once provided, shall not be a breach of this Agreement if such
failure results from acts of God, governmental action or Law (whether in its
sovereign or contractual capacity) or any other circumstances reasonably beyond
the control of PanAmSat, including, but not limited to, earth station sun
outage, weather, or acts or omissions of Lessee or any third parties (excluding
Hughes Space and Communications Company ("HSC") and all of its direct and
indirect subsidiaries, and any other affiliates of PanAmSat or HSC with whom
PanAmSat or HSC contracts for any components of the Satellite or any services
with respect thereto). Nothing in this Section 11.01 shall excuse (i) PanAmSat's
obligations to provide Transponder Spares, to the extent available and
technically feasible, to satisfy its obligations as set forth in Section 9 or
(ii) PanAmSat's obligations
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under Section 6.08 and 6.09.
12. Limitation of Liability/Breach of Warranty
12.01 Liability of PanAmSat. If (i) after the Galaxy IIIC Lease
Commencement Date, a Lessee Transponder fails to meet the Transponder
Performance Specifications prior to the last day of the Term, (ii) such failure
is deemed to be a "Confirmed Failure" (as defined in Section 12.02), and (iii)
PanAmSat is unable to furnish the necessary Transponder Spare as a substitute
for such Lessee Transponder pursuant to Section 9, then such Transponder shall
be deemed to be a "Failed Transponder." In the event that any such failure of a
Lessee Transponder is excused by an event set forth in Section 11.01, Lessee
shall be entitled to cease making a pro rata portion of the Monthly Base Lease
Rate payments as to such Lessee Transponder for so long as the event set forth
in Section 11.01 continues.
12.02 Confirmed Failure. A Lessee Transponder shall be deemed to have
suffered a "Confirmed Failure" if (a) it fails to meet the Transponder
Performance Specifications for a cumulative period of more than [***] during any
consecutive [***] period, (b) [***] or more "outage units" (as defined below)
occur within a consecutive [***] period, or (c) it fails to meet the Transponder
Performance Specifications for any period of time under circumstances that make
it clearly ascertainable or predictable, by technical analysis, that the failure
set forth in either (a) or (b) of this Section 12.02 will occur. An "outage
unit" shall mean the failure of the Lessee Transponders to meet the Transponder
Performance Specifications for a [***] period in one day (with each such [***]
period in the same day constituting a separate outage unit). As used herein, the
term "day" shall mean a 24-hour period of time commencing on 12:00 Midnight
Eastern Time. Lessee shall give PanAmSat immediate notification of any such
failure, as soon after commencement of any such failure as is reasonably
possible, and of the relevant facts concerning such failure. Upon PanAmSat's
verification that a Lessee Transponder has suffered a Confirmed Failure, such
failure shall be deemed to have commenced upon receipt by PanAmSat of
notification from Lessee, or PanAmSat's actual knowledge, whichever first
occurs, of the Confirmed Failure. If PanAmSat has actual knowledge that a Lessee
Transponder has suffered a failure which is clearly ascertainable or
predictable, by technical analysis, that such failure will become a Confirmed
Failure with the passage of time, then PanAmSat shall so notify Lessee and such
Lessee Transponder shall be deemed to have suffered a Confirmed Failure upon
such notification. All determinations as to Confirmed Failures and Outage
Allowances shall be made on an individual Transponder by Transponder basis;
provided that no failure of the TCN Transponder shall result in any Outage
Allowance or adjustment of the Monthly Base Lease Rate or be counted as a
"Failed Transponder" for purposes of Sections 10.01, 12.01 or 12.03.
12.03 Repayment for Failed Transponder. For each Lessee Transponder
that has become a Failed Transponder, for which Lessee is entitled to cease
making Monthly Base Lease Rate payments, and for which Lessee has ceased making
Monthly Base Lease Rate payments, Lessee shall be entitled to a refund equal to
the product of (i) a fraction, the numerator of which is the number of days from
the date such Lessee Transponder became a Failed Transponder until the end of
the calendar month in which such failure occurred and the denominator of which
is the total
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number of days in the calendar month in which such failure occurred, multiplied
by (ii) the applicable Monthly Base Lease Rate actually paid by Lessee for such
Transponders for the calendar month in which such failure occurred. PanAmSat may
offset against any refund due to Lessee pursuant to this Section 12.03 any
amounts due from Lessee to PanAmSat under this Agreement [***] and any Outage
Allowance already paid to Lessee for any period from and after the date such
Lessee Transponder became a Failed Transponder. In addition, if the performance
of a Lessee Transponder is such that, while it fails to meet the Transponder
Performance Specifications, its performance is nonetheless of some value to
Lessee, then prior to accepting repayment calculated as aforesaid, Lessee shall
have the right to negotiate with PanAmSat to determine if there is a mutually
agreeable reduced lease rate upon which Lessee is willing to continue leasing
such Transponder.
12.04 Limitation of Liability.
(a) ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PURPOSE OR USE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED EXCEPT TO THE
EXTENT SPECIFICALLY AND EXPRESSLY PROVIDED FOR IN SECTION 6.02. IT IS
EXPRESSLY AGREED THAT PANAMSAT'S SOLE OBLIGATIONS AND LIABILITIES
RESULTING FROM A BREACH OF THIS AGREEMENT, AND LESSEE'S EXCLUSIVE
REMEDIES FOR ANY CAUSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
LIABILITY ARISING FROM NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY, ARE LIMITED TO
THOSE SET FORTH IN SECTIONS 9, 10 AND 12, HEREOF, AND ALL OTHER
REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED, INCLUDING, WITHOUT
LIMITATION, ALL RIGHTS AND REMEDIES OF LESSEE UNDER DIVISION 10,
CHAPTER 5, ARTICLE 2 AND SECTIONS 10209, 10406 AND 10504 OF THE
CALIFORNIA UNIFORM COMMERCIAL CODE.
(b) IN NO EVENT SHALL PANAMSAT BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS),
WHETHER FORESEEABLE OR NOT, OCCASIONED BY ANY DEFECT IN THE
TRANSPONDERS, DELAY IN DELIVERY OR PROVISION OF THE TRANSPONDERS,
FAILURE OF THE TRANSPONDERS TO PERFORM OR ANY OTHER CAUSE WHATSOEVER.
PANAMSAT MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO ANY OTHER PERSON OR
ENTITY CONCERNING THE TRANSPONDERS OR THE SATELLITES AND LESSEE SHALL
DEFEND AND INDEMNIFY PANAMSAT FROM ANY CLAIMS MADE UNDER ANY WARRANTY
OR REPRESENTATION BY LESSEE TO ANY THIRD PARTY. THE LIMITATIONS OF
LIABILITY SET FORTH HEREIN SHALL ALSO APPLY TO THE HUGHES SPACE AND
COMMUNICATIONS COMPANY (THE MANUFACTURER OF THE SATELLITE AND
TRANSPONDERS) AND ALL AFFILIATES THEREOF. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, LESSEE ACKNOWLEDGES AND AGREES THAT IT
SHALL HAVE NO RIGHT OF RECOVERY FOR THE
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SATISFACTION OF ANY CAUSE WHATSOEVER, ARISING OUT OF OR RELATING TO
THIS AGREEMENT, AGAINST (A) ANY PARENT COMPANY OF PANAMSAT OR COMMONLY
CONTROLLED ENTITIES, INCLUDING, WITHOUT LIMITATION, HUGHES ELECTRONICS
CORPORATION (COLLECTIVELY, "PANAMSAT COMPANIES"), (B) ANY SUPPLIER OF
SERVICES OR EQUIPMENT TO PANAMSAT IN CONNECTION WITH THE CONSTRUCTION,
LAUNCH, OPERATION, MAINTENANCE, TRACKING, TELEMETRY AND CONTROL OF THE
SATELLITE OR THE LESSEE TRANSPONDERS, OR THE PROVISION OF THE LESSEE
TRANSPONDERS TO LESSEE IN ANY CIRCUMSTANCES IN WHICH PANAMSAT WOULD BE
OBLIGATED TO INDEMNIFY THE SUPPLIER, OR (C) ANY OFFICER, DIRECTOR,
EMPLOYEE, AGENT, PARTNER OR SHAREHOLDER OF PANAMSAT OR ANY PANAMSAT
COMPANY.
(c) Lessee shall indemnify and save the "PanAmSat Group"
(defined herein to mean PanAmSat, the PanAmSat Companies and all
officers, employees, agents, partners and shareholders of PanAmSat
and/or the PanAmSat Companies) harmless from all liability disclaimed
by PanAmSat, as specified in Sections 12.04(a) and (b) above, to the
extent such liability arises in connection with the Services provided
pursuant to this Agreement, including, without limitation, Lessee's
violation or alleged violation of any Laws (including, without
limitation, any Obscenity/Content Laws). Lessee shall pay all expenses
(including attorneys' fees) incurred by the PanAmSat Group (whether
individually or jointly) in connection with all legal or other formal
or informal proceedings concerning claims of third parties described in
the preceding sentence, and Lessee shall satisfy all judgments, costs,
or other awards which may be incurred by or rendered against the
PanAmSat Group (whether individually or jointly) in such proceeding.
Lessee shall have the right to defend any legal or other formal or
informal proceedings concerning claims of third parties; provided,
however, that Lessee shall conduct such defense with legal counsel
reasonably satisfactory to PanAmSat. Lessee shall pay any settlement of
any such claim or legal or other formal or informal proceeding, but
Lessee shall not agree to any settlement of any third party claim
without first giving thirty (30) days prior written notice of the terms
and conditions of such settlement to PanAmSat and obtaining PanAmSat's
written consent to such settlement, which consent shall not be
unreasonably withheld or delayed.
(d) Notwithstanding the limitations of the second sentence of
Section 12.04(a), Lessee and PanAmSat each shall have the right to
obtain injunctive relief, if necessary, in order to prevent the other
party from willfully breaching its obligations under this Agreement or
to compel the other party to perform its obligations under this
Agreement. In this regard, both parties acknowledge and agree that the
Lessee Transponders to be provided hereunder are unique and not readily
available on the open market and that, if the Lessee Transponders are
not available to Lessee because the terms of the Agreement are not
fulfilled through no fault of Lessee and for reasons attributable to a
breach of this Agreement by PanAmSat, then Lessee's remedies at law
would not be adequate. The parties further acknowledge and agree that
if Lessee breaches the terms of this Agreement, then
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PanAmSat's remedies at law would not be adequate.
(e) [***]
12.05 Obligations of Lessee to Cooperate. If any of the Lessee
Transponders fail to meet the Transponder Performance Specifications, then
Lessee shall use reasonable efforts to cooperate and aid PanAmSat in curing such
failure; provided that such efforts can be done at minimal or no cost to Lessee,
unless reimbursed by PanAmSat.
(a) These obligations of Lessee shall include, but not be
limited to, the following:
(i) If there is a problem which can be compensated for
by increasing the power of its transmission to the Lessee
Transponders, then Lessee shall do so, at PanAmSat's cost and
expense, to the extent it can with existing equipment; provided,
however, that PanAmSat shall not be able to require Lessee to
increase the power of its transmission if, by doing so, it would
cause interference with other Transponders on the Satellite
which is prohibited by Section 7.02 of this Agreement, or
interference with any other satellite; and
(ii) Permitting PanAmSat, at PanAmSat's cost and
expense, to upgrade Lessee's equipment; provided that Lessee
shall be entitled to select and install such equipment and
determine its configuration in accordance with its own existing
operating procedures and technical requirements, and in
accordance with applicable laws and regulations.
(b) PanAmSat shall give notice to Lessee if and when it
requires the increase of power of the transmission of any other Owner
pursuant to such Owner's obligation equivalent to this Section 12.05.
PanAmSat shall also give notice to Lessee when it acquires knowledge of
any other Transponder user uplinking at power levels which might cause
interference with the Lessee Transponders. If, after such increase in
power, any of the Lessee Transponders no longer meet its Transponder
Performance Specifications, PanAmSat shall promptly take steps to
reduce interference, if any, prohibited by Section 7.02.
(c) Lessee's priority for the use of Transponder Spares under
Section 9 shall be determined at the time that any of the Lessee
Transponders would otherwise have become a Failed Transponder without
Lessee's cooperation under this Section 12.05. Regardless of Lessee's
cooperation under this Section 12.05, Lessee shall have the right to
exercise its right to the use of a Transponder Spare to which it would
have been entitled at the time that such Lessee Transponder was
initially determined to have failed had Lessee not taken such action.
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13. Limitations on Transfer by Lessee
Except as specifically provided for in this Agreement, neither Lessee
nor PanAmSat shall assign or otherwise Transfer (as defined below) its rights
under this Agreement except with the written consent of the other, which consent
may be given or withheld in such party's sole and absolute discretion, except
that PanAmSat shall have the right to assign any or all of its rights or
obligations hereunder to any affiliate of PanAmSat or its parent corporation,
Hughes Electronics Corporation; provided, however, that the affiliate to which
the PanAmSat's obligations are assigned shall have the technical capability to
perform such obligations. Nothing herein shall preclude PanAmSat or its
affiliates from engaging in a transaction with respect to the Satellite commonly
referred to as a "sale-leaseback" or from granting to other parties security
interests in the Lessee Transponders or the Satellite provided that commercially
reasonable steps are taken to protect the interests of Lessee hereunder as
provided in section 6.03. Lessee shall not be permitted to Transfer any of its
rights under this Agreement to the Lessee Transponders to any third party except
as otherwise specified in this Agreement or with the written consent of
PanAmSat, which consent may be given or withheld in PanAmSat's sole and absolute
discretion; provided, however, that Lessee shall have the right to assign its
rights hereunder to GLA (or its successor in interest conducting the
direct-to-home business currently conducted by GLA) without PanAmSat's consent
provided that GLA agrees to be bound by this Agreement as if the original Lessee
hereunder. "Transfer" shall mean to grant, sell, assign, encumber, permit the
utilization of, license, lease, sublease or otherwise convey, directly or
indirectly, in whole or in part.
14. Utilization of Transponders for Services
PanAmSat acknowledges that Lessee may utilize the Lessee Transponders
to provide services to third parties, including, without limitation, GLA.
PanAmSat further acknowledges that as long as such utilization does not conflict
with any of the other provisions of this Agreement, such utilization shall not
constitute a Transfer.
15. Monthly Satellite Reports
15.01 Reports. Lessee shall receive monthly reports on the overall
performance of Galaxy IIIC in the form of the Galaxy satellite status reports
similar to the Galaxy VIII(i) satellite services monthly report, plus
information furnished to insurers.
15.02 Anomalous Operation Notification. PanAmSat shall notify Lessee
as soon as possible by telephone, with prompt written confirmation thereafter,
of any significant anomalous condition which it has detected in the Lessee
Transponders or associated Satellite supporting subsystems and which have a
material effect or potential material effect on the Satellite. PanAmSat shall
also notify Lessee promptly of any circumstances that make it clearly
ascertainable or predictable that any of the incidents described in this Section
15.02 will occur.
15.03 Maneuver Notification. To the extent operationally feasible,
PanAmSat shall notify Lessee of all Satellite maneuvers, except for routine
station-keeping and momentum dumping, at
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least three (3) days in advance of their scheduled initiation and, if such
maneuver will result in a change of the Satellite's assigned orbital position,
promptly following PanAmSat's receipt of FCC authorization or direction of such
maneuver.
16. Confidentiality and Press Releases
16.01 Confidential Information. PanAmSat and Lessee shall hold in
confidence this Agreement and all its Exhibits, including the financial terms
and provisions hereof, and all information received pursuant to this Agreement,
including, without limitation, Section 15, and all other information related to
this Agreement not otherwise known to the public (collectively, "Confidential
Information"), and PanAmSat and Lessee hereby acknowledge and agree that the
Confidential Information is confidential and proprietary and is not to be
disclosed to third persons without the prior written consent of both PanAmSat
and Lessee. Neither PanAmSat, nor Lessee, shall disclose such Confidential
Information to any third party (other than to officers, directors, employees and
agents of PanAmSat, Lessee or GLA, each of whom shall be bound by this Section
16.01) except:
(a) to the extent necessary to comply with applicable law or
the valid order of a governmental agency or court of competent
jurisdiction, or to satisfy its obligations to other Owners of
Transponders; provided, however, that the party making such disclosure
shall seek confidential treatment of said information;
(b) as part of its normal reporting or review procedure to
regulatory agencies, its parent company, its auditors and its
attorneys; provided, that the party making such disclosure to any such
regulatory agency shall seek confidential treatment of such
information; and, provided, further, that any other third party to whom
disclosure is made agrees to the confidential treatment of such
information;
(c) in order to enforce its rights and perform its obligations
pursuant to this Agreement;
(d) to the extent necessary to obtain appropriate insurance,
to its insurance agents; provided that such agents agree to the
confidential treatment of such information; and
(e) to the extent necessary to negotiate clauses that will be
common to all transponder lease agreements.
16.02 Notice Proceeding; Compelled Disclosure. In the event that
either party is requested (the "Disclosing Party") pursuant to, or becomes
compelled by, applicable law, regulation or legal process to disclose any
Confidential Information, the Disclosing Party will provide the other party with
prompt written notice so that the other party may seek a protective order or
other appropriate remedy or, in the other party's sole discretion, waive
compliance with the terms of this Agreement. In the event that no such
protective order or other remedy is obtained, or that the other party waives
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compliance with the terms of this Agreement, the Disclosing Party will furnish
only that portion of the Confidential Information which the Disclosing Party is
advised by counsel is legally required and cooperate, at the other party's sole
cost and expense, with the other party's efforts to obtain reliable assurance
that confidential treatment will be accorded the Confidential Information.
16.03 Press Releases. The parties agree that no press release
relating to the terms and conditions of this Agreement shall be issued without
the approval of both parties.
16.04 Compliance with U.S. Export Laws. The parties agree and
acknowledge that, notwithstanding anything herein to the contrary: (a)
PanAmSat's disclosure of information to Lessee, GLA or any other third party
required pursuant to this Agreement (including, without limitation, Sections
1.04, 4.02, 15.01, 15.02 and 15.03) shall be subject to compliance with the Laws
of the United States regarding export restrictions ("U.S. Export Laws"), and
that such U.S. Export Laws may prohibit, limit or delay PanAmSat's ability to
disclose information as otherwise required under this Agreement; and (b) to the
extent that any information disclosed by PanAmSat to Lessee under the Agreement
is subject to U.S. Export Laws (including, without limitation, the International
Traffic in Arms Regulations, 22 CFR ss.ss.120-130 ("ITAR")), Lessee shall handle
such information in compliance with the applicable U.S. Export Laws and shall
not disclose, transfer or otherwise export (as defined in ITAR ss. 120.17) such
information to any foreign individual (including employees of Lessee), foreign
corporation (including subsidiaries or affiliates of Lessee), foreign government
or other foreign person (as defined in ITAR ss. 120.16) without the prior
written authorization of the U.S. government. This Section 16.04 shall survive
the termination of this Agreement for any reason.
17. Disposition of Satellite
At the earlier of the time as (i) the remaining fuel on board Galaxy
IIIC is less than [***] of its initial mass prior to launch, including
uncertainty in estimate of fuel, as determined by PanAmSat in its sole
discretion; (ii) there are fewer than [***] Transponders that constitute either
the C-band or the Ku-band payload of the Satellite that are capable of meeting
their respective Transponder Performance Specifications; or (iii) [***]
PanAmSat, in its sole discretion, may remove the Satellite from its assigned
orbital location. In such event, this Agreement shall terminate, PanAmSat shall
have no further obligations to Lessee under this Agreement, and the Lessee
Transponders shall be deemed, without any further action by any party, to be
redelivered to PanAmSat and PanAmSat shall be entitled to immediate possession
thereof and PanAmSat, in its sole discretion, may remove the Satellite from its
assigned orbital location. PanAmSat shall thereafter have the right to utilize
such redelivered Transponders in any manner it determines. PanAmSat will, to the
extent practicable, provide Lessee with ninety (90) days notice prior to the
disposition of Galaxy IIIC pursuant to this Section 17. Notwithstanding the
foregoing, until PanAmSat so removes Galaxy IIIC or this Agreement is terminated
or expires in accordance with its provisions, PanAmSat shall continue to make
available to Lessee the Lessee Transponders and Transponder Spares (subject to
the priority provisions contained herein) the use of Transponders and
Transponder Spares on the Satellite on operational and payment terms no less
favorable than PanAmSat has offered to other lessees at such time. The
"Satellite Removal Date" shall mean the
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date on which PanAmSat removes the Satellite from its assigned orbital location
in accordance with this Section 17.
18. Documents
Each party hereto agrees to execute and, if necessary, to file with the
appropriate governmental entities, such documents as the other party hereto
shall reasonably request in order to carry out the purpose of this Agreement.
19. Conflicts
In the case of a conflict between the provisions of this Agreement and
any Exhibit, the provisions of this Agreement will prevail.
20. Miscellaneous
20.01 Interest. The rate of interest referred to herein (the
"Interest Rate") shall be equal to the lower of (i) the rate per annum equal to
[***] or (ii) the highest legally permissible rate of interest. All interest or
discounting shall be compounded on a yearly basis. "Pro rata" shall mean an
allocation on a straight line basis based on number of days. All present value
analyses shall use an annual discount rate equal to the Interest Rate on the
applicable date.
20.02 Applicable Law and Entire Agreement. The existence, validity,
construction, operation and effect of this Agreement and the Exhibits hereto,
shall be determined in accordance with and be governed by the laws of the State
of California, without reference to the conflicts of laws principles thereof.
This Agreement and the Exhibits hereto constitutes the entire agreement between
the parties, and supersedes all previous understandings, commitments or
representations concerning the subject matter hereof. The parties each
acknowledge that the other party has not made any representations other than
those which are contained herein.
20.03 Notices.
(a) Telephone Notices. For the purpose of receiving notices
from PanAmSat regarding preemption, interference or other technical problems,
including with respect to Transponder failure and restoration, Lessee shall
maintain at each earth station transmitting signals to the Satellite a telephone
that is continuously staffed at all times during which Lessee is transmitting
signals to the Satellite and an automatic facsimile machine in operation and
capable of receiving messages from PanAmSat at all times. THOSE PERSONS STAFFING
THE EARTH STATION, FOR THE PURPOSES OF RECEIVING SUCH MESSAGES FROM PANAMSAT,
MUST HAVE THE TECHNICAL CAPABILITY AND ABSOLUTE AUTHORITY IMMEDIATELY TO
TERMINATE OR MODIFY THE TRANSMISSION IF NOTIFIED BY PANAMSAT. PanAmSat shall
also maintain a telephone that is continuously staffed for the purposes of
receiving notices regarding the matters identified above. All such notices shall
be made in English and shall be effective upon the placement of a telephone call
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from one party to the other. Each party shall promptly confirm all telephone
notices that may be given under this Agreement in writing in accordance with
Section 20.03(b) below.
(b) General Notices. All notices and other communications from
either party to the other hereunder (or copies of any such notices or other
communications to be delivered to GLA, the delivery of which (or failure to
deliver) shall not affect, in any manner, notice by or to either of the parties
hereto) shall be in writing and shall be deemed received upon actual receipt
when personally delivered, upon acknowledgement of receipt (electronically or
otherwise) if sent by facsimile or upon the expiration of the third business day
after being deposited in the United States mails, postage prepaid, certified or
registered mail, addressed to the other party as follows:
TO PanAmSat:
If by mail: PanAmSat Corporation
One Pickwick Plaza
Greenwich, Connecticut 06830
Attention: General Counsel
If by FAX: PanAmSat Corporation
Attention: General Counsel
(203) 861-8683
If by personal
delivery to its
principal place
of business at: PanAmSat Corporation
One Pickwick Plaza
Greenwich, Connecticut 06830
Attention: General Counsel
TO LESSEE:
If by mail: California Broadcast Center, LLC
c/o DIRECTV International, Inc.
2230 E. Imperial Hwy.
Bldg R8, M/S N340
El Segundo, California 90245
Attention: General Counsel
If by FAX: California Broadcast Center, LLC
c/o DIRECTV International, Inc.
Attention: General Counsel
(310) 535-5220
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If by personal
delivery to its
principal place
of business at: California Broadcast Center, LLC
c/o DIRECTV International, Inc.
2230 E. Imperial Hwy.
Bldg. R8, M/S N340
El Segundo, California 90245
Attention: General Counsel
TO GLA:
If by mail: Galaxy Latin America, LLC
2400 East Commercial Blvd.
Ft. Lauderdale, Florida 33308
Attn: James G. Naro, Esq.
If by FAX: Galaxy Latin America, LLC
Attn: James G. Naro, Esq.
Fax: (954) 958-3307
If by personal
delivery to: Galaxy Latin America, LLC
2400 East Commercial Blvd.
Ft. Lauderdale, Florida 33308
Attn: James G. Naro, Esq.
All payments to be made under this Agreement, if made by mail, shall be
deemed to have been made on the date of receipt thereof. The parties hereto may
change their addresses by giving notice thereof in conformity with this Section
20.03.
20.04 Severability. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to law, and
wherever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, order or regulation, such statute, law, ordinance,
order or regulation shall prevail; provided, however, that in such event the
provisions of this Agreement so affected shall be curtailed and limited only to
the extent necessary to permit compliance with the minimum legal requirement,
and no other provisions of this Agreement shall be affected thereby and all such
other provisions shall continue in full force and effect.
20.05 Taxes. If any property, sales or other taxes, charges
(including universal service fund contribution charges, if any), levies, duties,
withholding, usage or other fees (collectively, "Taxes") are asserted against
PanAmSat after, or as a result of, Delivery, by any local, state, national or
international, public or quasi-public governmental entity, in respect of the
Lessee Transponders or the lease thereof to Lessee, Lessee shall be solely
responsible for such Taxes. At
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Lessee's expense, PanAmSat shall cooperate with Lessee in contesting in good
faith any such Taxes. If any Taxes are asserted by reason of the use of the
point in space or the frequency spectrum at that point in space in which the
Satellite containing the Lessee Transponders are located, or the use or
ownership of such Satellite (excluding any FCC license fee imposed on the
Satellite itself, as compared to the Transponders, which license fee shall be
paid by PanAmSat), and such Taxes are not specifically allocated among the
various components of such Satellite, then PanAmSat, Lessee and any other Owners
of such transponders shall each pay a proportionate amount of such Taxes based
on the number of transponders each of them owns or leases.
20.06 Successors. Subject to Section 13, this Agreement shall be
binding on and shall inure to the benefit of any successors and assigns of the
parties; provided that no Transfer of this Agreement shall relieve either party
hereto of its obligations to the other party. Any purported Transfer by either
party not in compliance with the provisions of this Agreement shall be null and
void and of no force and effect.
20.07 Rules of Construction. Any ambiguities shall be resolved
without reference to which party may have drafted this Agreement. All Article or
Section titles or captions contained in this Agreement are for convenience only,
and they shall not be deemed part of this Agreement and in no way define, limit,
extend or describe the scope or limit of any provisions hereof. Unless the
context otherwise requires: (i) a term has the meaning assigned to it; (ii) "or"
is not exclusive; (iii) words in the singular include the plural, and words in
the plural include the singular; (iv) provisions apply to successive events and
transactions; (v) "herein," "hereof" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision; (vi) all references to "Sections" refer to Sections of this
Agreement unless otherwise specifically indicated; and (vii) any pronoun used in
this Agreement shall include the corresponding masculine, feminine and neuter
forms. References to "Contractors" of Lessee shall be deemed to include GLA as
well as local operators and other third parties under contract to GLA, CBC or
such local operators.
20.08 Survival of Representations and Warranties. All representations
and warranties contained herein or made by PanAmSat or Lessee in connection
herewith shall survive any independent investigation made by PanAmSat or Lessee.
20.09 No Third-Party Beneficiaries. The provisions of this Agreement
are for the benefit only of the parties hereto, and no third party may seek to
enforce, or benefit from, these provisions, except that both parties acknowledge
and agree that the provisions of Sections 7.02, 8, 9.01 and 9.02 are intended
for the benefit of both PanAmSat and all other Owners. Both parties agree that
any other such Owner shall have the right to enforce, as a third-party
beneficiary, the provisions of Sections 7.02, 8, 9.01 and 9.02, against Lessee
directly, in an action brought solely by such other Owner, or may join with
PanAmSat or any other Owner, in bringing an action against Lessee for violation
of such Sections. [***] In addition, if (i) PanAmSat ceases to provide to Lessee
use of the Lessee Transponders in breach of the terms of this Agreement, (ii)
Lessee is not in breach of its obligations under this Agreement and (iii) Lessee
has refused to take any action to attempt to restore its use of the Lessee
Transponders, then [***]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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<PAGE>
20.10 Non-Waiver of Breach. Either party hereto may specifically
waive any breach of this Agreement by the other party, provided that no such
waiver shall be binding or effective unless in writing and no such waiver shall
constitute a continuing waiver of similar or other breaches. A waiving party, at
any time, and upon notice given in writing to the breaching party, may direct
future compliance with the waived term or terms of this Agreement, in which
event the breaching party shall comply as directed from such time forward.
20.11 Amendments. This Agreement may not be amended or modified in
any way, and none of its provisions may be waived, except by a writing signed by
an authorized officer of the party against whom the amendment, modification or
waiver is sought to been enforced.
20.12 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one and the same instrument.
(signature page follows)
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-30
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement as of the day and year first written above.
PANAMSAT CORPORATION
By:
------------------------------------
Name:
Title:
CALIFORNIA BROADCAST CENTER, LLC
By: DTVI One, Inc., its Managing Member
By:
------------------------------------
Name:
Title:
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
C-31
