(46096)
TRANSPONDER CAPACITY AGREEMENT
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This Transponder Capacity Agreement (" Agreement" is
made and entered into this 23 day of December, 2002, by and
between Xxxxx Space Holdings, Inc., a Colorado corporation
("Xxxxx"), and Omni Broadcast Network, Inc., a Delaware
corporation doing business at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxx 00000 ("Customer").
RECITALS
X. Xxxxx has capacity on Transponder No. 20, a
non-preemptible transponder (as defined in Article 9) (the
"Transponder"), including one or more digitally compressed video
channels, on the SES Americom, Inc. (" SES") domestic
communications satellite SA TCOM C-3 (the " Satellite") pursuant
to a Satellite Transponder Service Agreement dated July 28,
1989, as amended, between SES and Xxxxx (the "Transponder
Service Agreement"). A copy of portions of the Transponder
Service Agreement is attached hereto as Exhibit X.
X. Xxxxx is willing to provide to Customer, and
Customer desires to obtain, certain satellite service capacity
on the Transponder on the terms and conditions hereinafter set
forth.
AGREEMENT
NOW THEREFORE, in consideration of the premises and
the mutual covenants and agreements hereinafter set forth, the
parties hereto do agree as follows:
ARTICLE 1. THE CAPACITY.
1.1 Provision of the Capacity. Xxxxx hereby agrees
to make capacity on the Transponder available on a full-time
basis twenty-four (24) hours per day, seven (7) days per week
for the purposes set forth in Section 1.2 hereof during the term
of this Agreement. The capacity to be made available hereunder
shall be for one (1) compressed digital video channel (the
"Capacity") operating in a statistical multiplex group. Exhibit
B hereto contains the relevant Circuit Parameters and/or other
relevant specifications (the" Specifications"). Exhibit C hereto
contains the Transponder Performance Specifications provided by
SES, which sets forth the operating parameters of the
Transponder.
1.2 Use of the Capacity. Customer shall use the
Capacity primarily for the transmission of cable television
programming, it being understood that the Capacity can be used
incidentally for low power television and off air television.
All programming shall confonn to the requirements of the
Communications Act of 1934, as amended (the "Communications
Act"), and rules and regulations of the Federal Communication
Commission (the "FCC") and any other governmental body having
jurisdiction with respect to the matters covered hereby.
Customer shall not make use of the Capacity for any unlawful
purpose and shall at all times comply with all applicable laws
and regulations, including the Communications Act and the rules
and regulations of the FCC. All programming shall bear the name
and/or identifying symbols of Customer.
1.3 Conditional Transponder Service Protection.
Customer shall be entitled to the protections granted to Xxxxx
in the transponder Service Agreement with respect to the
Capacity, to the same extent (prorata according to the total
number of all leased digital channels on the Transponder) that
said protections are provided to Xxxxx. For purposes of this
Agreement, "leased digital channels" consists of all channels
leased to Xxxxx affiliates and third parties on the Transponder.
Space on any Substitute Transponder (as defined in Article 8
hereof) provided to Xxxxx pursuant to the Transponder Service
Agreement shall be provided to Customer pursuant to this
Agreement in accordance with the prorata total number of all
leased digital channels on the Transponder. Except to the extent
SES provides Xxxxx with a Substitute Transponder, Xxxxx shall
have no obligation to undertake any action or expense to repair
or otherwise render the Transponder Commercially Operational (as
defined in Article 8 hereof), to procure or otherwise make
available a Substitute Transponder or to repair or otherwise
render a Substitute Transponder Commercially Operational. If a
Substitute Transponder is procured or otherwise made available
by Xxxxx other than through the Transponder Service Agreement,
no representation or agreement is or shall be made by Xxxxx with
respect to the quality, design, characteristics, performance or
suitability of any such Substitute Transponder; however, Xxxxx
will not make a Substitute Transponder available other than
through the Transponder Service Agreement without the consent of
the Customer. If a Substitute Transponder is made available by
Xxxxx through the Transponder Service Agreement, Xxxxx does not
and cannot represent that a Substitute Transponder will be a
Non-preemptible Transponder (as defined in Article 8 hereof).
Notwithstanding anything else in this Agreement, Xxxxx shall
retain all rights to make any and all elections and decisions
under the Transponder Service Agreement, provided, however, that
in the event either the Satellite or the Transponder becomes
Commercially Unusable (as defined in Article 8 hereof) and Xxxxx
has the right to request restored service on a Substitute
Transponder pursuant to the Transponder Service Agreement, Xxxxx
agrees to request such service unless such request will result
in Xxxxx being obligated to pay SES for such Substitute
Transponder beyond the Term of this Agreement.
ARTICLE 2. TERM.
2.1 Term. The term of this Agreement (the "Term")
shall commence on February 1,2003 and shall terminate upon the
earlier to occur of (i) the End-Of-Life of SATCOM C-3 which is
presently estimated by SES to be May 2005, subject to fmal
determination by SES or (ii) termination in accordance with
Section 2.2 hereof.
2.2 Termination. Notwithstanding the foregoing,
(a) this Agreement shall terminate, and neither party shall
thereafter have any further obligation to the other hereunder,
at such time as the Transponder Service Agreement is terminated
with respect to the Satellite or Xxxxx'x right to use the
Transponder or a Substitute Transponder is terminated or expires
(other than by reason of Xxxxx'x willful misconduct), and Xxxxx
elects not to obtain a Substitute Transponder; or (b) Xxxxx may
terminate this Agreement, and declare immediately due and
payable the Fee (as defined below) for each month remaining in
the entire Term on and after the date of such tennination, if
Customer fails (i) to make payment of any amount due hereunder
within ten (10) business days after receiving from Xxxxx a
notice of such nonpayment, or (ii) to cease any other activity
in violation of Customer's obligations under this Agreement
within twenty (20) days after receiving from Xxxxx a notice of
such violation.
ARTICLE 3. PAYMENTS
3.1 Fee. For each month of the Term, Customer
agrees to pay to Xxxxx, in advance, a fee ofU.8. $35,900 (the
"Fee") for the compressed channel and other earth station
services. The Fee includes payment for the earth station and
other services to be provided under Exhibit A to the Earth
Station Services Agreement of even date between Customer and
Xxxxx Earth Segment, Inc. If the date of this Agreement is a
day other than the fIrst day of a month, or the Term ends on a
day other than the last day of a month, the Fee for such month
shall be prorated to reflect the actual number of days (on and
after such beginning day, or on and before such termination day,
as the case may be) during which the Capacity was made available
for use by Customer in such month. In the event Xxxxx provides
Customer with space on a Substitute Transponder pursuant to the
Transponder Service Agreement, the Customer Fee will be
increased on a dollar for dollar basis for any increase in the
fee payable by Xxxxx to SES for such Substitute Transponder
space as pro-rated based on the total number of all leased
digital video channels on the Transponder. In addition, Customer
shall pay promptly when due, or reimburse Xxxxx promptly on
demand for, any taxes, duties or other fees assessed or payable
with respect to the taking and/or use of transponder services,
including any privilege or excise taxes based on gross revenues
and all charges imposed by governmental authorities, including
the FCC.
3.2 Security Deposit. Customer shall pay to Xxxxx
the first and last month's Fee (a total of$71,800) upon
execution of this Agreement.
3.3 Credits for Interruptions or Outages.
(a) If and only if Xxxxx receives a credit
from SES due to an Interruption, Customer shall be entitled to a
pro-rata share of such credit against the Fee, which credit
shall be calculated by dividing the SES credit by the total
number of all leased digital channels on the Transponder. The
length of the Interruption shall be measured from the time Xxxxx
notifies SES of the Interruption. Xxxxx shall promptly pass on
to SES any notice of an Interruption it receives from Customer.
(b) If the Fee is increased pursuant to
Section 3.1 as a result of a Substitute Transponder, the credit
will be adjusted likewise. The amount of the credit will be
detennined by calculating the daily amount of the increase in
the Fee (the "Daily Adjustment") assuming a thirty (30) day
month. The proportionate part of the Daily Adjustment which
corresponds to the Interruption shall be added to the credit set
forth in (a) above.
(c) An allowance will not be made for any
disruption in service, including an Interruption, which is a
result of, or attributable in whole or in primary part, to:
(i) Customer's negligence or willful
acts, or the negligence or willful acts of its officers,
directors, agents, employees, subsidiaries, parents, affiliates,
customers and viewers or any of them; or
(ii) Customer-provided equipment,
including terrestrial communication facilities for backhaul
purposes
(d) In no event shall any credit or allowance
to Customer exceed the allocable portion of the Fee for the
period of the Interruption.
3.4 Payments. All payments made by Customer
hereunder shall be made to Xxxxx at its principal place of
business, as designated in Section 9.11 (b) hereof, by cashier's
or certified check payable in u.s. currency, or shall be made by
wire transfer of immediately available funds to such account as
Xxxxx shall designate and shall be deemed to be made only upon
receipt by Xxxxx of collected funds.
3.5 Late Payment. If Xxxxx has not received all of
the Fee from Customer on the date that such Fee is due, then the
overdue amount shall be subject to a delinquency charge at the
rate of one and one-half percent (1.5%) per month, compounded
monthly, on such overdue amount from the date such overdue
amount was originally due until the date it is actually received
by Xxxxx. Customer acknowledges that such delinquency charges
are reasonable under all the circumstances existing at the time
at which this Agreement is entered into by Xxxxx and Customer.
Customer agrees that acceptance of all or any portion of any
such delinquency charge by Xxxxx shall in no event constitute a
waiver by Xxxxx of Customer's default with respect to such
overdue amount nor shall it prevent Xxxxx from exercising any or
all other rights or remedies it may have.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF XXXXX AND CUSTOMER.
Xxxxx and Customer each represents and warrants to,
and agrees with the other that:
4.1 Authority. It has the right, power and
authority to enter into, and perform its obligations under, this
Agreement.
4.2 Action. It has taken all requisite action to
approve the execution, delivery and performance of this
Agreement, and this Agreement constitutes a legal, valid and
binding obligation enforceable against it in accordance with its
terms.
4.3 Consents. The execution, delivery and
performance of its obligations hereunder and the consummation of
the transactions contemplated hereby will not result in a
material violation of, or material default under, or constitute
the occurrence of an event which would constitute a material
default under, or material noncompliance with, any applicable
law, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which
it or any material portion of its property is bound, its
articles of incorporation or by-laws or other charter documents,
as the case may be, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over it
or any of its properties.
4.4 No Broker. It has not entered into any
agreement or incurred any obligations or liabilities, contingent
or otherwise, for brokerage or finder's fees or agent's
commission or other like payment in connection with this
Agreement or the transactions contemplated hereby, for which the
other party hereto is liable. Each party hereto agrees to
indemnify and hold the other hereto harmless against and in
respect of any breach by it of the provisions of this Section.
ARTICLE 5. LIMITATlON OF LIABILITY.
5.1 Remedies. Xxxxx shall be liable for direct
damages or losses with respect to its performance hereunder,
only when such damages or losses are due solely to Xxxxx'x
willful misconduct; provided, however, in no event shall Xxxxx
be liable for an amount in excess of the Fee paid to Xxxxx
hereunder.
5.2 Limitation of Liability. IT IS EXPRESSLY AGREED
THAT XXXXX' SOLE OBLIGATIONS, AND CUSTOMER'S EXCLUSIVE REMEDIES,
FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND/OR THE TRANSACTIONS PROVIDED FOR HEREIN OR
CONTEMPLATED HEREBY, REGARDLESS OF WHETHER OCCASIONED BY XXXXX'X
NEGLIGENCE, ARE LIMITED TO THOSE SET FORTH IN SECTIONS 2.2 AND
3.3 HEREOF AND IN THIS ARTICLE 5, AND ALL OTHER REMEDIES OF ANY
KIND ARE EXPRESSLY EXCLUDED. In no event shall Xxxxx be liable
for any special, indirect, incidental or consequential damages
(including, but not limited to, lost reserves, customers or
profits), regardless of the foreseeability thereof. In addition,
Xxxxx shall have no liability for any damages occasioned by (a)
any defect in the Transponder or the Satellite, (b) any failure
of the Transponder or the Satellite to perform, or (c) any fault
of Customer or of any third party.
5.3 Disclaimer of Warranties. EXCEPT AS SET FORTH
HEREIN, XXXXX DOES NOT MAKE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, TO CUSTOMER OR ANY OTHER PERSON OR ENTITY
CONCERNING THE TRANSPONDER, THE SATELLITE, ANY SUBSTITUTE
TRANSPONDER OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OR USE
5.4 Indemnification. Customer shall defend and
indemnify Xxxxx and/or SES and their respective directors,
officers, employees, owners, agents and affiliates from any
claims, liabilities, losses, costs, or damages, including
attorneys fees and costs, (a) arising out of any
misrepresentation, breach of warranty, or nonfulfillment of any
agreement or covenant on the part of Customer under this
Agreement, (b) caused by the fault or negligence of Customer,
(c) arising under a warranty, representation or statement by
Customer to any third party in connection with transmissions
over the Satellite, or (d) with respect to the Transponder, any
libel, slander, infringement of copyright, patents and other
intellectual property rights, or breach in the privacy or
security of transmissions by Customer. The limitations of
liability set forth herein shall apply to, and the
indemnifications set forth herein shall run in favor of, Xxxxx
and all affiliates of Xxxxx and SES and all affiliates of SES.
ARTICLE 6. FORCE MAJEURE.
Neither party shall be liable to the other and no
party shall be deemed in default hereunder for any failure of or
delay in the performance of any of its covenants, agreements or
obligations (other than the payment of amounts due hereunder,
subject to Section 3.3) caused by or arising out of any of the
following conditions of force majeure: disaster, labor
disturbances, shortage of labor or equipment beyond the
reasonable control of such party, strikes, lockouts, other
industrial disturbances, acts of God, acts of a public enemy,
war, blockade, riot, insurrection, lightning, fire, storm,
flood, inclement weather, meteorological or atmospheric
occurrences or disturbances including sun outage and rain fade,
externally caused interference, explosion, the need to comply
with any law or any rule, order, regulations, action or
direction of any government, including state and local
governments, having jurisdiction over either party, or of any
department, agency, commission, bureau, court or other
instrumentality thereof, or of any civil or military authority,
or on account of any eventualities or conditions, whether
enumerated or not, beyond the reasonable control of such party;
provided, however, that a loss or Interruption of the
Transponder or a Substitute Transponder shall be governed by
Sections 1.3, 2.2 and 3.3
The party affected by any condition of force majeure
as described in this Article shall promptly notify the other
party in writing and hereby agrees to use reasonable diligence
to remove any such condition of force majeure as may occur from
time to time. No right of a party shall be affected for failure
or delay of that party to meet any condition of this Agreement
where such failure or delay is caused by a condition of force
majeure as defined herein, and such party shall be excused from
performance of any obligation affected by such condition of
force majeure during the period required to overcome the delay;
and the time limits provided in this Agreement to meet any
condition affected by force majeure shall be deemed and treated
as extended for a period commensurate with the delay caused by
force majeure; provided, however, nothing contained herein shall
extend the Term or require the settlement of strikes, lockouts,
or other labor difficulties by the party affected contrary to
its wishes, and the disposition or manner of handling or
remedying any and all such labor difficulties is hereby
expressly acknowledged to be entirely within the discretion of
the party concerned.
ARTICLE 7. CONFIDENTIALITY
7.1 Confidentiality. Each party agrees to hold in
strict confidence the information contained in this Agreement
and any information obtained pursuant to the performance by it
of the agreements and obligations contained herein or the
transactions contemplated hereby, and each party hereby
acknowledges and agrees that all such information, including,
without limitation, information regarding the other party, SES
and/or their respective affiliates, and all information related
to the design and performance characteristics of the Satellite
and any subsystems or components thereof including the
Transponder, not otherwise known to the public, is confidential
and proprietary and is not to be disclosed to third persons
without the prior written consent of the party owning such
information and shall not be used by the other party other than
as contemplated hereunder. Without limiting the generality of
the foregoing, neither party shall disclose to any person,
including independent auditors, legal counsel, lenders and
agents, any of the prices, payment terms and other material
terms of this Agreement except:
(a) to the extent necessary to comply with law
or regulations promulgated thereunder, the valid order or a
governmental agency or court of competent jurisdiction, or the
rules of an established stock exchange or in connection with any
placement of securities or filing or report under state or
federal securities laws or regulations, provided that, in the
opinion of counsel for such party, disclosure is required, and
further provided that such disclosing party shall have given the
other party notice prior to such disclosure, to the extent
reasonably and legally possible, and shall seek confidential
treatment of such information;
(b) as part of its normal reporting or review
procedure to its parent company, its auditors and it attorneys
and its lenders;
(c) to the extent necessary to obtain
appropriate insurance, to its insurance agent, provided that,
prior to such disclosure, such agent shall be advised in writing
of the confidentiality of the information disclosed to it and,
if requested by the owner of such information, such agent shall
execute a confidentiality agreement with the disclosing party
reasonably acceptable to the owner of such information with
respect to the information to be disclosed; and
(d) in order to enforce its rights and perform its
obligations pursuant to this Agreement.
7.2 SES Confidential Information. Customer
acknowledges that all information provided to it related to the
design and performance characteristics of the Satellite, and any
subsystems or components thereof, including the Transponder, is
confidential and proprietary and may not be disclosed to third
persons, without the prior written consent of SES except if the
conditions set forth in Section 7.1(a) above are applicable.
7.3 Press Releases. Neither party shall make any
announcement, press release or public statement relating in any
manner to the Agreement or the parties' operations under this
Agreement without first furnishing the proposed text thereof to
the other party and obtaining the other party's approval in
writing, which approval shall not be unreasonably withheld or
delayed; provided, however, that no such written approval shall
be required when public disclosure by either party may be
required, in the judgment of such party's counsel, by law or
regulations promulgated thereunder, judicial order or similar
pronouncement, the rules of an established stock exchange or in
connection with any placement of securities or filing or report
under state or federal securities laws or regulations. Whenever
practicable, such announcements, press releases and public
statements shall be issued jointly by the parties,
7.4 Survival. Notwithstanding any other provision
of this Agreement, the obligations of this Article 7 shall
continue after termination of this Agreement.
ARTICLE 8. DEFINITIONS.
8.1 "Commercially Operational" means capable of
carrying audio and video, including associated audio traffic,
with the parameters as described in the Performance
Specifications and which is not Commercially Unusable.
8.2 "Commercially Unusable" means a condition in
which the Satellite so fails to conform to its design
specifications or the Transponder so fails to conform to the
Transponder Performance Specifications as to render use of the
Satellite impractical in the exercise of reasonable business
judgment or preclude use of the Transponder for its intended
purpose.
8.3 "Interruption" means any period during which
the Transponder or a Substitute Transponder fails to meet the
Transponder Performance Specifications and such circumstances
preclude use of the Transponder for its intended purpose.
8.4 "Non-preemptible Transponder" means a
transponder that (i) may not be preempted under the Transponder
Service Agreement to restore a transponder which becomes
Commercially Unusable or to satisfy other customers of SES and
(ii) is fully protected under the Transponder Service Agreement
in that SES is obligated to make a Substitute Transponder
available to Xxxxx in the event the Transponder becomes
Commercially Unusable to the extent such a substitute is
available and subject to the rights of other parties who have
priority over Xxxxx,
8.5 "Substitute Transponder" means any transponder
other than the Transponder (which may be a transponder on a
satellite other than the Satellite) made available to Customer
pursuant to the Transponder Service Agreement or otherwise.
ARTICLE 9. MISCELLANEOUS.
9.1 Limitation on Rights: Independent Contractors.
Customer agrees that it shall have no rights with respect to the
Transponder except as are expressly granted hereunder and that
in no event shall such rights be greater than the rights of
Xxxxx under the Transponder Service Agreement. The relationship
between the parties shall be that of independent contractors.
Nothing in this Agreement shall be construed to create a
partnership or joint venture or authorize one party to act as
agent for the other. This Agreement is for services and no
property interest is created or granted to Customer with respect
to any property or asset of Xxxxx, or the Transponder.
9.2 Entire Agreement: Amendment: and Waiver. This
Agreement and all attachments hereto constitute the entire
agreement between the parties, are intended as the complete and
exclusive statement of the terms of the agreement between the
parties as to the subject matter of this Agreement, and
supersede all previous or contemporaneous understandings,
commitments or representations concerning the subject matter
hereof. The parties each acknowledge that the other party has
not made any representations or warranties other than those
which are contained herein. 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
be enforced. No such waiver shall constitute a continuing waiver
of similar or other breaches. A waiving party may at any time,
upon notice given in writing to the breaching party, direct
future compliance in accordance with the terms of this
Agreement, in which event the breaching party shall comply as
directed from such time forward.
9.3 Assignment. Customer shall not assign its
rights or obligations under this Agreement without first
obtaining the written consent of Xxxxx. No permitted assignment
or transfer shall relieve Customer of its obligations hereunder.
Xxxxx shall be free to assign this Agreement.
9.4 No Third-Party Beneficiary. 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.
9.5 Benefits and Obligations. Subject to Section
9.3, all provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by and against the
parties hereto, their permitted successors and permitted
assigns.
9.6 Counterparts. This Agreement may be executed in
several counterparts, each of which when so executed shall be
considered as an original and all of which together shall
constitute one agreement.
9.7 Captions. The captions at the beginning of the
Sections of this Agreement are not a part of this Agreement but
are merely to assist in the locating and reading of those
paragraphs and shall be ignored in construing this Agreement
9.8 Further Performance. Each of the parties
hereto agrees to execute and deliver any further instruments and
documents and perform acts which are or may be necessary to
carry out the purposes of this Agreement.
9.9 Survival of Representations and Warranties.
All representations and warranties contained herein or made by
Xxxxx or Customer in connection herewith shall survive any
independent investigation made by Customer or Xxxxx.
9.10 Governing Law. This Agreement shall be governed
by the intemal laws of the state of Colorado.
9.11 Notices.
(a) Notice of Interruptions, or of other
technical or operational matters requiring immediate attention,
may be given by telephone Xxxxx will designate a point or points
of contact where Customer may call on a 7 day-a-week, 24 hours-
a-day basis. Any notice given verbally will be confirmed in
writing as soon as practicable thereafter pursuant to the
procedures set out in Section 9.1 1 (b).
(b) All notices and other communications
required or permitted to be given hereunder shall be in writing
and shall be deemed received when actually received if
personally delivered, when receipt is electronically confirmed
if sent by telecopy, or upon the expiration of the fifth
business day after being deposited in the mail, postage prepaid,
certified or registered mail, return receipt requested,
addressed to the other party as follows:
If to Xxxxx:
Xxxxx Space Holdings, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
Fax No.: (000) 000-0000
with a copy to:
Legal Department
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
If to Customer:
Omni Broadcast Network, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx
with a copy to:
Xxxxxxxx and Partners, LLC
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Phone: 000-000-0000
FAX: 000-000-0000
or to such other address or addresses as may hereafter be
specified by notice given by any of the above to the others.
9.12 Severability. Each provision of this Agreement
shall be considered severable and if for any reason any
provision of this Agreement is determined to be invalid, such
invalidity shall not impair the operation or affect other
provisions of this Agreement.
9.13 Taxes. Customer is solely responsible for any
taxes, charges or levies which may be asserted by any local,
state, national or international, public or quasi-public
governmental entity solely as a result of the transmission of
signal via the Transponder.
9.14 Customer Responsibilities.
(a) Unless otherwise specified in the Circuit
Parameters as set forth in Exhibit B, no terrestrial facilities
shall be provided by Xxxxx under this Agreement and Customer
shall be responsible to install, license and maintain the
terrestrial facilities which communicate to and from the
Satellite. Customer will not transmit or otherwise act in any
manner that violates the technical requirements of the
Performance Specifications. Customer will always provide the
necessary capability at its transmit facilities to cease
transmission immediately upon notice from Xxxxx or SES via phone
and/or fax. Xxxxx may, but is not obligated to, inspect
Customer-provided facilities to insure compliance to this
requirement.
(b) Customer shall provide to Xxxxx and SES
all pertinent technical characteristics of Customer-provided
equipment used in connection with the Capacity.
(c) If Xxxxx provides terrestrial facilities
and/or services to Customer, such terrestrial facilities and/or
services shall be provided pursuant to a separate agreement. A
malfunction or failure of the terrestrial facilities and/or
services shall not relieve Customer of any obligation to timely
pay any Fees due Xxxxx.
9.15 First Right of Refusal on Follow-On Satellite
Transponder Capacity and Related Earth Station Services. In the
event the Customer receives a bona fide offer from an
unaffiliated party to provide the Customer with satellite
transponder capacity and earth station services, Xxxxx shall
have the right to match such offer on substantially similar
terms and conditions within thirty (30) days after being
provided with notice of the first proposal (the "First Right of
Refusal"). and Customer shall be bound to accept Xxxxx' offer,
subject to execution of a definitive agreement to be negotiated
in good faith by both parties. The exercise by Xxxxx of its
First Right of Refusal will be contingent upon Xxxxx having
available or being able to secure in a timely manner satellite
transponder capacity that is suitable to meet the Capacity and
Specifications requirements set forth in this Agreement. The
First Right of Refusal shall be in effect during the Tenn of
this Agreement, and for a period of 180 days after the
termination of the Agreement.
(EXECUTION PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have executed this
Transponder Capacity Agreement on the date first above written.
XXXXX SPACE HOLDINGS, INC
By: /s/ Xxxxxxx Xxxxxx
------------------------
Title: VP Technical Operations
OMNI BROADCAST NETWORK, INC
By: /s/ Xxxxx Xxxx Xxxxx
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Xxxxx Xxxxx
Chief Executive Officer
