CONFIDENTIAL
March 11, 1997
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Satellite Services and
Space Segment Lease Agreement
for
USA Radio Network, Inc.
TABLE OF CONTENTS
Page
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1. Superseding Agreement 1
2. Definitions 1
3. Term; Payment 1
4. Taxes 1
5. Customer's Use of SCPC Channel 1
6. Equipment, Maintenance, and Signal Delivery
Responsibilities 1
7. Transition Period 1
8. Risk of Loss and Insurance Requirements at CIT 2
9. Indemnity 2
10. Interruptions and Technical Failures 2
11. Force Majeure 2
12. SpaceCom Relocation Rights 2
13. Conditional Protected Services 3
14. Assignment 3
15. No Consequential or Incidental Damages 3
16. Notices 3
17. Confidentiality 3
18. Governing Law 3
19. Arbitration 4
20. Incorporation by Reference 4
21. Severability 4
22. Headings 4
23. Entire Agreement 4
Appendix One (Definitions) 5
Exhibit I (Payment Schedule) 6-7
Exhibit II (Technical Specifications) 8
Exhibit III (Operating Specifications) 9-10
Exhibit IV (Terms and Conditions Relating
to Protected Satellite Services) 11
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SATELLITE SERVICES AND SPACE SEGMENT LEASE AGREEMENT
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THIS AGREEMENT is entered into by and SpaceCom Systems, Inc.
("SpaceCom"), a Delaware corporation, (a wholly owned subsidiary
of United Video Satellite Group, Inc.), with its principal
offices at One Technology Plaza, 7140 South Xxxxx Avenue, in
WHEREAS, SpaceCom has rights to certain specific satellite
transmission services, including SCPC (as defined herein) space
segment capacity on the Satcom C-5 Satellite (or replacement as
designated by SpaceCom); and
WHEREAS, SpaceCom has contracted with GE American
Communications, Inc. ("GE"), a "Satellite Service Provider" for
such space segment capacity; and
WHEREAS, Customer desires to contract with SpaceCom to use
certain services and space segment capacity.
NOW, THEREFORE, in consideration of the premises set forth
above and the following mutual covenants, the parties hereto
agree as follows:
1. SUPERSEDING AGREEMENT. This Agreement shall supersede
and replace all prior agreements and understandings between
SpaceCom and Customer relating to the subject matter of this
Agreement.
2. DEFINITIONS. See Appendix One attached to this
Agreement.
3. TERM; PAYMENT. The term of this Agreement shall
commence upon execution by both parties and shall continue in
effect through the end of the satellite life of the Satcom C-5
satellite (to be determined solely by SpaceCom), which is
currently projected to be June 30, 2001. The Service
Commencement Date of the SCPC Channel (as defined below) shall be
February 24, 1997. In no event, however, shall the term of this
Agreement exceed the term of SpaceCom's agreement with GE.
Payment for services provided under this Agreement shall be in
accordance with Exhibit I attached hereto. Payment for the SCPC
Channel (as defined herein) shall continue until the end of the
term of the Agreement regardless of whether Customer actually
uses the SCPC Channel.
4. TAXES. In addition to the monthly charges and other
payments set out in Exhibit 1, Customer shall be solely
responsible for any and all taxes or fees, including but not
limited to any sales, use, value added or other taxes (excluding
all forms of income tax) which are imposed by any local, state,
or United States governmental entity on the services or goods
provided by SpaceCom under this Agreement.
5. CUSTOMER'S USE OF SCPC CHANNEL. SpaceCom shall make
available to Customer and Customer accepts from SpaceCom the use
of and agrees to pay SpaceCom for hereunder one (1) 128 kb/s
digital audio QPSK Channel (the "SCPC Channel") located on
Transponder 3 (the "SCPC Transponder") of the Satcom C-5
Satellite for SCPC delivery of Customer's signal. The SCPC
Channel will have Technical Specifications as outlined in Exhibit
11 attached hereto.
6. EQUIPMENT, MAINTENANCE, AND SIGNAL DELIVERY
RESPONSIBILITIES.
a. Customer accepts sole responsibility for delivering its
signal to the CIT, including installation, operation and
maintenance of all equipment (whether at Customer's location or
CIT) required to effect delivery to the SCPC transmission
equipment at the CIT. In this regard, Customer agrees that it
shall provide redundant rack mountable equipment for use at the
CIT. SpaceCom shall have the right to approve (approval of which
will not be unreasonably withheld or delayed) the use, size, type
of equipment, and installation of any of Customer's equipment to
be installed at the CIT for purposes of delivering Customer's
signal to the CIT. Customer shall at all times comply with the
Operating Specifications set forth in Exhibit III to this
Agreement. The location of Customer's equipment shall be
determined by SpaceCom, and SpaceCom shall have the right to re-
locate Customer's equipment as needed.
b. SpaceCom shall at its cost provide, operate and
maintain all SCPC transmission equipment, including, Xxxxxxx'x
QPSK modulators, required at the Chicago International Teleport
(the "CIT" as herein defined) to transmit Customer's digital
signal from the CIT to the SCPC Transponder.
c. Customer shall at its cost equip, install and maintain
all sites (or cause them to be equipped, installed and
maintained) with any downlink equipment required for reception of
Customer's SCPC Channel. SpaceCom shall have no liability due to
any failure of Customer's sites to receive Customer's signal due
to downlink equipment, installation, and/or maintenance provided
by others.
7. TRANSITION PERIOD. As stated elsewhere in this
Agreement, Customer is solely responsible for all aspects of
downlink equipment to receive Customer's SCPC Channel.
Customer's primary reason for use of the SCPC Channel is as a
backhaul channel to GE's Xxxxxx Valley satellite uplink facility.
As a courtesy to Customer,
SpaceCom is currently transmitting the SCPC Channel as a BPSK
channel, rather than the contracted QPSK channel, due to the lack
of a QPSK receiver at the Xxxxxx Valley facility. Customer shall
make its arrangements to have a QPSK receiver in place at the
Xxxxxx Valley facility as quickly as possible, and shall notify
SpaceCom in writing as soon as the QPSK receiver is in place and
available at the Xxxxxx Valley facility, so that the transition
from the BPSK channel to the contracted QPSK channel can be made.
If, for any reason, the transition has not occurred by March 3 1,
1997, then beginning April 1, 1997, the monthly charge for the
SCPC Channel will be increased to $4,400.00 per month until such
time as the transition occurs.
8. RISK OF LOSS AND INSURANCE REQUIREMENTS AT CIT.
a. Customer shall bear all risk of loss to its equipment
or other property located at the CIT, regardless of the cause of
any such loss.
b. To cover its employees and/or agents performing work at
the CIT, and Customer's equipment or other property located at
the CIT, Customer shall carry and maintain at its own cost during
the term of this Agreement, with insurance companies having an
"A.M. Best's" rating of "A-" or better, the insurance indicated
below as a minimum requirement:
Type of Coverage Limits of Liability
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Workers' Compensation Statutory per State of Illinois
Employers Liability $500,000
Commercial General Liability $1,000,000
Occurrence Form
Broad Form Contractual
Liability
Customer shall furnish SpaceCom certificates evidencing such
coverage stating that SpaceCom be provided with 30 days prior
written notice of cancellation, non-renewal or reduction of
limits. All policies shall contain an endorsement waiving
subrogation rights of insurer against SpaceCom.
c. Customer shall not by any act of commission or omission
cause an increase in the rate of insurance or the cancellation of
any insurance policy carried by SpaceCom covering the CIT.
9. INDEMNITY. Customer shall indemnify, defend and hold
SpaceCom and the Satellite Service Provider, their parent and
affiliate corporations, officers, directors, employees agents,
successors and assigns, harness from and against any and all
losses, liabilities, claims, demands, costs, and expenses
(including, but not limited to, reasonable attorneys' fees and
costs of suit) arising out of or related directly or indirectly
to Customer's use of the SCPC Channel. Customer's
indemnification of SpaceCom and the Satellite Service Provider,
their parent and affiliate corporations, officers, directors,
employees agents, successors and assigns, shall include but not
be limited to claims for libel, slander, infringement of
copyright or patent, unauthorized use or infringement of
trademark, trade name or service xxxx, arising out of or related
to Customer's use of the SCPC Channel.
10. INTERRUPTIONS AND TECHNICAL FAILURES. SpaceCom shall
have no liability whatsoever for interruptions in satellite
service that are caused (1) by Customer or Customer-provided
facilities; (2) by sun transient outage; (3) by rain fade; or (4)
by downlink-specific conditions such as downlink malfunction.. In
the event of any interruption of satellite service or technical
failure for any reason other than these four reasons, the SOLE
AND EXCLUSIVE liability of SpaceCom shall be a pro rata refund of
the monthly fee (as such fee is specified in Exhibit I hereto)
paid by Customer for any period exceeding five (5) minutes in a
one (1) hour period during which service shall not have been
provided. No more than one full day's credit will be allowed for
any period of twenty-four (24) hours. The length of the
interruption shall be measured from the time Customer notifies
SpaceCom of the interruption. Such pro rata refund shall be
Customer's EXCLUSIVE REMEDY for such interruption of satellite
service or technical failure, and Customer shall have no other
remedy against SpaceCom or the Satellite Service Provider, their
parent and affiliate corporations, officers, directors, employees
agents, successors and assigns, with respect to any such
interruption.
11. FORCE MAJEURE. SpaceCom shall not be liable to
Customer hereunder nor shall it be considered to be in breach of
this Agreement due to SpaceCom's failure to perform its
obligations hereunder in a timely manner as a direct result of
any cause beyond its reasonable control, including but not
limited to any natural calamity, work stoppage by any
unaffiliated third party supplier, act of any public enemy or any
military, civil or regulatory authority, a material change in any
law or regulation governing the performance of the parties
hereunder, disruption or outage of communication equipment, loss
of electric power, damage or destruction to satellite equipment,
or loss of access to applicable satellite transponder capacity.
Page 2 of 11
12. SPACECOM RELOCATION RIGHTS.
a. SpaceCom shall have the right to move the SCPC Channel
to another transponder and/or satellite other than Transponder 3
on the Satcom C-5 Satellite, provided, however, that SpaceCom
shall give Customer thirty (30) days' advance written notice of
any planned move, and provided further, that SpaceCom shall not
exercise this relocation right without good cause, such cause to
be determined solely by SpaceCom.
b. SpaceCom shall have the right to change the frequency
of Customer's SCPC Channel. SpaceCom will not exercise this
right without good cause, such cause to be determined solely by
SpaceCom, and SpaceCom will give Customer a minimum of ten (10)
days' advance written notice of the change of frequency.
c. SpaceCom shall have the right during the term of this
Agreement to relocate and/or reconfigure the CIT.
13. CONDITIONAL PROTECTED SERVICES. SpaceCom will provide
protected satellite service under this Agreement to Customer to
the same extent that SpaceCom receives protected service from the
Satellite Service Provider. SpaceCom has a current contract for
full time fully protected service with GE, and that current
service is summarized on Exhibit IV hereto.
14. ASSIGNMENT. Customer shall not assign or transfer its
rights, interest and obligations under this Agreement to any
other parties without SpaceCom's prior written consent, which
consent shall not be unreasonably withheld or delayed. Customer
agrees that SpaceCom may assign or transfer its rights, interests
and/or obligations under this Agreement.
15. NO CONSEQUENTIAL OR INCIDENTAL DAMAGES. Except for
Customer's indemnification obligations pursuant to Paragraph 9 of
this Agreement, in no event whatsoever shall either party have
any liability to the other or to any other party for
consequential or incidental damages.
16. NOTICES. Notices to be given either party shall be
sent by certified or registered mail, return receipt requested,
by delivery service, or by personal delivery to the following
parties at the following addresses:
If to SpaceCom: SpaceCom Systems, Inc.
One Technology Plaza
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attn: Vice President/General Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Customer: USA Radio Network, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Vice President and General Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17. CONFIDENTIALITY.
a. Each party acknowledges that in the course of
performance of its obligations pursuant to this Agreement or any
amendment, it may obtain certain confidential and/or proprietary
information of the other party or the other party's customers,
including the terms and conditions of this Agreement or any
amendment ("Information"). Each party hereby agrees that all
Information communicated to it by the other party or its
customers, whether before or after the Execution Date shall be
and was received in strictest confidence, shall be used only for
purposes of this Agreement or any amendment, and shall not be
disclosed by such receiving party, its agents or employees
without the prior written consent of the disclosing party, except
as may be necessary by reason of legal, accounting or regulatory
requirements beyond the reasonable control of the receiving
party. The obligations imposed by this paragraph shall not apply
to a party's Information, or any portion thereof, which is
(i) publicly known through no unauthorized act of the other
party, (ii) independently developed by the other party, (iii)
already known by the other party without an obligation of
confidentiality, or (iv) rightfully received from a third party
who is not obligated to keep such Information confidential. The
obligations set forth in this paragraph shall survive termination
of this Agreement or any amendment.
b. While the specific terms of this Agreement, including
pricing terms, are confidential, the existence of this Agreement
shall not be confidential, and SpaceCom and Customer shall each
have the other's
Page 3 of 11
approval and permission to distribute and/or publish news
releases, advertisements, and any other type of marketing or
promotional materials which contain non-confidential information
such as the names and primary contacts of SpaceCom and Customer
and a general description of the services contracted for under
this Agreement.
18. GOVERNING LAW. The parties hereto agree that this
Agreement shall be deemed to have been executed and delivered in
the State of Oklahoma, and it shall be governed by and construed
in accordance with the laws of said State.
19. ARBITRATION. Any dispute, claim or controversy in
connection with or arising under this Agreement, its
interpretation, validity or any breach hereof, which cannot be
resolved between the parties within sixty (60) days after both
parties are aware of the dispute, claim or controversy, shall be
finally and exclusively resolved by arbitration under the rules
of the American Arbitration Association then prevailing. The
site for any arbitration hearing shall be Tulsa, Oklahoma. In
resolving the dispute, the arbitrators shall be bound by the
terms of this Agreement and the governing law of this Agreement.
The non-prevailing party shall be assessed all arbitration fees
and costs. The award of the arbitrators shall be final and
binding. If it becomes necessary for either party to enforce an
arbitration award by legal action, the other party shall pay all
reasonable costs and attorney's fees incurred by the party
seeking to enforce the award.
20. INCORPORATION BY REFERENCE. Appendix One and Exhibits
I-IV attached to this Agreement, and the premises immediately
preceding this Agreement, are hereby incorporated into this
Agreement.
21. SEVERABILITY. If any term or condition of this
Agreement is ever found to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not affect the
remaining terms and conditions of this Agreement and this
Agreement, excluding only the invalid or unenforceable term or
condition or portion thereof, shall continue to remain in full
force and effect.
22. HEADINGS. The headings of the sections of this
Agreement have been set forth for ease of reference only and
shall not be used to construe or interpret the terms and
conditions of this Agreement hereto.
Entire Agreement. This Agreement represents the total
understanding between the parties. There are no other
agreements, representations, or warranties, whether oral or
written, respecting the subject matter hereof. This Agreement
may be amended or modified only by written amendment signed by
the parties.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date of the last signature hereto.
SpaceCom: Customer:
SPACECOM SYSTEMS, INC., USA RADIO NETWORK, INC.,
a Delaware corporation a Texas corporation
By: /s/ By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President Xxxxx X. Xxxxxx
Title: Vice President and
Date: 3/11/17 General Manager
Date: March 10, 1997
APPENDIX ONE
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DEFINITIONS
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AS USED IN THIS AGREEMENT:
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a. CIT - shall mean the Chicago International Teleport,
SpaceCom's satellite transmission facility in Monee, Illinois.
b. DOWNLINK - shall mean equipment provided by Customer
and/or its customers for reception of the satellite signals and
demodulation of the signals provided by Customer.
c. SATELLITE SERVICE PROVIDER - shall mean GE American
Communications, Inc. or the entity with which SpaceCom contracts
for space segment capacity on any replacement of the SCPC
Transponder.
d. SCPC - shall mean a single-channel-per-carrier
transmission method.
e. SCPC CHANNEL - shall mean that channel described at
paragraph 5 of the Agreement to which this Appendix is attached.
f. SCPC TRANSPONDER - shall mean Transponder 3 on the
Satcom C-5 Satellite on which SCPC space has been allocated.
g. SERVICE COMMENCEMENT DATE - shall mean February
24,1997.
h. TECHNICAL SPECIFICATIONS - shall mean the technical
specifications for the SCPC Channel as presented in Exhibit 11
attached to the Agreement to which this Appendix is also
attached.
