1
Exhibit 10.6
FULL-TIME TRANSPONDER SERVICE AGREEMENT
FOR DATA SERVICE DELIVERY (PRE-LAUNCH)
This Agreement (the "Agreement) is entered into this 18th day of
August, 1994, by and between PanAmSat, L.P., a Delaware limited partnership
("PanAmSat") and Resis S.A. a corporation organized and existing under the laws
of Argentina ("Customer"). This Agreement covers the provision of twenty-four
hour fixed term non-preemptible satellite signal reception and retransmission
service (the "Service") by PanAmSat to Customer. The Service shall be supplied
by PanAmSat, in outerspace, from one (1) 54 MHz. C-Band transponder in the beam
that is identified in Appendix A to this Agreement from the Second Atlantic
Ocean Region Satellite (the "Satellite") now under construction by Xxxxxx
Aircraft Company for PanAmSat, as described in Appendix B. The transponders on
the Satellite and the beams in which these transponders are grouped are
referred to as "Transponder(s)" and the "Beam(s)," respectively.
AGREEMENT
In consideration of the foregoing and of the mutual promises set forth
below, PanAmSat and Customer mutually agree as follows:
ARTICLE 1 PROVISION OF SERVICE
1.1 The Service. PanAmSat agrees to provide, and Customer agrees
to accept, Service meeting the "Service Specifications" set forth in Appendix
C. PanAmSat shall not voluntarily preempt or interrupt the provision of Service
to Customer, except as may be required under Section 6.1. In no event shall
these exceptions be construed so as to permit PanAmSat to preempt Service to
Customer so as to allow PanAmSat to use the capacity formerly used to provide
Service to Customer for another customer. PanAmSat's provision of Service
includes the construction, launch, operation, maintenance, telemetry, tracking
and control ("TT&C") for the Satellite by PanAmSat or its contractors.
-1-
2
1.2 Beam and Transponder Designation. The Beam, and subject to Section
5.3, the particular Transponder upon which Customer shall be provided Service
(the "Service Transponder") shall be identified in accordance with Appendices A
and C.
1.3 Usage.
(a) Use of Service Transponder for Multicarrier Digital Service. The
Service is designed for, and may be used by, Customer solely for transmission of
its own multicarrier digital telecommunications services, which, for purposes of
this Agreement includes the provision of value-added communications services
which may incorporate closed circuit digital video and teleconferencing
applications by Customer and/or its Affiliates (defined herein to mean an entity
that controls, is controlled by or is controlled in common with Customer) to its
customers; provided that Customer is responsible for all facilities
communicating with the Service Transponder and for coordinating the use of the
Service Transponder with PanAmSat. In no event shall the Service be used for the
transmission of full-time, part-time or occasional "Commercial Television
Service", defined herein as video programming, with associated audio signals,
for broadcast, cable, direct to home or similar mass distribution. Customer may
employ the Service for switched public international telecommunications
services, subject to regulatory restrictions, if applicable, subject to
PanAmSat's prior written consent, not to be unreasonably withheld, including
(without limitation) with respect to the number of 64 kpbs bearer circuits that
Customer shall be permitted to employ from time to time, until and unless the
restriction on the overall number of such circuits that can be provided from the
Satellite is lifted. If Customer interconnects the Service, or any portion
thereof, to the U.S. public switched network at a U.S. common carrier's
premises, Customer shall provide to PanAmSat such information as may be required
by the Federal Communications Commission ("FCC") as a result of such
interconnection.
(b) Third Party Use. If, after the Service Date: (i) Argentina,
Colombia, Venezuela and/or Ecuador (each, a "Designated Country") have not
associated themselves with an Intelsat Article XIV(d) Consultation for the
Satellite (an "Association")
-2-
3
and (ii) a portion of the Service cannot be used as required in Section 1.3(a)
above by Customer or any of its Affiliates in one or more of the Designated
Countries solely as a result of the failure to obtain such Association(s) in the
Designated Country(ies), then, upon notification by Customer to PanAmSat that a
portion of the Service Transponder capacity provided to Customer (not to exceed
25% of the overall Service capacity for each Designated Country that has not
made an Association) is available for the reasons set forth in clauses (i) and
(ii) above, if PanAmSat has no other capacity available to it that could be used
to provide comparable services (which PanAmSat may employ ahead of any unused
Customer capacity), PanAmSat shall use all reasonable efforts to market
full-time services from such unused capacity to other customer(s) (an "Excess
Capacity User(s)") for other purposes, subject to PanAmSat's reasonable
discretion with regard to the terms and conditions of service and selection of
appropriate Excess Capacity Users, which shall be consistent with its general
practices in this regard. In addition, subject to the considerations stated in
the previous sentence, if Customer identifies to PanAmSat a potential Excess
Capacity User who desires to purchase from PanAmSat full-time services that
employs the unused portion of the capacity of a Service Transponder, PanAmSat
shall seek, in good faith, promptly to enter into a service agreement with said
Excess Capacity User at a service fee approved by Customer, provided that, if
Customer requests that PanAmSat enter into a service agreement with said
potential Excess Capacity User for such unused capacity for the remainder of the
Service Term, PanAmSat shall have a right of first refusal to relieve Customer
of all obligations with respect to such capacity instead of entering into a
service agreement with the potential Excess Capacity User identified by
Customer, and provided further that, if PanAmSat was already in negotiations
with said potential Excess Capacity User for other PanAmSat capacity, PanAmSat
shall not be required to discontinue such negotiations. If PanAmSat enters into
any third party contract with an Excess Capacity User pursuant to this Section
1.3(b), and if requested by Customer, PanAmSat shall include in such third party
contract additional limitations to the extent requested by Customer regarding
service term and conditions under which such third party service shall be
preemptible for use by Customer or its Affiliates.
-3-
4
In the event PanAmSat enters into contract(s) with Excess Capacity
User(s) as provided in this Section, Customer shall remain responsible directly
to PanAmSat for compliance with all of its payment obligations under this
Agreement, for compliance with all terms and conditions of this Agreement
applicable to use of the Service by Customer or its Affiliates and for making
available the unused capacity that Customer notified PanAmSat was available
under this Section; provided that neither party shall be responsible to the
other for any breach by an Excess Capacity User.
In the event that PanAmSat is successful in marketing Customer's unused
capacity, PanAmSat shall credit against Customer's next monthly Service Fee
(which shall continue to be payable hereunder) such amounts that are actually
received from the Excess Capacity User for service from the unused capacity for
the previous month (less costs reasonably incurred by PanAmSat for providing any
related services and equipment, not provided to Customer, that are associated
with the provision of such service and costs, including reasonable attorney's
fees, reasonably incurred by PanAmSat in marketing such services to, or
negotiating a service agreement with, third parties) up to the amount of the
Service Fee (calculated pro rata based upon the amount of capacity retained by
Customer or marketed by PanAmSat), paid by Customer for the applicable period
for the unused capacity made available by Customer to PanAmSat for remarketing
under this Section 1.3.
If one of the Designated Countries subsequently completes an Association
or if such Association ceases to be required, any excess capacity that has been
made available by Customer to PanAmSat for marketing under this Section shall be
returned to Customer; provided that any such capacity that is then under
contract by PanAmSat to another third party as provided under this Section,
subject to any rights of termination or preemption that may have been specified
in that third party's contract, shall be retained for such purposes until such
contract is concluded.
In no event shall Customer be permitted to market to third parties any
of the capacity allocated to it under this Agreement, except as expressly
provided herein.
-4-
5
1.4 Transmission Plan. Subject to PanAmSat's prior written approval of
Customer's transmission plan, Customer shall be permitted to transmit any number
of RF carriers to and from the Service Transponder that Customer wishes and,
again subject to PanAmSat's approval, to modify this transmission plan from time
to time. PanAmSat agrees to reply within thirty (30) days of receipt of, and
shall not unreasonably withhold its approval of, a transmission plan or
modification to such a plan, which approval shall be based solely upon the
considerations identified in Section 4.1 below. PanAmSat makes no
representation, warranty, or covenant regarding the efficacy of the use of any
number of carriers or other alternative uses of capacity provided under this
Agreement.
ARTICLE 2. TERM, SERVICE TERM.
2.1 Term. The term of this Agreement (the "Term") shall commence upon the
first date above written and, unless previously terminated in accordance with
Article 7, shall remain effective until the end of the "Service Term," as
defined below.
2.2 Service Term. The Service Term shall start on the date that Customer
receives a certification from PanAmSat that the Satellite has been placed in
its assigned orbital position, with the Service Transponder capable of
providing Service meeting the Service Specifications (the "Service Date"). The
Service Term shall continue until 23:59 Greenwich Mean Time on the fifteenth
anniversary of the Service Date. The Service Date is currently anticipated to
occur no later than April 30, 1995 (the "Latest Anticipated Service
Commencement Date").
ARTICLE 3. CUSTOMER PAYMENTS.
3.1 Service Fee. For each month of the Service Term beginning on the
Service Date, Customer agrees to pay the monthly "Service Fee" shown in
Appendix A hereto. Customer shall deposit with PanAmSat the Service Fee for one
month on or before the first date above written (the "Deposit"), and this
Deposit shall be applied to the Service Fee for
- 5 -
6
the last month of the Service Term. Customer shall make each and all other
monthly payments of the Service Fee, in advance, no later than the first
business day of each month of the Service Term.
3.2 Reserved.
3.3 Manner Of Payment. All payments by Customer shall be made in U.S.
dollars; shall be deemed to be made only upon receipt by PanAmSat of collected
funds; and shall be made by bank wire transfer to such bank account as PanAmSat
may designate by notice to Customer, or by cashier's or certified check, from a
U.S. bank, delivered to PanAmSat at its principal place of business, as
designated in Section 14.5(b).
3.4 Late Payment. Any payment due from Customer to PanAmSat that is not
received by PanAmSat within ten (10) days of the date that it is due shall be
subject to a delinquency charge (liquidated damages) at the rate of [ ]*
percent [ %]* per month on such overdue amount applied retroactively from
the payment due date until it is actually received by PanAmSat. Customer
acknowledges that such delinquency charge is reasonable under all the
circumstances existing as of this date.
3.5 Taxes. Customer is solely responsible for any taxes, charges, levies,
duties, usage or spectrum fees which may be asserted by any local, state, or
national governmental entity as a result of the Service provided to Customer
and/or Customer's use of said Service, with the exception of any taxes based on
the net worth, capital, property, or income of PanAmSat, or any partner thereof.
ARTICLE 4. CUSTOMER'S OBLIGATIONS IN USING THE SERVICE.
4.1 Non-Interference and Use Restrictions. Customer's transmissions to and
from the Satellite and its use of the Service shall comply with all applicable
governmental laws, rules and regulations. Customer will follow established
practices and procedures for
------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
-6-
7
frequency coordination and will not use the Service Transponder, or any portion
thereof, in a manner which would or could be expected to, under standard
engineering practice, interfere with the use of any other Transponder, the
Satellite, or any other satellite or transponder on such satellite, or cause
physical harm to the Service Transponder, any other Transponder, the Satellite,
or any other in-orbit satellite or transponder on such satellite. Customer
shall also comply with the operational requirements (the "Operational
Requirements") set forth in Appendix D, as the same may be modified from time
to time by PanAmSat, in its reasonable discretion.
4.2 No Terrestrial Facilities. Customer shall be responsible for the
provision, installation, operation and maintenance of all earth station
facilities and equipment ("Customer-Provided Facilities"), for transmitting
signals to, or receiving signals from, the Satellite in accordance with the
requirements set forth in this Agreement. Customer shall also be responsible
for acquiring all authorizations necessary for installation and operation of
Customer-Provided Facilities. Any provision by PanAmSat to Customer of earth
station or other terrestrial facilities or services shall be the subject of a
separate agreement.
4.3 Customer's Transmitting Stations. Customer will configure, equip and
operate its transmit facilities so that the interface of these facilities, in
space, with the Satellite shall conform to the characteristics and technical
parameters of the Satellite. Customer will follow PanAmSat's procedures for
initiating or terminating any transmission to the Satellite. Customer will
operate all transmit facilities in a manner that allows for cessation of, and
will cease, transmission immediately upon receiving notice from PanAmSat under
Section 14.5(a) ("Telephone Notices"). Customer will furnish information on a
continuing basis as required by PanAmSat to prepare for, initiate, provide,
maintain and immediately discontinue the use of the Service upon notice by
PanAmSat.
PanAmSat shall have the right, but not the obligation, to inspect any
Customer-Provided Facilities together with associated facilities and equipment
used by Customer, or by a third party under the authority of Customer, to
transmit to the Service Transponder.
-7-
8
PanAmSat will use all reasonable efforts to schedule inspections to minimize
the disruption of the operation of the facilities, and Customer shall make the
facilities available for inspection at all reasonable times. Customer shall,
upon PanAmSat's request, provide measured proof that any transmit facility
meets or exceeds the sidelobe envelope described in Appendix D.
ARTICLE 5. OUTAGES.
5.1 Confirmed Outage. There shall be deemed to have occurred a
"Confirmed Outage" of Service on the Service Transponder if Service on the
Service Transponder fails to meet the Service Specifications for a continuing
and uninterrupted period of thirty (30) minutes and such failure is confirmed
by PanAmSat. Any Outage Credits shall be measured in accordance with the
procedures set forth in Section 5.2. PanAmSat agrees to respond promptly in
determining whether any Service failure constitutes a Confirmed Outage for
purposes of this Article.
5.2 Outage Credits. If there is a Confirmed Outage of Service on the
Service Transponder during the Service Term, PanAmSat shall credit to
Customer's next payment an "Outage Credit" that shall be determined by the
following formula:
Outage Credit equals:
N multiplied by S;
-----
M
where,
N = the number of hours (or portion thereof) during a month that
there is a Confirmed Outage on a particular Transponder
M = the number of hours in the month, and
S = Customer's Service Fee, applicable to the affected Service
Transponder, for said month
-8-
9
Customer shall not be entitled to any Outage Credit for any Service failure that
does not constitute a Confirmed Outage. For purposes of determining Outage
Credits, each failure that is confirmed by PanAmSat shall be measured as
commencing from the later to occur of (i) Customer's cessation of use of the
affected Service Transponder or (ii) notice from Customer to PanAmSat of such
failure. Any such failure shall be deemed to have ended upon the earlier to
occur of (i) Customer's resumption of use of the Service or (ii) notice to
Customer that Service on the affected Service Transponder has been restored to
the Service Specifications.
5.3 Transponder Service Failure. If, after the Service Date, the Service
Transponder fails to meet the Service Specifications for: (a) any period of six
(6) consecutive hours, or (b) a cumulative period of twelve (12) hours during
any consecutive 30-day period, or (c) any period of time following a
catastrophic event under circumstances that make it clearly ascertainable that a
failure described in clauses (a) or (b) will occur. Service on such Transponder
shall be deemed to have failed on a Confirmed Basis. Any such failure must be
confirmed by PanAmSat. If confirmed, the failure shall be measured as commencing
from the later to occur of (i) Customer's cessation of use of the affected
Service Transponder or (ii) notice from Customer to PanAmSat of such failure.
Any such failure shall be deemed to have ended upon the earlier to occur of (i)
Customer's resumption of use of the Service or (ii) notice from PanAmSat to
Customer that Service on the affected Service Transponder is capable of meeting
the Service Specifications.
In the event Service on the Service Transponder fails on a Confirmed
Basis, PanAmSat shall, as soon as possible and to the extent technically
feasible, employ certain redundant equipment units, as described in Appendix B
("Spare Equipment") on a first-needed, first-served basis as among Customer and
other Transponder owners, lessees, and users, including without limitation,
PanAmSat and its predecessors in interest ("Protected Parties"), as a substitute
for a Service Transponder equipment unit which has failed; provided, that
PanAmSat may elect to use "Substitute Capacity" (as provided by the following
sentence), if available, in lieu of using Spare Equipment. For the avoidance of
-9-
10
doubt, once Spare Equipment is employed to restore Service, such Spare
Equipment becomes part of the Service Transponder and Service to Customer
cannot be preempted to allow PamAmSat to utilize such Spare Equipment for
another Protected Party.
If (a) the Service Transponder fails to meet its Service Specifications on
a Confirmed Basis, and (b) the Spare Equipment associated with the Service
Transponder is not available, and (c) equivalent capacity on another Transponder
meeting the Service Specifications in the same Beam of the Satellite as the
Service Transponder and designated by PamAmSat for the provision of data service
(the "Substitute Capacity"), is available, and its use by Customer in accordance
with PamAmSat's Operational Requirements would not be predicted to interfere
with the use or rights of others using the Satellite, then PamAmSat shall, as
soon as possible and to the extent technically feasible, employ such Substitute
Capacity for the Service Transponder to satisfy PamAmSat's Service obligations
under this Agreement; provided, that if the Substitute Capacity is one of the
three Transponders on the Satellite which is then subject to a security interest
and lien in favor of Xxxxxx Aircraft Company (a "Xxxxxx Secured Transponder"),
PamAmSat's obligation to use the Substitute Capacity shall be subject to Xxxxxx'
consent (if required) to the provisions set forth in this Agreement regarding
subordination (and other aspects of this Agreement as related to this decision).
PamAmSat may condition its provision of Substitute Capacity on Customer's
acceptance, in writing, of additional restrictions on its use so as to protect
other Protected Parties from interference. If Customer does not accept such
conditions, PamAmSat shall not be obligated to provide Customer with the
Substitute Capacity. In the event that PamAmSat employs such Substitute Capacity
for the Service Transponder, such Substitute Capacity shall be deemed to be the
Service Transponder for all purposes under this Agreement.
In the event that two or more Transponders simultaneously fail to meet
their respective service or performance specifications and are entitled to
restoral under any applicable agreement with PamAmSat, then the Protected Party
who first executed a definitive agreement as to the affected Satellite with
PamAmSat or its predecessors in interest shall, to the extent technically
feasible, have priority as to use of the Spare Equipment or the
-10-
11
Substitute Capacity; provided that, if Transponders are employed by more than
one Protected Party, PanAmSat's decision shall be made in accordance with the
order that the earliest Protected Party(ies) using the Transponder(s) executed
agreements with PanAmSat or its predecessors in interest; and further provided
that if a failed Transponder is a Xxxxxx Secured Transponder, PanAmSat may give
priority to such Xxxxxx-Secured Transponder(s). Without regard to Xxxxxx
Secured Transponders or whether particular customers will receive Service from
Xxxxxx Secured Transponders, prior to the execution of this Agreement,______
Protected Parties have executed agreements with PanAmSat for services from
C-band transponder capacity on the Satellite. Promptly following the execution
of this Agreement by both parties, PanAmSat shall provide Customer with a list
identifying those entities with a higher priority than Customer for this
purpose. It is understood that entities with a higher priority includes the
assigns of and successor(s) in interest to the listed parties. As used in this
Section 5.3, the term "simultaneously" shall be deemed to mean occurring within
a 12-hour period. All determinations as to when failures requiring protection
shall have occurred, for purposes of determining whether the failures are
"simultaneous," shall be made by PanAmSat in its sole discretion.
5.4 Customer Cooperation. If the Service fails to meet the Service
Specifications, Customer shall use all reasonable efforts to cooperate and aid
PanAmSat in curing such failure; provided that all reasonable efforts can be
done at no cost to Customer. These obligations of Customer shall include, but
not be limited to, the following:
(a) At the request of PanAmSat, if there is a problem that can be
compensated for by increasing the power of its transmission to the Satellite,
without affecting its Service, Customer shall do so to the extent it can with
existing equipment; and
(b) Permitting PanAmSat, at PanAmSat's option, and at PanAmSat's cost
and expense, to upgrade the Customer-Provided Facilities; provided such upgrade
is implemented in accordance with standard engineering practices in the
industry.
-11-
12
5.5 Application to Individual Service Transponders. All determinations as
to Confirmed Outages, failures of Service on a Confirmed Basis, Outage Credits,
and protection rights to be made under this Article 5 shall be made on an
individual Service Transponder by Service Transponder basis.
ARTICLE 6. PREEMPTIVE RIGHTS.
6.1 (a) Preemptive Rights In Abnormal Circumstances. Customer recognizes
that it may be necessary, in unusual or abnormal technical situations or other
unforeseen conditions, for PanAmSat deliberately to preempt or interrupt Service
to Customer from, and Customer's use of, the Service Transponder, solely in
order to protect the overall health and performance of the Satellite. Such
decisions shall be made by PanAmSat in its sole discretion. To the extent
technically feasible, PanAmSat shall give Customer at least 24 hours' notice of
such preemption or interruption and will use all reasonable efforts to schedule
and conduct its activities during periods of such preemption or interruption so
as to minimize the disruption of the services on the Satellite. Customer shall
immediately cease transmissions to the Satellite at such time as its Service is
preempted or interrupted pursuant to this Section. To the extent that such
preemption results in a loss to Customer of Service from the Service Transponder
sufficient to constitute a Confirmed Outage or the failure of Service on a
Confirmed Basis, Customer shall have all the rights and remedies regarding
Outage Credits and termination set forth in Articles 5 and 7.
(b) Testing in the Event of Service Failure. If the Service is not
meeting Service Specifications, but Customer elects to continue to use (and pay
for) the Service, as degraded, PanAmSat may interrupt Customer's use as
necessary to perform testing or take any other action that may be appropriate to
attempt to restore Service to Specifications. In such event, PanAmSat shall
coordinate activities with affected customer(s) and shall use all reasonable
efforts to minimize the overall disruption of Service to affected customer(s).
Customer shall be entitled to Outage Credits for periods of interruption in
accordance with Section 5.2.
-12-
13
ARTICLE 7. TERMINATION RIGHTS.
7.1 Termination for Delay in, or Failure Prior to, Service Date. PanAmSat
shall keep Customer reasonably apprised of changes in the anticipated service
commencement date and shall provide Customer with quarterly updates as to the
then-anticipated service commencement date. If the Service Date does not occur
on or before the date that is four (4) months after the Latest Anticipated
Service Commencement Date or such later date as Customer and PanAmSat may have
agreed to, then either party may terminate this Agreement on notice to the other
party. PanAmSat shall also be permitted to terminate this Agreement on notice
to Customer, if PanAmSat determines because of force majeure conditions not to
proceed with the construction or launch of the Satellite.
This Agreement shall also terminate, prior to the Service Date, in any of
the following events: (i) if there is a launch failure that results in
destruction of the Satellite; (ii) at PanAmSat's option, if the Satellite, while
not destroyed, is a "Total Loss" under PanAmSat's launch insurance policy; or
(iii) if, after a launch, which is not a launch failure, the Service Transponder
is incapable of meeting the Service Specifications, unless Spare Equipment or
available Substitute Capacity for the Service Transponder is provided by
PanAmSat in accordance with Section 5.3.
7.2 Reserved.
7.3 Termination For Service Failure After Service Has Commenced. This
Agreement shall automatically terminate if, after the Service Date the Service
Transponder fails on a Confirmed Basis, unless, within thirty days of such
failure, PanAmSat provides Service meeting the Service Specifications using
Spare Equipment or Substitute Capacity for the Service Transponder.
7.4 Satellite Out Of Service. PanAmSat may determine to take the
Satellite out of service if: (a) in PanAmSat's judgment, the remaining fuel on
board the Satellite is no
-13-
14
longer sufficient to maintain geosynchronous orbit within plus or minus 0.05
degrees, allowing sufficient fuel for de-orbiting the Satellite, or (b) the
Satellite suffers failure of eight (8) or more C-band Transponders or eight (8)
or more Ku-band Transponders. In such event, PanAmSat shall promptly notify
Customer of such determination and of the date the Satellite will be taken out
of service. On the date that the Satellite is taken out of Service, this
Agreement shall automatically terminate.
7.5 Termination By PanAmSat For Cause. PanAmSat may terminate this
Agreement, declare immediately due and payable the Service Fee for each month
that would have remained in the Service Term pursuant to Article 2 on and after
the date of such termination, and apply the Deposit held under Section 3.1
against the termination liability, if Customer fails: (a) to make payment of
any amount due and such amount remains unpaid within twenty (20) days after
receiving from PanAmSat a notice of such nonpayment (provided that, if such
failure is due to an Argentine government freeze on bank funds in Argentina,
Customer shall have until the later of twenty (20) days after receiving a
notice of nonpayment from PanAmSat or forty-five (45) days after the payment
due date, regardless of the date of the notice of nonpayment, to meet its
payment obligations before PanAmSat may terminate the Agreement for
nonpayment), or (b) to cease any activity in violation of Section 4.1 or 6.1
upon receiving telephone or facsimile notice from PanAmSat (provided that
PanAmSat shall not be entitled to terminate the Agreement under this clause
(b) if all of the following requirements are met: (i) Customer is (and
remains) in compliance with Section 14.5(a), and the operator on duty
mistakenly did not implement PanAmSat's initial notice; (ii) the mistake was
rectified as soon as it became apparent; (iii) appropriate steps are taken to
prevent a future recurrence of the mistake and the problem is not recurring;
and (iv) no damage occurred as a result of the mistake), or (c) to cease any
other activity in violation of Customer's obligations under this Agreement
within thirty (30) days after receiving from PanAmSat a notice of such
violation.
In the event of termination pursuant to this Section 7.5, in addition to
all of PanAmSat's other remedies at law or in equity, PanAmSat shall be
entitled to use the Service
-14-
15
Transponder or to provide Service on such Transponder to whomever PanAmSat sees
fit, and Customer shall not be entitled to any equitable relief with respect to
such use or any refund of amounts paid to PanAmSat; provided, as follows: In the
event Customer has paid PanAmSat the accelerated Service Fees for the remaining
Service Term, a provided above, PanAmSat shall use all reasonable efforts to
re-market service from the Service Transponder and, in the event that PanAmSat
subsequently reaches an agreement to provide service to a third party via the
Service Transponder previously used to provide Service to Customer during the
period Service otherwise would have been provided to Customer via such Service
Transponder, PanAmSat shall remit to Customer any service fees it receives from
such third party with respect to such Service Transponder, applicable to such
period, up to the amount paid by Customer for such Service Transponder for such
period for which Customer did not receive service, less (i) any amounts owed by
Customer to PanAmSat under this Agreement; (ii) any reasonable costs (including
reasonable attorneys fees) incurred by PanAmSat in attempting to collect such
amounts from Customer; (iii) any other damages incurred by PanAmSat as a result
of Customer's breach of its obligations hereunder; (iv) any reasonable costs
(including reasonable attorneys' fees) incurred by PanAmSat in marketing the
Service Transponder to, or negotiating service agreement(s) with, third
parties; and (v) any costs reasonably incurred by PanAmSat in providing related
services and equipment (not provided to Customer) that may be associated with
the provision of such service. Nothing herein shall be deemed to require
PanAmSat to enter into a service agreement, if the nature of the party, the
party's proposed use of the service or demand for terms and conditions for
service, or other reasonable and appropriate factors, lead PanAmSat reasonably
to determine not to enter such a service agreement; nor shall PanAmSat be
obligated to use the capacity formerly used to provide Service to Customer
ahead of any other capacity that PanAmSat may also have available. Customer
acknowledges that the foregoing rights of PanAmSat: (i) are reasonable under
all of the circumstances existing as of this date; (ii) constitute liquidated
damages for the loss of a bargain; and (iii) do not constitute a penalty.
7.6 Rights and Obligations Upon Termination. Upon termination of this
Agreement in accordance with any of Sections 7.1, 7.2, 7.3 or 7.4 above, or
Section 8.1
-15-
16
below, PanAmSat shall promptly refund to Customer any portion of the Service
Fee (including any applicable portion of the Deposit) applicable to any period
during which Customer has not received Service. The termination of this
Agreement for any reason shall extinguish all of PanAmSat's obligations to
provide, and Customer's obligations to accept, Service for the affected
Satellite, but shall not relieve either party of any obligation that may have
arisen prior to such termination, including (without limitation), under Section
7.5 above, nor shall termination affect the parties' obligations under
Article 11 ("Confidentiality") that shall survive the termination of this
Agreement.
ARTICLE 8. FORCE MAJEURE.
8.1 Failure to Commence Service Or To Perform. Any failure or delay in
the performance by PanAmSat of its obligation to commence or to continue to
provide Service shall not be a breach of this Agreement, if such failure or
delay results from any Act of God, governmental action (whether in its
sovereign or contractual capacity), or any other circumstance reasonably beyond
the control of PanAmSat, including but not limited to, receive earth station
sun outage, meteorological or astronomical disturbances, earthquake, hurricane,
snowstorm, fire, flood, strikes, labor disputes, war, civil disorder,
epidemics, quarantines, embargoes, or acts or omissions of Customer or any
third parties. The foregoing notwithstanding, PanAmSat shall provide Customer
with Outage Credits in circumstances in which PanAmSat is unable to perform
because of force majeure conditions, with the exception of force majeure
conditions that are attributable to sun outages, meteorological or astronomical
disturbances, or acts or omissions of Customer or its employees, agents, or
contractors. Subject to the following sentence, either party shall be permitted
to terminate this Agreement, as to the affected Service Transponder, if,
because of force majeure conditions: (a) Service meeting the Service
Specifications cannot be recommenced within sixty (60) days; or (b) the nature
of the force majeure event makes it clearly ascertainable that Service meeting
the Service Specifications will not be able to recommence within this sixty
(60) day period. Customer shall not be permitted to terminate this Agreement if
PanAmSat's inability to perform is due to acts or omissions of Customer or
- 16 -
17
its employees, agents, or contractors or for intermittent failure of Service due
to sun outages, meteorological or astronomical disturbances.
ARTICLE 9. LIMITATION OF LIABILITY AND INDEMNIFICATION.
9.1 Limitation Of PanAmSat's Liability. ANY AND ALL EXPRESS AND IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PURPOSE OR USE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. IT IS
EXPRESSLY AGREED THAT PANAMSAT'S SOLE OBLIGATION AND CUSTOMER'S EXCLUSIVE
REMEDIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT
ARE LIMITED TO THOSE SET FORTH IN SECTION 5.2 AND ARTICLE 7 AND ALL OTHER
REMEDIES OF ANY KIND ARE EXPRESSLY EXCLUDED. In no event shall PanAmSat be
liable for any incidental or consequential damages or loss of revenues, whether
foreseeable or not, occasioned by any defect in the Satellite, the Transponders
or the provision of Service to Customer, any delay in the provision of Service
to Customer, any failure of PanAmSat to provide Service, or any other cause
whatsoever.
9.2 Limitation Of Liability Of Others. Without limiting the generality
of the foregoing, Customer acknowledges and agrees that it shall have no right
of recovery for the satisfaction of any cause whatsoever, arising out of or
relating to this Agreement, against (a) any supplier of services or equipment
to PanAmSat in connection with the construction, launch, operation,
maintenance, tracking, telemetry and control of the Satellite or the Service
Transponder, or the provision of Service to Customer in any circumstances in
which PanAmSat would be obligated to indemnify the supplier, or (b) any
officer, director, employee, agent or partner of (i) PanAmSat or (ii) any
service or equipment provider under 9.2(a).
9.3 Indemnification. Customer shall defend and indemnify the "PanAmSat
Group" (defined herein to mean PanAmSat and all officers, employees, agents and
partners
-17-
18
of PanAmSat) from any claims, liabilities, losses, costs, or damages, including
attorneys' fees and costs, arising out of the provision of Service from, or
Customer's use of, the Satellite or the Service Transponder, that (a) is caused
by the fault or negligence of Customer, (b) arises under a warranty,
representation, or statement by Customer to any third party in connection with
transmissions over the Satellite, (c) arises out of the content of Customer's
programming, including any libel, slander, obscenity, indecency, infringement
of copyright, infringement of patents, breach in the privacy or security of
transmissions, changes in facilities, operations or procedures, or from the
furnishing of facilities or Service; or (d) arises out of disputes between or
among Customer and its program recipients. The limitation of liability set
forth in this Article 9 shall apply to, and the indemnifications set forth in
this Article 9 shall run in favor of, the PanAmSat Group.
ARTICLE 10. SUBORDINATION AND ASSIGNMENT.
10.1 No Property Interest Created. This Agreement is a service contract
and does not grant, and Customer shall not assert, any right, interest, or lien
upon the property or assets of PanAmSat, including any satellite or related
equipment which it may own.
10.2 Collateral Trustee
(a) Customer hereby acknowledges that this Agreement and all rights
granted to Customer hereunder are subject and subordinate to a security
interest and lien in favor of First Trust National Association (the "Trustee"),
as the same may be assigned (the "Security Interest") in and to the
Transponder(s) that may be owned and operated by PanAmSat and which are the
subject of this Agreement (and/or the proceeds from the sale or other
disposition of all or any portion thereof, or any insurance that may be
received by PanAmSat as a result of any loss or destruction of, or damage to,
the Transponders identified above). The Security Interest shall be deemed to
arise under all security agreements, indentures, mortgages, pledge agreements
and other collateral documents between Trustee and PanAmSat, including all
renewals, modifications, consolidations or replacements thereto
- 18 -
19
(collectively, the "Collateral Documents"). Notwithstanding the Security
Interest, the Trustee agrees that Customer shall continue to have the benefits
of this Agreement notwithstanding any default on the part of PanAmSat under the
Collateral Documents, so long as (i) Customer is not in default under the terms
and conditions of this Agreement, (ii) Customer shall not pay any of its
obligations under this Agreement more than 30 days prior to their scheduled
payment date under this Agreement, (iii) this Agreement is not supplemented,
amended or extended or otherwise modified in any manner which adversely affects
the interests of the Trustee on behalf of the holders of the Senior Secured
Notes (as defined in the Collateral Documents) in a degree greater than the
manner in which it adversely affects PanAmSat, and (iv) after receipt of notice
from the Trustee of a default by PanAmSat under the Collateral Documents,
Customer agrees to make, and makes, all payments thereafter as instructed by
the Trustee.
(b) Customer acknowledges and consents to the foreclosure, should it occur,
upon this Agreement by the Trustee or its designee, successor or assignee, and
the consequent replacement of PanAmSat under this Agreement by the Trustee, its
designee, successor or assignee, or another purchaser or assignee, provided that
any successor to PanAmSat under this Agreement (i) expressly assumes PanAmSat's
obligations hereunder for the benefit of Customer, and (ii) succeeds to
substantially all of the right, title, and interest in and to all assets of
PanAmSat reasonably necessary for such successor to perform its obligations
under this Agreement. Upon such succession and assumption by a party other than
the Trustee, the Trustee and its successors under this Agreement, other than the
ultimate successor, shall be released from any further liability under this
Agreement.
(c) The Trustee shall be entitled to exercise all rights and to cure any
defaults of PanAmSat under this Agreement, within such cure period as may be
available to PanAmSat under this Agreement. Upon receipt of notice from the
Trustee, Customer agrees to accept such exercise and cure by the Trustee and to
render all or any part of the performance due by Customer under this Agreement
to the Trustee.
- 19 -
20
(d) The Trustee shall be deemed an express third party
beneficiary of this Section 10.2. This Section 10.2 shall be self-operative and
no further instrument of subordination shall be required by any security
agreement, mortgage or other document reflecting the Security Interest to make
this subordination effective. In confirmation of such acknowledged
subordination, Customer shall execute promptly any instrument or certificate
which PanAmSat or the Trustee may reasonably request.
10.2A Subordination to Xxxxxx Aircraft Company. PanAmSat currently
anticipates that the Service Transponder(s) will not be Xxxxxx Secured
Transponder(s). Customer acknowledges and agrees that, in the event that
PanAmSat seeks to use a Xxxxxx Secured Transponder as a Service Transponder
(for example, in the event of a failure of a Service Transponder on a Confirmed
Basis), (i) PanAmSat may require Xxxxxx' consent to the provisions set forth in
this Agreement regarding subordination (and other aspects of this Agreement
related to that decision), and (ii) if PanAmSat secures Xxxxxx' consent (or if
no such consent is required), the subordination provision set forth in Appendix
E shall also apply to this Agreement.
10.3 Subordination to Other Entities. Customer acknowledges and
agrees that PanAmSat may grant additional security interests in the
Transponders and/or the Satellite to other parties. In such event, the
provisions set forth above or similar provisions, to the extent that changes
are requested by another secured party, shall apply.
10.4 PanAmSat's Right To Assign. Customer agrees that PanAmSat may
assign its rights and interests under this Agreement and to the Satellite and
any or all sums due or to become due under this Agreement to an assignee for
any reason. Customer agrees that upon receipt of notice from PanAmSat of such
assignment, Customer shall perform all of its obligations directly for the
benefit of the assignee and shall pay all sums due or to become due directly to
the assignee, if so directed. Upon receipt of notice of such assignment,
Customer agrees to execute and deliver to PanAmSat such documentation as
assignee may
- 20 -
21
reasonably require from PanAmSat. As used in this Section 10.4, assign shall
mean to grant, sell, assign, encumber or otherwise convey directly or
indirectly, in whole or in part.
10.5 Customer Assignment. Customer may assign its rights under this
Agreement, only in whole, and only after securing PanAmSat's express prior
written consent, which consent may be withheld or conditioned in PanAmSat's sole
discretion. Notwithstanding the foregoing, Customer may assign its rights and
interests under this Agreement, in whole, but not in part, to a Commonly
Controlled Entity (as defined below), provided (a) the proposed assignee in
writing assumes all of Customer's obligations with respect to this Agreement and
agrees to be treated as Customer for all purposes under this Agreement; (b) the
assignee's written undertaking is delivered in advance to PanAmSat; (c) Customer
remains liable to PanAmSat for the assignee's performance and payment
obligations under this Agreement; and (d) PanAmSat consents to such assignment
in advance and in writing, such consent not to be unreasonably withheld or
delayed; it being understood that PanAmSat may withhold its consent to
Customer's assignment to a Commonly Controlled Entity only if PanAmSat
determines, in good faith, that some or all of the assignee's transmissions may
be obscene, indecent, or slanderous; may be in violation of copyright laws, any
other government restriction, or any legal or contractual obligation of
PanAmSat. "Commonly Controlled Entity" is defined for the purposes of this
Section to mean all persons and entities that control, are controlled by, or are
under common control with Customer. As used in this Section 10.5, assign shall
mean to grant, sell, assign, encumber, otherwise convey, license, lease,
sublease, or permit the utilization of, directly or indirectly, in whole or in
part.
10.6 Successors. Subject to all the provisions concerning assignments,
above, this Agreement shall be binding on and shall inure to the benefit of any
successors and assigns of the parties, provided that no assignment of this
Agreement shall relieve either party of its obligations to the other party. Any
purported assignment by either party not in compliance with the provisions of
this Agreement shall be null and void and of no force and effect.
-21-
22
10.7 No Resale. The Service is provided for Customer's own use and in no
event shall Customer be permitted to resell the Service, in whole or in part,
to any other person or entity, except as expressly provided under Section 1.3
of this Agreement as part of a value added communications service to Customer's
customers, in which Customer provides more communications facilities than bare
space segment capacity. It is expressly acknowledged and agreed that resale of
the Service for use in the provision of any Television Service shall not be
permitted.
ARTICLE 11. CONFIDENTIALITY.
11.1 Non-disclosure. PanAmSat and Customer shall hold in confidence the
information contained in or exchanged in connection with this Agreement.
Notwithstanding the foregoing, disclosure, on a confidential basis, by either
party is permitted: (a) to its principals, auditors, attorneys, investors,
lenders, insurance agents, and proposed and actual successors in interest and
(b) to comply with law and enforce its rights and perform its obligations under
this Agreement.
ARTICLE 12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
PanAmSat has or will use all reasonable efforts to obtain and maintain all
consents and authorizations from the FCC and other regulatory authorities with
jurisdiction over PanAmSat that may be necessary to provide the Service as
contemplated in this Agreement. Subject to the understanding that certain
consents and authorizations have not yet been obtained and that certain
applications in this regard may be pending or subsequently filed with the FCC
or other applicable regulatory authority, PanAmSat and Customer each represents
and warrants to, and agrees with, the other that:
12.1 Authority. It has the right, power and authority to enter into and
perform its obligations under this Agreement.
-22-
23
12.2 Partnership And Corporate Approvals. It has taken all requisite
partnership or corporate action, as applicable, to approve execution, delivery
and performance of this Agreement, and this Agreement constitutes a legal,
valid and binding obligation upon itself.
12.3 Consents.
(a) The fulfillment of its obligations will not constitute a material
violation of any existing applicable law, rule, regulation or order of any
governmental authority. All public or private consents, permissions,
agreements, licenses or authorizations necessary for the performance of its
obligations under this Agreement to which it is subject have been obtained, or
it will use all reasonable efforts to obtain, in a timely manner.
(b) PanAmSat and Customer each acknowledges that the use of the
Service may be subject to the applicable consultation obligations of the
International Telecommunications Satellite Organization Agreement ("Intelsat").
PanAmSat shall use reasonable best efforts to obtain the Association with an
Intelsat Article XIV(d) Consultation for the Satellite by those countries
specified by Customer from time to time within the footprint of the Satellite.
Customer shall cooperate with PanAmSat in seeking the association of those
countries identified by Customer. The Service is not permitted to be used for
U.S. domestic communications.
12.4 Litigation. To the best of its knowledge, there is no outstanding or
threatened judgment, pending litigation or proceeding, involving or affecting
the transactions provided for in this Agreement, except as has been previously
disclosed in writing by either party to the other.
12.5 No Broker. It does not know of any broker, finder or intermediary
involved in connection with the negotiations and discussions incident to the
execution of this Agreement, or of any broker, finder or intermediary who might
be entitled to a fee or commission upon the consummation of the transactions
contemplated by this Agreement.
-23-
24
ARTICLE 13. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF PANAMSAT.
13.1 Orbital Location. PanAmSat has obtained from the FCC final authority
to construct, and conditional authority to launch and operate the Satellite in
geostationary orbit at 43(degrees) West Longitude. PanAmSat shall use such
orbital location (or, to the extent that PanAmSat obtains FCC authority to do
so, any location within five degrees of 43(degrees) X.X.), unless prevented by
subsequent order of the FCC, in which event PanAmSat shall use such orbital
position closest to the range identified above that the FCC may designate.
PanAmSat shall use all reasonable efforts to resist any move of the Satellite
from outside the orbital range specified above. In the event that PanAmSat is
required to change the Satellite's orbital location, such change shall not
affect the continuing validity of this Agreement, except to the extent such
change prevents PanAmSat from providing Service that meets the Service
Specifications, in which event the termination provision set forth in Article 7
shall apply.
13.2 Government Authorizations. PanAmSat shall use all reasonable efforts
to obtain and maintain all necessary governmental authorizations or permissions
to operate the Satellite and to comply in all material respects with all
regulations of the FCC and of other regulatory authorities with jurisdiction
over PanAmSat regarding the operation of the Satellite.
13.3 Operational Reports. PanAmSat shall provide Customer a quarterly
written operational report concerning the Satellite which shall include
information regarding the status of Spare Equipment and updated projections
regarding the predicted life of the Satellite. PanAmSat shall also notify
Customer as soon as practicable of any significant anomalies with respect to
the Satellite which have a material effect on the Service Transponder or
materially reduce the projected life of the Satellite.
-24-
25
ARTICLE 14. MISCELLANEOUS.
14.1 Applicable Law and Entire Agreement. The existence, validity,
construction, operation and effect of this Agreement shall be determined in
accordance with and be governed by the laws of the State of Connecticut, U.S.A.
and, where applicable, the FCC's regulations. All disputes arising in
connection with this Agreement which cannot be resolved by the parties by
mutual consultation shall be finally settled under the Rules of Conciliation
and Arbitration of the International Chamber of Commerce in New York, New York
by one or three arbitrators appointed in accordance with the said Rules and
applying the substantive law of the State of Connecticut. This Agreement
constitutes the entire agreement between the parties and supersedes all
previous understandings, commitments or representations concerning its subject
matter. This Agreement may not be amended or modified in any way, and none of
its provisions may be waived, except by a prior writing signed by an authorized
officer of each party.
14.2 Severability. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to law. If any
provision of this Agreement shall be invalid or unenforceable, the provisions
of this Agreement so affected shall be curtailed and limited only to the extent
necessary to permit compliance with the minimum legal requirements.
14.3 No Third Party Beneficiary. The provisions of this Agreement are
for the benefit only of Customer and PanAmSat, and, except as provided under
Section 10.2 and 10.3 and, if applicable, Appendix E and Section 10.2A, no
third party may seek to enforce or benefit from these provisions, except that
both parties acknowledge and agree that the non-interference requirements of
Section 4.1 are intended for the benefit of both PanAmSat and all other
Protected Parties, and that the provisions of Article 9 are intended for the
benefit of the PanAmSat Group. Any other Protected Party shall have the right,
as a third party beneficiary (a) to enforce the non-interference requirements
of Section 4.1, against Customer directly, in an action brought solely by
itself, or (b) to join with PanAmSat or any
-25-
26
other Protected Parties in bringing an action against Customer for violation of
the non-interference requirements of Section 4.1. Any member of the PamAmSat
Group shall have the right to enforce, as a third party beneficiary, the
provisions of Article 9 either by (a) an action brought solely by itself, or (b)
joining PanAmSat, or other members of the PanAmSat Group in bringing an action
against Customer for violation of Article 9.
14.4 Non-Waiver Of Breach. Either party may specifically waive any breach
of this Agreement by the other party, provided that no such waiver shall be
binding or effective unless in writing and no such waiver shall constitute a
continuing waiver of similar or other breaches. A waiving party may at any time,
upon notice given in writing to the breaching party, direct future compliance
with the waived term or terms of this Agreement, in which event the breaching
party shall comply as directed from such time forward.
14.5 Notices.
(a) Telephone Notices. For the purpose of receiving notices from PanAmSat
regarding preemption, interference or other technical problems, including with
respect to Service failure and restoration, Customer shall maintain at each
earth station transmitting signals to the Satellite a telephone that is
continuously staffed at all times during which Customer is transmitting signals
to the Satellite and an automatic facsimile machine in operation and capable of
receiving messages from PanAmSat at all times which telephone and facsimile
numbers Customer shall promptly provide to PanAmSat. 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. In addition, Customer shall
maintain at a single, unified operational center for all earth stations a
telephone that is continuously staffed at all times during which Customer is
transmitting signals to the Satellite and an automatic facsimile machine in
operation and capable of receiving messages from PanAmSat at all times, which
telephone and facsimile numbers Customer shall promptly provide to
-26-
27
PanAmSat, and PanAmSat also shall provide notices regarding the matters
identified above to such telephone number. 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 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
14.5(b) below.
(b) General Notices. All notices and other communications from either
party to the other, except as otherwise stated in this Agreement, shall be in
English writing and, shall be deemed received upon actual delivery or completed
facsimile addressed to the other party as follows:
To PanAmSat if by mail PanAmSat, L.P.
or by personal delivery to One Pickwick Plaza
its principal place of Xxxxxxxxx, Xxxxxxxxxxx 00000
business: Attention: General Counsel
To PanAmSat if by facsimile: 000-000-0000
Attention: General Counsel
With a copy to:
If by mail or by personal Goldberg, Godles, Wiener & Xxxxxx
delivery to its principal 0000 Xxxxxxxxxx Xxxxxx, X.X.
place of business: Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxxxx
If by facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxxx
To Customer if by mail or Resis, S.A.
by personal delivery to its Xxxxxxx Xxxx 619, Primer Piso
principal xxxxx xx 0000 Xxxxxx Xxxxx, Xxxxxxxxx
business:
To Customer if by facsimile: 000-000-000-0000/000-0000
-27-
28
With a copy to:
If by mail or by personal Xxxxxxx Xxxx 619, Primer Piso
delivery to its principal 1001 Buenos Aires, Argentina
place of business: Attention: Xxxxxxxxx Xxxxx
Gerente General
If by facsimile: 000-000-000-0000/315-3686
Each party will advise the other of any change in the address, designated
representative or telephone or facsimile number.
14.6 Headings. The descriptive headings of the Articles and sections of
this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
14.7 Documents. Each party agrees to execute, and, if necessary, to file
with the appropriate governmental entities and international organizations,
such documents as the other party shall reasonably request in order to carry
out the purposes of this Agreement.
14.8 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all such counterparts together
shall constitute but one and the same instrument.
-28-
29
Each of the parties has duly executed and delivered this Agreement as of
the day and year first written above.
PANAMSAT, L.P.
(Limited Partnership)
By PanAmSat, Inc., General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: XXXXXXX XXXXXXXXX
------------------------------------
Title: EXECUTIVE VICE PRESIDENT
-----------------------------------
RESIS, S.A.
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------------
Name: XXXXXXXXX X. XXXXX
------------------------------------
Title: GERENTE GENERAL
-----------------------------------
-29-
30
APPENDIX A
SERVICE TRANSPONDER AND PAYMENT SCHEDULE FOR "CUSTOMER"
SATELLITE: Second Atlantic Ocean Region (PAS-3)
Transponder Capacity:
Monthly Service
Trans- Uplink Beam/ Downlink Beam/ Fee per
Amount xxxxxx #1 Band MHz Polarization(1) Polarization(1) Transponder
One C 54 [US$ ]*
------------------
(1) To be determined by PanAmSat in accordance with Appendix C.
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
00
XXXXXXXX X
DESCRIPTION OF PAS-3 SATELLITE AND SPARE EQUIPMENT
1.0 INTRODUCTION
The PanAmSat HS 601 satellites are body stabilized, geostationary satellites
designed to provide worldwide C- and Ku-band communications services. PanAmSat
has up to three different satellites covering the Pacific Ocean (POR), Atlantic
Ocean (AOR), and Indian Ocean (IOR) regions.
The communications payload described below provides flexible coverage of the
regions visible from each satellite location by providing seventeen different
antenna patterns and using selectable combinations of C-band, Ku-band, and
cross-strapped repeaters. The failure-tolerant design can provide full
communications capacity with up to eight channel amplifiers failed. A key
element of the payload is the shaped antenna reflectors, which allow complex
coverage patterns to be produced with a single feed horn. This technology,
flight proven on previous Xxxxxx programs, not only provides improved
communications performance, but also contributes to cost effectiveness, as well
as power and mass efficiency.
The satellite bus, also described below, is a Xxxxxx XX 601. It has a design
life of 15 years, and is compatible with the Long March 2E, Atlas II, and
Ariane 4 launch vehicles. The modular design allows flexibility in meeting
customer requirements, ease of fabrication, integration and test. The robust
design will provide reliable long-life operation, with adequate power for the
communications payload and pointing accuracy that will take full advantage of
the tailored antenna coverage patterns.
2.0 PAYLOAD SUMMARIES
The HS 601 three-axis body stabilized spacecraft design supports both C-band
and Ku-band payloads and accommodates the dual-grid shaped reflector assemblies
on the East, West and nadir sides of the spacecraft as shown in Figure B-1.
Each of these compact product line assemblies contains two reflective surfaces
that are shaped to provide antenna coverage contours. One surface in each
assembly is polarized horizontally, and the other vertically, to provide both
high gain and excellent polarization purity.
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-1
32
Full advantage is taken of the shaped high gain beams by ensuring accurate
antenna pointing. A fully redundant, highly accurate, earth reference pointing
system provides comparable performance to a beacon tracking system used on
previous satellites. The extensive use of graphite composite materials in the
structure and center held reflectors essentially removes all thermal distortion
effects to the pointing system. Finally, the on-orbit calibration of the
pointing system, before the commencement of service, establishes system
integrity and verifies pointing performance.
The large aperture, high gain antenna, combined with low output losses,
produces the necessary EIRP using 34 Watt C-band solid state power amplifiers
(SSPAs) and 63 Watt traveling wave tube amplifiers (TWTAs). The low noise
receivers use high electron mobility transistor (HEMT) devices for excellent
noise figures. Each payload is discussed in the following paragraphs.
2.1 C-Band Payload
The C-band payload provides three coverage regions. The Pacific Ocean Region
(POR) includes the Pacific Rim, Asia, Australia, and Oceania. The Atlantic
Ocean Region (AOR) covers the Americas, Europe, and Africa, while the Indian
Ocean Region (IOR) covers Europe, Asia, the Middle East, the Far East,
Australia, and Africa. The EIRP and gain to noise temperature ratio (G/T)
performance for these regions meets all goals with margin. The frequency and
polarization plan for the C-band payload (Figure B-2) shows each transponder
along with the uplink and downlink selectability available in each service
region. All channels that service more than one coverage area can be ground
commanded independently of other channels to serve any of its uplink or
downlink service areas. The uplink and downlink choices are selected in tandem
for each transponder. The attached block diagram (Figure B-3) illustrates the
C-band payload design.
The C-band uplink signals are amplified and downconverted by receivers before
being distributed to the channel input filters. Since several Transponders
require uplinking from multiple coverage areas, these Transponders incorporate
uplink beam selection switching between the receivers and input filters. A bank
of C-switches, placed in front of each channel filter that serves multiple
uplinks, selects the correct uplink signal and passes the other uplinks on to
the next filter in the multiplexer. This switching implementation is
illustrated in the C-band repeater block diagrams. The 34 Watt (30 Watt on
PAS-4 IOR) SSPAs and Channel Control Units (CCUs) provide the final gain and
set the output power level.
Odd-even multiplexing technique is used to simplify the multiplexer filter and
manifold design as well as the payload compartment layout. The AOR and POR
payloads implement downlink beam selection switching for three channels. All
outputs are low-pass filtered prior to the transmit antenna inputs to minimize
out-of-band and receiver band spurious signals.
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-2
33
[DIAGRAM]
Figure B-1. Satellite Layout
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-3
34
[CHART]
Figure B-2. PAS-3 C-Band Frequency Plan
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-4
35
[DIAGRAM]
Figure B-3. PAS-3 C-Band Payload Block Diagram
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-5
36
2.2 Ku-Band Payload
The frequency and polarization plans for the Ku-band payload show the number
and type of Transponders and the service region of the uplinks and downlinks.
The EIRP and G/T performance for these regions meet all applicable
specifications. All channels that service more than one coverage area can be
ground commanded independently of other channels to serve any of its uplink or
downlink service areas. The following paragraphs address the issues which
influence the design.
The LNAs incorporate HEMTs for excellent noise figure. The downconverters
include double-balanced mixers to minimize unwanted spurious signals. The
receivers have the LNAs in front of the downconverters to accommodate the
Ku-band to C-band cross-connections channels. On the AOR and IOR payloads,
separate downconverters are incorporated to accommodate differences between the
downlink frequencies in the different coverage areas. The Ku-band repeaters
also include upconverters to accommodate the C-band and to Ku-band
cross-connection channels.
The CCUs perform the gain control functions of the repeater and set the input
drive level to the TWTA. Monolithic microwave integrated circuit step
attenuators provide adjustment for the [ ]*. Helix current telemetry is
provided.
On the IOR, contiguous channel output multiplexers are used on two of the
outputs to combine the channels and route the output signals to the transmit
antenna. contiguous channel multiplexing provides the highest antenna gain to
output loss ratio possible, thereby maximizing EIRP performance. The remaining
output sections are implemented as odd-even multiplexed channel filters. While
this approach has slightly more loss than the contiguous multiplexer, the
odd-even simplicity more than compensates.
The frequency and polarization plan for the Ku-band payload (Figure B-4) shows
each transponder along with the uplink and downlink selectability available in
each service region. All channels that service more than one coverage area can
be ground commanded independently of other channels to serve any of its uplink
or downlink service areas. The uplink and downlink choices are selected in
tandem for each transponder. The attached block diagram (Figure B-5)
illustrates the Ku-band payload design.
A separate uplink power control (ULPC) horn antenna mounted on the nadir face
is combined with 2:1 redundant ULPC beacon transmitters to provide a Ku-band
beacon in both left-hand and right-hand circular polarizations.
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-6
* CONFIDENTIAL TREATMENT -- Confidential portion has been omitted and filed
separately with the Commission.
37
[CHART]
Figure B-3. PAS-3 Ku-Band Frequency Plan
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-7
38
[DIAGRAM]
Figure B-5. PAS-3 Ku-Band Payload Block Diagram
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-8
39
2.3 Redundancy
Two groups of 10-for-8 active C-band units allow for up to 2 adjacent failures
on each polarization. On the AOR and POR satellites, high reliability is
achieved on Ku-band by grouping the CCUs and TWTAs in two groups of 10-for-8
active units, allowing for up to 2 adjacent failures in each group. On the IOR
satellite, reliability is also achieved on Ku-band by grouping the CCUs and
TWTAs in two groups of 15-for-12 active units allowing for up to 2 adjacent
failures in each group. The sparing arrangements are shown in detail on the
attached block diagrams.
END OF APPENDIX B
Appendix B
Description of PAS-3 Satellite and Spare Equipment B-9
40
APPENDIX C
SERVICE SPECIFICATIONS FOR
PAS-3 AOR C-BAND
PAN AMERICA BEAM TRANSPONDERS
[
]*
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
41
APPENDIX D
EARTH STATION AND OPERATIONAL REQUIREMENTS
FOR ANALOG AND DIGITAL SERVICES
VIA PAS-3 C-BAND AND KU-BAND TRANSPONDERS
[
]*
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
42
APPENDIX E
SUBORDINATION TO XXXXXX AIRCRAFT COMPANY
Subordination. Customer hereby acknowledges that this Agreement and
all rights granted to Customer hereunder are subject and subordinate to a
security interest and lien in favor of Xxxxxx Aircraft Company, as the same may
be assigned (the "Interest"), in and to the Transponder(s) that may be owned or
operated by PanAmSat (and/or the proceeds from the sale or other disposition of
all or any portion thereof, or any insurance that may be received by PanAmSat
as a result of any loss or destruction of, or damage to, the Transponders
identified above) and to all renewals, modifications, consolidations,
replacements and extensions of any security agreement, mortgage or other
document reflecting any such Interest arising under that certain Satellites
Purchase Contract Security Agreement (the "Xxxxxx Security Agreement"), by and
between PanAmSat and Xxxxxx Aircraft Company: provided, that, the holder of such
Interest agrees that, so long as (i) Customer is not in default under the terms
and conditions of this Agreement, (ii) Customer shall not pay any of its
obligations under this Agreement more than 30 days prior to their scheduled
payment date under this Agreement, (iii) this Agreement is not supplemented,
amended or extended (except by its terms with respect to specified extension
periods) or otherwise modified in any manner, except with the prior written
consent of Xxxxxx Aircraft Company, and (iv) after receipt of notice from the
holder of the Interest of a default by PanAmSat under the agreement providing
for the Interest, Customer agrees to make and makes all payments thereafter as
instructed by the holder of the Interest; Customer shall continue to have the
benefits of this Agreement notwithstanding any default on the part of PanAmSat
under the agreement providing for such Interest. Xxxxxx Aircraft Company shall
be deemed an express third party beneficiary of this Agreement. This clause
shall be self-operative and no further instrument of subordination shall be
required by any security agreement, mortgage or other document reflecting such
Interest to make this subordination effective. In confirmation of such
acknowledged subordination, Customer shall execute promptly any instrument or
certification which PanAmSat or the holder of such an Interest may reasonably
request.
43
March 27th, 1995
FIRST AMENDMENT (the "First Amendment") TO FULL-TIME TRANSPONDER
SERVICE AGREEMENT
FOR DATA SERVICE DELIVERY (PRE-LAUNCH)(the "AOR Agreement")
PanAmSat, a Delaware corporation ("PanAmSat") and Resis S.A., a
corporation organized and existing under the laws of Argentina ("Resis")
hereby, as of the date written above, amend the above-referenced AOR Agreement,
dated August 18, 1994, as follows:
1. Replacement Satellite. Each party agrees that, except as provided
below, the AOR Agreement, including the Service Specifications set forth in
Appendix C that are applicable to the Service Transponder, shall apply to
Service to be provided by PanAmSat from a new satellite that PanAmSat has
ordered from Xxxxxx Aircraft Company to replace the initially contemplated
Satellite which suffered a launch failure on December 1, 1994. All references
in the AOR Agreement to the "Satellite" shall henceforth be deemed to refer to
the new Satellite. The Service Date for the new Satellite is currently
anticipated to occur in early 1996, and not later than April 1, 1996.
2. Void only as to Paragraph 2 of this Amendment.
3. Revised Termination Rights. Each party waives the termination rights
stated in Section 7.1 of the AOR Agreement and agrees that Section 7.1 is
revised in its entirety to read as follows:
" 7.1 Termination for Delay in, or Failure Prior to, Service Date.
PanAmSat shall keep Customer reasonably apprised of changes in the
anticipated service commencement date and shall provide Customer with
quarterly updates as to the then-anticipated service commencement date.
This Agreement shall automatically terminate if the Service Date does not
occur on or before April 1, 1996.
This Agreement shall also terminate, prior to the Service Date, in any
of the following events: (i) if there is a launch failure that results in
destruction of the Satellite; (ii) at PanAmSat's option, if the Satellite,
while not destroyed, is a "Total Loss" under PanAmSat's launch insurance
policy; or (iii) if, after a launch, which is not a launch failure, the
Service Transponder is incapable of meeting the Service Specifications,
unless Spare Equipment or available Substitute Capacity for the Service
Transponder is provided by PanAmSat in accordance with Section 5.3."
4. Assignment of AOR Agreement. Effective immediately upon execution by
the parties of this First Amendment, Resis hereby assigns all of its rights and
obligations under the AOR Agreement to International Satellite Communication
Holding Limited ("I.S.C.H."), a corporation organized and existing under the
laws of Liechtenstein and I.S.C.H. agrees to assume
44
-2-
all of Resis' obligations with respect to the AOR Agreement and to be treated
as Resis for all purposes under the AOR Agreement, which I.S.C.H. hereby
acknowledges by signing in the space indicated below. Notwithstanding anything
herein or in the AOR Agreement to the contrary. Resis shall remain liable to
PanAmSat for I.S.C.H.'s performance and payment obligations under the AOR
Agreement. In furtherance of such assignment, and subject to I.S.C.H.'s
acknowledgement and agreement thereto, PanAmSat consents to this assignment and
agrees to perform its duties and fulfill its obligations under the AOR
Agreement for the benefit of I.S.C.H. as the contracting party.
5. FCC Authorizations. Section 13.1 of the AOR Agreement notwithstanding,
PanAmSat hereby advises Customer of the following: PanAmSat had been authorized
to construct and launch the original Satellite, and to operate it in
geosynchronous orbit at 43 (degrees) West Longitude. PanAmSat either will be
able to rely on this authorization to construct, launch and operate the PAS-3
replacement, or (if the FCC determines it necessary) will amend PanAmSat's
pending application for authority to construct a ground spare, requesting
instead authority to construct, launch and operate the replacement Satellite. In
either event, PanAmSat anticipates no difficulty in securing the necessary FCC
authorization to proceed.
Each of the parties has duly executed and delivered this First Amendment
as of the day and year first written above.
RESIS, S.A. PANAMSAT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------ -------------------------------
Name: Xxxxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxxxxx
Title: Presidente Title: Executive Vice President
Agreed to and Accepted:
INTERNATIONAL SATELLITE COMMUNICATION HOLDING LIMITED
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Proxy
NOTE: ONLY PARAGRAPH 2 IS VOID.
45
SECOND AMENDMENT TO FULL-TIME TRANSPONDER SERVICE AGREEMENT
FOR DATA SERVICE DELIVERY (PRE-LAUNCH)
THIS AMENDMENT (the "Second Amendment") is made and entered into as of the
11th day of November, 1996, by and among PanAmSat Corporation ("PanAmSat") Resis
S.A. ("Customer") and International Satellite Communication Holding Limited
("I.S.C.H.").
WHEREAS, PanAmSat, as successor in interest to PanAmSat, L.P., and Customer
entered into that certain Full-Time Transponder Service Agreement For Data
Service Delivery (Pre-Launch) on the 18th day of August 1994 (the "Agreement"),
as amended by that certain First Amendment to Full-Time Transponder Service
Agreement for Data Service Delivery (Pre-Launch)(the "First Amendment")
(references in this Second Amendment to the "Agreement" shall be deemed to be
references to the Agreement and the First Amendment, collectively), and
WHEREAS, the Customer has assigned its rights and obligations under the
Agreement to I.S.C.H. in the First Amendment; and
WHEREAS, the Customer, I.S.C.H. and PanAmSat have requested that the
Agreement be modified to provide for Service to be supplied according to a
ramp-up schedule, to delay the Start Date, and to modify certain other terms as
further described below.
NOW, THEREFORE, in consideration of the above and other good and valuable
consideration acknowledged by the parties to have been given, the parties
mutually agree to amend the Agreement as follows:
1. All capitalized terms used in this Second Amendment, unless otherwise
defined, shall have the meanings ascribed to them in the Agreement.
2. Ramp-Up Schedule. The Service shall be provided pursuant to the
ramp-up schedule set forth below. The Service shall initially consist of a
Transponder segment, equivalent to 18 MHz of bandwidth and associated power, on
the Pan America Beam of the PAS-3 Satellite, as set forth in Table 1A of
Appendix C (the "18 MHz PAS-3 Service"). Following the six month anniversary of
the Service Term the Service shall consist of a Transponder segment, equivalent
to 36 MHz of bandwidth and associated power, on the Pan America Beam of the
PAS-3 Satellite, as set forth in Table 1B of Appendix C (the "36 MHz PAS-3
Service"). Following the one year anniversary of the Service Term the Service
shall consist of a 54 MHz Transponder on the Pan America Beam of the PAS-3
Satellite as set forth in Table 0X xx Xxxxxxxx X (xxx "00 XXx XXX-0 Service").
References in this Second Amendment and in the Agreement to the "Service"
shall, in context, be deemed to be references to the 00 XXx XXX-0 Service, the
00 XXx XXX-0 Service, and the 00 XXx XXX-0 Service.
46
-2-
3. Alternate Satellite. Notwithstanding anything in the Agreement to the
contrary, PanAmSat may, at its sole discretion, determine to provide Service via
one (1) 36 MHz Transponder on that certain Atlantic Ocean Region Satellite now
under construction by Xxxxxx Aircraft Company ("PAS-5"), provided, that (i)
PanAmSat notifies Customer of such determination no later than May 1, 1997 and
(ii) such 00 XXx xx XXX-0 capacity is of substantially equivalent power levels
and substantially similar coverage contours to those specified herein for PAS-3.
In such instance, all references in the Agreement to "PAS-3" or the "Satellite"
shall be deemed to be references to PAS-5.
In the event Service is supplied by PanAmSat via the PAS-5 Satellite,
Service shall initially consist of a Transponder segment, equivalent to 18 MHz
of bandwidth and associated power, on the America Beam of the Satellite, as set
forth in Table 1A of Appendix C (the "18 MHz PAS-5 Service"). Following the one
year anniversary of the Service Term the Service shall consist of a 36 MHz
Transponder on the America Beam of the Satellite, as set forth in Table 1B of
Appendix C (the "36 MHz PAS-5 Service").
References in this Second Amendment and in the Agreement to the "Service"
shall, in the context of the PAS-5 Satellite, be deemed to be references to the
00 XXx XXX-0 Service, and the 00 XXx XXX-0 Service.
4. Revised Service Date, Service Term. The Service Date, defined in
Section 2.2 of the Agreement shall be revised to be July 1, 1997, unless
Customer is notified prior to such date pursuant to Section 3 above that Service
will be provided via the PAS-5 Satellite, in which event the Service Date will
be the later to occur of (i) July 1, 1997 (the "Anticipated Start Date"), or
(ii) the date that Customer receives a certification from PanAmSat that PAS-5
has been placed in its assigned orbital position, with the Service Transponder
capable of providing Service meeting the Service Specifications for PAS-5 as
provided to Customer pursuant to Section 8 herein. The Service Term shall be
revised to expire on the eleven-year-and-six-month anniversary of the Service
Date.
5. Revised Service Fee. The Service Fee, as defined in Section 3.1 of the
Agreement, shall be revised according to the schedule set forth below. For the
avoidance of doubt, the Service Fees set forth below shall be payable for each
month of the Service Term, as revised herein, and PanAmSat hereby waives any
Service Fees which would otherwise have come due under the Agreement, as
previously amended, prior to the revised Service Date.
(a) In the event Service is supplied via the PAS-3 Satellite, the Service
Fee for such Service shall be according to the following schedule:
Service Service Date Total Monthly Service Fee
------- ------------ ---------------------
00 XXx XXX-0 Service Months 1-6 US$[ ]*
00 XXx XXX-0 Service Months 7-12 US$[ ]*
00 XXx XXX-0 Service Months 13-138 US$[ ]*
------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
47
-3-
(b) In the event Service is supplied via the PAS-5 Satellite, the
Service Fee for such Service shall be according to the following schedule:
Service Service Date Total Monthly Service Fee
------- ------------ -------------------------
00 XXx XXX-0 Service Months 1-12 US$[ ]*
00 XXx XXX-0 Service Months 13-138 US$[ ]*
6. Revised Deposit. The Deposit, as defined in Section 3.1 of the
Agreement, shall be revised to consist of US$[ ]* (the "Revised Deposit"),
which is due and payable in six (6) installments of US$[ ]* each with the
first three payments due on or before execution of this Second Amendment, and
the remaining three payments due monthly beginning on October 1, 1996. PanAmSat
acknowledges receipt of US$[ ]* previously paid under the Agreement prior to
execution of this Second Amendment (the "Initial Deposit"), which shall be
applied to the last month's Service Fee. The Revised Deposit shall be applied as
follows:
(a) US$[ ]* shall be applied evenly to the Service Fees for the first
six months of Service;
(b) US$[ ]* shall be applied evenly to the Service Fees for months
seven through nine;
(c) US$[ ]* shall be applied to the Service Fee for the tenth month
of Service.
In the event the Service is supplied by PanAmSat via the PAS-5
Satellite, the Revised Deposit shall be applied as follows:
(m) US$[ ]* shall be applied evenly to the Service Fees for the first
ten months of Service;
(n) US$[ ]* shall be applied to the Service Fee for the eleventh
month of Service;
and the Initial Deposit shall be applied as follows:
(x) US$[ ]* shall be applied to the Service Fee for month 137;
(y) US$[ ]* shall be applied to the Service Fee for month 138 (the
last month of the Service Term).
In the event that the Service Date does not occur on or before July 1,
1997, the Revised Deposit shall be applied towards Customer's monthly service
fees owed under separate agreements with PanAmSat for service via PanAmSat's
First Atlantic Ocean Region Satellite (the "PAS-1 Agreements") as they become
due, until exhausted.
References in the Agreement to the "Deposit" shall be deemed to refer to
both the "Initial Deposit" and the "Revised Deposit."
7. Revised Termination Rights. Each party waives the termination rights
stated in Section 7.1 of the Agreement as amended by the First Amendment, and
agrees that Section 7.1 is revised in its entirety to read as follows:
--------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
48
-4-
"7.1 Termination for Delay in, or Failure prior to, Service Date.
In the event Service is to be provided from the PAS-5 Satellite,
PamAmSat shall keep Customer reasonably apprised of changes in the
Anticipated Start Date. This Agreement shall automatically terminate if
the Service Date does not occur on or before April 30, 1998 (the "Latest
Anticipated Start Date"). For the avoidance of doubt, if there is a
"Launch Failure" that results in either the destruction of the
Satellite, or the declaration of the Satellite as a "Total Loss" under
PanAmSat's launch insurance policy, PanAmSat shall be permitted to (i)
launch a replacement satellite, or (ii) provide Service via the PAS-3
Satellite pursuant to the ramp-up schedule in Section 2 of this Second
Amendment, provided that the Service Date occurs on or before the Latest
Anticipated Start Date.
In the event this Agreement is automatically terminated pursuant
to this Section 7.1, the Initial Deposit shall be applied towards
Customer's monthly service fees owed under the PAS-1 Agreements as they
become due, until exhausted."
8. Modified Appendices. Appendix C of the Agreement shall be replaced
with the applicable revised Appendix C attached hereto, pursuant to PanAmSat's
notification to Customer of its determination to provide Service from either the
PAS-3 Satellite or the PAS-5 Satellite.
All of the terms and conditions of the Agreement shall continue to
apply, with the exception of those provisions that are directly in conflict with
the terms and conditions of this Second Amendment. At the request of either
party, the parties shall cooperate with each other to prepare and execute a
conformed copy of the Agreement to reflect the changes made herein.
EACH OF THE UNDERSIGNED PARTIES has duly executed this Second Amendment
as of the day and year first above written.
PANAMSAT CORPORATION INTERNATIONAL SATELLITE
COMMUNICATION HOLDING LIMITED
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ X. Xxxxxxxxx /s/ K. Kindle
---------------------- ---------------------------------
Name: Name: X. Xxxxxxxxx K. Kindle
Title: Title:
RESIS S.A.
By: Xxxxxxxx X. Xxxxx
-------------------------
Name:
Title:
00
XXXXXXXX X
XXXXXXX XXXXXXXXXXXXXX XXX
XXX-0 XX C-BAND
AMERICAN BEAM TRANSPONDERS
[
]*
*CONFIDENTIAL TREATMENT REQUEST-Confidential portion has been omitted and file
separately with the Commission.
50
THIRD AMENDMENT TO FULL-TIME TRANSPONDER SERVICE
AGREEMENT FOR DATA
SERVICE DELIVERY (PRE-LAUNCH)
THIS AMENDMENT (the "Amendment") is made and entered into as of the
12th day of November, 1997, by and between PanAMSat International Systems, Inc.
(formerly known as PanAmSat Corporation) ("PanAmSat"), Resis, S.A. ("Resis") and
International Satellite Communication Holding Limited ("Customer"),
WHEREAS, PanAmSat, as successor in interest to PanAmSat, L.P., and
Customer entered into that certain Full-Time Transponder Service Agreement For
Data Service Delivery (Pre-Launch) on the 18th day of August, 1994, as amended
on the 29th day of March, 1995 and on the 11th day of November, 1996 (the
"Agreement"), and
WHEREAS, PanAmSat and Customer agree to amend the Agreement in certain
respects:
NOW, THEREFORE, in consideration of the above and other good and valuable
consideration acknowledged by the parties to have been given, the parties
mutually agree to amend the Agreement as follows:
1. All capitalized terms used in this Amendment, unless otherwise
defined, shall have the meanings ascribed to them in the Agreement.
2. Revised Service: The Ramp-Up Schedule provided in the Second
Amendment to Full-Time Transponder Service Agreement for Data Service Delivery
(Pre-Launch), dated November 11, 1996 (the "Second Amendment"), shall be
deleted in its entirety. The Service shall be revised to be 00 XXx xx X-xxxx
space segment capacity on the Americas Beam of the PAS-5 Satellite (the
"Revised Service"), References in the Agreement and its appendices to the
"Service" shall, in context, be deemed to be references to the Revised Service
as described herein. The Revised Service shall be performed in accordance with
Appendix C, Service Specifications for PAS-5 AOR C-band Americas Beam
Transponders, attached to the Second Amendment.
4. Revised Service Date, Service Term. The Service Date shall be
revised to be the date that Customer receives certification from PanAmSat
that the PAS-5 Satellite has been placed in its assigned orbital position, with
the Service Transponder capable of providing Service meeting the Service
Specifications for the PAS-5 Satellite (the "Revised Service Date"). The Revised
Service shall expire on the eleventh year and six month anniversary of the
Revised Service Date (the "Service Term").
5. Termination for Delay in, or Failure prior to, Revised Service
Date. PanAmSat shall keep Customer reasonably apprised of the changes in the
anticipated Revised Service Date. This Agreement shall automatically terminate
if the Revised Service Date does not occur on or before April 30, 1998 (the
"Latest Anticipated Start
51
Date"). For the avoidance of doubt, if there is a "Launch Failure" that results
in either the destruction of the Satellite, or the declaration of the Satellite
as a "Total Loss" under PanAmSat's launch insurance policy, PanAmSat shall be
permitted to (i) launch a replacement satellite, or (ii) provide the Service via
another comparable Atlantic Ocean Region satellite, provided that the Revised
Service Date occurs on or before the Latest Anticipated Start Date.
6. Revised Service Fee Deposit. The Service Fee for Revised Service
shall be US$[ ]* for the duration of the Service Term (the "Revised Service
Fee"). PanAmSat acknowledges that it presently has a Deposit on hand of US$[ ]*
of which US$[ ]* shall be applied to the first month of the Service Term and
US$[ ]* shall be applied to the last month of the Service Term.
All of the terms and conditions of the Agreement shall continue to apply,
with the exception of those provisions that are directly in conflict with the
terms and conditions of this Amendment. At the request of either party, the
parties shall cooperate with each other to prepare and execute a conformed copy
of the Agreement to reflect the changes made herein.
EACH OF THE UNDERSIGNED PARTIES has duly executed this Amendment as of the
day and year first above written.
PANAMSAT INTERNATIONAL INTERNATIONAL SATELLITE
SYSTEM, INC. COMMUNICATION HOLDING
LIMITED
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ X. Xxxxxxxxx /s/ K. Kindle
-------------------------- -----------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: X. Xxxxxxxxx K. Kindle
Title: Executive Vice President Title:
RESIS S.A.
By: /s/ Xxxxxxxxx Xxxxx
------------------------
Name: Xxxxxxxxx Xxxxx
----------------------
Title: President
---------------------
-------------------
* CONFIDENTIAL TREATMENT REQUEST -- Confidential portion has been omitted and
filed separately with the Commission.
-2-
