Exhibit 10.10
AMERICOM-6 KU-BAND SATELLITE
BARE TRANSPONDER SERVICE AGREEMENT
THIS AGREEMENT between SES Americom, Inc., as agent for SES Americom
Colorado, Inc., and Rainbow DBS Company, LLC ("Customer"), a limited liability
company organized under the laws of Delaware, is made effective as of the date
of the last signature below. All references to "SES Americom" herein shall
include both SES Americom Colorado, Inc. and SES Americom, Inc. as agent
therefor. Defined terms used in this Agreement have the meanings specified
herein.
ARTICLE 1. SERVICE PROVIDED
A. SCOPE.
(1) SES Americom will provide to Customer Bare Transponder Protected
Service on the Americom-6 ("AMC-6") Satellite ("Service"), with the number of
Transponders as specified below. Service will be provided in accordance with the
terms and conditions set forth in this Agreement, including Attachment A
(Transponder Performance Specifications), Attachment B (Commercial Operations
System User's Guide), Attachment C (Form of Letter of Credit), Attachment D
(Form of Parent Guaranty), Attachment E (Operational Report Elements), and
Attachment F (Methodology for Determining MRC) (collectively, the "Agreement").
Subject to Section 4.A, the Satellite is authorized to be and is located at the
72(degree) X.X. orbital position. Subject to Section 4.A, the Satellite may,
however, be located at any other orbital position hereafter authorized by the
FCC. Technical performance criteria for the Satellite are described in the
Transponder Performance Specifications set forth in Attachment A. The
transponder assignments are as described below and will be changed only in
accordance with this Agreement.
(2) The Service will commence on October 1, 2004, on the first group of
thirteen (13) Transponders ("Transponder Group 1"). *** All other terms and
conditions of this Agreement shall apply to such Service.
(3) The Service will commence on January 1, 2005, on the second group
of three (3) Transponders ("Transponder Group 2"). SES Americom will assign the
Transponders in Transponder Group 2 no later than two (2) months prior to the
commencement date of Service for Transponder Group 2.
(4) Customer has the option to elect Service on a third group of three
(3) Transponders ("Transponder Group 3"), provided that Customer has notified
SES Americom in writing of its election of this option on or before January 1,
2005. Service on each Transponder in Transponder Group 3 is subject to SES
Americom making each such Transponder available for Service. If elected (and
subject to the prior sentence), the Service for Transponder Group 3 will
commence on a date or dates to be mutually agreed by SES Americom and Customer
(which date shall be no later than January 1, 2006). The Transponders in
*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
Transponder Group 3 will be identified at least sixty (60) days prior to the
agreed upon Service commencement date and in no event later than October 1,
2005.
(5) Customer has the option to elect Service on a fourth group of up to
five (5) Transponders ("Transponder Group 4"), provided that Customer has
notified SES Americom in writing of its desire to elect this option on or before
January 1, 2006, which notice shall specify how many of the Transponders in
Transponder Group 4 Customer wishes to use. Service on each Transponder in
Transponder Group 4 elected by Customer is subject to SES Americom making each
such Transponder available for Service. Upon receipt of Customer's written
notice electing its option to take Service on Transponder Group 4, SES Americom
will undertake to determine whether the number of Transponders desired by
Customer will be available for Service *** On or before April 1, 2006, Customer
shall provide written notice to SES Americom of its election to take Service on
one or more of the Transponders which SES Americom informed Customer were
available. If elected, the Service for Transponder Group 4 as to the
Transponder(s) elected by Customer and made available by SES Americom will
commence on a date or dates to be mutually agreed by SES Americom and Customer
(which date shall be no later than January 1, 2007). The Transponders in
Transponder Group 4 will be identified at least sixty (60) days prior to the
agreed upon Service commencement date and in no event later than October 1,
2006.
B. TERM. The term for Service ("Service Term") on Transponder Group 1 provided
under this Agreement shall commence on October 1, 2004 (the "Commencement
Date"), except for those Transponders for which the Commencement Date is August
1, 2004 pursuant to Section 1.A(2). The Service Term for Transponder Groups 2, 3
and 4 shall commence as specified in Sections 1.A.(3), (4) and (5),
respectively. The Service Term for all Transponder Groups and for this Agreement
shall end, except as otherwise provided herein, on the earliest of: (1) the
End-of-Life or Replacement Date of the Satellite; (2) the date the Satellite
becomes a Satellite Failure; (3) with respect to any particular Transponder, the
date the Transponder on which Service is provided hereunder becomes a
Transponder Failure and cannot be restored; or (4) September 30, 2014 (the
"Projected Termination Date"). If SES Americom intends to provide service on
Ku-band transponders after the end of the Service Term on the Satellite, then
Customer will have a right of first refusal to extend the Service Term on terms
and conditions to be mutually agreed by the parties, provided that Customer
shall notify SES Americom in writing of its desire to extend the Service Term
not later than twenty-four (24) months prior to the Projected Termination Date.
The parties will negotiate in good faith exclusively for a period of three (3)
months following such notice by Customer, and if no agreement is reached during
such period then the parties shall have no further obligations under this
Agreement regarding Service after the end of the Service Term.
C. SERVICE PRIORITIES. SES Americom shall promptly take all steps stated in this
Section, consistent with protecting the Satellite and all services provided
thereon, to restore any of Customer's affected Transponders as quickly as
possible should such Transponder(s) become a Transponder Failure. Restoration
shall be effected in the following manner and order, on a first-needed,
first-served basis: first, by utilizing any available Replacement Transponder on
the
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
Satellite; and second, if no such Replacement Transponder is available, by
using a Preemptible Transponder on the Satellite, if available (E.G., if
Customer is taking service on twenty-four (24) Transponders, then there will be
no Preemptible Transponder). If no such Protection Transponder is available on
the Satellite, Customer's Service shall not be restored. If access to Protection
Transponders on the Satellite is required for more than one Ku-band transponder
as a result of simultaneous transponder failures, such access shall be granted
in Contract Order (defined as the opposite order from Reverse Contract Order).
Any Transponder restoration shall be effected by SES Americom as soon as
technically feasible but in any event in not more than one (1) hour after a
Transponder is a Transponder Failure (provided that such one-hour obligation
shall not commence until Customer has vacated use of the Transponder) and any
Protection Transponder provided to Customer shall be deemed a Transponder
Protected Transponder.
D. OTHER COLLABORATION. SES Americom agrees, at Customer's request, to
collaborate on the design and deployment of Customer's next-generation Ka-band
satellite system, with possible operational or financing services to be provided
by SES Americom. Any agreements resulting from such collaboration are subject to
mutual agreement of the parties, each acting in its sole discretion.
E. NOTICES. All notices regarding technical or operational matters requiring
immediate attention will be given by telephone followed by written notification.
All other notices and requests will be in writing delivered to the address(es)
set forth below or to such other address(es) as the party may designate in
writing.
IF TO BE GIVEN TO CUSTOMER: IF TO BE GIVEN TO SES AMERICOM:
Attn: Xxxxxx Xxxxx Attn: Xxxx Xxxxxx
Vice President, Business Development Manager, Satellite Services
Rainbow DBS Company, LLC SES Americom, Inc.
200 Jericho Quadrangle, 0x Xxxxx Xxxx Xxxxxxxx Xxx
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax #: (000) 000-0000 Fax #: (000) 000-0000
Tel #: (000) 000-0000 Tel #: (000) 000-0000
cc: General Counsel cc: General Counsel
Fax #: (000) 000-0000 Fax #: (000) 000-0000
CUSTOMER'S 24 HOUR EMERGENCY TELEPHONE # FOR TECHNICAL/OPERATIONAL ISSUES:
TEL #: (000) 000-0000
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*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
ARTICLE 2. PAYMENT
A. MONTHLY RECURRING SERVICE CHARGE. Customer will pay to SES Americom for
Service a monthly recurring service charge ("MRC") in accordance with Sections
2.A.(1) and (2) below:
(1) For each Transponder in Transponder Group 1, the MRC will be as
follows:
***
(2) ***
B. SECURITY.
(1) On or before May 1, 2004, Customer will, in order to secure
performance of its obligations hereunder, deliver to SES Americom (a) a cash
deposit (the "Cash Deposit") in the amount of *** U.S. Dollars *** , and (b) one
or more irrevocable letter(s) of credit in the aggregate amount of *** U.S.
Dollars *** in the form attached hereto as Attachment C (such letter(s) of
credit collectively referred to as the "Letters of Credit") issued by one or
more bank(s) acceptable to SES Americom. (Bank of America, Citigroup, XX Xxxxxx
Chase, Scotia Bank and Toronto Dominion are each deemed to be a bank acceptable
to SES Americom.)
(2) The Cash Deposit will be wire transferred to an SES Americom
account in accordance with instructions provided by SES Americom. (SES Americom
is not obligated to segregate the Cash Deposit from other assets.) The proceeds
of the Cash Deposit may be applied by SES Americom to the obligations of
Customer hereunder. If the Cash Deposit is utilized by SES Americom, Customer
shall restore the Cash Deposit to the initial amount of *** within five (5)
business days from the date that SES Americom notifies Customer of the
obligation to restore. Failure to maintain the Cash Deposit shall be treated as
a failure by Customer to make a payment due to SES Americom under this
Agreement. Upon condition that Customer shall otherwise have performed fully all
of the terms hereunder, SES Americom shall return to Customer the amount of the
Cash Deposit without interest by ***.
(3) Customer shall cause the Letters of Credit (together with any
renewal or replacement thereof) to remain in full force and effect until ***.
The Letters of Credit may be drawn upon by SES Americom in accordance with their
terms. Multiple and partial draw-downs may be made against them. The proceeds of
any drawing shall be applied to the obligations of Customer hereunder. Failure
to provide the Letters of Credit by May 1, 2004, and/or failure to maintain the
Letters of Credit throughout the required term shall be treated as a failure by
Customer to make a payment due to SES Americom under this Agreement.
(4) If the Letters of Credit or any renewal or replacement thereof are
drawn upon, Customer shall cause the Letters of Credit then in effect to be
replaced such that the principal amount of the Letters of Credit is restored to
the amount of the initial Letters of Credit. Failure to obtain and deliver to
SES Americom a replacement of the Letters of Credit as provided in the preceding
sentence within five (5) business days from the date of each such drawing shall
entitle SES Americom to draw upon the Letters of Credit then in effect and to
hold the proceeds as a
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
security deposit. Such security deposit may be used by SES Americom as an offset
for any amounts due SES Americom at ***, or, in the event of termination of this
Agreement prior to ***, for any liabilities of Customer arising out of such
termination. Upon condition that Customer shall otherwise have performed fully
all of the terms hereunder, SES Americom shall return to Customer the amount of
the deposit by ***.
(5) At any time after July 1, 2005 and during the period during which
the Cash Deposit and the Letters of Credit are in place, Customer may deliver to
SES Americom a parent guaranty in the form attached as Attachment C (the "Parent
Guaranty") in replacement of the Cash Deposit and the Letters of Credit,
provided that the Parent Guaranty is to be issued and executed by an entity
("Newco") expected to be formed, and further provided that (i) Newco is the
direct and beneficial owner of 100% of Customer (I.E., Rainbow DBS Company,
LLC), American Movie Classics Company, Women's Entertainment and Independent
Film Channel, LLC, and (ii) Newco has long term senior unsecured debt that is
rated equal to or greater than a rating of BBB+ by Standard & Poor's Ratings
Services (or if Newco is unmated, Newco has creditworthiness at least equivalent
to the specified credit criteria as reasonably determined by SES Americom in its
sole judgment) (the requirements set forth in clauses (i) and (ii) hereinafter
referred to as the "Credit Criteria").
(6) In the event that after delivery of a Parent Guaranty in
replacement of the Cash Deposit and the Letters of Credit Newco does not meet
the Credit Criteria, then within thirty (30) days after written notice from SES
Americom Customer shall deliver to SES Americom a Cash Deposit and a Letters of
Credit as required by paragraph (1), and the terms of paragraphs (1)-(4) shall
thereafter apply to such Cash Deposit and Letters of Credit. Failure to deliver
the Cash Deposit and Letters of Credit within such 30-day period shall be
grounds for immediate termination of this Agreement by SES Americom (I.E.,
without application of the cure period under Article 9.A).
(7) With reference to the obligation in paragraph (1) to provide the
Cash Deposit and the Letters of Credit on or before May 1, 2004, Customer shall
have the right in the alternative to provide Letters of Credit only (I.E., and
not a Cash Deposit) on or before May 1, 2004, in the amount of *** U.S. Dollars
*** and otherwise in the form of Attachment C. If Customer has provided the Cash
Deposit and the Letters of Credit, Customer shall have the right at any time
after May 1, 2004, to replace the Cash Deposit and the Letters of Credit with
Letters of Credit only, provided that such Letters of Credit are in the amount
of *** U.S. Dollars ***, are otherwise in the form of Attachment C, and
otherwise meets the requirements of this Agreement.
C. EARLY TERMINATION OPTIONS.
(1) Customer has the right to terminate this Agreement on ***, provided
that *** and (c) upon receipt of such termination notice from Customer, SES
Americom shall be immediately entitled to ***. In the event that ***, then
Customer shall promptly pay SES Americom in cash the amount ***.
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*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
(2) Customer has the right to terminate this Agreement *** provided
that *** (c) Customer pays SES Americom on the date of notice an amount ***
determined in accordance with the following sentence. ***
(3) Customer has the right to terminate this Agreement as of September
30, 2008 ***, provided that *** and (c) on the *** Customer pays SES Americom
the amount of *** for each Transponder on which Service is then being provided.
***.
(4) Customer has the right to terminate this Agreement on five (5)
days' notice, if (a) three (3) or more of the Transponders are Failed
Transponders that cannot be restored on the Satellite, and (b) Customer has
notified SES Americom in writing within thirty (30) days of there being three
(3) or more Failed Transponders that cannot be restored of Customer's decision
to terminate the Agreement pursuant to this Section 2.C(4). In the event that
(x) three (3) or more Transponders have become Failed Transponders that cannot
be restored on the Satellite, and (y) Customer has not terminated the Agreement
pursuant to this Section 2.C(4), then on each subsequent occurrence of another
Failed Transponder that cannot be restored Customer shall have the right to
terminate the Agreement in accordance with the preceding sentence.
(5) Upon termination of this Agreement pursuant to Sections 2.C(1),
(2), (3) or (4) above, neither Party shall have any further obligations to the
other hereunder, except with respect to provisions that expressly provide that
they survive termination of this Agreement.
D. BILLING AND PAYMENT. Invoices will be issued monthly thirty (30) days in
advance of the month in which Service is to be provided and are payable on the
first day of such month, at Customer's option, either by wire transfer or by
check as per the remittance instructions on the respective monthly invoice. On
payments not received by the due date, SES Americom may assess until such time
as payment in full is made, a late payment charge of the lesser of (i) one and
one-half percent (1.5%) per month compounded monthly, or (ii) the maximum rate
permitted by applicable law. A failure or delay by SES Americom to send a xxxx
will not relieve Customer either of its obligation to pay on a timely basis for
Service or of its obligation to pay late payment charges in the event of late
payment. In addition to any other rights SES Americom may have under this
Agreement, SES Americom may suspend provision of Service on ten (10) days'
notice for failure to pay any sums due to SES Americom.
E. TAXES AND OTHER CHARGES. All charges hereunder are exclusive of taxes, duties
and other fees or charges levied by governmental authority on the Service.
Customer will pay directly or reimburse SES Americom for all such taxes, duties
and other fees or charges.
ARTICLE 3. CREDITS FOR INTERRUPTIONS
Credits for Interruptions in Service of five (5) minutes or more shall
be granted to Customer as follows:
CREDIT = (NUMBER OF MINUTES IN INTERRUPTION/43, 200) MULTIPLIED BY THE MRC
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*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
The length of an Interruption will be measured from the earlier of the
time SES Americom (i) is notified by Customer of the Interruption or (ii)
becomes aware of the Interruption. The Interruption will be deemed ended when
Service is restored to the Transponder Performance Specifications and SES
Americom has so notified Customer. No credit will be due, however, if such
Interruption is a result of, or attributable in whole or part to (i) the fault
of Customer, any Customer Designee (as defined below) or any agent or
subcontractor of either, (ii) the failure or unavailability of satellites,
transponders, facilities, services or equipment furnished to Customer other than
by SES Americom, (iii) sun outages or rain fade, or (iv) unless otherwise
provided herein, suspensions of Service made in accordance with this Agreement.
Except as otherwise specifically set forth in this Agreement, the aforementioned
credit will be Customer's sole and exclusive remedy for unavailability of
Service and/or failure of Service to meet the Transponder Performance
Specifications.
ARTICLE 4. SERVICE RESPONSIBILITIES
A. LAWS AND REGULATIONS GOVERNING SERVICE. Location and operation of the
Satellite, SES Americom's satellite system and SES Americom's ability to perform
are subject to all applicable laws and regulations, including without
limitation, the Communications Act of 1934, as amended, and the Rules and
Regulations of the FCC. SES Americom is, and will remain throughout the Service
Term, in compliance with all such laws and regulations. Throughout the Service
Term, SES Americom will operate and provide for tracking, telemetry and command
of the Satellite in accordance with standard practices in the industry. SES
Americom will maintain the Satellite at 72(degree) X.X. throughout the Service
Term unless the FCC orders that the Satellite be relocated. SES Americom will
not seek permission from the FCC to relocate the Satellite during the Service
Term.
B. USE CONDITIONS. Customer will use, and will cause others authorized or
permitted by Customer to access Service ("Customer's Designees") to use, Service
in accordance with the conditions of use (as such may, upon notice, be amended
for technical or operational reasons) contained in the Commercial Operations
Systems User's Guide set forth in Attachment B ("User's Guide"). In addition,
Customer will use, and will cause Customer's Designees to use, the Service in
compliance in all material respects with all applicable laws and regulations of
any competent authority of the United States or any of its political
subdivisions governing the Satellite or Customer's use of the Service, including
laws governing the content of material; provided that SES Americom's sole rights
and remedies arising out of a breach of the obligations in this Article 4.B
shall be limited to those stated in Sections 4.C, 4.D, 6.A, 7.C and 9.A.
C. SUSPENSION OF SERVICE (INTERFERENCE). If Customer or Customer's Designee
fails to use the Service in accordance with the conditions of use contained in
the User's Guide, and does not correct such failure within thirty (30) minutes
after notice of such failure from SES Americom by telephone in accordance with
Section 1.E, then SES Americom may take actions (including suspension and/or
restriction of Service) it reasonably believes necessary to ensure Customer's
compliance with the User's Guide.
D. ***
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*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
ARTICLE 5. OPERATIONAL MATTERS
A. SERVICE ACCESS. Except as set forth in Section 1.D., Customer is responsible
for providing, operating and maintaining the equipment necessary to access the
Satellite and Service. Customer at its expense shall provide SES Americom with
any descrambling or decoding devices that may be required for signal monitoring.
At a mutually agreed time, and prior to Customer transmitting from its earth
station(s), Customer will demonstrate to SES Americom's designated Technical
Operations Center that its earth station(s) comply with the satellite access
specifications contained in the User's Guide.
B. ACTION TO PROTECT SATELLITE. SES Americom shall have sole and exclusive
control of operation of the Satellite. If circumstances occur which in SES
Americom's reasonable judgment pose a threat to the stable operation of the
Satellite, SES Americom shall have the right to take action it reasonably
believes necessary to protect the Satellite, including discontinuance or
suspension of operation of the Satellite, the Transponder(s) or any other
transponder, without any liability to Customer, except that Customer may receive
a credit computed as provided in Article 3 hereunder, and Customer may treat any
affected Transponders as Transponder Failures and exercise the rights Customer
has hereunder related to Transponder Failures. SES Americom shall give Customer
as much notice as practical under the circumstances of any such discontinuance
or suspension. If it becomes necessary to discontinue or suspend service on one
or more transponders on the Satellite, and operational circumstances allow SES
Americom to select the transponder or transponders to be discontinued or
suspended, SES Americom will make such selection in Reverse Contract Order,
without distinction, for purposes of this Section, between the Satellite's
C-band and Ku-band payloads.
C. OPERATIONS REPORTS AND COMMUNICATIONS. Following the execution of this
Agreement and continuing throughout the Service Term, SES Americom shall provide
Customer with monthly written operational reports concerning the Satellite. Such
reports shall be delivered within thirty (30) days of the close of each month
and shall contain the elements set forth in Attachment E.
D. ANOMALOUS OPERATION NOTIFICATION AND PERFORMANCE RECORDS. SES Americom will
notify Customer as soon as reasonably possible, by telephone notice and in
writing, of any significant incidents (and any responses thereto) with respect
to the Satellite that have a potential materially adverse effect on the Service
provided under this Agreement, including the health of the Satellite as related
thereto. The incidents to which the foregoing applies will include incidents on
other satellites owned by SES Americom, provided that SES Americom is not
restricted from disclosing such information to Customer by non-disclosure
agreement(s).
E. INTERRUPTION REPORTS. Within five (5) business days after any interruption of
transmissions on the Satellite, caused by the operation or malfunction of such
Satellite and not the uplink stations, SES Americom will submit to Customer a
report concerning such interruption. Such report will include (i) the official
start time of the interruption, (ii) the official
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means of redacting a portion of the text. Copies of the exhibit
containing the redacted portions have been filed separately with the
Securities and Exchange Commission subject to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
end time of the interruption, if ended, (iii) the cause of the interruption,
(iv) any measures taken by SES Americom to remedy such interruption, and (v) any
measures taken by SES Americom to avoid such interruptions in the future.
ARTICLE 6. INDEMNIFICATION
A. CUSTOMER INDEMNIFICATION. Customer will indemnify and hold harmless SES
Americom, SES Global S.A., and any affiliates of either entity, from and against
all loss, liability, cost, expenses and damages of any nature (including, but
not limited to, attorney fees and, to the extent permitted by law, any fines and
penalties) based on ***.
B. SES AMERICOM INDEMNIFICATION. SES Americom will indemnify and hold harmless
Customer and any of Customer's affiliates, from and against all loss, liability,
cost, expenses and damages of any nature (including, but not limited to,
attorney fees and to the extent permitted by law, any fines and penalties) based
on third party claims arising out of, resulting from or in connection with an
allegation that the provision of Service or Customer's use thereof in accordance
with this Agreement infringes alleged patents, copyrights, mask works, trade
secrets or other intellectual property rights of any third party. SES Americom
shall have no obligations under this Article if the alleged infringement is
based on a combination of equipment or services provided by SES Americom and any
other equipment or services not supplied to Customer by SES Americom unless such
combination is customary in the industry.
If any Satellite on which Customer is taking Service pursuant to this
Agreement, or any Transponder, becomes, or in SES Americom's opinion, is likely
to become, a subject of a claim, suit or proceeding alleging patent, copyright,
mask work, trade xxxx, or trade secret or other intellectual property rights
infringement, or if as a result of such suit or proceeding or the settlement
thereof, the use by Customer of the Service is prohibited, SES Americom shall
use its reasonable efforts to achieve one or more of the following: (i) obtain
for Customer the right to use the infringing item without any additional cost to
Customer; or (ii) modify the infringing item, provided the modification does not
affect the Transponder Performance Specifications, subject to Customer's
approval (not to be unreasonably withheld), so that it becomes non-infringing.
In the event SES Americom is unable to accomplish either (i) or (ii) above
within thirty (30) days after such use is enjoined or there is a final
determination by a court of competent jurisdiction that continued use would
constitute an infringement, each party shall have a right to terminate this
Agreement by written notice to the other party and SES Americom shall refund any
amounts paid by Customer in advance for Services subsequent to such termination.
Such refund shall be made by SES Americom within thirty (30) days after SES
Americom receives Customer's request for the refund, If this Agreement is
terminated pursuant to this Section 6.B, SES Americom will use reasonable
efforts to assist Customer in obtaining an alternative for the terminated
Service.
ARTICLE 7. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
A. WARRANTY DISCLAIMER. NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLY TO
SERVICE PROVIDED
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*** Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
HEREUNDER OR THE EQUIPMENT AND FACILITIES USED TO PROVIDE SERVICE. THE CONVEYING
BY SES AMERICOM OF PROPRIETARY INFORMATION OR OTHER INFORMATION TO CUSTOMER
SHALL IN NO WAY ALTER THIS DISCLAIMER.
B. LIMITATION OF LIABILITY. With respect to any and all causes arising out of or
relating to this Agreement, including but not limited to claims of negligence,
breach of contract or warranty, failure of a remedy to accomplish its essential
purpose or otherwise, Customer and SES Americom agree that the other party's
entire liability shall not exceed in the aggregate the greater of (i) the MRC
paid by Customer to SES Americom for Service in the month preceding the event
that is the cause of the liability, plus any credits or refunds that are due
with respect to such event or (ii) Two Hundred Thousand U.S. Dollars
($200,000.00). The parties understand and agree that the limitations of this
paragraph are not applicable to (w) damages resulting from a party's willful
breach of this Agreement, (x) damages suffered by a party as a consequence of
the wrongful termination of this Agreement by the other party, (y) Customer's
obligations in Article 2, and (z) the termination liability obligations set
forth in Section 9.C.
Customer and SES Americom agree that in no event shall either party, or
their affiliated companies or the manufacturer or launch service provider of the
Satellite be liable for (i) any indirect, incidental, consequential, punitive,
special or other similar damages (whether in contract, tort (including
negligence), strict liability or under any other theory of liability), including
but not limited to loss of actual or anticipated revenues or profits, loss of
business, customers or good will, or damages and expenses arising out of third
party claims except those specified in Article 6 or (ii) any damages of whatever
kind, in the event the Satellite is positioned at an orbital location other than
as specified in Section 1 .A. The foregoing exclusions shall apply even if such
party(s) has been advised of the possibility of such damages.
C. EQUITABLE RELIEF. Customer and SES Americom shall have the right to seek
enforcement of the provisions of this Agreement through a decree of specific
performance. SES Americom acknowledges and agrees that the Transponders used to
provide the Service are unique and not readily available on the open market, and
that if the Service, or any portion thereof, is not available to Customer
because the material terms of this Agreement are not fulfilled due to SES
Americom's breach, Customer's remedies at law would not be adequate.
ARTICLE 8. CONFIDENTIALITY AND NONDISCLOSURE
A. CERTAIN INFORMATION REGARDING SERVICE. The parties agree not to disclose to
third parties (without the prior written consent of the non-disclosing party)
the material terms and conditions of this Agreement (including but not limited
to the prices, payment terms, schedules, protection arrangements, and
restoration provisions thereof), except that SES Americom may disclose any of
the material terms and conditions of this Agreement to the extent such terms and
conditions are part of SES Americom's standard contract offerings and so long as
such disclosure does not directly or indirectly identify Customer, and Customer
agrees not to disclose any information provided to Customer by SES Americom
related to the design and performance characteristics of the Satellite, and any
subsystems or components thereof, including the Transponders. The foregoing will
not preclude SES Americom or Customer (without the
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
consent of the other) from disclosing, on a confidential basis, such information
to affiliates, or to its or their employees, agents, representatives, auditors,
investors, purchasers or lenders, potential investors, purchasers or lenders, or
legal counsel, provided that (i) such disclosures are done on a need-to-know
basis, and (ii) each recipient is obligated to maintain the confidentiality of
the information in a manner consistent with this Agreement.
B. PROPRIETARY INFORMATION. To the extent that either party discloses to the
other any other information which it considers proprietary, said party shall
identify such information as proprietary when disclosing it to the other party
by marking it clearly and conspicuously as proprietary information. Any
proprietary disclosure to either party, if made orally, shall be identified as
proprietary information at the time of disclosure and promptly thereafter
confirmed in writing and identified as proprietary information, if the
disclosing party wishes to keep such information proprietary under this
Agreement. Any such information disclosed under this Agreement shall be used by
the recipient thereof only in its performance under this Agreement.
Neither party shall be liable for the inadvertent or accidental
disclosure of such information marked as proprietary, if such disclosure occurs
despite the exercising of the same degree of care as the receiving party
normally takes to preserve and safeguard its own proprietary information (but
not less than reasonable care) or if such information: (i) is or becomes
lawfully available to the public from a source other than the receiving party
before or during the period of this Agreement; (ii) is released in writing by
the disclosing party without restrictions; (iii) is lawfully obtained by the
receiving party from a third party or parties without obligation of
confidentiality; (iv) is lawfully known by the receiving party prior to such
disclosure; or (v) is at any time lawfully developed by the receiving party
completely independently of any such disclosure or disclosures from the
disclosing party.
In addition, neither party shall be liable for the disclosure of any
proprietary information which it receives under this Agreement pursuant to
judicial action or decree, or pursuant to any requirement of any Government or
any agency or department thereof, having jurisdiction over such party, provided
that in the reasonable opinion of counsel for such party such disclosure is
required, and provided further that such party to the extent reasonably
practical shall have given the other party notice prior to such disclosure,
C. TRADE NAMES/TRADEMARK. Neither Customer nor SES Americom shall in any manner
represent that it has rights in or to any trade name or trademark used by the
other party. Neither Customer nor SES Americom shall register or attempt to
register any trade names or trademark of the other party under the laws of any
jurisdiction, or at any time do or cause to be done any act or thing impairing
the distinctiveness of such trade names or trademarks or any part of the other
party's interest therein whether or not they are registered in the jurisdiction
in which such party is located or does business. SES Americom agrees that the
Customer may refer to the Satellite as "Rainbow-2" in presentations, marketing
materials and other materials associated with the sale and promotion of
Customer's services transmitted on the Satellite, provided that (i) SES Americom
is not restricted in its naming of the Satellite, and (ii) FCC filings shall
reflect the Satellite name as determined by SES Americom.
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
ARTICLE 9. TERMINATION
A. TERMINATION. In addition to any rights of termination provided in other
Articles of this Agreement, either party may terminate this Agreement by giving
the other party written notice thereof in the event: (i) the other party
materially breaches this Agreement and fails to cure such breach within thirty
(30) days after receipt of written notice thereof (except that if Customer fails
to pay amounts due hereunder, such cure period shall be reduced to *** business
days); or (ii) the other party is unable to perform its obligations as a result
of its becoming insolvent or the subject of insolvency proceedings, including
without limitation if the other party is judicially declared insolvent or
bankrupt, or if any assignment is made of the other party's property for the
benefit of its creditors, or if a receiver, conservator, trustee in bankruptcy
or other similar officer is appointed by a court of competent jurisdiction to
take charge of all or any substantial part of the other party's property, or if
a petition is filed by or against the other party under any provision of the
Bankruptcy Act now or hereafter enacted, and such proceeding is not dismissed
within sixty (60) days after filing. Customer may terminate this Agreement by
giving SES Americom written notice if the Satellite is relocated to an orbital
position other than 72(degree) W.L.
B. REFUNDS. In the event of the end of the Agreement pursuant to Article 1.B.,
or in the event of termination by Customer pursuant to this Agreement (except
pursuant to Section 2.C), or in the event of termination by SES Americom
pursuant to Article 10.G., SES Americom shall refund any portion of amounts paid
by Customer to SES Americom which relate to Service not provided by SES Americom
plus any credits that may be due to Customer.
C. TERMINATION LIABILITY. In the event of termination by SES Americom pursuant
to Section 9.A, SES Americom shall be entitled to retain all amounts paid by
Customer to SES Americom hereunder, and any credits that may be due to Customer
shall be forfeited. In addition, SES Americom in its sole discretion may either
elect to (i) pursue any rights and remedies it may have at law, in equity or
otherwise or (ii) recover from Customer an amount equal to the net present value
(as of the date of such termination) of the remaining unpaid Service charges,
computed as if this Agreement remained in effect until the Projected Termination
Date, utilizing a discount rate of 5% per annum, plus late charges on such
amount from the date of termination until payment in full ("Termination Value").
If SES Americom elects (ii) above and recovers such amount, SES Americom agrees
to use that level of effort to mitigate its damages (I.E., the Termination
Value) as is required by applicable judicial authority (I.E., New York law). In
the event SES Americom does obtain a qualified replacement customer(s), SES
Americom thereafter shall pay to Customer eighty-five percent (85%) of the gross
proceeds received by SES Americom either (x) from the provision of service to
such replacement customer(s) using the Transponder(s) prior to the Projected
Termination Date, or (y) from the sale of the Transponder(s) to such replacement
customer(s) and attributable to the period prior to the Projected Termination
Date; provided that in no event shall such payment exceed the Termination Value
paid by Customer.
D. INABILITY TO REGAIN TRANSPONDER. If upon expiration or termination of this
Agreement for any reason by either party, SES Americom is unable to regain the
use of all, or any part of,
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
the Transponder(s) free and clear of any claims (including, but not limited to,
claims of a debtor in bankruptcy) or liens arising as a result of the use of the
Transponder(s) by Customer or Customer's Designees, then in addition to all
other remedies available to SES Americom pursuant to this Agreement, at law, in
equity, or otherwise, Customer shall be obligated, without regard to any such
termination or expiration, to continue to pay SES Americom the payments provided
for in Article 2.
ARTICLE 10. GENERAL PROVISIONS
A. FORCE MAJEURE. Neither party will be liable to the other by reason of any
failure in performance of this Agreement if the failure arises out of acts of
God, acts of the other party, acts of government authority, strikes or other
labor disturbances beyond the reasonable control of that party, or terrorist
acts. In no event shall Customer's failure to make payment when due be excused
by a force majeure event.
B. NO IMPLIED LICENSE. The provision of services or the conveying of any
information under this Agreement shall not convey any license by implication,
estoppel or otherwise, under any patents or other intellectual property rights
of Customer or SES Americom, SES Global S.A., and their affiliates, contractors
and vendors.
C. NO THIRD PARTY RIGHTS; NO FIDUCIARY RELATIONSHIP. Nothing contained in this
Agreement shall be deemed or construed by the parties or by any third party to
create any rights, obligations or interests in third parties, or to create the
relationship of principal and agent, partnership or joint venture or any other
fiduciary relationship or association between the parties.
D. NO WAIVER; REMEDIES CUMULATIVE. No waiver, alteration, or modification of any
of the terms of this Agreement will be binding unless in writing and signed by
both parties. All remedies and rights hereunder and those available in law or in
equity shall be cumulative, and the exercise by a party of any such right or
remedy shall not preclude the exercise of any other right or remedy available
under this Agreement in law or in equity.
E. GOVERNING LAW AND JURISDICTION. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York, excluding its
conflicts of law rules. The parties hereby consent to and submit to the
non-exclusive jurisdiction of the federal and state courts located in the State
of New York, and any action or suit under this Agreement shall be brought by the
parties in any federal or state court established or sitting in the State of New
York with appropriate jurisdiction over the subject matter. The parties shall
not raise in connection therewith, and hereby waive, any defenses based upon
venue, inconvenience of the forum, lack of personal jurisdiction, sufficiency of
service of process (as long as notice of such action or suit is furnished in
accordance with Section 1.D hereunder) or the like in any such action or suit.
F. HEADINGS; SEVERABILITY; CUSTOMER PURCHASE ORDERS. All titles and headings in
this Agreement are for reference purposes only and will not affect the meaning
or construction of the terms of this Agreement. If any part or parts of this
Agreement are held to be invalid, the remaining parts of the Agreement will
continue to be valid and enforceable. Customer agrees
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
that any purchase order or other similar document that Customer may issue in
connection with this Agreement will be for Customer's internal purposes only
and, therefore, even if acknowledged by SES Americom, will not in any way add
to, subtract from, or in any way modify the terms and conditions of this
Agreement.
G. ASSIGNMENT AND OTHER THIRD PARTY USE. Customer's obligations under this
Agreement may not be assigned or otherwise transferred to any third party
without SES Americom's prior written consent to such assignment or transfer
(which consent shall not be unreasonably withheld or delayed). SES Americom's
consent may be reasonably withheld if Customer fails to establish the ability of
the prospective assignee or transferee to meet Customer's obligations under this
Agreement, including without limitation (a) the conditions in Section 4.B, and
(b) Customer's financial commitments.
Customer is authorized to allow third parties to access use of the
Service, subject to the rights and requirements of this paragraph. Customer
shall provide SES Americom with at least five (5) business days' prior notice of
any third party use of Service and of the identity of any such third party.
Should Customer resell any Service provided hereunder or otherwise permit use of
such Service by any third party or parties, Customer shall be a guarantor of
compliance by each such third party with all the terms of this Agreement and any
breach by any such third party shall be deemed to have been committed by
Customer. Any such third party must meet the conditions in Section 4.B of this
Agreement. If Customer wishes to resell use of some or all of the capacity of
Service to a third party for a term of more than three (3) months, Customer
shall first provide SES Americom with prior written notice of such decision.
Within thirty (30) days after receipt of such notice, SES Americom, may, by
written notice to Customer, elect to terminate this Agreement, whereupon
Customer shall have a period of thirty (30) days from receipt of such notice,
within which period Customer may elect to (x) accept termination and notify SES
Americom of the date on which such termination shall be effective (which date
shall be not less than sixty (60) days and not more than one hundred and twenty
(120) days after the date of such notice from Customer to SES Americom or (y)
cancel its plans to resell and continue this Agreement in effect. If Customer
does not elect (x) or (y) above within the applicable time limit, Customer shall
be deemed to have elected clause (y). If SES Americom does not offer to
terminate this Agreement upon notice from Customer of Customer's decision to
resell capacity under this Section 10.G., Customer may, after SES Americom's
thirty (30) day termination election period has expired, resell some or all of
the capacity of the Service at its discretion, subject to Customer's obligation
to remain responsible to SES Americom under the third sentence of this
Paragraph.
H. PRIVATE PARTIES. The parties acknowledge that the Customer's Service offered
hereunder has been privately offered and is intended to be privately furnished
on a non-common carrier basis. Neither SES Americom nor Customer regards any
representations, offers or undertakings made by the other in connection with
this Agreement to be in the nature of offers of common carriage. Neither SES
Americom nor Customer will attempt, now or in the future, to assert through
legal process, directly or indirectly, that the relationship hereunder between
the parties involves the offering of a common carrier service.
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
I. SURVIVAL. Termination or expiration of this Agreement for any reason shall
not release either party of any liabilities or obligations set forth in this
Agreement which the parties have expressly agreed shall survive such termination
or expiration.
ARTICLE 11. DEFINITIONS
As used in this Agreement:
A. "Business Preemptible Service" or "Business Preemptible Transponder" means a
satellite service or transponder that is not entitled to restoration in the
event it becomes a Transponder Failure and may be preempted at any time to
restore (1) a satellite failure, (2) a Protected Service or Protected
Transponder that becomes a transponder failure, (3) any other service or
transponder (including a Preemptible Service or Preemptible Transponder)
experiencing technical difficulties or interference, or (4) other service
offerings of SES Americom or any of its affiliates, including but not limited to
mass move protection, construction and launch delay protection and launch
failure protection. In addition, such Business Preemptible Service or Business
Preemptible Transponder may be preempted for any other reason (including but not
limited to, SES Americom's desire to provide service on such Transponder to
another customer) upon five (5) business days' notice.
B. "End-of-Life" means the date on which, in SES Americom's reasonable judgment
a satellite should be taken out of service because of insufficient fuel.
C. "Fully Protected Service" or "Fully Protected Transponder" means a satellite
service or a transponder that may not be preempted to restore another service or
transponder, and if restoration thereof is needed as a result of a satellite
failure, or as a result of a transponder failure under circumstances in which no
Protection Transponder is available on the satellite on which such satellite
service or transponder is located, is entitled to restoration, subject to
availability of facilities and to the conditions of the applicable contract, on
another satellite.
D. "Interruption" means any period during which a Transponder fails to meet the
Transponder Performance Specifications and such circumstances preclude the use
of the Transponder for its intended purpose.
E. "Non-Preemptible Service" or "Non-Preemptible Transponder" means a satellite
service or a transponder on which such service is provided that may not be
preempted to restore another service or transponder and that is not itself
entitled to be restored by preempting a Preemptible Service.
F. "Preemptible Service" or "Preemptible Transponder" means a satellite service
or transponder that is not entitled to restoration in the event it becomes a
Transponder Failure and may be preempted at any time to restore (1) a satellite
failure, (2) a Protected Service or Protected Transponder that becomes a
transponder failure, or (3) other service offerings of SES Americom or any of
its affiliates, including but not limited to mass move protection, construction
and launch delay protection and launch failure protection.
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
G. "Protected Service" or "Protected Transponder" means a service or transponder
that is entitled to preempt a Preemptible Service or Preemptible Transponder.
H. "Protection Transponder" means a Replacement Transponder or Preemptible
Transponder used to restore a Protected Service.
I. "Replacement Date" means the date on which a successor satellite to the
Satellite or to the Ku-band payload of the Satellite is made capable of carrying
communications traffic at the orbital location to which the Satellite is
assigned. Unless SES Americom commits to continue to provide service pursuant to
this Agreement on the successor satellite, such Replacement Date shall not occur
prior to twelve (12) months before SES Americom's good faith estimate of the
End-of-Life of the Satellite.
J. "Replacement Transponder" means a spare transponder amplifier and its
associated components, which is accessible for purposes of providing restoration
and which is capable of carrying communications traffic within the parameters as
described in the transponder performance specifications for the transponder to
be restored.
K. "Reverse Contract Order" means, as to each service or transponder on the
Satellite, in order from the latest date on which a binding agreement for the
taking of such service has been executed by both a customer and SES Americom, to
the earliest such date. If Reverse Contract Order is to be determined among more
than one class of service, then Reverse Contract Order means first in order from
the latest such date to the earliest such date among Business Preemptible
Services, second in such order among Preemptible Services, third in such order
among Non-Preemptible Services, fourth in such order among Transponder Protected
Services and last in such order among Fully Protected Services. Notwithstanding
the foregoing, any service being provided to the United States Government or any
department or agency thereof, whether through a prime contract or a subcontract,
shall be deemed to have an earlier date of binding agreement than Customer
hereunder.
L. "Satellite" means the communications spacecraft designated AMC-6 operated by
SES Americom at 72(degree)X.X. When used in the lower case, "satellite" means a
domestic communications satellite operating in Ku-band.
M. "Satellite Failure" means a satellite (1) on which one or more of the basic
subsystems fail, rendering the use of the satellite for its intended purposes
impractical, as determined by SES Americom in its reasonable business judgment,
or on which more than one-half of the transponders on the payload are
transponder failures, and (2) that SES Americom has declared a failure. For
purposes of this definition, a hybrid satellite with both C-band and Ku-band
payloads shall be treated, at SES Americom's option, either (i) as a single
satellite, or (ii) as though the C-band and Ku-band payloads were located on
separate satellites.
N. "Transponder" means a Ku-band radio frequency transmission channel on the
Satellite designed to have a nominal bandwidth of 36 MHz, used to provide
service to Customer pursuant to the terms of this Agreement. Customer
acknowledges and agrees that due to circumstances,
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
including but not limited to the characteristics of Customer's traffic,
Customer's ground segment configuration, and the characteristics of traffic on
cross polarized transponders on the Satellite and of carriers on satellites in
proximity to the Satellite, the entire 36 MHz of the Transponder may not be
usable by Customer for the operation of all types of carriers. If the Customer
uses its Transponder for a full band 36 MHz analog carrier or a single wideband
saturated "MCPC Type" digital carrier, then the entire 36 MHz of the Transponder
will be usable by the Customer for this type of transmission. When used in the
lower case, "transponder" means a Ku-band radio frequency transmission channel
on a communications satellite.
O. "Transponder Failure" means, with respect to any Transponder used to provide
service to Customer under this Agreement, any of the following events: (1) such
Transponder fails to meet the Transponder Performance Specifications in any
respect for any period of *** hours; (2) *** or more Interruptions of ***
seconds or more in duration shall occur within any *** consecutive days (but not
including Interruptions for which no credit is payable under the penultimate
sentence of Article 3); *** or (4) such Transponder shall fail to meet
the Transponder Performance Specifications in any respect for any period of
time under circumstances that make it clearly ascertainable or predictable,
based on satellite industry engineering standards, that a failure set forth
in Clause (1), Clause (2), or Clause (3) above will occur. For purpose of this
definition, measurement of periods of failure hereunder shall commence when
Customer has vacated its signal to permit verification of the existence of the
failure by SES Americom; ***.
P. "Transponder Protected Service" or "Transponder Protected Transponder" means
a satellite service or transponder that may not be preempted to restore another
service or transponder, that is itself entitled to be restored by Protection
Transponders on the same satellite in the event it becomes a Transponder Failure
but that is not entitled to be restored if there is no such Protection
Transponder available.
THIS AGREEMENT CONTAINS THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR
NEGOTIATIONS AND AGREEMENTS BETWEEN THE PARTIES WITH RESPECT THERETO. TO THE
EXTENT THAT ANY ATTACHMENT MAY BE INCONSISTENT WITH THE TEXT OF THE AGREEMENT,
THE TEXT OF THE AGREEMENT SHALL CONTROL.
------------------------------------ --------------------------------------
RAINBOW DBS COMPANY, LLC SES AMERICOM, INC., AS AGENT FOR
SES AMERICOM COLORADO, INC.
------------------------------------ --------------------------------------
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxx
------------------------------------ --------------------------------------
(SIGNATURE) (SIGNATURE)
------------------------------------ --------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxx
------------------------------------ --------------------------------------
(TYPED OR PRINTED NAME) (TYPED OR PRINTED NAME)
------------------------------------ --------------------------------------
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
------------------------------------ --------------------------------------
Title: Chairman Title: Vice-President,
Entertainment Sales
------------------------------------ --------------------------------------
Date: April 23, 2004 Date: April 26, 2004
------------------------------------ --------------------------------------
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redacting a portion of the text. Copies of the exhibit containing the
redacted portions have been filed separately with the Securities and
Exchange Commission subject to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act.
