EXHIBIT A
TRANSPONDER PURCHASE AGREEMENT
FOR GALAXY X
BETWEEN
HUGHES COMMUNICATIONS GALAXY, INC.
AND
GCI COMMUNICATION CORP. (1)
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1 In this document "********" are used in place of redacted information.
TABLE OF CONTENTS
Page
1.The Satellite 1
1.01 Satellite 1
1.02 Orbital Position 1
1.03 C-Band Transponders 1
1.04 Ku-Band Transponders 2
1.05 Specifications and Components 2
1.06 Rights To Reserves or Spares 2
2.Purchase and Sale of Transponders; Option to Purchase 2
2.01 Purchase 2
2.02 Lease with Option to Purchase 2
3.Purchase Price and Payment Schedule 4
3.01 Purchase Price Components Description 4
3.02 Purchase Price Component Amount 4
3.03 Place of Payment 7
4.Delivery and Related Matters 7
4.01 Delivery 7
4.02 Ownership, Title and Assumption of Risk 8
4.03 Acceptance 8
5. Representations and Warranties 8
5.01 Authority, No Breach 8
5.02 Corporate Action 8
5.03 Consents 8
5.04 Litigation 9
5.05 No Broker 9
6. Additional Representations, Warranties and Obligations
of HCG 9
6.01 Authorization Description 9
6.02 Transponder Performance Specifications 9
6.03 Title 10
6.04 Government Regulations 10
6.05 Not a Common Carrier 10
6.06 TT&C 10
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7. Additional Representations, Warranties and Obligations
of Buyer 10
7.01 [Reserved] 10
7.02 Non-Interference 10
7.03 Laws 11
7.04 Additional Usage Representations and Obligations 11
8. Preemptive Rights and Inspection of Facilities 11
9. Transponder Spares, Reserve Transponders and Retained
Primary Transponders 12
9.01 Use of Transponder Spares 12
9.02 Use of Reserve Transponders 12
9.03 Simultaneous ******** -- Priority with Respect
to the Use of Transponder Spares 13
9.04 Simultaneous ******** -- Priority with Respect
to the Use of Reserve Transponders 13
9.05 HCG's Ownership of Primary Transponders 13
9.06 Notice of Intent to Substitute a Reserve
Transponder 14
10. Termination Rights 14
10.01 Termination by Buyer 14
10.02 Termination by H CG 14
10.03 H HCG's Right to Sell if Non-Payment 14
10.04 Prompt Repayment 15
10.05 Termination by Buyer or HCG 15
10.06 Right to Deny Access 15
10.07 Return of Transponders 18
10.08 Cancellation of Buyer's Ku-Band Transponder 18
10.09 Buyer's Special Option to Terminate 18
11. Force Majeure 18
11.01 Failure to Deliver 18
11.02 Failure of Performance 19
12.Limitation of Liability/******** 19
12.01 Liability of H CG 19
12.02 Confirmed ******** 19
12.03 Repayment for ******** Transponder or ********
Transponder 20
12.04 Limitation of Liability 20
12.05 Obligations of Buyer to Cooperate 21
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13. Limitations on Transfer by Buyer 21
13.01 Transfers by Buyer 21
13.02 Transfers by HCG 22
13.03 Affiliate 22
13.04 Assignment 22
14.[Reserved] 22
15. Progress Reports, Inspections and Access to Work
in Progress 22
15.01 Progress Reports 22
15.02 Inspection Rights of Buyer 23
15.03 Access to Work in Progress and Selection of
Transponders 23
15.04 After Delivery Reports 23
16. Confidentiality and Press Releases 23
16.01 Confidential Information 23
16.02 Press Releases 24
17. Disposition of Satellite 24
17.01 ******** 24
17.02 Disposition of Satellite 24
18. Documents 25
19. Conflicts 25
20. Miscellaneous 25
20.01 Interest 25
20.02 Applicable Law and Entire Agreement 25
20.03 Notices 25
20.04 Severability 27
20.05 Taxes 27
20.06 Successors 27
20.07 Rules of Construction 27
20.08 Survival of Representations and Warranties 27
20.09 No Third-Party Beneficiary 27
20.10 Non-Waiver of Breach 28
20.11 Counterparts 28
21. Option for ******** 28
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EXHIBITS:
A Galaxy Satellite Description
B Galaxy X Transponder Performance Specifications
ADDENDUM
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GALAXY X TRANSPONDER PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of
this 24th day of August, 1995 (the "Execution Date"), by and between Hughes
Communications Galaxy, Inc. (HCG"), a corporation organized and existing under
the laws of the state of California, and GCI Communications Corp. ("Buyer"), a
corporation organized and existing under the laws of the state of Alaska.
RECITALS
WHEREAS, HCG intends to construct, launch, and operate a
satellite to be designated as Galaxy X, containing C-Band capacity an Ku-Band
capacity and desires to sell transponders on such a satellite; and
WHEREAS, Buyer desires to purchase and HCG desires to sell
certain transponders on Galaxy X, subject to the approval of the Federal
Communications Commission.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises set
forth below, HCG and Buyer hereby mutually agree as follows:
1. The Satellite
1.01 Satellite. Subject to the approval of the Federal
Communications Commission (FCC), HCG plans to construct and launch a satellite,
referred to hereinafter as "Galaxy X" (the "Satellite" or "G-X"). Galaxy X shall
be a hybrid satellite (i.e., it contains both C-Band capacity (C-Band
Transponders") and Ku-Band capacity ("Ku-Band Transponders"). Collectively, the
C-Band Transponders are referred to hereinafter as the "Transponders".
1.02 Orbital Position. Based on FCC approval, the orbital
position of Galaxy X shall be 123(degree) West Longitude. HCG currently plans to
launch Galaxy X in the fourth quarter of 1997, subject to the approval of the
FCC.
1.03 C-Band Transponders. Galaxy X shall have twenty-four (24)
C-Band Transponders. Twenty-two (22) of the C-Band Transponders on Galaxy X
shall be designated "Primary". The remaining two (2) C-Band transponders on
Galaxy X shall be designated as "Reserve". "Primary Transponders" shall mean
Transponders which are not preemptible and as to which the "Owners" of the
Transponders, if a "Confirmed ********" (as hereafter defined) occurs, shall
have the right to preempt a Reserve Transponder in accordance with section 9.02.
"Reserve Transponders" shall mean Transponders which shall be preemtable, in
accordance with Section 9.02 by
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Owners of Primary Transponders located on the Satellite that have suffered a
Confirmed ********. Galaxy X also shall have six (6) C-Band "Transponder
Spares," as defined in Section 9.01. As used in this Agreement, "Owner" shall
include the actual owner of a Transponder, including HCG if there remain any
unsold Transponders, or any permitted assignee of such owner's Transponder, or
any lessee or licensee of HCG. The term "purchase" shall include the execution
of an agreement with HCG for a long term lease.
1.04 Ku-Band Transponders. Galaxy X shall have twenty-four (24)
Ku-Band Transponders. All twenty-four Ku-Band Transponders are currently planned
to be designated as "Primary" (collectively, the "Primary Ku-Band
Transponders"). HCG may, at HCG's sole option, designate certain Ku-Band
Transponders as "Reserve". Galaxy X shall have six (6) Ku-Band Transponder
Spares.
1.05 Specifications and Components. Exhibit A sets forth the
design summary of the Satellite. Exhibit B sets forth the "Transponder
Performance Specifications", defined as certain technical specifications for the
Transponders on Galaxy X, including values for each Transponder for polarization
isolation, interference between Transponders, frequency response, group delay,
amplitude non-linearity, spurious outputs, phase shift, cross talk, stability,
transmit EIRP, uplink saturation flux density, and G/T. HCG shall make copies of
the antenna range gain contour test data available to Buyer.
1.06 Rights to Reserves or Spares. Ownership or the lease of
C-Band Transponders shall not give an Owner the right to preempt or use any
Primary Ku Band Transponders or Ku-Band Transponder Spares on Galaxy X.
Ownership or the lease of Ku-Band Transponders shall not give an Owner the right
to preempt or use any Primary or Reserve C-Band Transponders or C-Band
Transponder Spares on Galaxy X.
2. Purchase and Sale of Transponders; Option to Purchase
2.01 Purchase. HCG shall sell, and Buyer shall purchase ********
Primary C Band Transponders on Galaxy X ("Buyer's G-X Transponders" or "Buyer's
Transponders"), all of which are on a "Delivered" basis (as such term is defined
in Sections 4.01).
2.02 Lease with Option to Purchase. Subject to Section 10.08,
below, HCG shall lease to Buyer ******** Ku-Band Transponder on Galaxy X
("Buyer's Ku-Band Transponder" and sometimes collectively, "Buyer's
Transponders") for a Lease Term of ********, commencing upon Delivery (Section
4.01) to Buyer, at the ******** Lease Rate of ********. Buyer shall comply with
all standard lease terms and conditions covering leases of Ku-Band Capacity on
Galaxy X.
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(a) Buyer shall have an Option to Purchase ("Purchase Option") the
******** Ku-Band Transponder that is the subject of the Lease referenced in
this Section 2.02 excercisable in the manner and on the terms and
conditions as follows:
(i) Buyer may exercise its Purchase Option within ******** after
the Notice as defined in Section 3.02(a)(i)(1), below, by delivering
written notice of its intent to exercise the Purchase Option and
payment to HCG of the Downpayment required by Section 3 below on or
before the Execution Date, the Base Price to Buyer shall be ********,
both as defined in Section 3.02(a), for Buyer's Ku-Band Transponder; or
(ii) Buyer may exercise its Purchase Option on or before the date
on which a satellite designated as Galaxy IX ("Galaxy IX") commences
service at the 123(degree) West Longitude orbital location ("G-IX
Delivery Date, by delivering written notice of its intent to exercise
the Purchase Option and payment to HCG of the downpayment required by
Section 3 below on or before the G-IX Delivery Date, and thereafter
making such payments as required for Buyer's Transponders generally in
this Agreement. If Buyer exercises its Purchase Option on or before the
G-IX Delivery date, the Base Price to Buyer shall be ********, both as
defined in Section 3.02(a), for Buyer's Ku-Band Transponder; or
(iii) Buyer may exercise is Purchase option on or before ********
the Delivery of Galaxy X ("G-X Delivery date") by delivering written
notice of its intent to exercise the Purchase Option and payment to HCG
of the Downpayment required by Section 3 below ******** after the G-X
Delivery Date, and thereafter making such payments as required for
Buyer's transponders generally in this Agreement. If buyer exercises
its Purchase Option on or before the G-X Delivery Date, the Base Price
to Buyer shall be ********, both as defined in Section 3.02(a), for
Buyer's Ku-Band Transponder.
If Buyer exercises any of the above choices with respect to Purchase Option
of the Buyer's Ku-Band Transponder, Buyer's Ku-Band Transponder shall thereafter
be subject to all the terms and conditions as the Buyer's Transponders which are
the subject of Purchase in Section 2.01 above.
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3. Purchase Price and Payment Schedule
3.01 Purchase Price Component Amount. The purchase price for
each of Buyer's Transponders shall consist of a "******** Price" and a ********
and, an ******** (collectively, the "Purchase Price Components"). The payment
for each of these Purchase Price Components by Buyer is mandatory. The services
to be provided by HCG in return for Buyer's payment of the Purchase Price
Components are described in other sections of this Agreement. All prices set
forth are on a per Transponder basis.
3.02 Purchase Price Component Amount. The Purchase Price
Components, payment terms, certain refunds and an Option covering each of
Buyer's Transponders shall be as follows:
(a) The ******** Price shall be defined and payable in accordance with
the following:
(i) Buyer understands and agrees that at the Execution Date,
********, may have an expected useful life of ********. The Purchase
contemplated by this Agreement is based upon a purchase period of
********. To accommodate Buyer's desire for flexibility and some
assurance of the ******** Price per Transponder, HCG hereby grants
Buyer an Option to purchase all, but not less than all, of its Buyer's
G-X Transponders for a period of either ********, upon the following
conditions:
(1) Within ******** of the date of HCG's notice to Buyer
identifying the design configuration of the satellite (the
"Notice"), Buyer shall respond in writing and affirmatively accept
or reject HCG's offer of Transponders for a ******** Purchase. In
the event that Buyer fails to respond to any such Notice, it will
be deemed agreed between the parties to this Agreement that the
Buyer's Purchase of the Transponders shall be for a ********
Purchase.
(2) If Buyer exercises its Option for Transponders for a
******** Purchase, all references to Transponders, Buyer's
Transponders, Reserves or Spares in this Agreement shall be deemed
to apply to Transponders having a ******** purchase period, and
likewise the terms of the entire Agreement shall apply thereto.
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(3) The "******** Price" for each of Buyer's Transponders
shall be as follows:
(i) for ******** Purchase: a range between ******** for all
Transponders Delivered within ******** of Satellite operation, and
******** for any of Buyer's Transponders Delivered in the ********, all
of Buyer's Transponders being Delivered within ******** of the
commencement of operations of the Satellite.
(ii) for ******** Purchase: a range between ******** for all
Transponders Delivered within ******** of Satellite operation, and
******** for any of Buyer's Transponders Delivered in the ********, all
of Buyer's Transponders being Delivered within ******** of the
commencement of operations of the Satellite.
(iii) the ******** Price for either ******** Purchase or ********
Purchase Transponders shall be paid as follows; ******** (the
"Downpayment") on the Execution Date, such amount to cover ******** of
the Purchase Price of all of the Buyer's transponders; and the
remaining ******** as of the date of each Buyer's Transponder Delivery
(as defined in Section 4.01). Any change hereafter in the scheduled
launch date shall not affect this payment schedule.
(A) At Buyer's election, and subject to the full
satisfaction of HCG, Buyer may, on the Execution Date, pay
all, but not less than all, of the Downpayment in the form of
an irrevocable letter of credit, in form and substance and
drawn on a bank or other financial institution acceptable to
HCG in its sole discretion (the "LC"). If Buyer elects to pay
the Downpayment in the form of LC, then Buyer shall pay to HCG
******** in immediately available funds on the Execution Date.
Such ******** shall be returned to Buyer, if and when HCG
receives the LC to HCG's satisfaction. If buyer
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is given Notice and exercises its Option for a ********
Purchase for Transponders, the amount of the LC shall be
increased accordingly.
(B) At the time Buyer makes the election to pay the
Downpayment in the form of LC, Buyer must also make an
election as to the date upon which it wishes to have the LC
drawn down ("Draw Down Date"), but in any event not later than
the Delivery of Galaxy X, and Buyer shall present LC
reflecting an appropriate increase if interest is to be paid
on the Downpayment:
(i) if Buyer elects a Draw Down Date on or concurrent
with Delivery of Galaxy IX, HCG will accept the
Downpayment without accrued interest as payment of the
full amount of the Downpayment;
(ii) if Buyer elects a Draw Down Date on or
concurrent with the delivery of Galaxy X, Buyer shall pay
HCG an additional amount as interest on the full amount of
the Downpayment, at the rate of ********, computed from
the Execution Date to the G-X Delivery Date (as estimated
by HCG at the Execution Date).
To the extent that the amount available under the LC is
insufficient on the Draw Down Date, the Buyer agrees to
immediately pay the difference to HCG without the necessity of
notice or demand by HCG to Buyer. In any event the LC shall
remain irrevocable and non-cancelable by Buyer unless and
until Buyer has paid the Downpayment for Buyer's Transponders
in full.
(b) The ******** for each of Buyer's Transponders shall be a per month
fee of ********, payable in advance on the day of Delivery and on the first
day of each month thereafter. Payments for a partial month shall be
prorated. If one of Buyer's Transponders becomes a ******** Transponder (as
defined in Section 12.01) or ******** Transponder (as defined in Section
21), then the ******** shall cease as to such ******** Transponder or
******** Transponder. ********
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******** for a ******** Purchase or ******** for a ******** Purchase,
respectively. ******** was made for such ******** Transponder or ********
Transponder, then the ******** (as defined in Section 6.02) for such
******** Transponder or ******** Transponder ********.
(c) The ******** for each of Buyer's Transponders shall be a lump sum
payment to HCG of ******** of the ******** Price, payable to HCG
concurrently with Delivery with respect to each of Buyer's Transponders. If
one of Buyer's Transponders becomes a ******** Transponder ********
Transponder, then the payment shall be ******** Transponder ********
Transponder in accordance with Section 12.03.
3.03 Place of Payment. All payments by Buyer shall be made to
HCG at its principal place of business, as designated in Section 20.03, and
shall be deemed to be made only upon actual receipt by HCG. All refunds by HCG
shall be made to Buyer at its principal place of business as designated in
Section 20.03, and shall be deemed to be made only upon actual receipt by Buyer.
4. Delivery and Related Matters
4.01 Delivery. "Galaxy X Delivery" shall occur upon, and
"Delivery", "Delivered" and "Deliver", as to Galaxy X shall mean the placing of
the Satellite, containing all of Buyer's Transponders, in its assigned orbital
position with ******** meeting the relevant performance specifications (all of
which requirements may be met through the use of Reserve Transponders or
Transponder Spares). "Buyer's Transponder(s) Delivery" shall occur upon, and
"Delivery", "Delivered", and "Deliver" as to each Buyer's Transponder shall mean
(i) the occurrence of Galaxy X Delivery, (ii) Buyer's acceptance of its
Transponders as provided for in Section 4.03 and (iii) full payment by Buyer as
provided in Section 4.02. With respect to ******** the C-Band Buyer's
Transponders (which shall be hereinafter referred to as the "Delayed ********"),
Buyer may ******** of such Transponders as set forth below. Buyer may, at
Buyer's sole option, ******** Delivery of ******** Delayed ******** (the "First
Delayed ********") to a date occurring after Galaxy X Delivery but no later than
******** by delivery of written notice to HCG ******** prior to the initial
scheduled launch date, as determined by HCG in HCG;s sole discretion. With
respect to ******** Delayed ********, (the "Second Delayed ********"), Buyer
may, at Buyer's sole option, ******** Delivery of the Second Delayed ******** to
a date occurring after Galaxy X Delivery but no later than ******** by delivery
of written notice to HCG on or before the earlier of (i) ******** or (ii)
********
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********. Such notice of election to ******** the Delivery with respect to such
Delayed Transponders shall be irrevocable.
4.02 Ownership Title and Assumption of Risk. Ownership and title
to Buyer's Transponders shall pass to Buyer at the time of Delivery to Buyer. A
condition to HCG's obligation to deliver title to Buyer, and of Buyer's
obtaining ownership, shall be the payment by Buyer of all amounts due to HCG on
or prior to Delivery for such Transponder or Transponders. Any loss of or damage
to Buyer's Transponders prior to Delivery shall be at the risk of HCG. Any loss
of or damage to Buyer's Transponders after Delivery to Buyer will be at the risk
of Buyer; provided however, that the foregoing shall not impair Buyer's other
rights under Sections 4, 9 and 12 of this Agreement.
4.03 Acceptance. HCG shall test each of the Buyer's Transponders
with an acceptance test plan to be prepared by HCG in advance of the launch of
the Satellite and delivered to Buyer. This Agreement contemplates that ********
of Buyer's Transponders shall be designated to meet ******** specifications and
******** shall meet the "********" specifications as defined by the
specifications sheet attached hereto as Exhibit "B", entitled "Transponder
Performance Specifications". Acceptance of Buyer's Transponders by Buyer shall
be deemed to have occurred upon completion of the following: (a) Buyer's
Transponders have passed all tests set forth in the aforementioned acceptance
test plan and meet the Transponder Performance Specifications; and (b) HCG has
notified Buyer in writing that it has successfully completed testing Buyer's
Transponders and that Buyer's Transponders are available for service.
5. Representations and Warranties
HCG and Buyer each represent and warrant to the other that:
5.01 Authority. No Breach. It has the right, power and authority
to enter into, and perform its obligations under, this Agreement. The execution,
delivery and performance of this Agreement shall not result in the breach or
nonperformance of any agreements it has with third parties.
5.02 Corporate Action. It has taken all requisite corporate
action to approve execution, delivery and performance of this Agreement, and
this Agreement constitutes a legal, valid and binding obligation upon itself in
accordance with its terms.
5.03 Consents. The fulfillment of its obligations hereunder will
not constitute a material violation of any existing applicable law, rule,
regulation or order of any governmental authority. All material necessary or
appropriate public or private consents, permissions, agreements, licenses, or
authorizations to which it or any Transponder or the Satellite may be subject
have been or shall be obtained in a timely manner; provided, however, that it
shall be HCG's sole responsibility to
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obtain any regulatory approvals needed to enable it to sell Transponders as
provided for in this Agreement. Notwithstanding the above, HCG and Buyer
acknowledge that the transactions set forth in this Agreement may be challenged
before the FCC or a court of competent jurisdiction by other persons or entities
not parties hereto. In such event, HCG and Buyer agree that HCG shall use its
best efforts, and Buyer shall use reasonable efforts, before the FCC, and the
courts if an appeal from an FCC order is taken, to support HCG's right to sell
and Buyer's right to purchase Buyer's Transponders and shall fully cooperate
with each other in these endeavors. Buyer alone shall have the right to
determine how much and to whom it will incur legal expenses in connection with
any proceeding arising out of its obligations under this Section 5.03. If,
however, by written order, the FCC or a court of competent jurisdiction shall
determine that HCG may not sell and Buyer may not purchase Buyer's Transponders
under the terms and conditions set forth herein, then HCG and Buyer shall seek
immediate review of such order before the FCC or an appellate court or shall, if
possible, reconstitute the transaction to comply with such order and to provide
Buyer with use of "equivalent capacity" on another HCG-operated satellite and to
provide HCG with the "price provided for herein." As used herein, "equivalent
capacity" shall mean the same number of Transponders purchased by Buyer pursuant
to this Agreement and there is no material adverse change in the provisions of
this Agreement regarding purchase price taking into account payment terms using
a present value analysis, tax benefits from the form of the transactions, use of
Transponder Spares and Reserve Transponders, and Transponder Performance
Specifications. As used herein, "price provided for herein" shall mean the total
price payable to (HCG, taking into account payment terms, using a present value
analysis with a ********, and tax benefits from the form of the transactions. If
an appellate court issues a written order, which is no longer subject to further
judicial rehearing or review, upholding the determination of the FCC or a court
or competent jurisdiction that HCG may not sell and Buyer may not purchase
Buyer's Transponders, then HCG and Buyer shall, if possible, reconstitute the
transaction as set out herein.
5.04 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 or concurrently disclosed in writing by either party to the other.
5.05 No Broker. It does not know of any broker, finder, or
intermediary involved in connection with the negotiations and discussions
incident to the execution of this Agreement, or of any broker, finder or
intermediary who might be entitled to a fee or commission upon the consummation
of the transactions contemplated by this Agreement.
6. Additional Representations, Warranties and Obligations of HCG
6.01 Authorization Description. HCG has filed with the FCC an
application to construct, launch and operate Galaxy X at 123(degree) West
Longitude.
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6.02 Transponder Performance Specifications. Each of Buyer's
Transponders, upon Delivery, shall meet the Transponder Performance
Specifications throughout the duration of the ********. ******** shall mean that
period of time ********. ******** as to Buyer's G-X Transponders shall mean
that, if any of Buyer's G-X Transponders become ******** Transponders during the
********, then Buyer shall be entitled to the repayment set forth in Section
12.03.
6.03 Title. Upon Delivery and subject to Section 4,02, HCG shall
deliver to Buyer good title to each of Buyer's Transponders free from all liens,
charges, claims or encumbrances, except for any encumbrances resulting from any
action taken by Buyer.
6.04 Government Regulations. HCG has or shall use its best
efforts throughout the ********, and until disposition of Galaxy X pursuant to
Section 17, to obtain and maintain, in all material respects, all applicable
federal, state and municipal authorizations or permissions to construct, launch
and operate Galaxy X, applicable to it; and to comply, in all material respects,
with all such government regulations regarding the construction, launch an
operation of the Satellite and Transponders applicable to it.
6.05 Not a Common Carrier. Unless required to do so by the FCC,
HCG shall not hold itself out, publicly or privately, as a provider of common
carrier communications services on Galaxy X and is not purporting herein to
provide to Buyer or to any other party any such services with respect to Galaxy
X.
6.06 TT&C. Tracking, telemetry and control ("TT&C") shall be
provided by Hughes Communications Satellite Services, Inc. ("HCG"), an affiliate
of HCG, for the life of the Satellite, pursuant to a separate "TT&C Service
Agreement" which has been executed by HCG and Buyer concurrently herewith.
********.
7. Additional Representations. Warranties and Obligations of Buyer
7.01 [Reserved]
7.02 Non-Interference. Buyer's radio transmissions (and those of
its uplinking agents) to the Satellite shall comply, in all material respects,
with all FCC and all other governmental (whether international, federal, state,
municipal, or otherwise) statutes, laws, rules, regulations, ordinances, codes,
directives and orders, of any such governmental agency, body, or court
(collectively, "Laws") applicable to it regarding the operation of the Satellite
and Buyer's Transponders. Buyer shall not utilize (or permit or allow any of its
uplinking agents to utilize) any of Buyer's Transponders in a manner which will
or may interfere with the use of any other
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Transponder or cause physical harm to any of Buyer's Transponders, any other
Transponders, or to the Satellite. Further, Buyer will coordinate (and will
require its uplinking agents to coordinate) with HCG, in accordance with
procedures reasonably established by HCG and uniformly applied to all users of
Transponders on the Satellite, its transmissions to the Satellite, so as to
minimize adjacent channel and adjacent satellite interference. For purposes of
this Section 7.02, interference shall also mean acts or omissions which cause a
Transponder to fail to meet its Transponder Performance Specifications. Without
limiting the generality of the foregoing, Buyer (and its uplinking agents) shall
comply with all FCC rules and regulations regarding use of automatic transmitter
identification systems (ATIS).
7.03 Laws. Buyer shall comply (and shall require its uplinking
agents to comply), in all material respects, with all Laws applicable to it
regarding the operation or use of the Satellite and Buyer's Transponders.
7.04 Additional Usage Representations and Obligations.
(a) Buyer has not been convicted for the criminal violation
of, and has not been found by the FCC or other federal, state or
local governmental authority with appropriate jurisdiction
(collectively, the "Governmental Authority") to have violated,
any federal, state or local law or regulation as applicable
concerning illegal or obscene program material or the
transmission thereof (the "Obscenity Laws"), and Buyer is not
aware of any pending investigation (including, without
limitation, a grand jury investigation) involving Buyer's
programming or any pending proceeding against Buyer for the
violation of any Obscenity Laws.
(b) Buyer will notify HCG as soon as it receives
notification of, or becomes aware of, any pending investigation
by any Governmental Authority, or any pending criminal
proceeding against Buyer, which investigation or proceeding
concerns transmissions by Buyer potentially in violation of any
law, including without limitation, Obscenity Laws.
(c) Any use of Buyer's Transponders shall comply, in all
material respects, with all applicable laws regarding the
operation or use of the Satellite and Buyer's Transponders
(including, but not limited to, any Obscenity Laws).
8.Preemptive Rights and Inspection of Facilities
Buyer recognizes that it may be necessary in unusual or abnormal
situations or conditions for HCG deliberately to preempt or interrupt Buyer's
use of each of its Transponders, in order to protect the overall performance of
the Satellite. Such decisions shall be made by HCG in its sole discretion;
provided, however, that, to the extent it is technically feasible, HCG shall
preempt or interrupt the use of Transponders in the inverse order in which the
Owners (or such Owner's predecessors in interest) on such Satellite executed
transponder purchase agreements
ACK/shs: GCI.GX TPA.Final 11 Monday, August 21, 1995 - 8:00 am
for its Transponders on such Satellite. To the extent technically feasible, HCG
shall give Buyer at least forty-eight (48) hours' notice of such preemption or
interruption and HCG shall use its reasonable best efforts to schedule and
conduct its activities during periods of such preemption or interruption so as
to minimize the disruption to the use of Transponders on such Satellite. To the
extent that such preemption results in a loss to Buyer of the use of Buyer's
Transponders sufficient to constitute a breach of HCG's warranty obligations as
set forth in Section 12, then Buyer shall have all of the rights and remedies
set forth in Sections 9 and 12.
9. Transponder Spares. Reserve Transponders and Retained Primary Transponders
9.01 Use of Transponder Spares. HCG shall cause Galaxy X to contain certain
redundant equipment units (individually, a "Transponder Spare"), which are
designed as substitutes for equipment units the failure of which could cause a
Transponder to fail to meet the Transponder Performance Specifications. HCG, as
soon as possible and to the extent technically feasible, shall employ a
Transponder Spare in such Satellite as a substitute for Buyer's Transponder
equipment unit which has caused Buyer's Transponders to suffer a Confirmed
******** (as defined in Section 12.02) in order to enable Buyer's Transponders
to meet the Transponder Performance Specifications. To the extent technically
feasible, a Transponder Spare will be substituted for the faulty equipment unit
on a first-needed, first-served basis to satisfy HCG's ******** obligations to
Buyer and to other Owners of users of Transponders on the same Satellite which
have suffered Confirmed ********; provided, however, that HCG's obligations to
provide Transponder Spares shall continue until such time as all of the
Transponder Spares are committed to use as substitutes for Transponders which
have suffered Confirmed ********. If HCG furnishes a Transponder Spare to Buyer
as a substitute for an equipment unit which has caused Buyer's Transponder to
suffer a Confirmed ********, the HCG shall transfer title and ownership of the
Transponder Spare to Buyer and Buyer concurrently, shall return title and
ownership of its substituted Transponder equipment unit to HCG. Buyer's
Transponder equipment unit which has been returned shall be made available by
HCG, to the extent technically feasible, to satisfy its obligations to Owners or
users on the same Satellite. HCG also shall have the right, until the
Transponder Spares are needed, to utilize such Transponder Spares in any manner
HCG determines.
9.02 Use of Reserve Transponders. If no Transponder Spare is
available at the time that Buyer's Transponder suffers a Confirmed ******** or
if the use of such Transponder Spare would not correct the failure, then HCG
shall employ, as soon as possible and to the extent technically feasible, and
unless any delay is requested by Buyer, a Reserve Transponder on Galaxy X as a
substitute for such Transponder which has suffered a Confirmed ********;
provided, however, that HCG's obligation to provide Reserve Transponders to
Buyer shall continue only until such time as all of the Reserve Transponders are
committed to use as substitutes for Primary Transponders which have suffered a
Confirmed ********. HCG shall include in the
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transponder purchase agreement of any Owner who has purchased a Reserve
Transponder (or in any other agreement providing for the Transfer of a Reserve
Transponder) a requirement that HCG may preempt such Reserve Transponder(s)
after two (2) hours' notice from HCG. Reserve Transponders utilized as
substitutes shall meet the Transponder Performance Specifications. Reserve
Transponders, or any one of them, will be substituted and utilized on a
first-needed, first-served basis to satisfy HCG's obligations to Buyer and to
other Owners with respect to the performance of their Primary Transponders. HCG
shall have the right, in its sole discretion, to utilize first a Transponder
Spare prior to furnishing a Reserve Transponder to Buyer. If HCG furnishes a
Reserve Transponder to Buyer, then HCG shall transfer title and ownership of
such Reserve Transponder to Buyer and Buyer concurrently shall return title and
ownership of its substituted Transponder to HCG. Buyer's Transponder which has
been returned to HCG shall thereafter be made available by HCG, to the extent
technically feasible, to satisfy its obligations to other Owners. HCG also shall
have the right, until the Reserve Transponders are needed, to utilize them in
any manner HCG determines.
9.03 Simultaneous ******** -- Priority with
Respect to the Use of Transponder Spares. In the event that Primary Transponders
of more than one Owner simultaneously suffer a Confirmed ********, then the
Owner (or such Owner's predecessor in interest) who first executed a transponder
purchase agreement with HCG shall have priority as to use of Transponder Spares
with respect to said Owner's Primary Transponder or Transponders which have
suffered a Confirmed ********, to the extent technical feasible. As used in this
Section 9, the term "simultaneously" shall be deemed to mean occurring within a
24-hour period.
9.04 Simultaneous ******** - Priority with Respect to the Use of
Reserve Transponders. In the event that Primary Transponders of more than one
Owner simultaneously suffer a Confirmed ********, and no Transponder Spare is
available or if the use of such Transponder Spare would not correct the
********, then the Owner (or such Owner's predecessor in interest) who first
executed a transponder purchase agreement with HCG for the purchase of a Primary
Transponder on such Satellite shall have priority as to use of a Reserve
Transponder with respect to said Owner's Primary Transponder or Transponders
which have suffered a Confirmed ********.
9.05 HCG's Ownership of Primary Transponders. If HCG is unable
to sell all of the Primary Transponders, then HCG may retain ownership of such
unsold Primary Transponders ("HCG's Transponders"). (The same provision shall
apply with respect to Reserve Transponders.) In such event, HCG shall have the
same rights to use HCG's Transponders as any other Owner would have, including,
without limitation, the right to utilize Transponder Spares and Reserve
Transponders in the event HCG's Transponders do not meet the Transponder
Performance Specifications. HCG also shall have the right, but not the
obligation, to utilize HCG's Transponders to satisfy HCG's warranty obligations
to Buyer and to other Owners. HCG shall be deemed to have been the last entity
to execute a
ACK/shs: GCI.GX TPA.Final 13 Monday, August 21, 1995 - 8:00 am
Transponder Purchase Agreement for purposes of determining its priority under
the provisions of this Section 9 and other Sections of this Agreement; provided,
however, that if HCG long term leases any unsold Primary Transponder to a third
party, such third party shall, for purposes of determining its priority under
the provisions of this Section 9, or elsewhere in this Agreement, be deemed to
have "purchased" such Transponder and to have executed a transponder purchase
agreement on the date it executed such long term lease.
9.06 Notice of Intent to Substitute a Reserve Transponder Prior
to the substitution of a Reserve Transponder for Buyer in accordance with this
Section 9, HCG shall notify Buyer in. advance of its intention to so substitute
the Reserve Transponder and the substitution shall be made at such time as the
parties mutually agree.
10. Termination Rights
10.01 Termination by Buyer.
(a) If HCG does not Deliver any of Buyer's Transponders on
********, Buyer shall have the right to cancel its obligations
to purchase all of its undelivered Transponders, by giving
written notice to HCG on or before ********.
(b) If Buyer terminates its obligations as to Buyer's
Transponders due to the failure to make Delivery as set forth in
this Section 10 (the "Terminated Transponders"), then Buyer
shall be entitled to a full refund, without interest, of all
payments made for each such Terminated Transponder, less any
payments made by HCG to it on account of such Terminated
Transponders pursuant to other provisions of this Agreement, and
Buyer and HCG shall have no further obligations to each other as
to each such Terminated Transponder.
(c) Buyer shall notify HCG of its intent to terminate its
obligations pursuant to this Section 10.01 on or before
********.
10.02 Termination by HCG. Notwithstanding anything else set forth in
this Agreement, HCG may terminate this Agreement if Buyer shall have failed to
pay any amount due and payable pursuant to the provisions of Section 3, and
Buyer has been given written notice by HCG of said failure and Buyer shall have
failed to pay the amount due and payable within thirty (30) business days after
HCG has given such notice to Buyer. Any late payments by Buyer to HCG shall be
with interest calculated at the rate set forth in Section 20.01, payable with
the amount due and calculated from the date payment was due until the date it is
received by HCG.
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10.03 HCG's Right to Sell if Non-Payment. If, for any reason
whatsoever, Buyer does not make the payments in the amounts and on the dates set
forth in Section 3 and Buyer fails to cure such default as set forth in Section
10.02, then, in addition to all of its other remedies at law or in equity, HCG
shall be entitled to Transfer (as defined in Section 13.01) Buyer's Transponders
immediately to whomever HCG sees fit, Buyer shall not be entitled to any
equitable relief as a result thereof, and Buyer's exclusive remedy shall be
limited to recovery of any payments made to it by HCG, without interest, less
any claim HCG has against Buyer by reason of such Buyer's default.
10.04 Prompt Repayment. All refunds provided for in this Section
10 to be made by HCG shall be made within ******** of receipt by HCG of notice
of termination by Buyer, and any late payment by HCG to Buyer shall be with
interest calculated at the rate set forth in Section 20.01, payable with the
amount due and calculated from the date payment was due until the date it is
received by Buyer.
10.05 Termination by Buyer or HCG. Notwithstanding anything else
set forth in this Agreement, either Buyer or HCG may terminate its obligations
under this Agreement as to Transponders on Galaxy X if, prior to Delivery, the
FCC shall have ordered the placement of Galaxy X into an orbital position
further east than ******** or further west than ********, and such order shall
have become a Final Order, and the parties are unable to reconstitute this
Agreement pursuant to Section 5.03. As used herein, an order of the FCC becomes
a "Final Order" when the FCC's action is no longer subject to administrative or
judicial reconsideration, rehearing, review, stay, appeal or other similar
actions which could be filed with the FCC or with any court having jurisdiction
to review said action.
10.06 Right to Deny Access.
(a) If, in connection with using Buyer's Transponders,
(i)"User" (as defined below) is indicted or is
otherwise charged as a defendant in a criminal proceeding
based upon, or is convicted under, any Obscenity Law or has
been found by any Governmental Authority to have violated
any such law;
(ii) based on any User's use of Buyer's Transponders,
HCG is indicted or otherwise charged as a criminal
defendant, becomes the subject of a criminal proceeding or a
governmental action seeking a fine, license revocation or
other sanctions, or any Governmental Authority seeks a cease
and desist or other similar order or filing;
(iii) the FCC has issued an order initiating a
proceeding to revoke HCG's authorization to operate the
Satellite;
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(iv) HCG obtains a court order pursuant to Section
10.06(c) below, or a court or Governmental Authority of
competent jurisdiction orders HCG to deny access to User or
orders User to cease transmission; or
(v) HCG receives notice (the "Illegal Programming
Notice"), written or oral, from a Governmental Authority
that such authority considers Buyer and/or any other User's
programming to be in violation of Obscenity Laws (the
"Illegal Programming"), and that if HCG does not cease
transmitting such Illegal Programming, then HCG and/or its
Affiliates and/or any of their executives will be indicted
or otherwise charged as a criminal defendant, will become
the subject of a criminal proceeding or a governmental
action seeking a fine, license revocation or other
sanctions, or that such Governmental Authority will seek a
cease and desist or other similar order or filing (with HCG
being obligated, to the extent permitted by law, to provide
Buyer with a copy of such Illegal Programming Notice, if
written, or with other verification, including the details
thereof, if oral);
then, upon notice from HCG to Buyer (the "Denial of Access
Notice"), User shall cease using Buyer's Transponders
immediately, in the case of a denial of access pursuant to
subparagraphs (i), (ii), (iii) or (iv) above, or within 24 hours
following receipt of such notice, in the case of a denial of
access pursuant to subparagraph (v), above; and if User does not
voluntarily cease using such capacity at the appropriate time,
then HCG shall have the right to take such steps as HCG deems
necessary to prevent User from accessing Buyer's Transponders.
Provided, however, that if User has more than one programming
service, then the denial of access by HCG shall apply only to
the Transponder used to provide the Illegal Programming service;
and provided further, however, that if, upon receipt of the
Denial of Access Notice from HCG, User does not immediately
cease transmission of such Illegal Programming service, then HCG
shall have the right to take such steps as HCG deems necessary
to prevent User from accessing the Transponder used to transmit
such Illegal Programming service (and if, thereafter, Buyer
transmits such Illegal Programming service using any of Buyer's
Transponders, then HCG shall have the immediate right, without
further notification, to take such steps as HCG deems necessary
to prevent Buyer from accessing any of Buyer's Transponders). As
used herein, "User" shall mean Buyer and any person to whom
Buyer Transfers all or part of its right to use Buyer's
Transponders, including without limitation, a Buyer, licensee or
assignee. Buyer agrees to maintain a properly operating
facsimile machine at all times to receive the Denial of Access
Notice from HCG.
(b) If HCG denies, or has given Buyer notice of its intent
to deny, access to Buyer's Transponders pursuant to the
provisions of this Section 10.06, and if Buyer does not believe
the conditions set forth in this Agreement
ACK/shs: GCI.GX TPA.Final 16 Monday, August 21, 1995 - 8:00 am
to HCG's denial of access have been met, then Buyer shall have
the immediate right to seek injunctive relief, including a
temporary restraining order on notice of four (4) hours or more
to HCG, to prevent the denial or continuing denial of such
access by HCG.
(c) HCG shall also have the right to seek (i) injunctive
relief, including a temporary restraining order on notice of
four (4) hours or more to Buyer, to prevent, suspend or
otherwise limit User's continued access to Buyer's Transponders
where HCG believes such use has resulted or will result in a
violation of any Obscenity Law; or (ii) declaratory relief to
establish its right to deny User's access to Buyer's
Transponders under this Agreement.
(d) Either party shall be entitled to oppose the other's
attempt to obtain equitable relief. However, in order to enable
either party to obtain a resolution of any such dispute as
expeditiously as possible, both parties hereby agree that: (i)
neither party will contest the jurisdiction of, or the venue of,
any action for equitable relief brought by the other party in
the following courts: U.S. District Court for the District of
Columbia and the U.S. District Court for the Central District of
California; (ii) the party opposing equitable relief (the
"Opposing Party") will make itself available to accept service
by telecopy or personal delivery on a 24 hour-a-day basis for
five (5) consecutive days following receipt by the Opposing
Party of the other party's notice of its intent to seek such
equitable relief; and (iii) if either party seeks a temporary
restraining order and provides notice to the Opposing Party at
least four (4) hours before the scheduled court hearing, then
the Opposing Party will not challenge the timeliness of such
notice.
(e) If it is determined by final judicial order the HCG
prevented Buyer from accessing any or all of Buyer's
Transponders at a time when it did not have the right to do so,
pursuant to this Section 10.06, then Buyer's sole and exclusive
remedy shall be HCG's payment to Buyer of liquidated damages
equal to ********, per Transponder, for the terminated capacity,
such ******** based on the period of time of loss of use of such
capacity.
(f) All remedies of HCG set forth in this Section 10.06
shall be cumulative and in addition to, and not in lieu of any
other remedies available to HCG at law, in equity or otherwise,
and may be enforced by HCG concurrently or from time to time.
(g) In addition to any other identification obligations
found elsewhere in this Agreement, Buyer shall indemnify and
save HCG, its directors, officers, employees, and its Affiliates
from any liability or expense arising out of or related to
User's use of Buyer's Transponders under this Section 10.06.
Buyer shall pay all expenses (including reasonable attorneys'
fees) incurred by HCG in connection with all legal or other
formal or informal proceedings, instituted by any private third
party or any Governmental
ACK/shs: GCI.GX TPA.Final 17 Monday, August 21, 1995 - 8:00 am
Authority, and arising out of or related to User's use of
Buyer's Transponders under this Section 10.06, and Buyer shall
satisfy all judgments, fines, penalties, costs, or other awards
which may be incurred by or rendered against HCG as a result
thereof, as and to the extent permitted by law.
10.07 Return of Transponders. Upon the expiration, termination,
or cancellation of this Agreement as to any Transponder for any reason
whatsoever (including, without limitation, expiration of this Agreement in
accordance with its terms), such Transponder shall be deemed, without any
further action by any party, to be redelivered to HCG and HCG shall be entitled
to immediate possession thereof. HCG shall thereafter have the right to utilize
such redelivered Transponder in any manner it determines.
10.08 Cancellation of Buyer's Ku-Band Transponder. HCG shall
provide Buyer with a written notice of its final decision on the ******** and
the ********. Within ******** after receipt of HCG's written notice, Buyer shall
have the right to cancel the lease (or, if Buyer has exercised the Purchase
Option as set forth in Section 2.02, the purchase) of Buyer's Ku-Band
Transponder by delivery of a written notice to do so to HCG. Such exercise shall
be irrevocable. The effective date of the cancellation shall be the date on
which HCG receives the notice of such cancellation. As of the effective date of
such cancellation, HCG shall have no obligation to Buyer arising out of the
lease or purchase of the Buyer's Ku-Band Transponder, except for the refund of
any pre-paid charges with respect to such Buyer's Ku-Band Transponders.
10.09 Buyer's Special Option to Terminate. Notwithstanding
anything to the contrary stated elsewhere in this Agreement, Buyer shall have
the right, at its sole option, to terminate this Agreement in its entirety by
delivering a written notice to do so ********. The condition precedent to such
termination shall be the payment by Buyer of ******** payable to HCG
concurrently with the written notice of termination. Upon such termination,
neither HCG nor Buyer shall have any rights or obligations to the other under
this Agreement.
11. Force Majeure
11.01 Failure to Deliver. Any failure or delay in the
performance by HCG of its obligations to Deliver any Transponders shall not be a
breach of this Agreement if such failure or delay results from any acts of God,
governmental action (whether in its sovereign or contractual capacity) or any
other circumstances reasonably beyond the control of HCG, including, but not
limited to, weather or acts or omissions of Buyer or any third parties
(excluding the Hughes Aircraft Company and all of its direct and indirect
subsidiaries and any other affiliates of HCG or the Hughes Aircraft Company with
whom HCG or the Hughes Aircraft Company contracts for any components of the
Satellite or any services with respect thereto). Nothing in this
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Section, however, shall be deemed to alter Buyer's absolute rights to terminate
this Agreement as set forth in Section 10.01.
11.02 Failure of Performance. Any failure in the performance of
the Transponders, once Delivered, shall not be a breach of this Agreement if
such failure results from acts of God, governmental action (whether in its
sovereign or contractual capacity) or any other circumstances reasonably beyond
the control of HCG, including, but not limited to, receive earth station sun
outage, weather, or acts or omissions of Buyer or any third parties (excluding
the Hughes Aircraft Company and all of its direct and indirect subsidiaries, and
all parties with whom HCG or Hughes Aircraft Company and all of its direct and
indirect subsidiaries contract for the manufacture, construction, launch and
operation of the Satellite or any components thereof), provided, however, that
this provision shall not excuse HCG's obligations to provide Transponder Spares
or Reserve Transponders, to the extent available and technically feasible, to
satisfy its obligations as set forth in Section 9.
12. Limitation of Liability/********
12.01 Liability of HCG. If (i) any one or more of Buyer's
Transponders fails to meet the Transponder Performance Specifications during
******** (ii) such ******** is deemed to be a Confirmed ******** (as defined in
Section 12.02), and (iii) HCG is unable to furnish the necessary Transponder
Spare or Reserve Transponder as a substitute for Buyer's Transponder, pursuant
to Section 9, then such Transponder shall be deemed to be a "********
Transponder". Buyer, unless excused by an event set forth in Section 11.02,
shall be entitled to repayment as set forth in Section 12.03 for a ********
Transponder ******** Transponder (as defined in Section 21). The condition
precedent to HCG's obligation to repayment as set forth in this Section 12.03
shall be the full payment by Buyer of the ******** as set forth in Section 3.
12.02 Confirmed ********. A Buyer's Transponder shall be deemed
to have suffered a "Confirmed ********" if (a) it ******** to meet the
Transponder Performance Specifications for a cumulative period of more than
********, (b) ******** (as defined below) ******** or (c) it ******** to meet
the Transponder Performance Specifications for any period of time under
circumstances that make it clearly ascertainable or predictable technically that
the ******** set forth in either (a) or (b) of this Section will occur. An
"outage unit" shall mean the ******** of Buyer's Transponder(s) to meet the
Transponder Performance Specifications for ********. Buyer shall give HCG
immediate not)notification of any such ********, as soon after commencement of
any such ******** as is reasonably possible, and of the relevant facts
concerning such ********. Upon HCG's verification that a Transponder(s) has
suffered a Confirmed ********, such ******** shall be deemed to have commenced
upon receipt by HCG of notification from Buyer, or HCG's actual knowledge,
whichever first occurs, of the Confirmed ********. As used herein,
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the term "day" shall mean a 24-hour period of time commencing on 12:00 midnight
Eastern Time.
12.03 Repayment for ******** Transponder or ********
Transponder. Subject to the last sentence of Section 12.01, for each of Buyer's
Transponders for which repayment is owing hereunder, HCG shall pay to Buyer,
without interest, an amount equal to the product of a fraction, the numerator of
which is the number of days from the date of such ******** until the end of the
******** and the denominator of which is the total number of days in the
********, multiplied by the ******** Price for such Transponder as set forth in
Section 3. Concurrently with payment to Buyer of such repayment, Buyer shall
return title and ownership of said Transponder to HCG. In addition, if the
performance of Buyer's Transponder is such that, while it ******** to meet the
Transponder Performance Specifications, its performance is nonetheless of some
value to Buyer, then prior to accepting repayment calculated as aforesaid, Buyer
shall have the right to negotiate with HCG to determine if there is a mutually
agreeable reduced price upon which Buyer is willing to keep its Transponder. Any
such agreement reached by Buyer and HCG shall constitute a new agreement,
independent of this Agreement.
12.04 Limitation of Liability.
(a) ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
ANY PURPOSE OR USE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED EXCEPT
TO THE EXTENT SPECIFICALLY PROVIDED FOR IN SECTION 6.02, ABOVE.
IT EXPRESSLY IS AGREED THAT HCG'S SOLE OBLIGATIONS AND BUYER'S
EXCLUSIVE REMEDIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED
HEREBY ARE LIMITED TO THOSE SET FORTH IN SECTIONS 9, 10 AND 12,
HEREOF, AND ALL OTHER REMEDIES OF ANY KIND ARE EXPRESSLY
EXCLUDED.
(b) IN NO EVENT SHALL HCG BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, OCCASIONED BY
ANY DEFECT IN THE TRANSPONDERS, DELAY IN DELIVERY OF THE
TRANSPONDERS, FAILURE OF THE TRANSPONDERS TO PERFORM OR ANY
OTHER CAUSE WHATSOEVER. HCG MAKES NO WARRANTY, EXPRESS OR
IMPLIED, TO ANY OTHER PERSON OR ENTITY CONCERNING THE
TRANSPONDERS AND BUYER SHALL DEFEND AND INDEMNIFY HCG FROM ANY
CLAIMS MADE UNDER ANY WARRANTY OR REPRESENTATION BY BUYER TO ANY
THIRD PARTY. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL
ALSO APPLY TO THE HUGHES AIRCRAFT COMPANY (THE MANUFACTURER OF
THE SATELLITE AND THE TRANSPONDERS) AND ALL AFFILIATES THEREOF.
ACK/shs: GCI.GX TPA.Final 20 Monday, August 21, 1995 - 8:00 am
(c) Buyer and HCG each shall have the right to obtain
injunctive relief, if necessary, in order to prevent the other
party from willfully breaching its obligations under this
Agreement or to compel the other party to perform its
obligations under this Agreement.
12.05 Obligations of Buyer to Cooperate. If any of Buyer's
Transponders fails to meet the Transponder Performance Specifications, then
Buyer shall use reasonable efforts to cooperate and aid HCG in curing such
failure, provided that such efforts can be done at minimal or no cost to Buyer.
(a) These obligations of Buyer shall include, but not be limited
to the following:
(i) If there is a problem which can be compensated for by
increasing the power of its transmission to the Buyer's
Transponder, then Buyer shall do so, at HCG's cost and expense,
to the extent it can with existing equipment, provided, however,
that HCG shall not be able to require Buyer to increase the
power of its transmission if, by doing so, it would cause
interference with other Transponders on such Satellite which is
prohibited by Section 7.02 of this Agreement, or interference
with any other satellite; and
(ii) Permitting HCG, at HCG's cost and expense, to upgrade
Buyer's equipment, provided that Buyer shall be entitled to
select and install such equipment and determine its
configuration in accordance with its own existing operating
procedures and technical requirements, and in accordance with
applicable laws and regulations.
(b) HCG shall give notice to Buyer if and when it requires the
increase of power of the transmission of any other Owner pursuant to
such Owner's obligation equivalent to this Section 12.05. HCG shall
also give notice to Buyer when it acquires knowledge of any other
Transponder user uplinking at power levels which might cause
interference with Buyer's Transponders. If, after such increase in
power, a Buyer's Transponder(s) no longer meets its Transponder
Performance Specifications, HCG shall promptly take steps to reduce
interference, if any, prohibited by Section 7.02.
(c) Buyer's priority for the use of transponder Spares or Reserve
Transponders under Section 9 shall be determined at the time that its
Transponder would otherwise have become a ******** Transponder without
Buyer's cooperation under this Section 12.05.
13. Limitations on Transfer by Buyer
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13.01 Transfers by Buyer. Buyer shall not Transfer (as defined
below) its rights under this Agreement to any entity other than its affiliates,
except with the written consent of HCG, which may be given or withheld in HCG's
sole discretion. "Transfer" shall mean to grant, sell, assign, encumber, permit
the utilization of, license, lease, sublease or otherwise convey, directly or
indirectly, in whole or in part.
13.02 Transfers by HCG. HCG may Transfer its rights and/or
obligations hereunder, in whole or in part, to any corporation or other entity
wholly-owned, directly or indirectly, by HCG or to the Hughes Aircraft Company
or any corporation or other entity wholly-owned, directly or indirectly by
Hughes Aircraft Company, including, without limitation, Hughes Communications,
Inc., HCG's immediate parent corporation, or any corporation or other entity
wholly-owned, directly or indirectly, by Hughes Communications, Inc. Any
Transfer by HCG set forth herein shall not interfere with or impact the use of
Buyer's Transponders hereunder.
13.03 Affiliate. As used in this Agreement, "affiliate" shall
mean any corporation or other entity controlling or controlled by or under
common control with Buyer or HCG, as the case may be.
13.04 Assignment. Notwithstanding anything to the contrary in
Section 13.01 above, Customer may assign its rights or obligations, in whole or
in part, under this Agreement to a third party (the "Third-Party Assignee"),
subject to HCG's prior written consent, which may not be unreasonably withheld;
provided, however, that HCG may withhold its consent if HCG determines that the
ThirdParty Assignee is not Financially Qualified, or will not be able to meet
HCG's legal, technical and operational requirements as set forth in this
Agreement. A condition precedent to the effectiveness of any such third-party
assignment shall be the prior execution by the Third-Party Assignee of
assignment and assumption agreements with respect to this Agreement, in form and
substance as required by HCG. As used herein, "Financially Qualified" shall mean
the Third-Party Assignee's ability to financially support it's obligations and
responsibilities under the Agreement covering Customer's Transponder Capacity,
as determined by HCG in its sole discretion. The foregoing notwithstanding, no
assignment of this Agreement shall relieve Customer of its obligations to HCG
hereunder.
14. [Reserved]
15. Progress Reports, Inspections and Access to Work in Progress
15.01 Progress Reports. Commencing ninety (90) days after the
Execution Date and continuing until Delivery, HCG shall furnish to the Buyer on
a monthly basis a written progress report on the status of the construction of
the Satellite and a statement containing an explanation of material details,
including HCG's projected Scheduled Launch Dates and projected dates of
Delivery, variances from performance specifications and any remedial actions
taken. HCG shall take reasonable steps to keep Buyer informed periodically of
communications to HCG
ACK/shs: GCI.GX TPA.Final 22 Monday, August 21, 1995 - 8:00 am
from the FCC or any other governmental authority which materially affect Buyer
and concern HCG, the Satellite and the Transponders or their use, and shall
promptly deliver copies to Buyer of any such written communications.
15.02 Inspection Rights of Buyer. Buyer shall have the right to
inspect Galaxy X and its Transponders during construction and prior to launch,
upon reasonable notice to HCG and during normal business hours, and shall have
the right to be present during ground and in-orbit testing. HCG shall give Buyer
reasonable notice of the commencement of acceptance testing as set forth in
Section 4.03, above. Buyer shall be supplied with the test data from such
acceptance tests.
15.03 Access to Work in Progress and Selection of Transponders.
Prior to Delivery, except for documentation and information regarded by HCG as
proprietary or trade secrets, relevant and material work in progress, including
test data and documentation generated through HCG's effort pursuant to this
Agreement, shall be subject to examination and inspection by Buyer. To the
extent that the data and documentation to be provided by Buyer hereunder are of
a type normally retained by HCG, and are not to be delivered to Buyer under this
Agreement, HCG shall make them available to Buyer at its request for examination
at a location designated by HCG. Subject to the provision set forth above, HCG
shall also deliver copies of test data and other data generated from the testing
and performance of the Satellite and the Buyer's Transponders to Buyer at any
time on Buyer's request and at Buyer's expense. HCG will also conduct ground
tests of the G-X Transponders. From the Transponder ground test results
furnished to Buyer and other Owners, Buyer and HCG jointly shall promptly select
its particular Transponder(s) for Delivery; provided, however, that HCG shall,
prior to Buyer's selection of its Transponder(s), designate which Transponders
shall be Reserve Transponders. Such selection shall be made within three (3)
days of HCG's not)notification to Buyer of such test results and the
identification of those Transponders which have not yet been selected. HCG shall
furnish data necessary to determine whether the Transponders satisfy or exceed
the applicable Transponder Performance Specifications in order to facilitate
Buyer's selection of its Transponder(s). If the in-orbit test results vary from
the ground test results, then Buyer shall have the right to substitute
Transponders at Buyer's discretion, but only for uncommitted Transponders on the
same Satellite (i.e., Transponders that have not been sold, leased or otherwise
committed by HCG to a third party).
15.04 After Delivery Reports. After delivery, Buyer shall
receive monthly reports on the overall performance of Galaxy X in the form of
the Galaxy satellite status reports similar to the Galaxy VII satellite services
monthly report, plus information furnished to insurers. Anomalous operations
shall be reported to Buyer as soon as possible.
16. Confidentiality and Press Releases
ACK/shs: GCI.GX TPA.Final 23 Monday, August 21, 1995 - 8:00 am
16.01 Confidential Information. HCG and Buyer shall hold in
confidence the Agreement and all Exhibits, including the financial terms and
provisions hereof and all information received pursuant to Section 15, and HCG
and Buyer hereby acknowledge and agree that all information related to this
Agreement, not otherwise known to the public, is confidential and proprietary
and is not to be disclosed to third persons without the prior written consent of
both HCG and Buyer. Neither HCG, nor Buyer, shall disclose such information to
any third party (other than to officers, directors, employees and agents of HCG
and Buyer, each of whom is bound by this Section 16.01) except:
(a) to the extent necessary to comply with law or the valid order
of a governmental agency or court of competent jurisdiction, or to
satisfy its obligations to other Owners of Transponders; provided,
however, that the party making such disclosure shall seek confidential
treatment of said information;
(b) as part of its normal reporting or review procedure to
regulatory agencies, its parent company, its auditors and its
attorneys;
(c) in order to enforce its rights and perform its obligations
pursuant to this Agreement;
(d) to the extent necessary to obtain appropriate insurance, to
its insurance agent, provided that such agent agrees to the
confidential treatment of such information; and
(e) to the extent necessary to negotiate clauses that will be
common to all Transponder Purchase Agreements.
16.02 Press Releases. The parties agree that no press release
relating to this Agreement shall be issued without the approval of both parties.
17. Disposition of Satellite
17.01 ******** After the ******** and until the earliest of such
time as (i) the ******** Galaxy X is ********, (ii) Galaxy X has ********
capable of meeting its Transponder Performance Specifications, or (iii) the
******** as the case may be) anniversary of Delivery of Galaxy X, HCG shall
continue to make available to Buyer, on the terms and conditions contained
herein, Transponder Spares and Reserve Transponders.
17.02 Disposition of Satellite. At the earliest of the time as
(i) the ******** Galaxy X is ********, (ii) there are ******** Transponders
capable of meeting its Transponder Performance Specifications, or (iii) the
******** as the case may be)
ACK/shs: GCI.GX TPA.Final 24 Monday, August 21, 1995 - 8:00 am
anniversary of Delivery of Galaxy X, this Agreement shall terminate, HCG shall
have no further obligation to Buyer under this Agreement, and Buyer's
Transponders shall be deemed, without any further action by any party, to be
redelivered to HCG and HCG shall be entitled to immediate possession thereof.
HCG shall thereafter have the right to utilize such redelivered Transponders in
any manner it determines. HCG will, to the extent possible, provide Buyer with
ninety (90) days notice prior to the disposition of Galaxy X pursuant to this
Section 17.02. Upon the disposition of Galaxy X as set forth herein, Buyer's
right, title and interest in all of Buyer's Transponders shall revert to HCG.
18. Documents
Each party hereto agrees to execute, and if necessary, to file with the
appropriate governmental entities, such documents as the other party hereto
shall reasonably request in order to carry out the purpose of this Agreement.
19. Conflicts
In the case of a conflict between the provisions of this Agreement and any
Exhibit, the provisions of this Agreement will prevail.
20. Miscellaneous
20.01 Interest. The rate of interest referred herein shall be
********, or the highest legally permissible rate of interest, whichever is
lower, and all interest or discounting shall be compounded on a yearly basis.
"Pro-rata" shall mean an allocation on a straight line basis based on number of
days. All present value analyses shall use a ********.
20.02 Applicable Law and Entire Agreement. The existence,
validity, construction, operation and effect of this Agreement and the Exhibits
and Schedules hereto, shall be determined in accordance with and be governed by
the laws of the State of California. This Agreement and the Exhibits hereto,
along with the TT&C Service Agreement, dated as of even date herewith,
constitutes the entire agreement between the parties, and supersedes all
previous understandings, commitments or representations concerning the subject
matter. The parties each acknowledge that the other party has not made any
representations other than those which are contained herein. This Agreement may
not be amended or modified in any way, and none of its provisions may be waived,
except by a writing signed by an authorized officer or the party against whom
the amendment, modification or waiver is sought to been enforced.
20.03 Notices All notices and other communications from either
party to the other hereunder shall be in writing and shall be deemed received
upon actual receipt when personally delivered, upon actual receipt if sent by
facsimile or upon the
ACK/shs: GCI.GX TPA.Final 25 Monday, August 21, 1995 - 8:00 am
expiration of the third business day after being deposited in the United States
mails, postage prepaid, certified or registered mail, addressed to the other
party as follows:
TO HCG:
If by mail: Hughes Communications Galaxy, Inc.
Post Office Box 92424
Los Angeles, California 90009
Attention: Senior Vice President-
Galaxy Satellite Services
cc: Associate General Counsel
If by FAX: Hughes Communications Galaxy, Inc.
Attention: Senior Vice President-
Galaxy Satellite Services
(310) 607-4255
cc: Associate General Counsel
(310) 607-4258
If by personal
delivery to its
principal place
of business at:
Hughes Communications Galaxy, Inc.
1990 East Grand Avenue
El Segundo, California 90245
Attention: Senior Vice President-
Galaxy Satellite Services
cc: Associate General Counsel
TO BUYER:
If by mail: GCI Communication Corp.
2550 Denali Street, Suite 1000
Anchorage, AK 99503
Attention: Richard P. Dowling
Senior Vice President
If by FAX: GCI Communication Corp.
Attention: Richard P. Dowling
Senior Vice President
(907) 265-5676
If by personal
delivery to its
ACK/shs: GCI.GX TPA.Final 26 Monday, August 21, 1995 - 8:00 am
principal place
of business at: General Communication Corp.
2550 Denali Street, Suite 1000
Anchorage, AK 99503
Attention: Richard P. Dowling
Senior Vice President
All payments to be made under this Agreement, if made by mail, shall be deemed
to have been made on the date of receipt thereof. The parties hereto may change
their addresses by giving notice thereof in conformity with this Section 20.03.
20.04 Severability. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to law, and
wherever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, order or regulation, such statute, law, ordinance,
order or regulation shall prevail; provided, however, that in such event the
provisions of this Agreement so affected shall be curtailed and limited only to
the extent necessary to permit compliance with the minimum legal requirement,
and no other provisions of this Agreement shall be affected thereby and all such
other provisions shall continue in full force and effect.
20.05 Taxes. If any property or sales taxes are asserted against
HCG after, or as a result of, Delivery, by any local, state, national or
international, public or quasi public governmental entity, in respect of Buyer's
Transponders or the sale thereof to Buyer, Buyer shall be solely responsible for
such taxes. If any taxes, charges or other levies are asserted by reason of the
use of the point in space or the frequency spectrum at that point in space in
which the Satellite containing Buyer's Transponders is located, or the use or
ownership of such Satellite (excluding any FCC license fee imposed on the
Satellite itself, as compared to the Transponders, which license fee shall be
paid by HCG), and such taxes are not specifically allocated among the various
components of such Satellite, then HCG, Buyer and the other Owners of such
Transponders shall each pay a proportionate amount of such taxes based on the
number of Transponders each of them owns.
20.06 Successors. Subject to Section 13, this Agreement shall be
binding on and shall inure to the benefit of any successors and assigns of the
parties, provided that no assignment of this Agreement shall relieve either
party hereto 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.
20.07 Rules of Construction.
Any ambiguities shall be resolved without reference to which party may have
drafted this Agreement. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
ACK/shs: GCI.GX TPA.Final 27 Monday, August 21, 1995 - 8:00 am
20.08 Survival of Representations and Warranties. All
representations and warranties contained herein or made by HCG or Buyer in
connection herewith shall survive any independent investigation made by HCG or
Buyer.
20.09 No Third-Party Beneficiary. The provisions of this
Agreement are for the benefit only of the parties hereto, and no third party may
seek to enforce, or benefit from, these provisions, except that both parties
acknowledge and agree that the provisions of Sections 7.02, 8, 9.01, 9.02, 9.03
and 9.04, are intended for the benefit of both HCG and all other Owners. Both
parties agree that any other such Owner shall have the right to enforce, as a
third-party beneficiary, the provisions of Sections 7.02, 8, 9.01, 9.02, 9.03
and 9.04, against Buyer directly, in an action brought solely by such other
Owner, or may join with HCG or any other Owner, in bringing an action against
Buyer for violation of such Sections.
20.10 Non-Waiver of Breach. Either party hereto may specifically
wave any breach of this Agreement by the other party, provided that no such
waiver shall be binding or effective unless in writing and no such waiver shall
constitute a continuing waiver of similar or other breaches. A waiving party, at
any time, and upon notice given in writing to the breaching party, may direct
future compliance with the waived term or terms of this Agreement, in which
event the breaching party shall comply as directed from such time forward.
20.11 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.
21. Option for ********
Buyer shall have the option to purchase the ******** on a satellite
designated as Galaxy IX by delivery of a written notice of Buyer's election to
purchase such ******** (the ********) as of the Execution Date. Provided that
Buyer has elected to purchase the ******** as set forth herein and has paid the
******** (as defined below) on a monthly basis, HCG shall provide, on a ********
with other HCG customers also purchasing such ********, alternate capacity on
Galaxy IX equivalent to the number of the ******** Transponders at Galaxy IX's
then-existing orbital location, in the event of an ******** of Galaxy X or in
the event that any of Buyer's C-Band Transponders have become ********
Transponders. ******** for ******** shall be provided by ********. If no other
customers have preempted Buyer's ********, and upon ********, HCG shall provide
Buyer with ********. Upon providing to Buyer ******** as discussed in the
foregoing sentence, HCG will switch ********. In the event that HCG provides
Buyer with
ACK/shs: GCI.GX TPA.Final 28 Monday, August 21, 1995 - 8:00 am
******** shall be returned to HCG ("******** Transponders") for ********.
********. If HCG provides Buyer with the number of the transponders on
Galaxy IX equivalent to the number of ******** Transponders or ********
Transponders, then Buyers obligation to pay the ******** shall ********. Buyer
agrees to use such capacity in accordance with HCG's then-effective terms
applicable to the lease of Galaxy IX transponders and Buyer agrees to pay to HCG
a ******** lease payment of ******** per each Galaxy IX transponder. The
conditions precedent to Buyer's right to ******** as set forth herein shall be
the ******** payment by Buyer of ******** per each of Buyer's Transponders
payable concurrently with Delivery of each of Buyer's Transponders and on
******** (the ********), the availability/non-preemption of ********
Transponders and Buyer's full compliance, in all material respects, with the
terms of this Agreement. The ******** shall be ********.
HUGHES COMMUNICATIONS GCI COMMUNICATION
GALAXY, INC. CORP.
By: /s/ Carl A. Brown By: /s/ Richard P. Dowling
Its:Senior Vice President Its:Senior Vice President
ACK/shs: GCI.GX TPA.Final 29 Monday, August 21, 1995 - 8:00 am
Exhibit A Galaxy Fleet Satellites
EXHIBIT A
GALAXY SATELLITE DESCRIPTION
********
--1--
Exhibit A Galaxy Fleet Satellites
EXHIBIT A
GALAXY SATELLITE DESCRIPTION
********
--1--
EXHIBIT B
TRANSPONDER PERFORMANCE SPECIFICATIONS:
GALAXY IX/Galaxy X
********
--1--
Exhibit B Transponder Performance Specifications:
Galaxy IX,Galaxy X
TABLE I - SPECIFIED PERFORMANCE VALUES
GALAXY IX/GALAXY X
********
--2--
Exhibit B Transponder Performance Specifications:
Galaxy IX/Galaxy X
TABLE I, GALAXY IX/GALAXY X (Cont'd)
********
--3--
Exhibit B Transponder Performance Specifications:
Galaxy IX,Galaxy X
TABLE I, GALAXY IX/GALAXY X (Cont'd)
********
--4--
Exhibit B Transponder Performance Specifications:
Galaxy IX,Galaxy X
TABLE I, GALAXY IX/GALAXY X (Cont'd)
********
--5--
Exhibit B Transponder Performance Specifications:
Galaxy IX Galaxy X
Table B-1
Galaxy IX ********
********
-6-
Exhibit B Transponder Performance Specifications:
Galaxy IX/Galaxy X
Table B-2a
Galaxy X ********
********
-7-
Exhibit B Transponder Performance Specifications:
Galaxy IX/Galaxy X
Table B-2b
Galaxy X ********
********
-8-
ADDENDUM TO GALAXY X
TRANSPONDER PURCHASE AGREEMENT
BETWEEN
GCI COMMUNICATION CORP.
AND
HUGHES COMMUNICATIONS GALAXY, INC.
This document shall constitute an Addendum to that certain Galaxy X
Transponder Purchase Agreement between GCI COMMUNICATION CORP. ("Buyer") and
HUGHES COMMUNICATIONS GALAXY, INC. ("HCG"), dated as of August 24, 1995 ("the
Agreement"). This Addendum amends the Agreement as indicated herein. If there is
any inconsistency between this Addendum and the Agreement, then this Addendum
shall prevail. This Addendum is being executed concurrently and is dated as of
even date with, and is an integral part of, the Agreement. Any reference to the
"Agreement" shall refer collectively to the Agreement and this Addendum. Terms
not otherwise defined herein shall have the meanings set forth in the Agreement.
1. A NEW SECTION 22 IS ADDED HEREBY:
22. Interim Capacity. Buyer shall lease from HCG, and HCG shall
lease to Buyer, ******** transponders on a satellite commonly known as "Galaxy
IX", which shall be located at 123(degree) West Longitude orbital location, from
the date on which transponder service on Galaxy IX shall commence (as determined
by HCG in its sole discretion) through the Delivery of Galaxy X, at a ********
Lease Rate of ********. Provided that the Galaxy X Delivery has not occurred on
or before September 1, 1998, then HCG shall lease to Buyer, and Buyer shall
lease from HCG, another ******** transponder on Galaxy IX (thereby a total
number of ********) from ********. Provided that the Galaxy X Delivery has not
occurred ********, HCG shall lease to Buyer, and Buyer shall lease from HCG,
another ******** transponder on Galaxy IX (thereby a total number of ********)
from ********, at Buyer's sole option, through the Galaxy X Delivery. Buyer may
elect to take Transponder ******** to HCG. The ******** Lease Rate for the
******** Galaxy IX transponders shall be ********. Buyer shall notify HCG in
writing of its decision to elect ******** as the start date for the lease of the
******** transponder ********. If Buyer does not provide HCG with such written
notice, then Buyer shall be deemed to have elected the ********. If Buyer elects
or is deemed to have elected the ******** date, then Buyer shall pay to HCG
********. However, the parties agree that the ******** Lease Rate per each
transponder shall ******** as
ACK/shs: GX GCI Addendum.Final 1 Monday, August 21, 1995 - 11:45 am
of the date on which Galaxy X ********, whichever occurs first. The lease of the
Galaxy IX transponders shall be governed by the terms and conditions of the
Agreement regarding use of the Transponders, including Sections 7, 8, 9, and 10
and any other then-effective HCG's standard provisions applicable to the lease
or use of capacity on Galaxy IX. The condition precedent to the interim capacity
on Galaxy IX as set forth in this section 22 shall be the successful launch and
operation of Galaxy IX.
In the event that Galaxy X is not Delivered into orbit ********, Buyer
shall ********, at the ******** Lease Rate of ********. In that event, Buyer
agrees to execute any and all necessary documents to convert the Purchase of
Transponders on galaxy X to a Lease of the same amount and Capacity of Galaxy
IX. Alternatively, Buyer shall have the right to convert the lease of such
Galaxy IX transponders to a purchase. The purchase price shall be an amount
representing ********. The purchase of the Galaxy IX transponders shall be
governed by HCG's then-effective standard Galaxy IX purchase agreement.
IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Addendum.
GCI COMMUNICATION HUGHES COMMUNICATIONS
CORP. GALAXY, INC.
By: /s/ Richard P. Dowling By: /s/ Carl A. Brown
Its:Senior Vice President Its:Senior Vice President
Date: August 24, 1995 Date: August 24, 1995
ACK/shs: GX GCI Addendum.Final 2 Monday, August 21, 1995 - 11:45 am
November 3, 1995
Mr. John Lowber
GCI Communication Corp.
Re: Section 13.04 of the Galaxy X Transponder Purchase
Agreement
Dear Mr. Lowber:
Reference is made to Section 13.04 of that certain Galaxy X Transponder
Purchase Agreement along with all Addendum, Appendices and Exhibits (the
"Agreement") dated August 24, 1995 by and between Hughes Communications Galaxy,
Inc. ("HCG") and GCI Communication Corp. ("GCI"). With respect to Section 13.04
of the Agreement, the parties hereby agree to replace the word "Customer" with
the word "Buyer" throughout Section 13.04. Except as specifically provided above
in the preceding sentence, all terms and provisions of the Agreement shall
remain the same.
Accepted and agreed to:
GCI COMMUNICATION CORP. HUGHES COMMUNICATIONS
GALAXY, INC.
By: /s/ John M. Lowber By: /s/ A.C. Kahng
Name: John M. Lowber Name: A. C. Kahng
Title: SVP & CFO Title: Asst. Secretary
ACK/shs