EXHIBIT B
GALAXY X TRANSPONDER SERVICE AGREEMENT
BETWEEN
HUGHES COMMUNICATIONS SATELLITE SERVICES, INC.
AND
GCI COMMUNICATION CORP.
TABLE OF CONTENTS
Article Page
1 SERVICES AND TERM 2
1.01 Terms of Agreement 2
1.02 Services 2
2 SERVICE FEE AND PAYMENTS 2
3 REPRESENTATIONS AND WARRANTIES 3
3.01 Authority, No Breach 3
3.02 Corporate Action 3
3.03 Common Clauses in Service Agreements 3
3.04 Consents 3
3.05 Litigation 3
3.06 Non-Interference 3
4 OBLIGATIONS OF CONTRACTOR 4
4.01 Satellite 4
4.02 Use of the Transponder Spares 4
4.03 Reserve Transponders 4
4.04 Government Regulations 4
4.05 Tracking, Telemetry and Control 4
5 FORCE MAJEURE 5
6 LIMITATION OF LIABILITY 5
6.01 General Limitation 5
6.02 Equitable Relief 6
7 REPORTS 6
7.01 Operational Reports 6
7.02 Anomalous Operation Notification 6
7.03 Maneuver Notification 7
7.04 Inspection Rights of Owner 7
8 CONFIDENTIALITY 7
9 APPLICABLE LAW 8
10 FURTHER NOTIFICATIONS 8
11 MODIFICATION 8
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12 TERMINATION 8
12.01 Contractor's Termination Rights 8
12.02 Contractor's Right to Deny Access 9
12.03 Automatic Termination 9
13 MISCELLANEOUS 9
13.01 Entire Agreement and Amendment 9
13.02 Non-Waiver of Breach 9
13.03 Notices 9
13.04 Severability 11
13.05 Counterparts 11
13.06 Successors 11
13.07 Headings 11
13.08 No Third-Party Beneficiary 11
13.09 Survival of Representations and Warranties 12
13.10 Transfer 12
13.11 Applicability to Galaxy Backup 12
ADDENDUM
I Defined Terms
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GALAXY X TRANSPONDER SERVICE AGREEMENT
This Transponder Service Agreement (the "Agreement") (all such defined terms
herein are so capitalized and referenced in Addendum I) is made and entered into
as of August 25, 1995 (the "Execution Date") by and between Hughes
Communications Satellite Services, Inc. ("Contractor"), a California
corporation, and GCI Communication Corp. ("Owner"), an Alaskan corporation.
RECITALS
WHEREAS, subject to the approval of the Federal Communications Commission,
Hughes Communications Galaxy, Inc. ("HCG"), an Affiliate of Contractor, shall
cause a domestic communications satellite, Galaxy X (the "Satellite"), to be
built containing both Ku-Band capacity (the "Ku-Band Transponders") and C-Band
capacity (the "C-Band Transponders"). Collectively, the Ku-Band Transponders and
the C-Band Transponders are referred to hereafter as "Transponders";
WHEREAS, Owner has agreed, pursuant to a purchase agreement between Owner
and HCG of even date herewith (the "Transponder Purchase Agreement") to purchase
******** of the Primary C-Band Transponders on Galaxy X and (either purchase or
lease ******** Ku-Band Transponder on Galaxy X (collectively, the "Owner's
Transponder"). Unless otherwise defined herein, all capitalized terms are as set
forth in the Transponder Purchase Agreement;
WHEREAS, HCG has caused certain redundant equipment units (collectively, the
"Transponder Spares" and individually, a "Transponder Spare") to be placed on
the Satellite to be used to replace Transponder equipment units that fail to
meet the Transponder Performance Specifications as defined in the Transponder
Purchase Agreement (the "Transponder Performance Specifications"), and HCG has
agreed to make said equipment units available for use as set forth in the
Transponder Purchase Agreement;
WHEREAS, HCG and Owner have agreed that Contractor shall perform the
satellite operational services (the "Services") for Owner on the terms and
conditions specified in this agreement and Contractor is willing to perform such
Services;
WHEREAS, Owner has, concurrently herewith, agreed to pay for such Services
pursuant to the Transponder Purchase Agreement, and HCG has assigned its right
to payment for such Services under the Transponder Purchase Agreement to
Contractor, and Owner is agreeable to such assignment; and
WHEREAS, Owner and Contractor desire this Agreement to become effective only
upon Delivery (as defined in the Transponder Purchase Agreement) of
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Owner's Transponder by HCG to Owner as set forth in the Transponder Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises set forth below, and
for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, HCG and Owner hereby mutually agree as follows:
ARTICLE 1. SERVICES AND TERM
1.01 Terms of Agreement. Contractor shall provide the Services set
forth in Section 1.02 hereof for a continuous period from Delivery of Owner's
Transponder until the Transponder Purchase Agreement is either terminated or
canceled, or expires, in its entirety (the "Service Term").
1.02 Services. The Services to be rendered by Contractor hereunder are as
follows:
(a) Monitoring and managing the use of electric power on the Satellite
to operate Owner's Transponder;
(b) Monitoring and managing the use of the Satellite's propellant so
that the attitude and orbital position are maintained;
(c) Monitoring and managing all other functions of the Satellite which
support Owner's Transponder so as to enable Owner's Transponder to meet the
C-Band Transponder Performance Specifications;
(d) Monitoring and analyzing the Satellite's telemetry data; and
(e) Other services provided for in this Agreement.
ARTICLE 2. SERVICE FEE AND PAYMENTS
The fee for the Services provided by Contractor hereunder (the "********" or
"Service Fee") shall be as set forth in the Transponder Purchase Agreement, and,
pursuant thereto, payment of the ******** to Contractor shall be the
responsibility of HCG.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
Contractor and Owner each, except as expressly indicated herein, represent and
warrant to, and agree with, the other that:
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3.01 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.
3.02 Corporate Action. It has taken all requisite corporate (or
partnership, as appropriate) action to approve the execution, delivery and
performance of this Agreement, and this Agreement constitutes a legal, valid and
binding obligation upon itself in accordance with its terms.
3.03 Common Clauses in Service Agreements. Contractor alone represents,
warrants and agrees that it will require, in all service agreements between
itself and all other Transponder owners on the Satellite, clauses substantially
identical to, or terms the effect of which shall be as or more restrictive with
respect to such owners than, the provisions of Sections 3.06,12.01 and 13.08
hereof, and Contractor will require, in all service agreements between itself
and other Transponder owners on the Satellite, a clause consistent with the
provisions of Sections 4.02 and 4.03 hereof.
3.04 Consents. The execution and delivery of this Agreement, the
performance of its obligations hereunder, and the consummation of the
transactions contemplated hereby, will not result in a material violation of, or
material default under, or the occurrence of an event which with notice or lapse
of time or both would constitute a material default under, or material
noncompliance with, any applicable Law, any indenture, mortgage, deed of trust,
loan agreement, purchase agreement, option agreement or other agreement or
instrument to which it is a party or by which it or any material portion of its
property is bound, its articles of incorporation or by-laws, partnership
agreement, or other charter documents, as the case may be. All necessary or
material appropriate public or private consents, permissions, agreements,
licenses, or authorizations to which it is subject in connection with the
transactions contemplated hereby, or which it must obtain by virtue of its
ownership or use of or operation of any Transponder or the Satellite have been
or shall be obtained in a timely manner.
3.05 Litigation. To the best of its knowledge, there is no outstanding
or threatened judgment, threatened or pending litigation or proceeding,
involving or affecting the transactions provided for in, or contemplated by,
this Agreement, except as is concurrently being disclosed in writing by either
party to the other.
3.06 Non-Interference. Owner alone represents, warrants and agrees that
its radio transmissions (and those of its uplinking agents) to the Satellite
shall comply, in all material respects, with all Federal Communications
Commission or any successor agency thereto (collectively, the "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 Owner's
Transponder and shall not interfere with the use of any
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other Transponder. Owner shall not utilize (or permit or allow any of its
uplinking agents to utilize) any of Owner's Transponder in a manner which will
or may interfere with the use of any other Transponder or cause physical harm to
any of Owner's Transponder, any other Transponders, or to the Satellite.
Further, Owner 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 owners and 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 3.06,
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, Owner (and its uplinking agents) shall comply with
all FCC rules and regulations regarding the use of automatic transmitter
identification systems (ATIS).
ARTICLE 4. OBLIGATIONS OF CONTRACTOR
4.01 Satellite. Contractor will maintain the Satellite in the orbital
position which the FCC has designated or shall hereafter designate for it.
4.02 Use of the Transponder Spares. Throughout the Service Term,
Contractor may employ, in conjunction with HCG, and pursuant to the specific
terms and conditions in Section 9 of the Transponder Purchase Agreement, a
Transponder Spare or Spares.
4.03 Reserve Transponders. Throughout the Service Term, Contractor may
substitute, in conjunction with HCG, and pursuant to the specific terms and
conditions in Section 9 of the Transponder Purchase Agreement, a Reserve
Transponder or Reserve Transponders. Upon such substitution, such a Reserve
Transponder shall be deemed to be a Owner's Transponder for the purposes of this
Agreement.
4.04 Government Regulations. Contractor has or shall use its best
efforts throughout the Service Term to obtain and maintain, in all material
respects, all federal, state and municipal authorizations or permissions to
operate the Satellite applicable to Contractor with respect to the Satellite,
and to comply, in all material respects, with all such governmental regulations
regarding the operation of Owner's Transponder applicable to Contractor with
respect to the Satellite.
4.05 Tracking. Telemetry and Control. Contractor shall employ at least
two earth stations which between them shall provide in conjunction with HCG's
Operations Control Center in El Segundo, California, for all of the functions of
tracking, telemetry and control ("TT&C") of the Satellite. Contractor shall
notify Owner as to the operator (if other than Contractor) and the location of
the two earth stations, and any changes thereto.
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ARTICLE 5. FORCE MAJEURE
Any failure or delay of Contractor to provide Services shall not be a
breach of this Agreement if such failure or delay results from any acts of God,
governmental action or Law (whether in its sovereign or contractual capacity),
or any other circumstances reasonably beyond the control of Contractor,
including, but not limited to, earth station sun outage, weather, or acts or
omissions of Owner or any third parties (excluding the Hughes Aircraft Company
and all of its direct and indirect subsidiaries, and any other Affiliates of
Contractor or the Hughes Aircraft Company with whom Contractor or the Hughes
Aircraft Company contracts to provide the Services).
ARTICLE 6. LIMITATION OF LIABILITY
6.01 General Limitation. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES ARE
EXPRESSLY EXCLUDED AND DISCLAIMED EXCEPT TO THE EXTENT SPECIFICALLY AND
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. IT IS EXPRESSLY AGREED THAT
CONTRACTOR'S SOLE OBLIGATIONS AND LIABILITIES RESULTING FROM A BREACH OF THIS
AGREEMENT, AND OWNER'S EXCLUSIVE REMEDIES FOR ANY CAUSE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, LIABILITY ARISING FROM NEGLIGENCE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY, ARE
LIMITED TO THOSE SET FORTH IN SECTIONS 2 AND 6.02 HEREOF, AND ALL OTHER REMEDIES
OF ANY KIND ARE EXPRESSLY EXCLUDED INCLUDING, WITHOUT LIMITATION, ALL RIGHTS AND
REMEDIES OF OWNER UNDER DIVISION 10, CHAPTER 5, ARTICLE 2 AND SECTIONS
10209,10406 AND 10504 OF THE CALIFORNIA UNIFORM COMMERCIAL CODE. IN NO EVENT
SHALL CONTRACTOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
FORESEEABLE OR NOT, OCCASIONED BY CONTRACTOR'S FAILURE TO PERFORM HEREUNDER,
DELAY IN ITS PERFORMANCE, FAILURE OF THE OWNER'S TRANSPONDER TO PERFORM OR ANY
OTHER CAUSE WHATSOEVER. CONTRACTOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO ANY
OTHER PERSON OR ENTITY CONCERNING THE OWNER'S TRANSPONDER OR THE SATELLITE OR
THE SERVICES, AND OWNER SHALL DEFEND AND INDEMNIFY CONTRACTOR FROM ANY CLAIMS
MADE UNDER ANY WARRANTY OR REPRESENTATION BY OWNER TO ANY THIRD PARTY. THE
LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL ALSO APPLY TO HUGHES AIRCRAFT
COMPANY (THE MANUFACTURER OF THE SATELLITE AND OWNER'S TRANSPONDER) AND ALL
AFFILIATES THEREOF. "Affiliate" means any corporation or other entity
controlling, controlled by, or under common control with, Owner, Contractor, or
the Hughes Aircraft Company, as the case may be.
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6.02 Equitable Relief. Owner and Contractor shall each 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.
ARTICLE 7. REPORTS
7.01 Operational Reports. After commencement of the Services hereunder,
Contractor shall provide Owner a monthly written operational report concerning
the Satellite and Owner's Transponder which shall contain the following
information:
(a) Projected solar array life based on total Satellite power
performance and communications payload requirements;
(b) Projected battery life based on total Satellite power performance
and communications payload requirements;
(c) Projected Satellite life based on fuel remaining and its predicted
utilization;
(d) Configuration of Owner's Transponder and the associated Satellite
supporting subsystems;
(e) A statement on the expected operating life of Owner's Transponder
and the basis for such a projection, taking into account the health of
Owner's Transponder and its associated support subsystems;
(f) The Satellite's orbital parameters;
(g) Information concerning whether any Transponder Spares or Reserve
C-Band Transponders have been employed on behalf of any owner or user;
(h) Information concerning predicted eclipses and sun outages; and
(i) Other information pertinent to the operation of Owner's Transponder
and the Satellite that Owner may reasonably request.
7.02 Anomalous Operation Notification. Contractor shall notify Owner as
soon as possible by telephone, with prompt written confirmation thereafter, of
any significant anomalous condition which Contractor detects in Owner's
Transponder or associated Satellite supporting subsystems and which have a
material effect or potential material effect on the Satellite. Contractor shall
also notify Owner promptly of any circumstances that make it clearly
ascertainable or predictable that any of the incidents described in this Section
7.02 will occur. Any notice given to
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Owner under this Section 7.02 shall not relieve Contractor of any liability or
obligation hereunder relating to such anomalous operation.
7.03 Maneuver Notification. To the extent operationally feasible,
Contractor shall notify Owner of all Satellite maneuvers, except for routine
stationkeeping, at least three days in advance of their scheduled initiation
and, if such maneuver will result in a change of its assigned orbital position,
promptly upon HCG's receipt of FCC authorization or direction of such maneuver.
7.04 lnspection Rights of Owner. Owner shall have the right to inspect
the TT&C stations upon reasonable notice to Contractor and during normal
business hours accompanied by an employee or agent of Contractor. Owner shall
not have the right to inspect any TT&C station at any time or in any manner that
could cause disruption to the operation of such TT&C station. Owner shall have
the right to examine all test results and data relating to TT&C of or for
Owner's Transponder on the Satellite.
ARTICLE 8. CONFIDENTIALITY
Contractor and Owner shall hold in confidence this Agreement, including
the financial terms and provisions hereof, and all information provided to Owner
hereby, and Contractor and Owner hereby acknowledge and agree that all
information received in connection with or otherwise related to this Agreement,
not otherwise known to the public, is confidential and proprietary and is not to
be disclosed to third persons (other than to Affiliates, or to officers,
directors, employees and agents of Contractor or Owner, each of whom is bound by
this Article 8) without the prior written consent of both Contractor and Owner,
except as follows:
(a) to the extent necessary to comply with applicable Law, provided,
that the party making such disclosure shall seek confidential treatment of
such information;
(b) as part of its normal reporting or review procedure to regulatory
agencies, its parent company, its auditors and its attorneys, provided, the
party making such disclosure to any such regulatory agency shall seek
confidential treatment of such information, and, provided, that any other
third party to whom disclosure is made agrees to the confidential treatment
of such information;
(c) in order to enforce its rights and/or 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
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(e) to the extent necessary to satisfy its obligations to other owners
or users of the Transponders or to negotiate clauses that will be common to
all transponder service agreements.
ARTICLE 9. APPLICABLE LAW
The existence, validity, construction, operation and effect of this
Agreement shall be determined in accordance with and be governed by the laws of
the State of California.
ARTICLE 10. FURTHER NOTIFICATIONS
Each party shall promptly notify the other party of any information
delivered to or obtained by such party which would prevent the consummation of
the transactions contemplated by this Agreement or would indicate a breach of
the representations or warranties of any of the parties to this Agreement;
provided that the failure so to notify will not constitute a waiver of such
party's rights.
ARTICLE 11. MODIFICATION
In the event that the Transponder Purchase Agreement is modified or
reconstituted in such manner as to affect provisions in this Agreement, then
this Agreement shall be modified accordingly.
ARTICLE 12. TERMINATION
12.01 Contractor's Termination Rights. If Owner's radio transmissions
or those of its uplinking agent to or from the Satellite interfere, under
standard engineering practice, with the use of any Transponder not owned by
Owner located on the Satellite, or if Owner or its uplinking agent utilizes
Owner's Transponder in a manner which interferes, under standard engineering
practice, with the use of, or causes physical harm to, any other Transponder
located on the Satellite, and such radio transmission or utilization by Owner
does not cease immediately after the receipt of notice thereof from Contractor
(which notice may, notwithstanding Section 13.03 hereof, be given to Owner by
telephone to a telephone number provided to Contractor and maintained by Owner
for the purpose of receiving such notices by Contractor, which telephone shall
be continuously staffed by Owner so as to enable Owner to receive such notices
at all times), Contractor shall have the right to take any and all steps
necessary to terminate such radio transmission or utilization by Owner or its
uplinking agent. Contractor shall have the further right to continue such steps
so taken until such time as Owner's radio transmissions or those of its
uplinking agent to or from the Satellite or Owner's utilization of its
Transponder, as the case may be, shall not interfere, under standard engineering
practice, with the use of any Transponder not owned by Owner located on the
Satellite and shall not cause physical harm to any Transponder not owned by
Owner on the Satellite or to the Satellite.
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12.02 Contractor's Right to Deny Access. If HCG is entitled to prevent
Owner from accessing any part or all of the Owner's Transponder pursuant to
Section 10.06 of the Transponder Purchase Agreement, Contractor shall be
entitled to take any and all steps necessary to terminate Owner's (or its
uplinking agent's) radio transmission to or utilization of such Transponder.
12.03 Automatic Termination. This Agreement shall automatically
terminate with respect to the Owner's Transponder if the Transponder Purchase
Agreement is terminated, is canceled, or expires, with respect to such Owner's
Transponder.
ARTICLE 13. MISCELLANEOUS
13.01 Entire Agreement and Amendment. This Agreement and the
Transponder Purchase Agreement constitute the entire agreement between the
parties, and supersede all previous understandings, commitments or
representations concerning the subject matter. This Agreement may not be amended
or modified in any way, and none of its provisions may be waived, except by a
writing signed by an authorized officer of the party against whom the amendment,
modification or waiver is sought to be enforced. The parties each acknowledge
that the other party has not made any representations other than those which are
contained herein.
13.02 Non-Waiver of Breach. Either party hereto may specifically waive
any breach of this Agreement by the other party, provided that no such waiver
shall be binding or effective unless in writing and no such waiver shall
constitute a continuing waiver of similar or other breaches. A waiving party, 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.
13.03 Notices.
(a) Each party shall provide the other party with a telephone number to
be used for routine and emergency operational notifications, which
telephone shall be continuously staffed so as to enable the receipt of such
notices at all times. For routine notifications, any such telephonic
notification shall be followed up with written notification as outlined in
subparagraph (b) below.
(b) All notices and other communications from either party to the other
hereunder shall be in writing and shall be deemed received when actually
received if personally delivered, upon acknowledgment of receipt if sent by
facsimile, or upon the expiration of the third business day after being
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deposited in the United States mails, postage prepaid, certified or
registered, addressed to the other party as follows.
TO CONTRACTOR:
If by mail: Hughes Communications Satellite Services, Inc.
Post Office Box 92424
Worldway Postal Center
Los Angeles, Califonia 90009
Attention: Senior Vice President - Galaxy
Services
cc: Assistant General Counsel
If by FAX: Hughes Communications Satellite Services, Inc.
Attention: Senior Vice President - Galaxy
Services;
(310) 607-4255
cc: Associate General Counsel
(310) 607-4258
If by personal
delivery to its
principal place
of business at: Hughes Communocations Satellite Services, Inc.:
1990 East Grand Avenue
El Segundo, California 90245
Attention: Senior Vice President - Galaxy
Services
cc: Associate General Counsel
TO OWNER:
If by mail:
GCI Communication Corp.
2550 Denali Street
Suite 1000
Anchorage, AK 99503
Attention: Richard P. Dowling
Senior Vice President
If by FAX: GC1 Communication Corp.
Attention: Richard P. Dowling
Senior Vice President
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If by personal
delivery to its
principal place
of business at: GCI 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 actual receipt thereof. The parties hereto may
change their addresses by giving notice thereof in conformity with this Section
13.03.
l3.04 Severability. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to any of the
Laws, and wherever there is any conflict between any provision of this Agreement
and any Law, such law 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. Nothing contained
herein shall affect the reconstitution provisions contained in Section 11
hereof.
l3.05 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts together shall constitute but one and the same instrument.
13.06 Successors. Subject to the limitations on Transfer set forth in
Section 13.10, this Agreement shall be binding on and shall inure to the benefit
of any and all successors and assigns of the parties.
13.07 Rules of Construction and Headings. Any ambiguities shall be
resolved without reference to which party may have drafted this Agreement. The
description headings of the several sections and paragraphs of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
13.08 No Third Party Beneficiary. The provisions of this Agreement are
for the benefit only of the parties hereto and HCG, and no third party other
than HCG may seek to enforce, or benefit from these provisions, except the both
parties acknowledge and agree that the provisions of Section 3.06 hereof are
intended for the benefit of both Contractor and all other Transponder owners and
both parties agree that any other such Transponder owner shall have the right to
enforce, as a third-party beneficiary, the provisions of Section 3.06 hereof,
against Owner directly, in an action brought solely by such other Transponder
owner, or may join with Contractor or any other Transponder owner or user in
bringing an action against Owner for violation of such Sections.
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13.09 Survival of Representations and Warranties. All representations
and warranties contained herein or made by Contractor or Owner in connection
herewith shall survive any independent investigation made by Contractor or
Owner.
13.10 Transfer.
(a) Except as otherwise permitted under the terms of the Transponder
Purchase Agreement, Owner shall not Transfer (as defined in the Transponder
Purchase Agreement) any of its rights and/or obligations under this
Agreement except with the prior written consent of Contractor, which consent
may be given or withheld in Contractor's sole and absolute discretion. In
the event of any such Transfer by Owner, Owner shall remain fully liable
along with its transferee for all its obligations under this Agreement and
the Transponder Purchase Agreement.
(b) Contractor may Transfer any or all of its rights and/or obligations
under this Agreement to any Affiliate or any third party, provided, that no
such Transfer by Contractor shall adversely affect Owner's rights or
obligations hereunder, provided, further, that Contractor shall not Transfer
any of its obligations under this Agreement to a non-Affiliate except with
the prior written consent of Owner, which consent shall not unreasonably be
withheld or delayed. In the event of any such Transfer by Contractor,
Contractor shall remain fully liable for all its obligations under this
Agreement.
(c) Any purported Transfer by either party not in compliance with the
provisions of this Agreement shall be null and void and of no force and
effect.
13.11 Applicability to Galaxy IX. Pursuant to the provisions of Section
21 of the Transponder Purchase Agreement, Owner has the right to lease capacity
on Galaxy IX (as defined in the Transponder Purchase Agreement) (or its
replacement) under certain circumstances. Owner is still obligated to pay the
******** to the extent required under the Transponder Purchase Agreement for
each such used transponder on Galaxy IX (the "Replacement Transponder") and the
parties agree that the provisions of this Agreement shall apply to the
Replacement Transponder, the phrase "Owner's Transponder", as used herein, shall
be deemed to include Replacement Transponder, the term "Satellite" shall be
deemed to include Galaxy IX, and the term "Transponders" shall mean all the
transponders on any such satellite.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement as of the day and year first written above.
"Contractor"
HUGHES COMMUNICATIONS
SATELLITE SERVICES, INC.
By:/s/ Carl A. Brown
Title:SVP
"Owner"
GCI COMMUNICATION CORP.
By: /s/ Richard P. Dowling
Title:Sr. Vice President
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ADDENDUM I
DEFINED TERMS
TERM SECTION
Affiliate...................................................................6.01
Agreement..........................................................Intro. Clause
C-Band Transponders.....................................................Recitals
Contractor.........................................................Intro. Clause
Execution Date ....................................................Intro. Clause
FCC ........................................................................3.06
HCG ....................................................................Recitals
Ku-Band Transponders ...................................................Recitals
Laws .......................................................................3.06
Owner .............................................................Intro. Clause
Owner's Transponder .......................................................13.11
Replacement Transponder ...................................................13.11
Satellite ..............................................................Recitals
Service Term ...............................................................1.01
Service Fee ...................................................................2
Services ...............................................................Recitals
Transfer ..................................................................13.10
Transponders ...........................................................Recitals
Transponder Performance Specifications ..................................1.02(c)
Transponder Purchase Agreement .........................................Recitals
Transponder Spares .....................................................Recitals
Transponder Spare ......................................................Recitals
******** ......................................................................2
TT&C .......................................................................4.05
14
, 1995
Mr. Richard Dowling
Senior Vice President
GCI Communication Corp.
2550 Denali Street, Suite 1000
Anchorage, AK 99503
Re: Galaxy X Transponder Purchase Agreement
Galaxy X Transponder Service Agreement
Dear Mr. Dowling:
Simultaneously with the execution of this letter, GCI Communication
Corp., ("Buyer") has executed a Galaxy X Transponder Purchase Agreement (the
"Agreement") with Hughes Communications Galaxy, Inc. ("HCG") and a Galaxy X
Transponder Service Agreement (the "Service Agreement") with Hughes
Communications Satellite Services, Inc. ("HCSS"). This letter does not
supersede or amend the Agreement or the Service Agreement, but is intended to
clarify the understanding of HCG and HCSS and Buyer with respect to the
following provisions of the Agreement and the Service Agreement. All
capitalized items not defined herein are as set forth in the Agreement and the
Service Agreement.
With respect to Section 7.02 of the Agreement and Section 3.06 of the
Service Agreement, Buyer advises HCG and HCSS that Buyer has filed a waiver
request with the FCC and that Buyer is awaiting the decision of the FCC. Buyer
also advises HCG and HCSS that Buyer may file with the FCC various waiver
request from time to time. Buyer's filing of such application and the operation
by Buyer under the assumption that the waivers would be approved shall not
constitute, or shall be deemed to constitute, a breach of the requirements as
set forth in Section 7.02 of the Agreement and Section 3.06 of the Service
Agreement for so long as (i) Buyer is otherwise in compliance with all Laws and
(ii) Buyer does not utilize Buyer's Transponders in a manner which will or may
cause interference with the use of any other Transponder or cause physical harm
to any Transponder on the Satellite, the Satellite, or any other satellites.
Mr. Richard Dowling
, 1995
Page Two...........
Buyer agrees to provide a copy of the waiver requests currently pending
and any additional requests to be filed before the FCC that affect the use of
Buyer's Transponders on the Satellite.
Very truly yours,
HUGHES COMMUNICATIONS GALAXY, INC.
By:/s/ Carl A. Brown
Title:SVP
AGREED TO AND ACCEPTED: GCI COMMUNICATION CORP.
By: /s/ Richard P. Dowling
Title:Sr. Vice President