EXHIBIT 10.1
CONFIDENTIAL
________________________
AGREEMENT
________________________
for digital transmission on the ASTRA Satellite System
between
SOCIETE EUROPEENNE DES SATELLITES S.A.
and
UPC BROADCAST CENTRE LTD.
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1. Interpretation..............................................................4
2. Agreement...................................................................6
3. Term........................................................................6
4. Charges.....................................................................6
5. Spare TWTA..................................................................7
6. Unavailability..............................................................7
7. Excluding Circumstances.....................................................7
8. Interruption, Testing and Monitoring........................................8
9. Pre-emption.................................................................9
10. Use of Transponder and Encryption...........................................9
11. Service Information.........................................................9
12. Compliance with Law.........................................................9
13. SES' Authority.............................................................10
14. Assignment.................................................................10
15. Termination................................................................11
16. Effect of Termination......................................................11
17. Force Majeure..............................................................11
18. Limitation of Liability - Exclusivity of Remedies..........................12
19. Indemnities................................................................12
20. Confidentiality............................................................12
21. Trademark - Logo and Press Releases........................................13
22. Notices....................................................................13
23. Severability...............................................................13
24. Waiver.....................................................................13
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25. Entire Agreement.......................................................13
26. Amendment..............................................................14
27. Proper Law and Jurisdiction............................................14
28. Legal Opinion..........................................................14
29. Condition Precedent....................................................14
SCHEDULE I: Satellite and Transponder Description and
Performance Specifications.................................16
SCHEDULE I: Customer Signals, Customer Uplink Signals and Uplink
Facilities.................................................19
SCHEDULE III: Service(s).................................................21
SCHEDULE IV: Monitoring.................................................22
SCHEDULE V: Conditional Access system..................................24
**SCHEDULE VI: Charges....................................................25**
SCHEDULE VII: Priority and Pre-emption...................................26
SCHEDULE VIII: ASTRA Access Agreement....................................29
SCHEDULE IX: ASIUS......................................................30
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AGREEMENT
DATED_______2000
BETWEEN
(1) SOCIETE EUROPEENNE DES SATELLITES S.A. ("SES")
6815 Chateau de Betzdorf
Grand Duchy of Luxembourg
AND
(2) UPC BROADCAST CENTRE LTD. (THE "CUSTOMER")
The Maidstone Studios
Vinters Park
Maidstone, Kent ME14 5NZ
Great Britain
PREAMBLE
(A) SES is the operator of the ASTRA satellite system which comprises several
satellites co-located at 19.2 degrees East for the retransmission of
television and radio services;
(B) The satellite, described in SCHEDULE I-A hereto, is part of this
satellite system;
(C) The Customer wishes to use a transponder of said satellite to transmit
the digital services described herein on the terms and conditions set out
below;
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement, the following words and expressions shall have
the meanings ascribed to them below:
"Cahier des Charges" : the ministerial enactment (arrete
ministerial) of the Luxembourg government setting out the duties to
be observed by SES in performance of the Concession;
"Concession" : the concession contract ("Contrat de Concession")
entered into by the government of Luxembourg and SES to enable SES
to operate the satellite system and any amendment thereof;
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"CUSTOMER DOWNLINK SIGNALS" : DOWNLINK RF(1)--QPSK(2) modulated time
division multiplexed carrier carrying the Service(s) from the Customer's
Transponder;
"CUSTOMER SIGNALS" : the bit stream, carrying the Service(s), produced by
the Customer and transmitted to the Uplink Facilities for onward
transmission via the Customer's Transponder and conforming to Schedule II;
"CUSTOMER START DATE" OR "CSD" : the date on which the Customer has agreed
to commence the transmission of the Service(s) on the Customer's
Transponder, being 1 September 2000;
"CUSTOMER UPLINK SIGNALS" : The RF--QPSK modulated time division
multiplexed carrier, carrying the Service(s), transmitted from the Uplink
Facilities to the Customer's Transponder and conforming to Schedule II;
"CUSTOMER'S TRANSPONDER" : the transponder on the Satellite as described in
Schedule I-B, or any alternative transponder subsequently allocated to the
Customer pursuant thereto, and via which the Customer transmits the
Service(s);
"EXPIRY DATE" : the last day of the Term;
"LIBOR" : the one month London inter bank offered rate, applying to the
currency of this Agreement, as quoted by Banque et Caisse d'Epargne de
l'Etat in Luxembourg on the due date for payment;
"MINIMUM TRANSPONDER PERFORMANCE" : as defined in Schedule I-D;
"OPERATIONAL SERVICE DATE" OR "OSD" : the date on which the SES declared
the Satellite operational, being 1 January 1998;
"PAYMENT PERIOD" : a period of the Term in respect of which payments are
payable or have been paid pursuant to Schedule VI;
"PRE-EMPTION" : the deliberate interruption and/or cessation of the
availability of a transponder by SES in accordance with the rules set out
in Schedule VII and "PRE-EMPT" shall be construed accordingly;
"RECEIVED SIGNAL POWER" : as defined in Schedule I-D;
"SATELLITE" : the ASTRA 1G satellite as described in Schedule I-A;
"SERVICE(S)" : the Customer's services described in Schedule III;
"SES ASSOCIATES" : SES' officers, employees, consultants, agents,
contractors or sub-contractors. However, it is understood that CLT/DTS
performing the play-out for the Customer, are not considered as SES'
Associate;
"SPARE TWTA" : a spare travelling wave tube amplifier which can be switched
to
- ---------------
(1) Radio frequency
(2) Quadramm phase shift keying
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recover traffic on the Satellite;
"TARGET MARKET" : as defined in Schedule III;
"TERM" : the duration of this Agreement as specified in Clause 3;
"TRANSPONDER" : a part of the Satellite which receives, amplifies and
frequency-translates the uplink signals and retransmits them as
downlink signals;
"UNAVAILABLE", "UNAVAILABILITY" : as defined in Clause 6;
"UPLINK FACILITIES" : all equipment and ancillary facilities used to
transmit the Customer Uplink Signals to the Satellite conforming to
Schedule II;
"VAT" : Value added tax or any similar tax or charge.
1.2 In case of conflict between this Agreement and the Schedules hereto,
this Agreement shall prevail.
2. AGREEMENT
With effect from CSD SES will perform the transmission of the Customer
Uplink Signals carrying the Service(s) by exclusively providing the
Customer's Transponder for the purpose and monitor the digital transmission
of the Customer Uplink Signals on the terms set out herein. This Agreement
does not include multiplexing and uplinking.
3. TERM
This Agreement shall begin on the date hereof and expire at the end of the
day on the tenth (10th) anniversary of CSD, being 31 August 2010.
4. CHARGES
4.1 The Customer shall pay the charges set out in Schedule VI as of and on
the dates set out therein.
4.2 Sums overdue shall be subject to a late payment interest charge at 2%
over LIBOR from the due date. The interest shall accrue on a daily
basis.
4.3 All sums payable by the Customer under Schedule VI are quoted
exclusive of any VAT or other sales tax or duties. The Customer
undertakes to pay any applicable VAT, other tax or duties upon receipt
of an appropriate invoice from SES.
4.4 All sums due under this Agreement shall be paid in full without
set-off, counter-claim or other deduction unless SES commits a
material breach. A material breach is a breach which adversely effects
the quality of the Customer's Service.
4.5 Any sums owed by SES to the Customer for Unavailability pursuant to
Clause 6 shall be calculated by SES within 15 days from the date on
which such an event occurred and shall be paid to the Customer within
thirty (30) days thereafter. If the
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Customer disagrees with the amount so calculated and notified by SES,
the Customer shall so notify SES in writing and the parties shall seek
in good faith to resolve the disagreement. After the due date for
payment determined hereunder payments for Unavailability shall accrue
interest at the rate set out in Clause 4.2, unless such payments are
in dispute.
4.6 In the circumstance set out in Clause 7.2, the Customer shall not be
relieved of its obligation to pay the charges payable hereunder.
5. SPARE TWTA
If the Customer's Transponder becomes Unavailable and if a Spare TWTA is
available, then, subject to the priority rules set out in Schedule VII, SES
shall provide its use to the Customer as soon as reasonably possible.
6. UNAVAILABILITY
6.1 The Customer's Transponder shall be regarded as Unavailable if:
6.1.1 the Received Signal Power falls below the Minimum Transponder
Performance by more than 1 dB;
6.1.2 the interruption of the Service(s) pursuant to Clause 8.1
exceeds thirty (30) minutes in any calendar quarter;
6.1.3 any failure of the Satellite or any part thereof causes an
interruption of transmissions of the Service(s).
6.2 During any period of Unavailability the Customer may obtain temporary
bridging services from an alternative service provider. Up to the 30th
day of Unavailability the costs of such bridging services shall be
split equally between the parties. Thereafter they are on Customer's
cost. The Customer's payment obligations hereunder shall be suspended
from the start of the period of Unavailability to the end of such
period or, if later, the date the Customer's arrangements for bridging
services in respect of such period of Unavailability come to an end,
however such date shall not be later than 30 days after the end of any
period of Unavailability. In this regard, SES shall refund to the
Customer the pro rata temporis portion of the charges paid by the
Customer for the period of Unavailability and the Customer shall not
be liable to pay SES the pro rata temporis portion of the charges
payable (but not yet paid) in respect of such period of Unavailability
(as applicable).
6.3 If the Customer's Transponder becomes Unavailable for a period of
thirty (30) or more consecutive days, then the Customer may terminate
the Agreement by written notice to SES (provided that such notice is
sent while the Customer's Transponder is Unavailable) and Clause 16.1
shall apply.
6.4 Clauses 5, 6.2 and 6.3 shall be the Customer's sole remedies in the
event of an Unavailability and SES shall have no other obligation.
7. EXCLUDING CIRCUMSTANCES
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Clauses 6.2 and 6.3 shall not apply:
7.1 to an Unavailability caused by an act or omission of the Customer or
of the Customer's Associates;
7.2 where the Customer Signals, the Customer Uplink Signals or the Uplink
Facilities do not comply with Schedule II or where the Customer
Signals are not received by the Uplink Facilities or the Customer
Uplink Signals are not received by the Customer's Transponder due to
the fault of the Customer, the Customer's Associates, excluding all
events of force majeure.
8. INTERRUPTION, TESTING AND MONITORING
8.1 SES shall be entitled to interrupt the Service(s) on reasonable notice
(where practical in the circumstances) and to require the Customer to
cease transmission of the Customer Uplink Signals where necessary (i)
to provide the use of a Spare TWTA, and (ii) for operational testing,
maintenance, monitoring, preventive or curative repair or adjustment
to be carried out either with respect to the Satellite as a whole or
part thereof, or one or more of its transponders where necessary, in
SES' reasonable opinion, to preserve the integrity of the Satellite or
the overall quality of the satellite transmissions in the short,
medium or long term. SES shall give the Customer as much notice
thereof as is practicable in the circumstances and shall agree with
the Customer upon the date and time of interruption wherever possible.
8.2 SES shall also be entitled to interrupt the Service(s) or to require
the Customer to cease transmission of the Customer Uplink Signals if
the Customer is in breach of any material obligation hereunder and
after receiving notice of such material breach has not within 14 days
remedied such breach (except the immediate interruption of the Service
is requested by the Luxembourg authorities or as set out hereunder).
ALWAYS PROVIDED THAT if such breach is due to a technical issue, SES
shall not interrupt the Service(s) without allowing the Customer
reasonable period of time to correct it, unless the technical issue
either (i) is an interference with another customer of SES, (ii) could
cause potentially damage or degradation to the Satellite or to its
proper functioning or (iii) could affect the quality of the
transmissions provided by the Satellite. Nothing in this Clause 8.2
shall permit SES to interrupt the Service(s) in circumstances where
there is a bona fide dispute between the parties as to any fees due to
be paid under this Agreement. Any such dispute, if not resolved by
negotiation, shall be dealt with as provided in Clause 27.
8.3 SES shall monitor the Customer Uplink Signals and the performance of
the Customer's Transponder in accordance with the provisions of
Schedule IV and supply an analysis of the results when so requested by
the Customer. Such data shall be limited to information which SES can
reasonably be expected to obtain and which it can reveal without
liability or breach of any duty to any third party. Such information
shall be kept confidential.
8.4 The Customer shall procure that the operator of the Uplink Facilities
shall assist SES in making any tests to ensure that such Facilities
and the Customer Uplink Signals comply with Clause 10.3.
8.5 All Service(s) using the Customer's Transponder shall be uplinked from
the same uplink antenna.
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9. PRE-EMPTION
- Intentionally deleted -
10. USE OF TRANSPONDER AND ENCRYPTION
10.1 The frequencies for the Customer Uplink Signals and the Customer
Downlink Signals initially allocated by SES shall be those stated in
Schedule I-B or notified to the Customer before CSD.
10.2 The Customer may on 1 July 2000 and shall, on CSD, commence
transmitting the Service(s) and thereafter maintain full transmission
of the majority of the Service(s) as described in Schedule III.
10.3 The Customer shall procure that the Customer Signals and Customer
Uplink Signals and Uplink Facilities comply with Schedule II and do
not interfere with or damage the Satellite or any of its transponders.
10.4 The Customer may, if so provided in Schedule V, encrypt the Customer
Signals provided that the Customer, at its costs, provides SES with
ten operational decoders authorised for reception and any other
equipment needed to receive the Customer Downlink Signals.
10.5 SES shall have the right, at any time, to replace the transponder
carrying the Service(s) on the Satellite by another transponder on any
other ASTRA satellite at the same orbital position provided that the
replacement transponder has the same polarization, bandwidth and the
same uplink and downlink signal frequency as the transponder used by
the Customer prior to such replacement. Unless SES uplinks the
Service(s), SES will endeavour to provide to the Customer advance
notice of twenty-four (24) hours to perform the necessary operations
to uplink the Service(s) to the other ASTRA satellite. To avoid a
Service(s) interruption the Customer shall make all necessary
arrangements with the operator of the Uplink Facilities to accommodate
such a transponder replacement.
10.6 The Customer shall not use the Customer's Transponder in any way not
specified in this Agreement.
11. SERVICE INFORMATION
The Customer shall provide to SES the Service(s) information in compliance
with Schedule III.
12. COMPLIANCE WITH LAW
12.1 The Customer shall comply to all material extent with all laws,
regulations or provisions relevant for the performance of this
Agreement, shall, where necessary, at all times have and comply with a
broadcasting license or authorization for the Service(s) and shall
promptly inform SES of any material change thereof where relevant. If
the Service(s) is not subject to the laws of a member of the European
Union it shall, nevertheless, comply with the provisions of the
"Television Without
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Frontiers" directive of 3 October 1989, as may be amended, as
transposed into the laws of Luxembourg being currently Article 6 and
Chapter IV of the Luxembourg Electronic Media Law of 27 July 1991.
12.2 SES shall not exercise its right to terminate this Agreement under
Clause 15.1 by reason of non-compliance by the Customer pursuant to
Clause 12.1 except where such non-compliance has been determined by a
court or other authority with competent jurisdiction or where
otherwise requested by the Government of the Grand Duchy of
Luxembourg. Moreover if compliance with Clause 12.1 would result in
the contravention of any future law or regulation in the Target
Market, the Customer's non-compliance with Clause 12.1 shall
constitute an event of force majeure. For the avoidance of doubt
the Customer shall incur no liabilities for contravention of
applicable law by SES.
13. SES' AUTHORITY
This Agreement is subject to the continuing right of SES to provide the
Customer's Transponder pursuant to the Concession and the Cahier des
Charges. If this right is withdrawn, then this Agreement shall terminate
automatically unless the Government of Luxembourg wishes to undertake SES'
rights and obligations hereunder. In either case, SES shall be discharged
of all liability and obligation to the Customer subject to Clause 16.
14. ASSIGNMENT
14.1 Intentionally deleted.
14.2 SES hereby authorises the Customer at any time to assign its rights
under this Agreement to any affiliate under the condition that the
Customer agrees to continue to be bound by all its obligations and
liabilities hereunder and to hold SES harmless from any breach of this
Agreement by its assignee. For the purposes of this Clause 14.2, a
company will be regarded as an affiliate of the Customer if the
Customer holds not less than a 50% interest in the shares or
equivalent of that company or if the company holds at least 50% in the
Customer or a company being under common control with the Customer.
14.3 Upon SES' and the Luxembourg Government prior written consent, which
shall not be unreasonably withheld or delayed, the Customer may
sub-contract the benefit and the burden of this Agreement to any third
party provided that no such sub-contract shall relieve the Customer of
its obligations and liabilities under this Agreement and the Customer
shall be responsible for the acts, default and omissions of the
sub-contractor, its employees and agents as fully as if they were
acts, default, omissions of the Customer itself. Upon SES' and the
Luxembourg Government prior written consent, which shall not be
unreasonably withheld or delayed, the Customer may assign, transfer or
otherwise allow any third party to directly or indirectly exercise its
rights, in whole or in part. For the avoidance of doubt SES may
withhold its consents to subcontracts, assignments, transfers or other
allowances to any third party to directly or indirectly exercise the
Customer's rights and obligations under this Agreement, in whole or in
part, to companies not active in the Target Market. Any income earned
from such subcontract shall be due entirely to the Customer.
15. TERMINATION
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In addition to the termination rights provided herein including without
limitation the Customer's right to terminate as specified in Clause 6.3, a
party may terminate this Agreement forthwith by written notice if the other
party:
15.1 commits a material breach of its obligations hereunder and fails to
remedy such breach (if capable of remedy) within thirty (30) days of
written notice from the party requiring such breach to be remedied
(for the avoidance of doubt, circumstances giving rise to the right to
terminate under Clause 6.3 do not constitute a material breach); or
15.2 is unable to pay its debts as they mature; becomes insolvent; is
subject to bankruptcy, moratorium, insolvency or similar proceedings
for the relief of financially distressed debtors; is subject to
winding up, dissolution or liquidation (judicial or non-judicial)
proceedings; voluntarily or involuntarily suspends or discontinues its
business; liquidates; makes an assignment for the benefit of its
creditors; or is subject to the appointment of a receiver, liquidator
or other third party over its assets or business; or
15.3 has been prevented by an event of force majeure from materially
performing its obligations hereunder for sixty (60) days or more. SES
will waive its right to terminate the Agreement if and for such period
of time the Customer continues to pay the charge hereunder.
16. EFFECT OF TERMINATION
16.1 Where the Agreement is terminated (i) by the Customer, pursuant to
Clauses 6.3, 15.1 or 15.2, (ii) by either party, pursuant to Clause
15.3, or (iii) automatically pursuant to Clause 13, then SES shall
refund to the Customer the pro rata temporis portion of the advance
payments made by the Customer pursuant to Schedule VI relating to the
unexpired portion of the Payment Period in progress on the date of
termination. SES may deduct from such amount all payments, taxes and
duties payable to governments or other entities for which the Customer
is liable hereunder and all sums owed to SES at that time.
16.2 Where SES terminates this Agreement pursuant to Clauses 15.1 or 15.2,
the Customer shall forthwith pay to SES any sum owed by the Customer
to SES at that time and shall continue to be liable for and to pay the
charge provided in Schedule VI (as if the Agreement had not been
terminated) until such time as SES allocates the Customer's
Transponder to another customer. SES shall have no obligation to
market the Customer's Transponder in priority to unused transponder
capacity on SES' satellites and for a price inferior to that payable
by the Customer to SES (unless the Customer makes up for the
difference); however, SES shall use its reasonable efforts to mitigate
its losses. If the Customer's Transponder is allocated to another
customer, SES shall refund to the Customer the pro rata temporis
portion of the advance payments made by the Customer pursuant to
Schedule VI relating to the unexpired portion of the Payment Period in
progress on the date at which the other customer starts transmitting.
17. FORCE MAJEURE
Neither party shall be considered to be in breach or be liable for any
damage suffered by the
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other party or its Associates, by reason of any failure to perform any
obligation hereunder if and for so long as such failure is the result of an
event of force majeure. Subject to Clause 15.3, the respective obligations
of both parties shall be suspended for such time as such an event prevents
either party from performing its obligations.
18. LIMITATION OF LIABILITY - EXCLUSIVITY OF REMEDIES
18.1 Without prejudice to Clauses 5, 6 and 16, neither party shall be
liable to the other party in any way whatsoever, except for its gross
negligence ("faute lourde") or wilful misconduct ("dol").
18.2 The remedies expressly provided in this Agreement are the sole
remedies available to the parties and the parties waive any other
rights that they may have.
19. INDEMNITIES
19.1 Each party shall indemnify the other as follows:
19.1.1 damages caused to third parties as a result of a breach by the
indemnifying party of this Agreement or a civil duty;
19.1.2 infringement of copyright, defamation, libel or invasion of
privacy (or any allegation thereof) arising in the course of
the use of the Customer's Transponder;
19.1.3 claims in any way connected with the quality or contents of any
programme or display transmitted as part of the Service(s), or
with any failure, however caused, to perform an obligation
owed to any person to transmit any such programme or display;
19.1.4 infringement by the indemnifying party by virtue of exercising
its rights under this Agreement of any other third party right;
19.1.5 damage caused to the Satellite by the Customer or the operator
of the Uplink Facilities save where SES is said operator.
19.2 The indemnifying party shall indemnify the other party against all
claims, losses, damages or expenses arising from an infringement of
patent caused by the use of any apparatus or system provided by the
indemnifying party to the other.
19.3 Neither party shall admit any liability or make any concession in
respect of any claim brought against it for which it may seek an
indemnity under this Clause 19 without the prior written consent of
the indemnifying party and the indemnifying party shall have the
right to control any such proceedings at its own costs and expenses.
20. CONFIDENTIALITY
Each party shall, and shall procure that its Associates shall, both
throughout the Term and thereafter, keep confidential the provisions of
this Agreement together with all other information disclosed on a
confidential basis by the other party hereunder and shall not disclose the
same to any person except when acting under a court order. Unless otherwise
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specified in writing, all information regarding the performance of the
Satellite or the Customer's Transponder or the business affairs of the
parties shall be regarded as confidential. Where necessary to secure its
financing or otherwise in the legitimate course of its business, each party
shall have the right to disclose this Agreement to its professional
advisors, financial institutions and stock exchanges authorities.
21. TRADEMARK - LOGO AND PRESS RELEASES
21.1 Each party agrees to allow the other to use its trademark and logo,
free of charge, throughout the Term, solely for the purpose of
indicating in any document, advertising or communication made or
commissioned by such party that the Service(s) is transmitted via the
ASTRA satellite system.
21.2 The parties shall agree on a press release to announce this Agreement.
22. NOTICES
Any notice shall be in writing and shall be sent to the address of the
party to be served as above written or to such other address previously
notified to the other party. All notices shall be delivered by hand,
registered, or certified post or facsimile. Notices shall be deemed to have
been received: (i) if delivered by hand, upon such delivery, (ii) if sent
by post, (seventy-two) 72 hours after the envelope containing such notice
was posted, or (iii) if sent by facsimile, when the transmission of the
facsimile is complete. Notices sent by facsimile shall be confirmed by
letter. The initial facsimile number of the parties are: (i) SES: (352) 710
725 291, (ii) the Customer: (44) 1622 357 002.
23. SEVERABILITY
In the event that a provision of this Agreement is held to be invalid,
inapplicable or unenforceable such provision shall be replaced by one which
comes closest to the intention of the parties and the remaining provisions
of this Agreement shall be unimpaired.
24. WAIVER
No relaxation, delay or indulgence by either party in enforcing any right
under this Agreement shall operate as a waiver thereof.
25. ENTIRE AGREEMENT
This Agreement, with the Schedules, is the entire agreement between the
parties in connection with the subject matter hereof and there are no other
agreements, written or oral. This Agreement supersedes all prior
understandings, representations or communications between the parties and
each party declares that it has not relied on any representation except as
expressly set out herein.
26. AMENDMENT
No provision of this Agreement may be amended, waived or terminated, nor
may any breach
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thereof be waived otherwise than (in each case) by the express written
agreement of the parties hereto. The Agreement will, where necessary, be
amended to reflect the reasonable changes made by the Luxembourg Government
to the Concession or the Cahier des Charges or the Luxembourg Laws.
27. PROPER LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of the Grand Duchy of Luxembourg and the parties hereby submit to the
exclusive jurisdiction of the Luxembourg courts.
28. LEGAL OPINION
Intentionally deleted.
29. CONDITION PRECEDENT
This Agreement is subject to the approval of the Board of SES, the Board of
the Customer and of the Government of Luxembourg. The parties shall each
use their reasonable efforts to obtain the approvals required.
***
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IN WITNESS WHEREOF the duly authorised representatives of the parties hereto
have executed this agreement in two originals on the date first before written.
For and on behalf of
Societe Europeanne des Satellites S.A.
/s/ Romain Bausch /s/ Yves Elsen
- ------------------------------- ---------------------------------
Romain Bausch Yves Elsen
Director General Commercial and Marketing Director
For and on behalf of
UPC Broadcast Centre Ltd.
/s/ MAGNUS TERNSJO /s/ Nimrod F. Kovaks
- ------------------------------- ----------------------------------
By: Magnus Ternsjo Nimrod F. Kovaks
Title: Managing Director Chairman
/s/ Roger Hodge
- -------------------------------
Roger Hodge
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SCHEDULE I: SATELLITE AND TRANSPONDER DESCRIPTION AND PERFORMANCE
SPECIFICATIONS
A. ASTRA 1G SATELLITE DESCRIPTION
1. Satellite Manufacturer : Hughes Communications Int. Inc.
2. Expected Fuel Lifetime (from OSD) : 15 years
3. Satellite Station-keeping accuracy : Longitude +/- 0.10 degrees
Inclination +/- 0.10 degrees
4. Stabilisation System : 3 axis
5. Designed Channel Capacity :
A maximum of 22 transponders at end of life can be operated simultaneously. All
transponders are eclipse protected and may be selected from the following
configurations:
16 transponders in the 13750 - 14000 MHz uplink and 12500 - 12750 MHz downlink
frequency band, 40 transponders in the 17300 - 18100 MHz uplink and 11700 -
12500 MHz downlink frequency band (ASTRA 1E/1F backup)
6. Polarization : Dual Linear
7. Cross-polarization isolation (for areas
within the 50 dBW e.i.r.p. contour) on
vertical and horizontal transponders : Typical 30 dB
For the avoidance of doubt, the specifications set out in Parts B and C below
shall constitute part of the terms and conditions of this Agreement but the
description of the Satellite in this Part A is for the Customer's information
only and shall not constitute any term or condition of this Agreement.
B. SPECIFIC DESCRIPTION OF TRANSPONDER USE
1. Initial transponder number on the Satellite : 73
2. Customer Uplink Signal frequency : 17475.50 MHz
3. Customer Downlink Signal frequency : 11875.50 MHz
4. Capacity provided : 27.5 Msym/s
5. Hours of transmission : 24 hours per day
6. Pre-emptibility status : See Schedule VII-A
7. Polarisation (downlink) : Horizontal
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C. ORBITAL POSITION AND TRANSPONDER BANDWIDTH
1. Orbital position : 19.2 degrees East
2. Usable Transponder bandwidth : 33 MHz
D. TRANSPONDER PERFORMANCE
1. "Minimum Transponder Performance" is defined as a satellite single carrier
saturation e.i.r.p. measured under clear sky conditions by a measurement
test set-up according to standard engineering practice as described in
Schedule I-E of:
City activated on
ASTRA 1G
Bialystok 50.0
Gdansk 50.0
Kielce 51.0
Krakow 52.0
Lublin 50.0
Olsztyn 50.0
Radom 51.0
Warsaw 51.0
Wroclaw 52.0
Betzdorf 51.0
Prague 51.0
Bratislava 51.0
Budapest 51.0
It is understood that SES shall have no obligation to monitor or measure
the Minimum Transponder Performance in any sites listed above save for
Betzdorf.
2. "Received Signal Power" is defined as signal power in dBW on the ground in
Luxembourg measured by a measurement test set-up according to standard
engineering practice as described in Schedule I-E. If the measurement is
not performed under clear sky conditions, the measured value shall be
corrected to account for the effect of weather and propagation conditions.
3. The Minimum Transponder Performance and Received Signal Power shall be
those measured or otherwise ascertained where the Customer is complying or
procuring compliance with Schedule II.
E. MEASUREMENT TEST SET-UP AND STANDARD ENGINEERING PRACTICE
The saturated transponder e.i.r.p. and Received Signal Power is measured
under all weather conditions at the SES Satellite Control Facility in
Betzdorf, Luxembourg. The measured e.i.r.p. for the Customer's Transponder
is kept on record.
In order to accurately determine each transponder e.i.r.p., a measurement
set-up consisting of a calibrated fluxmeter and radiometer is used. The
fluxmeter measures the power flux
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density at earth surface created by each individual satellite transponder.
The radiometer measures atmospheric attenuation along the satellite path,
assuming the atmosphere to be an absorbing homogeneous medium at a constant
temperature. Atmospheric attenuation is measured at the beginning of each
e.i.r.p. measurement cycle.
The fluxmeter uses a calibrated antenna, with a calibrated RF measurement
subsystem comprising, among others, a LNA, a down converter and a true RMS power
sensor. A 33 MHz selectivity bandpass filter is used to reduce errors due to
adjacent channel interference during e.i.r.p. measurements.
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SCHEDULE II: CUSTOMER SIGNALS, CUSTOMER UPLINK SIGNALS AND UPLINK
FACILITIES
A. SPECIFICATIONS OF CUSTOMER SIGNALS AND CUSTOMER UPLINK SIGNALS
To ensure consistent and uniform reception of high quality video, audio and
data services by the users of ASTRA transmitted services, and to allow full
inter-operability between different manufacturer's equipment, SES requires
each Customer Signal and Customer Uplink Signal to meet the applicable
provisions of the following specifications:
ISO/IEC 13818-1/-2/-3
Generic coding of moving pictures and associated audio (Part 1: Systems;
Part 2: Video and Part 3: Audio).
ETS 300 421
Digital broadcasting systems for television, sound and data services;
framing structure, channel coding and modulation for 11/12 GHz satellite
services.
ETS 300 468
Digital Broadcasting systems for television, sound and data services:
specification for Service Information (SI) in Digital Video Broadcasting
(DVB) Systems.
ETR 154
Implementation guidelines for the use of MPEG-2 Systems, video and audio in
satellite and cable broadcasting applications.
ETR 211
Guidelines on implementation and usage of service information.
The Customer agrees to transmit the ASTRA Network Information Table ("NIT")
as described in Schedule IX. More specifically, the Customer Uplink Signals
shall automatically update its transmitted NIT to reflect any changes of
the ASTRA NIT. However, the Customer may modify the parts of the NIT
describing the Customer Uplink Signals (e.g. addition of service list
descriptor).
B. CUSTOMER SIGNALS
1. Video source coding shall be as specified in MPEG-2 main profile/main
level.
2. Audio source coding shall be as specified in ISO/IEC 13818-3 and as defined
in ETR 154.
C. CUSTOMER UPLINK SIGNAL AND UPLINK FACILITIES
The Customer shall comply with the specifications and parameters set-out in
the ASTRA Access Agreement, a copy of which has been separately provided to
the Customer, which may be amended by SES, as necessary, provided that such
amendment also applies to other
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customers on the Satellite.
More specifically, the Customer Uplink Signals and the Uplink Facilities
having access to the ASTRA satellite shall meet the performance
requirements established in the ASTRA Access Agreement. SES will provide a
reasonable prior notice for any amendment requiring a change of hardware.
The following parameters shall also be met:
1. EARTH STATION e.i.r.p.
For access to the Satellite, the Uplink Facilities must be able to produce
a minimum earth station e.i.r.p. of (to be notified by SES to the Customer
once the Customer has informed SES of the uplink site) dBW per RF channel
for transmissions originated from [to be notified by the Customer to SES].
However, given that the Service(s) can be transferred to another ASTRA
satellite, pursuant to Clause 10.5, such transfer may require a separate
earth station and the Customer should note that for such satellite the
Uplink Facilities must be able to produce a minimum earth station e.i.r.p.
to be determined by SES, which may differ from that of the earth station
which accesses the Satellite.
2. TRANSMISSION STANDARD
The transmission standard used for the video, audio, and data services
shall be in accordance with the specifications given in Section A above.
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SCHEDULE III: SERVICE(S) (CLAUSE 10)
The Customer's Transponder shall be used exclusively for the transmission of the
following packages of television services, and related audio, and other services
as specified below all of them targeting at the general public located within
the Target Market. The expression "Target Market" means any or all of the
following countries: Poland, Czech Republic, Slovakia, Hungary, Romania,
Moldova, Bulgaria, Belarus, Russia, Ukraine, Estonia, Latvia, Lithuania,
Slovenia, Croatia, Bosnia, Herzegovina, Yugoslavia, Macedonia and Albania. It is
understood that those countries are only to such extent part of the Target
Market as they are covered by the Satellite footprint.
A. PAY-PER-VIEW SERVICES, being television services for which the viewer pays
on the basis of the actual consumption.
B. PAY TV SERVICES, being encrypted television services available upon
subscription.
C. UNENCRYPTED SERVICES, being television services available without any
special decoding equipment.
D. OTHER SERVICES [From time to time to be discussed]
E. For each service considered, the Customer shall provide SES with the
following information:
1. Name and address of Operator : [ ]
(if different from Customer)
2. Name of Television Services : [ ]
3. Type(s) of Programming : [ ]
4. (Primary) Language : [ ]
5. Hours of transmission : [ ]
6. Teletext Service : [ ]
7. Encryption : [ ]
8. License : [ ]
9. Target Territories : [ ]
10. Uplink : [ ]
11. Start of Service : [ ]
The above information, for any given Service, shall be provided at least 30 days
before the proposed start date for the Service and shall be subject to the prior
written consent of the Luxembourg Government.
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SCHEDULE IV: MONITORING (CLAUSE 8)
In addition to performing the activities related to controlling the Satellite,
SES will also monitor all the transmissions through all its transponders as
described below.
SES will maintain a Network Operations Centre (NOC) capable of monitoring the
Received Signal Power of the Customer's Transponder on a continual basis in
order to produce a computerized record of the RF characteristics of the
Customer's Transponder.
As part of these activities, SES conducts a quarterly test using its In Orbit
Test System (IOTS) of the performance of each transponder on the ASTRA satellite
system. This test will necessitate that the Customer's Uplink Signal be switched
off during selected periods of time in accordance with Clause 8.1 for not more
than thirty (30) minutes at a time.
If a problem is detected, the NOC Operators will initiate and co-ordinate
corrective measures in co-operation with the Uplink Facility which is
transmitting the Customer Uplink Signals.
The NOC's specific functions and responsibilities will include:
- - Receiving and handling reports of Unavailability from customers
- - Co-ordinating the remedy of the reported difficulty and initiating any
necessary procedures required to restore lost or impaired service in the
most expedient manner
- - Maintaining a complete and accurate record of all reported and observed
service failures, impairments, and customer contacts
- - Co-ordinating the overall line-up, pre-service tests, and actual provisions
of service
- - Arranging the routine monitoring of the Customer's Transponder as described
above
- - Ensuring that any potential events that may affect the operation of the
Satellite as a whole or of the Customer's Transponder (sun transit,
routine testing, etc.) are notified to the Customer as soon as practicable
and in advance if possible
The reporting points for operational purposes shall be:
AT THE CUSTOMER: UPC Broadcast Centre Ltd.
The Maidstone Studios
Vinters Park
Maidstone, Kent ME14 5NZ
Great Britain
phone: (44) 1622 357 081
fax: (44) 1622 357 002
email: sunny.kapoor@upcbroadcast.co.uk
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AT SES: Network Operations Centre
Satellite Control Facility
6815 Chateau de Betzdorf
Grand Duchy of Luxembourg
phone: for urgent problems only:
(352) 719 036
phone: for normal operating and general use:
phone: (352) 710 725-560
fax: (352) 710 725-741
(352) 710 725-213
Attn: Head Network Operations Centre
The above telephone and facsimile numbers are subject to change by SES or the
Customer.
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SCHEDULE V: CONDITIONAL ACCESS SYSTEM
The Customer may encrypt the Customer Signals using such system as it shall
reasonably select, in conjunction with SES. The conditional access system
selected shall be DVB compliant (based upon the DVB common scrambling algorithm
and mechanisms). A conditional access system cannot be applied to the Customer
Signals during the time period where SES provides, in its ground station in
Betzdorf, encoding and multiplexing of the Customer Signals.
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SCHEDULE VI: CHARGES (CLAUSE 4)
A. The charge payable by the Customer to SES in each Year of this Agreement
(a Year being for the purposes of this Schedule a period of 365 days which
commences on CSD or any anniversary of that date) shall be the sum of the
fees to be determined in accordance with paragraphs (i) and (ii), subject
always to paragraph (iii):
(i) an annual fixed fee of *.
The annual fixed fee shall be paid on CSD and each anniversary thereof.
(ii) A variable fee of * for each qualifying digital household in
excess of * households, payable at Year's end. The expression
"qualifying digital household" is calculated on the basis of households
located in the Target Market in which an occupant has a current contract
with the Customer or one of its affiliates or authorised agents or
distributors which gives him the right to receive any service of the
Customer and/or any affiliates of the Customer that are transmitted using
the Customer's Transponders by means of direct pick-up by the occupant
(via direct-to-home) of the digital signal on an Integrated Receiver
Decoder (IRD) available in the Target Market.
Following determination of the number of qualifying digital households at
the end of the relevant Year, the variable payment will be payable on the
average number of qualifying digital households at the said Year (2 point
average) in excess of * households, thirty (30) days after
notification.
Any calculation of the number of qualifying digital households shall be
verified by an independent auditor to be agreed upon by the parties.
(iii) The aggregate charges payable by the Customer to SES in any Year in all
circumstances shall not exceed EURO 6,000,000.
B. The Customer shall effect payment of all charges to the bank account
identified by SES in the corresponding invoice.
C. The daily rate of charge to be applied for the purposes of calculating any
refund to be made pursuant to Clause 6 of the Agreement shall be the
aggregate charges payable for the Year in the course of which an
Unavailability occurred divided by the number of days contained in said
Year.
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[* Confidential treatment requested; omitted portions have been filed
separately with the Securities and Exchange Commission]
CONFIDENTIAL
SCHEDULE VII: PRIORITY AND PRE-EMPTION
A-Customer Status
The Customer shall have the status of : Non-Pre-emptible Customer as defined
in Part B below. No customer of SES on the ASTRA 1G satellite is Pre-emptible
at the moment. When this changes SES will inform the Customer without undue
delay.
B-CATEGORIES OF USE
SES customers using the ASTRA satellite system shall be accorded (for each
transponder used) priority status as: Protected, Non-Pre-emptible or
Pre-emptible.
1. PROTECTED CUSTOMERS:
a. will not be subject to pre-emption by other customers;
b. will be entitled to be provided with the use of a back-up transponder
(this will require the pre-emption of Pre-emptible Customer); and
c. Shall have the benefit of Spare TWTAs, in preference to certain other
customers, as set out in Part C below.
2. NON-PRE-EMPTIBLE CUSTOMERS:
a. will not be subject to pre-emption themselves;
b. will have no rights of pre-emption themselves; and
c. shall have the benefit of Spare TWTAs as set out in Part C below.
3. PRE-EMPTIBLE CUSTOMERS:
a. have no rights of pre-emption themselves;
b. may have their transponder pre-empted, as set out in Part D below, in
order to provide a back-up transponder to a Protected Customer; and
c. shall have the benefit of Spare TWTAs, but subject to the rights of
other customers in this Schedule, as set out in Part C below.
C- PRIORITY RULES FOR SPARE TWTAS
As a general rule, Spare TWTAs on the Satellite will be provided on a first
failed / first served basis.
However, in the event of simultaneous transponder failures (or where the
sequence of failures cannot be determined) on the Satellite, and if the number
of failures exceeds the number of available Spare TWTAs, then the following
rules shall apply:
1. Protected Customers have priority over Non-Pre-emptible Customers who, in
turn, have priority over Pre-emptible Customers.
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2. Where, pursuant to this Schedule, conflicting rights to Spare TWTAs arise
between customers with the same priority status, priority shall be given in
accordance with the following rules:
a. customers whose service starts on the Operational Service Date ("OSD
Customer") shall have priority over those whose service starts at a
date after such Operational Service Date;
b. between OSD Customers, priority shall be determined by reference to
the expiry dates of their contracts so that the customers with the
later dates of expiry have priority over customers with earlier expiry
dates;
c. between OSD Customers whose contracts expire on the same date,
priority shall be determined by reference to the dates on which they
signed contracts for the use of a transponder, so that the
customers who signed earlier have priority over those who signed
later;
d. between customers whose services start after the Operational Service
Date ("Post OSD Customers"), priority shall be determined by reference
to the customer start dates, so that the customers with earlier
customer start dates shall have priority over customers with later
customer start dates;
e. between Post OSD Customers who have the same customer start dates,
priority shall be determined in the same manner as applicable for OSD
Customers under Paragraph 2(b) and (c) above; and
f. between customers originating from different satellites (i.e.
customers whose initial transponder was located on an ASTRA satellite
other than the Satellite), priority shall be determined by reference
to their respective start date on their respective initial satellite,
so that the customers with earlier customer start dates shall have
priority over customers with later customer start dates.
3. For the purpose of the above rules, (i) the expiry date of a contract
shall, in case of extension of the contract, refer to the extended expiry
date, and (ii) the customer start date refers to the start date of a
customer's initial service and is not affected by any subsequent change of
the service transmitted under a given customer contract.
D-PRE-EMPTION RULES
1. If Part A above provides that the Customer has the status of Pre-emptible
Customer, then the Customer's Transponder shall be pre-emptible on the
terms set out below.
2. a. SES shall have the right to pre-empt the Customer's Transponder to
provide back-up capacity to restore the service of a Protected
Transponder in respect of which SES is contractually bound to provide
back-up capacity at the time pre-emption occurs and if there is no
Spare TWTA that can be used to restore the Protected Transponder's
service.
b. A used herein, "Protected Transponder" means the transponder of a
Protected Customer on another ASTRA satellite, to be nominated by SES
and notified by SES to the Customer at any time, the protection of
which directly or indirectly requires the pre-emption of the
Customer's Transponder. There may be several Protected Transponders
nominated by SES, provided that each is on a different ASTRA
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satellite. SES may increase or reduce the number of Protected
Transponders at any time by giving prior written notice to the
Customer.
3. To Pre-empt the Customer's Transponder:
a. SES will give the Customer at least 24 hours advance warning (by
fax or phone) of such pre-emption save in the event of consecutive
failures of a Protected Transponder, in which case such pre-emption
warning may be shorter, it being understood that SES will keep the
Customer informed of the status of the Protected Transponders
affected by such consecutive failures; and
b. at the expiry of the aforementioned advance warning, SES shall have
the right to forthwith interrupt the transmission of all video and
audio services using the Customer's Transponder and the Customer
shall therefore forthwith, upon SES' request, interrupt the
transmission of the Customer Uplink Signal. SES shall in addition
have the right to interrupt the reception of the Customer Uplink
Signals by the Customer's Transponder.
4. The Customer shall comply diligently with SES' instructions for the
purpose of implementing the pre-emption and shall require the operator
of the Uplink Facilities to do the same.
5. a. If SES pre-empts the Customer's Transponder, then, at that time,
SES' obligation to provide the use of the Customer's Transponder,
and the Customer's obligation to pay the corresponding charge,
shall be suspended. The Agreement shall terminate 30 days after the
pre-emption date unless SES, within this period, restores the
Protected Transponder in respect of which pre-emption was
implemented. If such restoration occurs after this 30 days period,
then SES shall offer the Customer's Transponder back to the
Customer on the terms set out in this Agreement for the outstanding
period of Term. The Customer shall have fifteen (15) days to accept
SES' offer.
b. Upon termination of the Agreement pursuant hereto, as the case may
be,
(i) SES shall refund to the Customer the pro rata temporis portion
of the advance payments made by the Customer pursuant to
Schedule VI and relating to the unexpired portion of the
period (in respect of which the Customer has paid in advance)
in progress on the date of pre-emption; or
(ii) the Customer shall pay to SES all outstanding sums owned to
SES at the time of termination.
6. a. The Customer shall fully co-operate with SES for the exercise, by
SES, of its right of pre-emption, provided herein and shall not
raise any objection, initiate any legal proceedings against SES or
the Protected Customer benefiting from the pre-emption, or take
other steps, to prevent, delay or obstruct the exercise of this
right and the Customer shall be liable for all damages suffered by
SES or such Protected Customer in connection therewith.
b. The Customer shall not make any claim against SES or the Protected
Customer benefiting from the pre-emption in connection with the
exercise, by SES, of its right of pre-emption and shall indemnify
SES against any related third party claim.
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SCHEDULE VIII: ASTRA ACCESS AGREEMENT
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SCHEDULE IX: ASIUS
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