EXHIBIT 10.40
DATED . ., 1998
CASTLE TRANSMISSION INTERNATIONAL LIMITED.
and
TELEDIFFUSION DE FRANCE S.A.
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AMENDED AND RESTATED
SERVICES AGREEMENT
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ALLEN & OVERY
London
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THIS AMENDED AND RESTATED SERVICES AGREEMENT is dated . July, 1998 and is made
BETWEEN:
(1) CASTLE TRANSMISSION INTERNATIONAL LIMITED (No. 3196207) whose registered
office is at Warwick Technology Park, Gallows Hill, Heathcote Lane, Warwick
CV34 6TN (the "COMPANY"); and
(2) TELEDIFFUSION DE FRANCE S.A. of 10 rue d'Oradour sur Glane, 75015 Paris,
France (the "CONTRACTOR").
WHEREAS:
(A) The parties hereto entered into a services agreement dated 28th February,
1997 (the "ORIGINAL SERVICES AGREEMENT"). The parties have agreed to amend
and restate such agreement on the terms set out in this Agreement.
(B) This Agreement sets out the terms on which the Contractor has agreed to
provide certain services to the Company.
(C) Without limiting the rights of the Company under this Agreement, it is the
current intention of the parties hereto that this Agreement shall continue
for a period of seven years, which period shall be deemed to have begun on
the Commencement Date (as defined below).
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires:
"APPLICABLE TDF RATES" means the Contractor's standard charge out rates
from time to time quoted when providing to third parties on a commercial
arm's length basis the services of personnel of the type referred to in
paragraph 1(a) of Part A of the Schedule to this Agreement;
"CCIC" means Crown Castle International Corp.;
["CCIC CHANGE OF CONTROL" shall have the same meaning as "Change of
Control" in the CTSH Shareholders' Agreement between CCIC, the Company and
the Contractor, to the extent to which such definition applies to CCIC;]
"CCIC GROUP" means CCIC and its subsidiaries (other than members of the CTI
Group);
["CONTRACTOR CHANGE OF CONTROL" shall have the same meaning as the
definition of "TDF Change of Control" in the Governance Agreement between
CCIC and the Contractor;]
"COMMENCEMENT DATE" means 28th February, 1997;
"COMMITTED SERVICES" means services falling within the scope of the
categories of services listed in paragraph 1(b) of Part A of the Schedule;
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"COMPANY DEFAULT" means any material or persistent breach or persistent
non-performance by the Company of its obligations under this Agreement
which, if capable of remedy, is not remedied within 45 days after receiving
written notice from the Contractor requiring the Company so to do;
"CONTRACT YEAR" means the period of 12 months commencing on the
Commencement Date and each successive period of 12 months thereafter;
"CONTRACTOR DEFAULT" means any material or persistent breach or persistent
non-performance by the Contractor of the terms on which the Contractor is
to provide the services pursuant to the provisions of this Agreement which,
if capable of remedy, is not remedied within 45 days after receiving
written notice from the Company requiring the Contractor so to do;
"CONTRACTOR'S MATERIALS" means any property of the Contractor (other than
the New Material) including without limitation any know how, materials,
products and methodologies proprietary to the Contractor;
"CTI GROUP" means Castle Transmission Services Holdings Limited and its
subsidiaries (including the Company);
"GROUP" means, in relation to a company, its subsidiaries, holding
companies and any subsidiaries of any such holding companies ("HOLDING
COMPANIES" and "SUBSIDIARY" having ascribed thereto the meanings
respectively attributed to them by section 736 Companies Act 1985 (as
amended));
"INITIAL PERIOD" means the period commencing on the Commencement Date and
ending on the seventh anniversary of the Commencement Date;
"INTERNATIONAL BUSINESS OPPORTUNITIES" means business within a Permitted
Business Line undertaken and developed by members of the CCIC Group
anywhere in the world except the United Kingdom;
"MAN DAY" means [8] hours of working time;
"MATERIAL DEFAULT" means, in relation to a party to this Agreement, that:
(a) it becomes unlawful for that party to perform its obligations pursuant
to and in accordance with the provisions of this Agreement;
(b) that party takes any action or legal proceedings are commenced for a
general reconstruction or rescheduling of its debts (or its equivalent
in the jurisdiction of incorporation of that party) or for its winding
up or dissolution;
(c) a liquidator, receiver or an administrative receiver or similar is
appointed over the assets of or a petition is granted for an
administration order (or its equivalent in the jurisdiction and
incorporation of that party) in respect of that party;
"NEW MATERIAL" means any works and materials to the extent created,
developed, written or prepared by the Contractor solely in relation to the
Services;
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"PERMITTED BUSINESS LINE" means (i) the ownership, operation or management
(for third party owners or otherwise) of terrestrial wireless communication
(including, without limitation, voice, data and video) infrastructure
(including equipment and facilities principally related thereto) and (ii)
the provision of infrastructure services principally related thereto,
including but not limited to network transmission and services (it being
understood for the avoidance of doubt that the transmission of radio and
television broadcasting shall be within the foregoing definition);
"YEARLY FEE" means the sum determined in accordance with Clause 3(1) to
this Agreement (subject to adjustment for the sixth and subsequent Contract
Years by agreement between the parties) to be paid by the Company to the
Contractor in respect of Committed Services provided in the relevant
Contract Year.
2. APPOINTMENT
(1) The Contractor agrees to provide the Committed Services to the Company as
may reasonably be required by the Company from time to time.
(2) Without limiting the generality of subclause 2(1), the Contractor agrees to
provide such additional services of the type described in paragraph 2 of
Part A of the Schedule to this Agreement as the Company may reasonably
request. Such additional services shall be provided on substantially the
same commercial terms as the Committed Services. The fees for such
additional services shall be in addition to the Yearly Fee.
(3) Without limiting the generality of subclause 2(1), the parties acknowledge
that the Company may request the Contractor to provide services relating to
training and research and development as described in Part B of the
Schedule to this Agreement on a contract basis on commercial arm's length
terms and conditions (including as to fees) to be separately agreed and the
parties shall negotiate in good faith with a view to agreeing such terms
and conditions as soon as practicable after the date of such request by the
Company. The fees for such services shall be in addition to the Yearly
Fee.
(4) The parties acknowledge that the Company may request the Contractor to
provide some or all of the Committed Services, additional services of the
type described in paragraph 2 of Part A of the Schedule (as referred to in
subclause 2(2)) and services relating to training and research and
development as described in Part B of the Schedule (as referred to in
subclause 2(3)), on its behalf to members of the CCIC Group in relation to
International Business Opportunities. The terms and conditions of any such
services shall be negotiated in accordance with subclauses 2(2) and 2(3),
as applicable, as soon as practicable after the date they are requested by
the Company. The fees for the Committed Services provided to the Company
under this subclause 2(4) shall be included in, and shall form part of the
calculation of, the Yearly Fee. The fees for any other services provided
to the Company shall be in addition to the Yearly Fee.
3. FEES AND EXPENSES
(1) In consideration of the agreement of the Contractor to provide the
Committed Services the Company shall (subject to subclause 6(1)) pay to the
Contractor the Yearly Fee (together with value added tax
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thereon, if applicable). The Yearly Fee in respect of Committed Services
provided in the relevant Contract Year shall be whichever is the greater of
(i) (Pounds)400,000 and (ii) a sum in pounds sterling equal to the product
of the number of man hours worked by the Contractor's personnel referred to
in paragraph 1(a) of Part A of the Schedule to this Agreement multiplied by
the Applicable TDF Rates.
(2) The Company agrees to reimburse the Contractor for all reasonable out-of-
pocket expenses (together with any value added tax thereon) incurred by it
or its employees, or in relation to the provision of equipment and/or
materials required, in connection with the provision of the Committed
Services (including any Committed Services provided under subclause 2(4))
and any additional services to be provided pursuant to subclauses 2(2),
2(3) and 2(4). Such out-of-pocket expenses shall be payable by the Company
within 30 days after receipt by the Company of the Contractor's invoice in
respect of the same.
(3) The Yearly Fee shall be payable in such manner and at such times as the
parties may agree and, in the absence of agreement, shall be paid in 12
equal instalments monthly in arrears.
(4) Any instalment of the Yearly Fee and any amount in respect of the
Contractor's reasonable out-of-pocket expenses which is not paid on its due
date shall bear interest at 2 per cent. per annum above the base rate of
Barclays Bank PLC from time to time from the due date for payment until
payment is actually made.
(5) If this Agreement shall, in accordance with its terms, terminate other than
on the last day of a Contract Year, the Yearly Fee payable in respect of
that year shall be apportioned on a time apportionment basis.
(6) For the avoidance of doubt, the Contractor shall not be obliged to supply
and the Company shall not be obliged to accept Committed Services over and
above the level contemplated in paragraph 1(a) of Part A of the Schedule to
this Agreement. Any additional services shall be provided by agreement
between the Contractor and the Company and at the Applicable TDF Rate.
4. OTHER OBLIGATIONS
(1) The Contractor shall provide the Committed Services and any additional
services using reasonable skill and care and reasonably promptly and to a
standard which might reasonably be expected of a person providing services
of the type which the Contractor is obliged to provide pursuant to the
provisions of this Agreement.
(2) The Company and the Contractor shall liaise together with a view to
agreeing a rolling schedule of future Committed Services which are likely
to be required by the Company either pursuant to subclauses 2(1) or 2(4).
(3) The Contractor shall in no circumstances be liable for indirect or
consequential loss (including loss of profits) deriving from the provision
or failure to provide any Committed Services or any additional services to
the Company.
(4) The Company acknowledges that the Contractor's Materials shall remain the
property of the Contractor and that, save as provided in Clause 4(5), the
Company shall not acquire any rights or
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interest in the Contractor's Materials under this Agreement.
(5) The parties agree that any intellectual property which is created solely by
reason of the provision of the Committed Services shall either belong to
the Company or shall be licensed on a non-exclusive basis to the Company on
a royalty-free basis.
5. ANNUAL REVIEW
Not later than three months before the end of the fifth and each subsequent
Contract Year, the parties shall discuss in good faith the extent and
quality of the Committed Services provided during that Contract Year, the
extent to which the Yearly Fee for that Contract Year represents a fair and
equitable fee for the provision of those Committed Services and the extent
to which the Yearly Fee would represent a fair and equitable fee for the
provision of those Committed Services which are then forecast to be
required by the Company during the Contract Year next following, all with a
view to agreeing a mutually acceptable Yearly Fee for the Contract Year
next following (but on the basis that the Yearly Fee shall not be reduced
unless any such reduction is justifiable on objective grounds).
6. TERM AND TERMINATION
(1) Subject to the rights of the Company and the Contractor under the remaining
provisions of this Clause 6, this Agreement shall continue for the Initial
Period and thereafter may be terminated by the Company or the Contractor at
any time by giving twelve months notice in writing to the other party to
expire at the end of the seventh Contract Year or any anniversary thereof
save that the Company agrees that (subject to and without limiting its
rights under the remaining provisions of this Clause 6), it shall not give
notice to terminate this Agreement under this subclause 6(1) unless the
directors for the time being of the Company shall in good faith determine
that the Committed Services provided by the Contractor are not required or
are not value-enhancing or that they cease to be commercially acceptable or
cost effective for the Company.
(2) The Company shall be entitled at any time after the date of this Agreement
and by giving notice in writing to the Contractor to terminate this
Agreement with six months notice for Contractor Default [or a Contractor
Change of Control].
(3) Either party shall be entitled by giving notice to the other to terminate
this Agreement with immediate effect if that other party is in Material
Default.
(4) The Contractor shall be entitled at any time after the date of this
Agreement and by giving notice in writing to the Company to terminate this
Agreement with six months' notice for Company Default[ or a CCIC Change of
Control].
(5) Any termination by either party of or the exercise by either party of its
rights to terminate the provisions of this Agreement in accordance with
this Clause 6 shall be without payment of compensation or damages
whatsoever to the defaulting party (but without prejudice to any sums due
and payable under the terms of this Agreement for Committed Services or
additional services already provided by the Contractor in accordance with
the terms of this Agreement).
(6) It is hereby acknowledged by the parties hereto that the Contractor shall
be given notification of any further services required by the Company from
time to time where the services required are of a type
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which, in the opinion of the Company acting in good faith, the Contractor
has the know-how to so provide so as to give the Contractor the opportunity
to tender. The Company shall, in good faith, consider any application to
tender for services made by the Contractor in these circumstances and, in
the event that such tender is unsuccessful, shall provide the Contractor
with a full explanation of the reasons therefor.
(7) No director nominated by the Contractor or any company in its Group nor
shall the Contractor or any company in its Group be entitled to participate
in any decision of the Directors of the Company which is expressed in this
Agreement as being a decision to be made by the Company (provided however
that the Contractor shall be entitled to participate in any discussions
leading up to such decisions). For the avoidance of doubt, notwithstanding
the provisions of this Clause 6(7), the Director nominated by the
Contractor or any member of its Group shall be entitled to participate in
any decision of the Directors of the Company regarding the nature and level
of services to be provided to the Company generally and not specifically in
relation to this Agreement to the extent to which it otherwise has such
rights.
7. ASSIGNMENT AND SUB-CONTRACTING
(1) Neither party may assign any of its rights under this Agreement without the
consent of the other, such consent not to be unreasonably withheld.
(2) The Contractor may not sub-contract or delegate the performance of its
obligations under this Agreement (save to a company which is a subsidiary
or holding company of the Contractor, or which is a subsidiary of' any such
holding company).
8. NOTICE
All notices and other communications required or permitted under this
Agreement shall be in writing and shall be delivered personally, sent by
air courier (in the case of' notices given by a party in one jurisdiction
to a party in another), first class pre-paid post (in the case of a notice
given by a party in one jurisdiction to a party in the same jurisdiction),
telexed or sent by facsimile transmission (and promptly confirmed by air
courier service in the case of notices sent from one jurisdiction to
another and by first class pre-paid post in the case of notices sent by a
party in one jurisdiction to another party in the same jurisdiction). Any
such notice shall be deemed given when so delivered personally, telexed or
sent by facsimile transmission or air courier or first class pre-paid post
to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
the Company: if to the Company, to:
the Company at its registered office for the time being
Attention: the Managing Director
the Contractor: if to the Contractor, to:
TeleDiffusion de France S.A.
10 rue d'Oradour sur Glane
75015
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Paris
France
Attn: Michael Azibert
Fax: 331 5595 2066
9. CONFIDENTIALITY
(1) All information given by the Company to the Contractor or otherwise
obtained by the Contractor relating to the business or operations of the
Company or of any person, firm, company or organisation associated with the
Company including, without limitation, the names and other particulars of
the Company's customers or clients (except for information which is in or
enters the public domain other than by breach of this Clause 9(1)) will be
treated by the Contractor, its employees, agents and sub-contractors as
confidential and not used other than for the benefit of the Company nor
disclosed to third parties without the prior written consent of the
Company.
(2) All information given by the Contractor to the Company or otherwise
obtained by the Company relating to the business or operations of the
Contractor or of any person, firm, company or organisation associated with
the Contractor (other than information which is supplied in the provision
of the Committed Services and any additional services) including, without
limitation, the names and other particulars of the Contractor's customers
or clients (except for information which is in or enters the public domain
other than by breach of this Clause 9(2)) will be treated by the Company,
its employees, agents and sub-contractors as confidential and not used
other than for the benefit of the Contractor nor disclosed to third parties
without the prior written consent of the Contractor.
(3) The foregoing obligations as to confidentiality shall remain in full force
and effect notwithstanding any termination of this Agreement.
10. FORCE MAJEURE
Neither party will be liable to the other for any loss or damage suffered
as a direct or indirect result of any failure to provide any of the
Committed Services or any additional services or to perform or observe any
other obligation in this Agreement as a result of the occurrence of any of
the following: act of God, governmental act, war, fire, flood, explosion
and commotion or industrial dispute of a third party which prevents or
substantially hinders such performance and observance; provided that in the
event of any such circumstances arising the non-performing party shall as
soon as practical give notice thereof in writing to the other party with
reasonable details of' the nature of the particular circumstances and the
anticipated duration of suspension or other inhibition on performance and
shall further notify the other party on the cessation of any such
circumstances as are described in this Clause 10.
11. SECONDMENT
The provision of Committed Services or any additional services under this
Agreement may include the provision of services of an employee of the
Contractor made available on a full or part time basis to the Company by
means of secondment in which event the individual shall remain an employee
of the Contractor.
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12. GENERAL
(1) Nothing in this Agreement shall be deemed to create a partnership or agency
relationship between the Company and the Contractor or be deemed to
authorise either party to incur any liabilities or obligations on behalf of
or in the name of the other.
(2) A waiver (whether express or implied) by one of the parties of any of the
provisions of this Agreement or of any breach of or default by the other
parry in performing any of those provisions shall not constitute a
continuing waiver and that waiver shall not prevent the waiving party from
subsequently enforcing any of the provisions of this Agreement not waived
or from acting on any subsequent breach of or default by the other party
under any of the provisions of this Agreement.
(3) Any amendment, waiver or variation of this Agreement shall not be binding
on the parties unless set out in writing, expressed to amend this Agreement
and signed by or on behalf of each of the parties.
(4) The invalidity, illegality or unenforceability of any of the provisions of
this Agreement shall not affect the validity, legality and enforceability
of the remaining provisions of this Agreement.
(5) This Agreement supersedes in all respects the Original Services Agreement
which the parties agree shall be of no further force or effect.
13 GOVERNING LAW AND JURISDICTION
(1) This Agreement shall be governed by and construed and interpreted in
accordance with the laws of England.
(2) Each of the parties (for itself and on behalf of its respective holding and
subsidiary companies and the directors, employees and agents of each of
them) agrees that the English Courts shall have exclusive jurisdiction to
hear and decide any and all claims, disputes, complaints, actions or
proceedings ("CLAIMS OR PROCEEDINGS") whether in contract or tort, which
may arise at any time out of or in connection with any of the matters
referred to in this Agreement, including, but not limited to, any Claim or
Proceedings asserting dishonesty, improper or illegal conduct or breach of
trust or duty or based on the effects of any of those matters in any
jurisdiction and any Claim or Proceedings which may be material to either
of the parties but of which that party is unaware or does not suspect
exists and for this purpose each of the parties irrevocably submits to the
exclusive jurisdiction of the English Courts.
(3) The Contractor hereby irrevocably authorises and appoints Fleetside Legal
Representative Services Limited (for the attention of Denis Stewart) at its
registered office for the time being (or such other person resident in
England as the Contractor may by notice to all other parties substitute) to
accept service of all legal process arising out of or connected with this
Agreement and service on Fleetside Legal Representative Services Limited
(or such substitute) shall be deemed to be service on the party concerned.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
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SCHEDULE
THE SERVICES
PART A
1. TRANSMISSION OPERATION
(a) The Contractor will commit on the availability of 10 engineers or
executives (7 "SENIOR ENGINEERS" and 3 "EXPERTS" - the latter category
refers to executives occupying one of the top thirty positions in the
Contractor), such commitment to be for an average of a quarter of each
senior engineer or expert's working time, or 500 Man-Days per year
altogether.
(b) Services from the Contractor to the Company will be made available in
respect of the following:
- TV network planning and engineering (focus on digital networks),
including frequency planning, coverage prediction, network deployment.
- Radio network planning and engineering (focus on digital networks).
- Wireless communication network planning and engineering (focus on
digital networks)
- Technical and marketing (including pricing) support for launching new
services.
- Technical and commercial support for international projects (in relation
to International Business Opportunities).
- Other potential services include equipment expert evaluation, equipment
procurement (that captures economies of scale) and any technical
solutions and methodology capable of improving the Company's services.
- Spectrum and coverage planning for broadcasting and communications
systems (digital and analogue).
- Radio frequency environmental support.
2. ADDITIONAL SERVICES
Additional services of the type described in paragraph 1(b) above will be
provided by the Contractor on the basis set out in Clause 2(2). If needed,
the Contractor can further draw on expertise within the France Telecom
Group to provide the Company with advice and/or services such as
conditional access (CA), subscriber management systems (SMS) and electronic
program guide (EPG).
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PART B
1. Research and Development
Availability of research and development resources from the Contractor's
research centres: CCETT and TDF C2R The Contractor and the Company will
negotiate in good faith a Memorandum of Understanding defining the ways by
which the services are delivered to the Company and the Contractor's
remuneration.
Possible service areas, to be discussed with the Company, include:
- Digital terrestrial TV and radio, including digital MMDS.
- Additional services: traffic information and guidance, datacasting,
monitoring and remote management systems, Synchronous FM, multimedia
and interactive services.
2. PROFESSIONAL TRAINING
Complementary training of the Company's employees in areas such as:
- Digital terrestrial TV and radio
- Cross-activity training: training of television technicians on
maintenance of radiocoms equipment (new standards and technologies)
- Sales and marketing
- In addition, the Contractor will provide a training methodology and
training facilities to the Company in coordination with the Company's
management.
The Contractor and the Company will negotiate in good faith a Memorandum of
Understanding defining the ways by which the services are delivered to the
Company and the Contractor's remuneration.
3. EXCHANGE OF MIDDLE MANAGEMENT/ENGINEERS
In order to foster a cross-fertilisation approach between the Company and
the Contractor, the Contractor will use its best efforts to encourage the
exchange of middle management and engineers between both organisations.
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SIGNATORIES
SIGNED by )
)
for and on behalf )
of the Company )
...............................
Duly authorised
SIGNED by )
)
for and on behalf )
of the Contractor )
...............................
Duly authorised
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