EXHIBIT 10.4
WHOLE RF CHANNEL SERVICE AGREEMENT
This whole RF channel service agreement is made and effective as of February 4,
2004 (hereinafter referred to as the "Agreement Date"), by and between TELESAT
CANADA (hereinafter collectively referred to with its permitted assigns and
successors in interest as "Telesat"), a corporation continued and existing under
the laws of Canada, and ECHOSTAR SATELLITE L.L.C., formerly known as EchoStar
Satellite Corporation (hereinafter collectively referred to with its permitted
assigns and successors in interest as "Customer"), a limited liability company
organized and existing under the laws of the State of Colorado in the United
States of America.
WHEREAS
Customer has agreed to subscribe for, and Telesat has agreed to furnish to
Customer, certain RF channel services operating on the *** on the ANIK F3
Satellite at the rates and subject to the other terms and conditions
specified herein;
NOW THEREFORE in consideration of the mutual agreements contained in this
Agreement and other good and valuable consideration (the receipt and adequacy of
which are hereby acknowledged), the Parties agree as follows:
ARTICLE 1.0 - DEFINITIONS
1.1 As used in this Agreement and the recitals hereto, the following terms
shall have the following meanings:
"AGREEMENT" means this whole RF channel service agreement and all
schedules, appendices and instruments in amendment of it; "hereof",
"hereto", "herein" and "hereunder" and similar expressions mean and refer
to this Agreement and not to any particular Article or Section; "Article"
or "Section" of this Agreement followed by a number means and refers to
the specified Article or Section of this Agreement.
"AGREEMENT DATE" shall have the meaning ascribed to that term in the
introductory paragraph of this Agreement.
"ANIK F3 CAPACITY OFFER" has the meaning ascribed thereto in Section 4.8.
"ANIK F3 ACCEPTANCE DATE" means the date on which Telesat provides notice
in writing to Customer that it has conducted an acceptance inspection of
the ANIK F3 Satellite and is satisfied in its reasonable judgment that:
***
"ANIK F3 PROCUREMENT AGREEMENT DATE" means the date ***
"ANIK F3 SATELLITE" means the communications satellite that includes a ***
presently designated within Telesat as "ANIK F3", which may be procured by
Telesat.
"AUTHORIZATION" means any authorization, order, permit, approval,
forbearance decision, grant, licence, consent, right, franchise, privilege
or certificate of any Governmental Entity of competent jurisdiction,
whether or not having the force of law.
"CONTRACT FEE" means an amount equal to ***
"CUSTOMER" shall have the meaning ascribed to that term in the
introductory paragraph of this Agreement.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
***
"FCC" means the United States Federal Communications Commission and any
successor agency thereto.
***
"GOVERNMENTAL ENTITY" means any (i) multinational, federal, provincial,
state, municipal, local or other government, governmental or public
department, central bank, court, commission, board, bureau, agency or
instrumentality, domestic or foreign; (ii) any subdivision, agent,
commission, board, or authority of any of the foregoing; or (iii) any
quasi-governmental or private body validly exercising any regulatory,
expropriation or taxing authority under or for the account of any of the
foregoing, in each case in the proper exercise of its governmental
authority.
"INTENDED PURPOSE" means the use of the ANIK F3 Satellite at the Orbital
Position ***
"LIBOR" means the interest rate per annum, for three month deposits of
United States Dollars made to prime banks in the London interbank market
calculated on the basis of the actual number of days elapsed divided by
360. For greater certainty, the LIBOR rate on a given date will be
established by reference to the British Bankers Association web page
(http://bankfacts.org.uk/public/libor), providing information on
historical LIBOR rates or such other web page as may replace it from time
to time.
"LICENSING FEES" has the meaning ascribed thereto in Section C.5 of
Schedule 1 hereto.
***
"OFFER" has the meaning ascribed thereto in Section 4.6.
***
"PARTIES" means Telesat, Customer and any other person who may become
party to this Agreement and "Party" means any one of them.
"PER CALENDAR YEAR CAP" has the meaning ascribed thereto in Section
2.3(b).
***
"PERSON" means an individual, partnership, limited liability company,
corporation, joint stock company, trust, unincorporated association, joint
venture or other entity or Governmental Entity and pronouns have similarly
extended meaning.
"PREPAYMENT FEE" means an amount equal to ***
"RADIO AUTHORIZATION" means the authorization of the Minister of Industry
(Canada) pursuant to the Radiocommunication Act (Canada) required for
Telesat to operate the ANIK F3 Satellite at the Orbital Position, which
authorization does not contain any conditions, restrictions or limitations
that would prevent Customer from using the ANIK F3 Satellite for the
Intended Purpose.
"REDUCTION NOTICE" has the meaning ascribed thereto in Section 2.1(b).
"REPLACEMENT CAPACITY" has the meaning ascribed thereto in Section 4.6.
"REPLACEMENT SATELLITE" has the meaning ascribed thereto in Section 4.6.
"SALE/RETENTION NOTICE" has the meaning ascribed thereto in Section
2.1(c).
"SERVICE COMMENCEMENT DATE" means the ***
"TELESAT" shall have the meaning ascribed to that term in the introductory
paragraph of this Agreement.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
"TERM" has the meaning ascribed thereto in Section 2.2.
"TERMS AND CONDITIONS" means the terms and conditions for Full Period
Whole RF Channel Service on the ANIK F3 Satellite set forth in Schedule 1.
***
1.2 Capitalized terms used in this Agreement and not otherwise defined in this
Agreement have the same meanings as in the Terms and Conditions.
1.3 GENDER AND NUMBER. Any reference in this Agreement to gender shall include
all genders, and words importing the singular number only shall include
the plural and vice versa.
1.4 ENTIRE AGREEMENT. This Agreement, including Schedules 1 and 2 attached
hereto, and the agreements referred to herein or delivered pursuant
hereto, supersedes all prior agreements, term sheets, letters of intent,
understandings, negotiations and discussions, whether oral or written, of
the Parties pertaining to the subject matter hereof *** There are no
representations, warranties, conditions or other agreements, express or
implied, statutory or otherwise, between the Parties in connection with
the subject matter of this Agreement, except as specifically set forth in
this Agreement and the agreements referred to herein or delivered pursuant
hereto.
1.5 AMENDMENTS. This Agreement may only be amended, modified or supplemented
by a written agreement signed by each of the Parties.
1.6 INCORPORATION OF SCHEDULES. The schedules attached hereto shall for all
purposes hereof form an integral part of this Agreement and are hereby
incorporated by reference in their entirety.
1.7 CURRENCY. All dollar amounts referred to in this Agreement are expressed
in the currency of the United States of America.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
ARTICLE 2.0 - SERVICE COMMITMENT
2.1 SERVICE COMMITMENT ON ANIK F3 SATELLITE
(a) Customer hereby agrees to subscribe for, and Telesat hereby agrees to
furnish to Customer, subject to the terms and conditions of this Agreement
including, but not limited to, Sections 2.1(b), (c) and ***
2.2 TERM, SERVICE COMMENCEMENT DATE AND SATELLITE CONSTRUCTION
(a) Subject to Section 5.7 and unless terminated earlier as provided herein,
the term of this Agreement shall commence upon the Agreement Date and
shall expire on the date which is *** following the Service Commencement
Date (the "Term").
(b) Telesat shall use its commercially reasonable efforts to give Customer ***
prior written notice of the ANIK F3 Acceptance Date. During the
construction of the Anik F3 Satellite, Telesat shall within *** after
receipt by it of the quarterly status reports from the satellite
manufacturer of the ANIK F3 Satellite, provide Customer with quarterly
reports summarizing the current status of the ANIK F3 Satellite, including
the then scheduled dates for completing construction and launching the
ANIK F3 Satellite into orbit. *** Notwithstanding the aforesaid, (i) all
confidentiality requirements imposed by the satellite manufacturer and/or
launch provider; and (ii) requirements imposed by an applicable
Governmental Entity, including but not limited to requirements imposed by
the United States Department of State, shall be complied with by Customer
prior to delivery of any of the above information. ***
(i) Telesat shall provide Customer with ***
(c) Telesat may during the construction of the ANIK F3 Satellite request
changes or waivers to the Performance Parameters ***
Prior to implementing a customer-requested change, Telesat shall provide
in writing to Customer the Anik F3 Satellite program cost impact (if any)
of such change including but not limited to the cost impact (if any) from
the satellite manufacturer, launch supplier and any incremental labour and
financing costs incurred (or saved) by Telesat. Customer must respond in
writing *** from the date of the provision of the costing information,
advising Telesat whether it wishes to proceed with such change. If
Customer wishes to proceed with the change, then: ***
(B) if there is an impact on the construction schedule for the ANIK F3
Satellite, the date as set out in Section 4.2(d) shall be adjusted
accordingly on a day-for-day basis; and
(C) the Parties will amend the Performance Parameters forming Schedule 1 of
this Agreement to conform with the change. ***
2.3 MONTHLY RATE
(a) Customer shall pay, and there shall become due and payable, a monthly rate
of *** For the purposes of Rebates for Interruption only, which are
determined in accordance with Section E of Schedule 1, the monthly rate
shall be ***
2.4 CONTRACT FEE AND PREPAYMENT FEE
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
(a) Customer will pay the Contract Fee to Telesat within *** from the date
upon which Telesat receives Board Approval in accordance with Section 5.7
in consideration for ***
2.5 TERMS AND CONDITIONS
The furnishing of the *** by Telesat shall be subject to the Terms and
Conditions which the Parties hereby agree are incorporated by reference as
Schedule 1 in this Agreement and constitute an integral part of this
Agreement.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
ARTICLE 3.0 - REPRESENTATIONS AND WARRANTIES
3.1 MUTUAL REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party, as follows and
acknowledges and confirms that the other Party is relying thereon without
independent inquiry in entering into this Agreement:
(a) ORGANIZATION AND QUALIFICATION. It is a corporation (in the case of
Telesat) or a limited liability company (in the case of Customer), duly
incorporated, organized, continued or amalgamated, and validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, organization, continuance or amalgamation, as the case may
be, and is duly qualified, licensed or registered to carry on business
under the laws applicable to it in all jurisdictions in which the nature
of its assets or business as currently conducted makes such qualification
necessary or where the failure to be so qualified would have a material
adverse effect on its ability to perform its obligations hereunder.
(b) CORPORATE POWER. It has all requisite corporate power and authority to
execute and deliver this Agreement, to perform its respective obligations
hereunder, to own its properties and to carry on its business as now
conducted and to consummate the transactions contemplated hereby.
(c) AUTHORIZATIONS, ETC. Subject to Section 5.7, the execution and delivery by
it of this Agreement and the performance of its respective obligations
hereunder, and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all requisite corporate action.
(d) EXECUTION AND BINDING OBLIGATION. This Agreement has been duly executed
and delivered by it and constitutes legal, valid and binding obligations
of it, enforceable against it in accordance with its terms, except insofar
as enforceability may be affected by applicable Laws relating to
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect affecting creditors' rights generally or by principles
governing the availability of equitable remedies.
(e) NO BREACH OR VIOLATION. The execution and delivery of this Agreement and
performance of its respective obligations under this Agreement and
compliance with the terms, conditions and provisions hereof will not
conflict with or result in a breach of any of the terms, conditions or
provisions of (i) its organizational or constating documents or by-laws;
(ii) any applicable Law; (iii) any contractual restriction binding on it
or affecting it or its properties (without regard to requirements of
notice, passage of time or elections of any Person); or (iv) any
judgement, injunction, determination or award which is binding on it. It
has not retained or authorized anyone to represent it as a broker or
finder in connection with this Agreement. In connection with its
performance under this Agreement, it shall comply in all material respects
with all applicable laws, regulations, or orders of any Governmental
Entity.
(f) LEGAL PROCEEDINGS. There is no judgement or order outstanding, or any
action, suit, complaint, proceeding or investigation by or before any
Governmental Entity or any arbitrator pending, or to the best of its
knowledge, threatened, which, if adversely determined, would be reasonably
expected to have a material adverse effect on its ability to consummate
the transactions contemplated hereby or perform its obligations hereunder.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
ARTICLE 4.0 - ADDITIONAL COVENANTS AND TERMINATION
4.1 USE OF THE ANIK F3 SATELLITE FOR THE INTENDED PURPOSE
(a) Telesat agrees, at its sole cost and expense,(except as set out in Section
2.3 and Section C.5 of Schedule 1) to obtain and maintain all *** Telesat
further agrees to file *** as soon as reasonably practicable after the
date upon which Telesat receives Board Approval in accordance with Section
5.7. In accordance with requests made and instructions given by Telesat,
Customer shall use commercially reasonable efforts at Telesat's reasonable
expense, to support Telesat's efforts to obtain and maintain all ***
4.2 TERMINATION PRIOR TO SERVICE COMMENCEMENT DATE
This Agreement may be terminated and the transactions contemplated by this
Agreement may be abandoned at any time prior to the Service Commencement
Date (except where a different timeframe has been expressly stated below):
***
4.4 LIABILITIES IN EVENT OF TERMINATION
(a) Subject to Section 4.4(b) and except as expressly set forth to the
contrary herein, the termination or expiration of this Agreement will in
no way limit any obligation or liability of either Party based on or
arising from a breach or default by such Party with respect to any of its
representations or warranties contained in this Agreement, or with respect
to any of its covenants or agreements contained in this Agreement which by
their terms were to be performed prior to the date of termination or
expiration, nor shall any such termination or expiration release either
Party from any liabilities or obligations under this Agreement ***
4.5 GENERAL RIGHTS AND REMEDIES
Subject to the exclusions and limitations of liability in the Terms and
Conditions, in the event any representation or warranty of any Party
contained in this Agreement shall prove to have been incorrect in any
material respect when made or deemed to have been made or if any Party
fails to perform, observe or comply with any of its covenants or
agreements contained in this Agreement, the other Party will be entitled
to whatever rights or remedies are available at law or in equity. ***
ARTICLE 5.0 - MISCELLANEOUS
5.1 PARTIES OBLIGATED AND BENEFITED
This Agreement will be binding upon the Parties and their respective
permitted assigns and successors in interest and will inure solely to the
benefit of the Parties and their respective permitted assigns and
successors in interest, and no other Person will be entitled to any of the
benefits conferred by this Agreement or to rely on the provisions hereof
in any action, suit, proceeding, hearing or other forum. ***
5.2 NOTICES
Any notice required or permitted to be given hereunder shall be in writing
and shall be sent by facsimile transmission, or by first class certified
mail, postage prepaid, or by overnight courier service, charges prepaid,
to the party to be notified, addressed to such party at the address set
forth below, or sent by facsimile to the fax number set forth below, or
such other address or fax number as such party may have substituted by
written notice to the other party. The sending of such notice
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
with confirmation of receipt thereof (in the case of facsimile
transmission) or receipt of such notice (in the case of delivery by mail
or by overnight courier service) shall constitute the giving thereof.
TELESAT CANADA CUSTOMER
1601 Telesat Court EchoStar Satellite L.L.C.
Ottawa ON Canada K1B 5P4 9601 S. Meridian Blvd.
Fax: *** Englewood, Colorado 80112 U.S.A.
Attention: Vice President, Law Fax: ***
Attention: Charles W. Ergen, President
and CEO
EchoStar DBS Corporation, its sole member
Please Note: Above address is for
overnight courier service only. For
first class certified mail, please use:
P.O. Box 6655
Englewood, Colorado 80155
WITH A COPY TO:
EchoStar Satellite L.L.C.
(same addresses and fax number as above)
Attention: David K. Moskowitz, SVP and
General Counsel EchoStar DBS
Corporation, its sole member
5.3 EXPENSES
Except as otherwise expressly provided herein, all costs and expenses
(including the fees and disbursements of legal counsel, investment
advisers and auditors) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party incurring such
expenses.
5.4 NON-MERGER
Except as otherwise expressly provided in this Agreement, the covenants,
representations and warranties of the Parties contained in this Agreement
shall not merge on and shall survive the Service Commencement Date and,
notwithstanding any investigation made by or on behalf of either Party,
shall continue in full force and effect throughout the Term.
5.5 GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the
laws ***
5.6 COUNTERPARTS
This Agreement may be executed by facsimile and/or in one or more
counterparts, each of which shall be deemed an original and all of which,
taken together, shall constitute one and the same instrument.
5.7 TELESAT BOARD APPROVAL
Notwithstanding anything to the contrary contained herein, this Agreement
(with the sole exception of Section 4.9) shall not become effective until
Telesat receives the approval of its
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
Board of Directors. Telesat agrees that it shall request such approval at
its next regularly-scheduled Board of Directors meeting *** Promptly
thereafter, Telesat shall notify Customer whether approval was received.
In the event that the Board of Directors of Telesat approves this
Agreement, then the Agreement shall be deemed to be effective as of the
date first set forth above.
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.
IN WITNESS WHEREOF each of the parties hereto has duly executed this
Agreement under the hands of its proper officers duly authorized in that behalf
effective as of the Agreement Date.
TELESAT CANADA
By: _______________________________
Name: Laurier J. Boisvert
Title: President and Chief Executive Officer
ECHOSTAR SATELLITE L.L.C.
By: EchoStar DBS Corporation, its sole member
By: ___________________________
Charles W. Ergen
President and Chief Executive Officer ***
***Certain confidential portions of this exhibit were omitted by means of
redacting a portion of the text. Copies of the exhibit containing the redacted
portions have been filed separately with the Securities and Exchange Commission
subject to a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act.