Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 148 806K
Business-Combination Transaction
2: EX-1.1 Placement Agreement 27 117K
3: EX-3.1 Amended & Restated Certificate of Incorporation 39 131K
4: EX-3.2 Tvn Entertainment Corp. Bylaws 26 104K
5: EX-4.1 Securityholder Agreement Dated 8/29/1997 34 127K
6: EX-4.2 Amendment to Securityholders Agreement 3 19K
7: EX-4.3 Indenture - Tvn Entertainment Corp & Bank of Ny 104 454K
8: EX-4.4 Warrant Agreement-Tvn Entertainment & Bank of Ny 68 232K
9: EX-4.5 Warrant Registration Rights Agreement 15 60K
10: EX-4.7 Notes Registration Rights Agreement 22 94K
11: EX-5.1 Wilson Sonsini Goodrich & Rosati Opinion 3 22K
12: EX-10.1 Transponder Lease Agmt. - Galaxy Iii R 45 175K
21: EX-10.10 Employment Agreement - Arthur Fields 8 42K
22: EX-10.11 Employment Agreement - Michael Wex 6 34K
23: EX-10.12 Severance Agreement - John C. McWilliams 1 12K
24: EX-10.13 Employment Agreement - David Sears 4 22K
25: EX-10.14 Memorandum of Understanding 8 36K
13: EX-10.2 Galaxy Iii R Transponder Service Agreement 17 65K
14: EX-10.3 Transponder Lease Agreement - Galaxy Ix 32 136K
15: EX-10.4 Galaxy Ix Transponder Service Agreement 16 62K
16: EX-10.5 1996 Stock Option Plan - Tvn Entertainment Corp. 28 110K
17: EX-10.6 Service & License Agreement - Hits and Tvn 17 70K
18: EX-10.7 Csg Master Subscriber Mgmt Systems Agmt 28 143K
19: EX-10.8 Employment Agreement - Stuart Z. Levin 8 44K
20: EX-10.9 Employment Agreement - Jim Ramo 12 59K
26: EX-21.1 Subsidiaries of the Registrant 1 9K
27: EX-23.1 Consent of Pricewaterhousecoopers LLP 1 10K
28: EX-25.1 Statement of Eligibility of Trustee 4 25K
29: EX-27.1 Financial Data Schedule 2 12K
30: EX-99.1 Form of Letter of Transmittal 13 63K
31: EX-99.2 Form of Notice of Guaranteed Delivery 4 19K
32: EX-99.3 Form of Exchange Agent Agreement 9 38K
EXHIBIT 10.4
GALAXY IX TRANSPONDER SERVICE AGREEMENT
BETWEEN
HUGHES COMMUNICATIONS SATELLITE SERVICES, INC.
AND
TVN ENTERTAINMENT CORPORATION
TABLE OF CONTENTS
-----------------
Article Page
------- ----
1 SERVICES AND TERM........................ 2
1.01 Terms of Agreement.................. 2
1.02 Services............................ 2
2 SERVICE FEE AND PAYMENTS................. 2
3 REPRESENTATIONS AND WARRANTIES........... 2
3.01 Authority, No Breach................ 2
3.02 Corporate Action.................... 3
3.03 Common Clauses in Service Agreements 3
3.04 Consents............................ 3
3.05 Litigation.......................... 3
3.06 Non-Interference.................... 3
4 OBLIGATIONS OF CONTRACTOR................ 4
4.01 Satellite........................... 4
4.02 Use of the Transponder Spares....... 4
4.03 Reserve Transponders................ 4
4.04 Government Regulations.............. 4
4.05 Tracking, Telemetry and Control..... 4
5 FORCE MAJEURE............................ 4
6 LIMITATION OF LIABILITY.................. 5
6.01 General Limitation.................. 5
6.02 Equitable Relief.................... 5
6 REPORTS.................................. 6
7.01 Operational Reports................. 6
7.02 Anomalous Operation Notification.... 6
7.03 Maneuver Notification............... 6
7.04 Inspection Rights of Lessee......... 7
8 CONFIDENTIALITY.......................... 7
9 APPLICABLE LAW........................... 8
10 FURTHER NOTIFICATIONS.................... 8
11 MODIFICATION............................. 8
i
12 TERMINATION..................................... 8
12.01 Contractor's Termination Rights........... 8
12.02 Contractor's Right to Deny Access......... 8
12.03 Automatic Termination..................... 9
13 MISCELLANEOUS................................... 9
13.01 Entire Agreement and Amendment............ 9
13.02 Non-Waiver of Breach...................... 9
13.03 Notices................................... 9
13.04 Severability.............................. 11
13.05 Counterparts.............................. 11
13.06 Successors................................ 11
13.07 Headings.................................. 11
13.08 No Third-Party Beneficiary................ 11
13.09 Survival of Representations and Warranties 11
13.10 Transfer.................................. 12
ADDENDUM
I Defined Terms
ii
GALAXY IX TRANSPONDER SERVICE AGREEMENT
---------------------------------------
This Transponder Service Agreement (the "Agreement") (all such defined
terms herein are so capitalized and referenced in Addendum I) is made and
entered into as of November 29, 1995 (the "Execution Date") by and between
Hughes Communications Satellite Services, Inc. ("Contractor"), a California
corporation, and TVN Entertainment Corporation ("Lessee"), a Delaware
corporation.
RECITALS
--------
WHEREAS, subject to the approval of the Federal Communications Commission,
Hughes Communications Galaxy, Inc. ("HCG"), an Affiliate of Contractor, shall
cause a domestic communications satellite, Galaxy IX and Galaxy X (individually,
the "Satellite" and collectively, the "Satellites"), to be built containing C-
Band capacity (the "Transponders");
WHEREAS, Lessee has agreed, pursuant to a lease agreement between Lessee
and HCG of even date herewith (the "Transponder Lease Agreement") to lease five
(5) Primary Transponders on Galaxy IX and, upon the successful launch and
operation of Galaxy X, five (5) C-Band Primary Transponders on Galaxy X
(individually, the "Lessee Transponder" and collectively, the "Lessee's
Transponders"). Unless otherwise defined herein, all capitalized terms are as
set forth in the Transponder Lease Agreement;
WHEREAS, HCG has caused certain redundant equipment units (collectively,
the "Transponder Spares" and individually, a "Transponder Spare") to be placed
on the Satellite to be used to replace Transponder equipment units that fail to
meet the Transponder Performance Specifications as defined in the Transponder
Lease Agreement (the "Transponder Performance Specifications"), and HCG has
agreed to make said equipment units available for use as set forth in the
Transponder Lease Agreement;
WHEREAS, HCG and Lessee have agreed that Contractor shall perform the
satellite operational services (the "Services") for Lessee on the terms and
conditions specified in this Agreement and Contractor is willing to perform such
Services;
WHEREAS, Lessee has, concurrently herewith, agreed to pay for such Services
pursuant to the Transponder Lease Agreement, and HCG has assigned its right to
payment for such Services under the Transponder Lease Agreement to Contractor,
and Lessee is agreeable to such assignment; and
WHEREAS, Lessee and Contractor desire this Agreement to become effective
only upon Delivery of Galaxy IX (as defined in the Transponder Lease Agreement)
of Lessee's Transponders by HCG to Lessee as set forth in the Transponder Lease
Agreement.
1
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual promises set forth below,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, HCG and Lessee hereby mutually agree as follows:
ARTICLE 1. SERVICES AND TERM
-----------------
1.01 Terms of Agreement. Contractor shall provide the Services set forth
------------------
in Section 1.02 hereof for a continuous period from Delivery of Lessee's
Transponders until the Transponder Lease Agreement is either terminated or
cancelled, or expires, in its entirety (the "Service Term").
1.02 Services. The Services to be rendered by Contractor hereunder are as
--------
follows:
(a) Monitoring and managing the use of electric power on the Satellite
to operate Lessee's Transponder;
(b) Monitoring and managing the use of the Satellite's propellant so
that the attitude and orbital position are maintained;
(c) Monitoring and managing all other functions of the Satellite which
support Lessee's Transponder so as to enable Lessee's Transponder to meet
the Transponder Performance Specifications;
(d) Monitoring and analyzing the Satellite's telemetry data; and
(e) Other services provided for in this Agreement.
ARTICLE 2. SERVICE FEE AND PAYMENTS
------------------------
The fee for the Services provided by Contractor hereunder (the "TT&C Fee"
or "Service Fee") shall be as set forth in the Transponder Lease Agreement, and,
pursuant thereto, payment of the TT&C Fee to Contractor shall be the
responsibility of HCG.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
------------------------------
Contractor and Lessee each, except as expressly indicated herein, represent
and warrant to, and agree with, the other that:
3.01 Authority, No Breach. It has the right, power and authority to enter
--------------------
into, and perform its obligations under, this Agreement. The execution, delivery
and performance of this Agreement shall not result in the breach or
nonperformance of any agreements it has with third parties.
2
3.02 Corporate Action. It has taken all requisite corporate (or
----------------
partnership, as appropriate) action to approve the execution, delivery and
performance of this Agreement, and this Agreement constitutes a legal, valid and
binding obligation upon itself in accordance with its terms.
3.03 Common Clauses in Service Agreements. Contractor alone represents,
------------------------------------
warrants and agrees that it will require, in all service agreements between
itself and all other Transponder Lessees on the Satellite, clauses substantially
identical to, or terms the effect of which shall be as or more restrictive with
respect to such Lessees than, the provisions of Sections 3.06, 12.01 and 13.08
hereof, and Contractor will require, in all service agreements between itself
and other Transponder Lessees on the Satellite, a clause consistent with the
provisions of Sections 4.02 and 4.03 hereof.
3.04 Consents. The execution and delivery of this Agreement, the
--------
performance of its obligations hereunder, and the consummation of the
transactions contemplated hereby, will not result in a material violation of, or
material default under, or the occurrence of an event which with notice or lapse
of time or both would constitute a material default under, or material
noncompliance with, any applicable Law, any indenture, mortgage, deed of trust,
loan agreement, purchase agreement, option agreement or other agreement or
instrument to which it is a party or by which it or any material portion of its
property is bound, its articles of incorporation or by-laws, partnership
agreement, or other charter documents, as the case may be. All necessary or
material appropriate public or private consents, permissions, agreements,
licenses, or authorizations to which it is subject in connection with the
transactions contemplated hereby, or which it must obtain by virtue of its
ownership or use of or operation of any Transponder or the Satellite have been
or shall be obtained in a timely manner.
3.05 Litigation. To the best of its knowledge, there is no outstanding or
----------
threatened judgment, threatened or pending litigation or proceeding, involving
or affecting the transactions provided for in, or contemplated by, this
Agreement, except as is concurrently being disclosed in writing by either party
to the other.
3.06 Non-Interference. Lessee alone represents, warrants and agrees that
----------------
its radio transmissions (and those of its uplinking agents) to the Satellite
shall comply, in all material respects, with all Federal Communications
Commission or any successor agency thereto (collectively, the "FCC") and all
other governmental (whether international, federal, state, municipal or
otherwise) statutes, laws, rules, regulations, ordinances, codes, directives and
orders, of any such governmental agency, body, or court (collectively, "Laws")
applicable to it regarding the operation of the Satellite and Lessee's
Transponder and shall not interfere with the use of any other Transponder.
Lessee shall not utilize (or permit or allow any of its uplinking agents to
utilize) any of Lessee's Transponder in a manner which will or may interfere
with the use of any other Transponder or cause physical harm to any of Lessee's
Transponder, any other Transponders, or to the Satellite. Further, Lessee
3
will coordinate (and will require its uplinking agents to coordinate) with HCG,
in accordance with procedures reasonably established by HCG and uniformly
applied to all Lessees and users of Transponders on the Satellite, its
transmissions to the Satellite, so as to minimize adjacent channel and adjacent
satellite interference. For purposes of this Section 3.06, interference shall
also mean acts or omissions which cause a Transponder to fail to meet its
transponder performance specifications. Without limiting the generality of the
foregoing, Lessee (and its uplinking agents) shall comply with all FCC rules and
regulations regarding the use of automatic transmitter identification systems
(ATIS).
ARTICLE 4. OBLIGATIONS OF CONTRACTOR
-------------------------
4.01 Satellite. Contractor will maintain the Satellite in the orbital
---------
position which the FCC has designated or shall hereafter designate for it.
4.02 Use of the Transponder Spares. Throughout the Service Term,
-----------------------------
Contractor may employ, in conjunction with HCG, and pursuant to the specific
terms and conditions in Section 9 of the Transponder Lease Agreement, a
Transponder Spare or Spares.
4.03 Reserve Transponders. Throughout the Service Term, Contractor may
--------------------
substitute, in conjunction with HCG, and pursuant to the specific terms and
conditions in Section 9 of the Transponder Lease Agreement, a Reserve
Transponder or Reserve Transponders. Upon such substitution, such a Reserve
Transponder shall be deemed to be a Lessee's Transponder for the purposes of
this Agreement.
4.04 Government Regulations. Contractor has or shall use its best efforts
----------------------
throughout the Service Term to obtain and maintain, in all material respects,
all federal, state and municipal authorizations or permissions to operate the
Satellite applicable to Contractor with respect to the Satellite, and to comply,
in all material respects, with all such governmental regulations regarding the
operation of Lessee's Transponder applicable to Contractor with respect to the
Satellite.
4.05 Tracking, Telemetry and Control. Contractor shall employ at least two
-------------------------------
earth stations which between them shall provide in conjunction with HCG's
Operations Control Center in E1 Segundo, California, for all of the functions of
tracking, telemetry and control ("TT&C") of the Satellite. Contractor shall
notify Lessee as to the operator (if other than Contractor) and the location of
the two earth stations, and any changes thereto.
ARTICLE 5. FORCE MAIEURE
-------------
Any failure or delay of Contractor to provide Services shall not be a
breach of this Agreement if such failure or delay results from any acts of God,
governmental action or Law (whether in its sovereign or contractual capacity),
or any other
4
circumstances reasonably beyond the control of Contractor, including, but not
limited to, earth station sun outage, weather, or acts or omissions of Lessee or
any third parties (excluding the Hughes Aircraft Company and all of its direct
and indirect subsidiaries, and any other Affiliates of Contractor or the Hughes
Aircraft Company with whom Contractor or the Hughes Aircraft Company contracts
to provide the Services).
ARTICLE 6. LIMITATION OF LIABILITY
-----------------------
6.01 General Limitation. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES ARE
------------------
EXPRESSLY EXCLUDED AND DISCLAIMED EXCEPT TO THE EXTENT SPECIFICALLY AND
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. IT IS EXPRESSLY AGREED THAT
CONTRACTOR'S SOLE OBLIGATIONS AND LIABILITIES RESULTING FROM A BREACH OF THIS
AGREEMENT, AND LESSEE'S EXCLUSIVE REMEDIES FOR ANY CAUSE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, LIABILITY ARISING FROM NEGLIGENCE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY, ARE
LIMITED TO THOSE SET FORTH IN SECTIONS 2 AND 6.02 HEREOF, AND ALL OTHER REMEDIES
OF ANY KIND ARE EXPRESSLY EXCLUDED INCLUDING, WITHOUT LIMITATION, ALL RIGHTS AND
REMEDIES OF LESSEE UNDER DIVISION 10, CHAPTER 5, ARTICLE 2 AND SECTIONS 10209,
10406 AND 10304 OF THE CALIFORNIA UNIFORM COMMERCIAL CODE. IN NO EVENT SHALL
CONTRACTOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
FORESEEABLE OR NOT, OCCASIONED BY CONTRACTOR'S FAILURE TO PERFORM HEREUNDER,
DELAY IN ITS PERFORMANCE, FAILURE OF THE LESSEE'S TRANSPONDER TO PERFORM OR ANY
OTHER CAUSE WHATSOEVER. CONTRACTOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO ANY
OTHER PERSON OR ENTITY CONCERNING THE LESSEE'S TRANSPONDER OR THE SATELLITE OR
THE SERVICES, AND LESSEE SHALL DEFEND AND INDEMNIFY CONTRACTOR FROM ANY CLAIMS
MADE UNDER ANY WARRANTY OR REPRESENTATION BY LESSEE TO ANY THIRD PARTY. THE
LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL ALSO APPLY TO HUGHES AIRCRAFT
COMPANY (THE MANUFACTURER OF THE SATELLITE AND LESSEE'S TRANSPONDER) AND ALL
AFFILIATES THEREOF. "Affiliate" means any corporation or other entity
controlling, controlled by, or under common control with, Lessee, Contractor, or
the Hughes Aircraft Company, as the case may be.
6.02 Equitable Relief. Lessee and Contractor shall each have the right to
----------------
obtain injunctive relief, if necessary, in order to prevent the other party from
willfully breaching its obligations under this Agreement or to compel the other
party to perform its obligations under this Agreement.
5
ARTICLE 7. REPORTS
-------
7.01 Operational Reports. After commencement of the Services hereunder,
-------------------
Contractor shall provide Lessee a monthly written operational report concerning
the Satellite and Lessee's Transponder which shall contain the following
information:
(a) Projected solar array life based on total Satellite power
performance and communications payload requirements;
(b) Projected battery life based on total Satellite power performance
and communications payload requirements;
(c) Projected Satellite life based on fuel remaining and its predicted
utilization;
(d) Configuration of Lessee's Transponder and the associated Satellite
supporting subsystems;
(e) A statement on the expected operating life of Lessee's Transponder
and the basis for such a projection, taking into account the health of
Lessee's Transponder and its associated support subsystems;
(f) The Satellite's orbital parameters;
(g) Information concerning whether any Transponder Spares or Reserve
Transponders have been employed on behalf of any Lessee or user;
(h) Information concerning predicted eclipses and sun outages; and
(i) Other information pertinent to the operation of Lessee's
Transponder and the Satellite that Lessee may reasonably request.
7.02 Anomalous Operation Notification. Contractor shall notify Lessee as
--------------------------------
soon as possible by telephone, with prompt written confirmation thereafter, of
any significant anomalous condition which Contractor detects in Lessee's
Transponder or associated Satellite supporting subsystems and which have a
material effect or potential material effect on the Satellite. Contractor shall
also notify Lessee promptly of any circumstances that make it clearly
ascertainable or predictable that any of the incidents described in this Section
7.02 will occur. Any notice given to Lessee under this Section 7.02 shall not
relieve Contractor of any liability or obligation hereunder relating to such
anomalous operation.
7.03 Maneuver Notification. To the extent operationally feasible,
---------------------
Contractor shall notify Lessee of all Satellite maneuvers, except for routine
station-keeping, at least three days in advance of their scheduled initiation
and, if such
6
maneuver will result in a change of its assigned orbital position, promptly upon
HCG's receipt of FCC authorization or direction of such maneuver.
7.04 Inspection Rights of Lessee. Lessee shall have the right to inspect
---------------------------
the TT&C stations upon reasonable notice to Contractor and during normal
business hours accompanied by an employee or agent of Contractor. Lessee shall
not have the right to inspect any TT&C station at any time or in any manner that
could cause disruption to the operation of such TT&C station. Lessee shall have
the right to examine all test results and data relating to TT&C of or for
Lessee's Transponder on the Satellite.
ARTICLE 8. CONFIDENTIALITY
---------------
Contractor and Lessee shall hold in confidence this Agreement, including
the financial terms and provisions hereof, and all information provided to
Lessee hereby, and Contractor and Lessee hereby acknowledge and agree that all
information received in connection with or otherwise related to this Agreement,
not otherwise known to the public, is confidential and proprietary and is not to
be disclosed to third persons (other than to Affiliates, or to officers,
directors, employees and agents of Contractor or Lessee, each of whom is bound
by this Article 8) without the prior written consent of both Contractor and
Lessee, except as follows'
(a) to the extent necessary to comply with applicable Law, provided,
that the party making such disclosure shall seek confidential treatment of
such information;
(b) as part of its normal reporting or review procedure to regulatory
agencies, its parent company, its auditors and its attorneys, provided, the
party making such disclosure to any such regulatory agency shall seek
confidential treatment of such information, and, provided, that any other
third party to whom disclosure is made agrees to the confidential treatment
of such information;
(c) in order to enforce its rights and/or perform its obligations
pursuant to this Agreement;
(d) to the extent necessary to obtain appropriate insurance, to its
insurance agent, provided, that such agent agrees to the confidential
treatment of such information; and
(e) to the extent necessary to satisfy its obligations to other
Lessees or users of the Transponders or to negotiate clauses that will be
common to all transponder service agreements.
7
ARTICLE 9. APPLICABLE LAW
--------------
The existence, validity, construction, operation and effect of this
Agreement shall be determined in accordance with and be governed by the laws of
the State of California.
ARTICLE 10. FURTHER NOTIFICATIONS
---------------------
Each party shall promptly notify the other party of any information
delivered to or obtained by such party which would prevent the consummation of
the transactions contemplated by this Agreement or would indicate a breach of
the representations or warranties of any of the parties to this Agreement;
provided that the failure so to notify will not constitute a waiver of such
party's rights.
ARTICLE 11. MODIFICATION
------------
In the event that the Transponder Lease Agreement is modified or
reconstituted in such manner as to affect provisions in this Agreement, then
this Agreement shall be modified accordingly.
ARTICLE 12. TERMINATION
-----------
12.01 Contractor's Termination Rights. If Lessee's radio transmissions or
-------------------------------
those of its uplinking agent to or from the Satellite interfere, under standard
engineering practice, with the use of any Transponder not owned by Lessee
located on the Satellite, or if Lessee or its uplinking agent utilizes Lessee's
Transponder in a manner which interferes, under standard engineering practice,
with the use of, or causes physical harm to, any other Transponder located on
the Satellite, and such radio transmission or utilization by Lessee does not
cease immediately after the receipt of notice thereof from Contractor (which
notice may, notwithstanding Section 13.03 hereof, be given to Lessee by
telephone to a telephone number provided to Contractor and maintained by Lessee
for the purpose of receiving such notices by Contractor, which telephone shall
be continuously staffed by Lessee so as to enable Lessee to receive such notices
at all times), Contractor shall have the right to take any and all steps
necessary to terminate such radio transmission or utilization by Lessee or its
uplinking agent. Contractor shall have the further right to continue such steps
so taken until such time as Lessee's radio transmissions or those of its
uplinking agent to or from the Satellite or Lessee's utilization of its
Transponder, as the case may be, shall not interfere, under standard engineering
practice, with the use of any Transponder not owned by Lessee located on the'
Satellite and shall not cause physical harm to any Transponder not owned by
Lessee on the Satellite or to the Satellite.
12.02 Contractor's Right to Deny Access. If HCG is entitled to prevent
---------------------------------
Lessee from accessing any part or all of the Lessee's Transponder pursuant to
Section 10.06 of the Transponder Lease Agreement, Contractor shall be entitled
to take any and all
8
steps necessary to terminate Lessee's (or its uplinking agent's) radio
transmission to or utilization of such Transponder.
12.03 Automatic Termination. This Agreement shall automatically terminate
---------------------
with respect to the Lessee's Transponder if the Transponder Lease Agreement is
terminated, is cancelled, or expires, with respect to such Lessee's Transponder.
ARTICLE 13. MISCELLANEOUS
-------------
13.01 Entire Agreement and Amendment. This Agreement and the Transponder
------------------------------
Lease Agreement constitute the entire agreement between the parties, and
supersede all previous understandings, commitments or representations concerning
the subject matter. This Agreement may not be amended or modified in any way,
and none of its provisions may be waived, except by a writing signed by an
authorized officer of the party against whom the amendment, modification or
waiver is sought to be enforced. The parties each acknowledge that the other
party has not made any representations other than those which are contained
herein.
13.02 Non-Waiver of Breach. Either party hereto may specifically waive any
--------------------
breach of this Agreement by the other party, provided that no such waiver shall
be binding or effective unless in writing and no such waiver shall constitute a
continuing waiver of similar or other breaches. A waiving party, at any time and
upon notice given in writing to the breaching party, may direct future
compliance with the waived term or terms of this Agreement, in which event the
breaching party shall comply as directed from such time forward.
13.03 Notices.
--------
(a) Each party shall provide the other party with a telephone number
to be used for routine and emergency operational notifications, which
telephone shall be continuously staffed so as to enable the receipt of such
notices at all times. For routine notifications, any such telephonic
notification shall be followed up with written notification as outlined in
subparagraph (b) below.
(b) All notices and other communications from either party to the
other hereunder shall be in writing and shall be deemed received when
actually received if personally delivered, upon acknowledgement of receipt
if sent by facsimile, or upon the expiration of the third business day
after being deposited in the United States mails, postage prepaid,
certified or registered, addressed to the other party as follows:
9
TO CONTRACTOR:
If by mail: Hughes Communications Satellite Services, Inc.
Post Office Box 92424
Worldway Postal Center
Los Angeles, California 90009
Attention: Senior Vice President - Galaxy Services
cc: Associate General Counsel
If by FAX: Hughes Communications Satellite Services, Inc.
Attention: Senior Vice President- Galaxy Services
(310) 607-4255
cc: Associate General Counsel
(310) 607-4258
If by personal
delivery to its
principal place
of business at: Hughes Communications Satellite Services, Inc.
1990 East Grand Avenue
E1 Segundo, California 90245
Attention: Senior Vice President- Galaxy Services
cc: Associate General Counsel
TO LESSEE:
If by mail: TVN Entertainment Corporation
_____________________________________
_____________________________________
Attention: _________________________
cc: _________________________
If by FAX: TVN Entertainment Corporation
Attention: _________________________
cc: _________________________
If by personal
delivery to its
principal place
of business at: TVN Entertainment Corporation
_____________________________________
_____________________________________
Attention: _________________________
cc: _________________________
10
All payments to be made under this Agreement, if made by mail, shall be deemed
to have been made on the date of actual receipt thereof. The parties hereto may
change their addresses by giving notice thereof in conformity with this Section
13.03.
13.04 Severability. Nothing contained in this Agreement shall
------------
be construed so as to require the commission of any act contrary to any of the
Laws, and wherever there is any conflict between any provision of this Agreement
and any Law, such Law shall prevail; provided, however, that in such event the
provisions of this Agreement so affected shall be curtailed and limited only to
the extent necessary to permit compliance with the minimum legal requirement,
and no other provisions of this Agreement shall be affected thereby, and all
such other provisions shall continue in full force and effect. Nothing contained
herein shall affect the reconstitution provisions contained in Section 11
hereof.
13.05 Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed to be an original, and all such
counterparts together shall constitute but one and the same instrument.
13.06 Successors. Subject to the limitations on Transfer set forth in
----------
Section 13.10, this Agreement shall be binding on and shall inure to the benefit
of any and all successors and assigns of the parties.
13.07 Rules of Construction and Headings. Any ambiguities shall be
----------------------------------
resolved without reference to which party may have drafted this Agreement. The
description headings of the several sections and paragraphs of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
13.08 No Third-Party Beneficiary. The provisions of this Agreement are
--------------------------
for the benefit only of the parties hereto and HCG, and no third party other
than HCG may seek to enforce, or benefit from these provisions, except that both
parties acknowledge and agree that the provisions of Section 3.06 hereof are
intended for the benefit of both Contractor and all other Transponder Lessees
and both parties agree that any other such Transponder Lessee shall have the
right to enforce, as a third-party beneficiary, the provisions of Section 3.06
hereof, against Lessee directly, in an action brought solely by such other
Transponder Lessee, or may join with Contractor or any other Transponder Lessee
or user in bringing an action against Lessee for violation of such Sections.
13.09 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties contained herein or made by Contractor or Lessee in connection
herewith shall survive any independent investigation made by Contractor or
Lessee.
11
13.10 Transfer.
--------
(a) Except as otherwise permitted under the terms of the Transponder
Lease Agreement, Lessee shall not Transfer (as defined in the Transponder
Lease Agreement) any of its rights and/or obligations under this Agreement
except with the prior written consent of Contractor, which consent may be
given or withheld in Contractor's sole and absolute discretion. In the
event of any such Transfer by Lessee, Lessee shall remain fully liable
along with its transferee for all its obligations under this Agreement and
the Transponder Lease Agreement.
(b) Contractor may Transfer any or all of its rights and/or
obligations under this Agreement to any Affiliate or any third party,
provided, that no such Transfer by Contractor shall adversely affect
Lessee's rights or obligations hereunder, provided, further, that
Contractor shall not Transfer any of its obligations under this Agreement
to a non-Affiliate except with the prior written consent of Lessee, which
consent shall not unreasonably be withheld or delayed. In the event of any
such Transfer by Contractor, Contractor shall remain fully liable for all
its obligations under this Agreement.
(c) Any purported Transfer by either party not in compliance with the
provisions of this Agreement shall be null and void and of no force and
effect.
IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement as of the day and year first written above.
"Contractor"
HUGHES COMMUNICATIONS
SATELLITE SERVICES, INC.
By: /s/ Carl A. Brown
---------------------------------
Title: Senior Vice President
------------------------------
"Lessee"
TVN ENTERTAINMENT CORPORATION
By: /s/ Arthur Fields
---------------------------------
Title: Sr. Exec. V.P.
------------------------------
12
ADDENDUM I
DEFINED TERMS
TERM SECTION
-------------------------------------------------------
Affiliate............................... 6.01
Agreement............................... Intro. Clause
Contractor.............................. Intro. Clause
Execution Date.......................... Intro. Clause
FCC..................................... 3.06
HCG..................................... Recitals
Laws.................................... 3.06
Lessee.................................. Intro. Clause
Lessee's Transponder.................... 13.11
Replacement Transponder................. 13.11
Satellite............................... Recitals
Service Term............................ 1.01
Service Fee............................. 2
Services................................ Recitals
Transfer................................ 13.10
Transponders............................ Recitals
Transponder Performance Specifications.. 1.02(c)
Transponder Lease Agreement............. Recitals
Transponder Spares...................... Recitals
Transponder Spare....................... Recitals
TT&C Fee................................ 2
TT&C.................................... 4.05
13
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 5/20/99 | | | | | | | None on these Dates |
| | 11/29/95 | | 4 |
| List all Filings |
↑Top
Filing Submission 0000944209-99-000871 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Sun., Apr. 28, 3:30:37.1pm ET 