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EXHIBIT 10.2
(1) BRITISH TELECOMMUNICATIONS PLC
(2) COUNTRY MUSIC TELEVISION, INC.
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CONTRACT FOR A
SPACE SEGMENT SERVICE ON
THE EUTELSAT HOTBIRD 3 SATELLITE
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CONTENTS
1. Definitions and Interpretation
2. Provision of the Service
3. Uplink Antenna and Uplink Signals
4. Renewal of this Contract
5. The Charge for the Service
6. Unavailability of the Service
7. Alternative Facilities
8. Credits
9. Information
10. Termination by the Customer
11. Termination by BT
12. Effect of Termination
13. Suspension by BT
14. Use and Assignment
15. Force Majeure
16. Limitation of Liability
17. Indemnity
18. Notices
19. Confidentiality
20. Variations and Amendments
21. No Partnership
22. Severability
23. Waiver
24. Entire Agreement
25. Law
26. Security
SCHEDULES
Schedule 1: Customer and Contract Details
Schedule 2: The Facilities
Annex 1: Widebeam Transmit Service Area
Annex 2: Widebeam Transmit Service Area (map)
Annex 3: Superbeam Transmit Service Area
Annex 4: Superbeam Transmit Service Area (map)
Annex 5: Satellite Receive Service Area
Annex 6 : Satellite Receive Service Area (map)
Annex 7: Area of the Earth Visible from the Satellite (map)
Annex 8: Indicative Steerable Spot beam Transmit Service Area (map)
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Schedule 3: Compliance with Procedures
Schedule 4: Operational Procedures
Schedule 5: Services Permissable by Space Segment Operator
Schedule 6: Space Segment Operator Termination Policy
Exhibit I: Hot Bird 3 Characteristics
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THIS CONTRACT is made April 25, 1995
BETWEEN
(1) BRITISH TELECOMMUNICATIONS public limited company whose
registered office is at BT Centre, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇, registered in England No 1800000 ("BT")
AND
(2) COUNTRY MUSIC TELEVISION, INC., a Tennessee corporation No.84
- 0922527 of at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
("the Customer").
INTRODUCTION
A The Customer is in the business of transmitting a television
service and requires facilities to enable it to transmit the
service by means of satellite to various receive points; and
B BT has agreed to provide the Service (defined below) to the
Customer on the terms and conditions of this Contract.
IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
1.1 In this Contract, unless otherwise specifically provided or
required by the context, the following expressions will have
the following meanings:
CHARGE the charge set out in Clause 5;
CONTRACT the Clauses of the Contract together
with the Schedules set out on the
contents page above;
DEPOSIT means the payment of US$300,000 set
out in Clause 5.8;
THE DUE DATE (a) for the first month the
Operational Service Date;
and
(b) for each succeeding month during
the Contract. the first day in
the month;
EXPIRY DATE the date set out in Schedule 1 when
the Contract expires;
FACILITIES capacity in the Satellite and
described in Schedule 2;
FORCE MAJEURE is defined in Clause 15;
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LICENCE any licence granted, or having effect
as if granted, to BT under the
Telecommunications ▇▇▇ ▇▇▇▇ or any
replacement of that Act, including
any amendment to such licence;
OPERATIONAL SERVICE the date set out in Schedule 1 on
which the Service
DATE OR OSD commences;
RENEWAL PERIOD The period (set out in Schedule 1)
during which negotiations for renewal
of the Contract in accordance with
Clause 4 may take place;
SATELLITE the satellite referred to in
Schedule 1;
SERVICE the provision by BT of the
Facilities;
SPACE SEGMENT OPERATOR the owner, operator and maintainer of
the Facilities who is named in
Schedule 1;
TELEVISION SERVICE the television programmes comprising
video and associated audio channels
(and teletext with associated utility
data channels if appropriate)
conveyed by the Uplink Signals;
TERMINATION DATE the date that termination is
effective;
TERMINATION PAYMENT is the payment for early termination
as described in Clause 12;
TRANSMISSION PERIOD the hours set out in Schedule I
during which the Facilities are
available for transmission of the
Television Service;
TRANSMISSION PLAN a technical description agreed
between the Customer and BT and
submitted by BT for approval by the
Space Segment Operator detailing the
usage and technical parameters of all
Uplink Signals to be transmitted via
the Facilities;
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UNAVAILABILITY is defined in Clause 6;
UPLINK ANTENNA capacity in a transmitting earth
terminal used by the Customer to send
the Uplink Signals to the Satellite;
UPLINK SIGNALS electronically generated carriers
transmitted from the Uplink Antenna
to the Facilities and in accordance
with Schedule 3 as amended from time
to time; and
YEAR any 12 months starting on the
Operational Service Date or any
anniversary of the Operational
Service Date.
1.2 Words in the singular include the plural and vice versa.
Clause headings are for the purpose of guidance only and will
not affect the construction or interpretation of this
Contract.
2. Provision of Service
2.1 BT will provide the Service to the Customer in accordance with
the Transmission Plan during each Transmission Period from the
Operational Service Date to the Expiry Date on the basis set
out in this Clause 2.
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2.2 The Customer shall be responsible for providing the Television
Service and shall arrange for its transmission by means of
Uplink Signals by an Uplink Antenna to the Satellite.
2.3 The Customer must ensure that the Uplink Signals comply with
Schedule 3, 50 that they do not cause any damage, loss or
interference to the Facilities or to other services using the
Facilities.
2.4 BT will provide, and the Customer must use, the Facilities in
accordance with the operating procedures and policy of the
Space Segment Operator. Such policy may be amended from time
to time and includes (amongst other matters) policy on
Permitted Use as shown in Schedule 5.
2.5 At BT's request, the Customer will provide information to
enable BT to compile the Transmission Plan. BT will submit the
Transmission Plan to the Space Segment Operator and will use
its reasonable endeavours to obtain the Space Segment
Operator's approval. The Customer will (if requested by BT)
assist BT in obtaining that approval.
2.6 The Customer will keep BT informed of the hours during the
transmission Period during which the Television Service is
actually being transmitted and of any changes to these times.
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2.7 The Customer will be responsible for the content of the
Television Service, even if the Customer is not the creator of
the material comprised in the Television Service.
2.8 The Customer is responsible for obtaining all necessary
consents from relevant authorities in, and must observe the
applicable laws of any country where the Television Service is
to be transmitted or received.
2.9 When using the Service the Customer must:
2.9.1 comply, in the UK, with any applicable obligations
under the Broadcasting ▇▇▇ ▇▇▇▇ and the Independent
Television Commission Code of Practice (including any
successor legislation or code) and with any other
appropriate laws and regulations in any other
country; and
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2.9.2 in addition not use, or permit any other person to
use, the Service contrary to any applicable mandatory
rules or guidelines or for sending any message or
communication which is offensive, abusive or of an
indecent obscene or menacing character in violation
of Clause 2.9.1 above.
2.10 Use of the Service in contravention of Clauses 2.8 or 2.9 is a
breach of contract by the Customer. If in BT's reasonable
opinion BT is potentially exposed to civil or criminal
liability, or other type of action likely to be taken by any
competent regulatory authority, BT may suspend the Service
under Clause 13. Without prejudice to Clause 13.1.3, BT and
the Customer shall enter into consultation with a view to
remedying the breach which gives rise to BT's right to suspend
Service so that suspension of the Service is a last resort.
2.11 This Contract is subject to the continuing right of BT and the
Space Segment Operator to provide the Service. If at any time
such right is withdrawn or terminated by any competent
authority then this Contract will terminate automatically upon
the expiry of three months from the date of withdrawal or
termination, unless:
2.11.1 alternative facilities can be obtained within that
period under Clause 7; or
2.11.2 the Contract has already been terminated; or
2.11.3 the foregoing notwithstanding BT shall make
reasonable efforts to maintain or defend its rights
to maintain the Service as contemplated herein.
2.12 If the OSD does not occur on or before the 1st January 1998
then the Customer may terminate this Contract upon thirty days
written notice to BT.
2.13 Notwithstanding the provisions contained herein, the terms of
Exhibit I are attached hereto and incorporated by reference
herein.
3. Uplink Antenna and Uplink Signals
3.1 The Customer agrees to comply with the Space Segment
Operator's operating procedures and rules applying from time
to time, and in particular agrees that the Uplink Signals
shall comply with the Transmission Plan approved by the Space
Segment Operator.
3.2 The Customer may transmit the Uplink Signals to the Satellite
from anywhere within the Satellite Receive Service Area as
illustrated in Annex 5 provided that:
3.2.1 any Uplink Antenna is approved by and registered with
the Space Segment Operator and operated in accordance
with the parameters in Schedule 2; and
3.2.2 the Customer agrees to indemnify BT against any
actions, proceedings, claims or demands for loss or
damages brought or threatened against BT by a third
party which is in any way connected with the
Customer's use of an Uplink Antenna not provided by
BT
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4. Renewal of this Contract
4.1 Before the start of the Renewal Period, the Customer may give
written notice to BT requesting the renewal of this Contract.
BT will grant a renewal, on terms and conditions to be
negotiated, if:
4.1.1 this Contract has not been terminated with effect from the
Expiry Date or earlier; and
4.1.2 BT is able to contract for the facilities or other suitable
space segment facilities from the Space Segment Operator
(which BT will use reasonable endeavours to obtain).
4.2 BT reserves the right not to re-negotiate under Clause 4.1 if
the Customer is in breach of this Contract.
4.3 If BT does not receive notice under Clause 4.1 BT is not
restricted or precluded from using the Facilities for any
purpose after the Expiry Date, nor from negotiating with any
other potential customer for the Facilities during the Renewal
Period.
4.4 If the Customer does give notice to BT under Clause 4.1 above
but the parties are unable to reach agreement before the end
of the Renewal Period on any new terms, conditions and
charges, then after the Renewal Period (or sooner if the
parties agree that they are unable to reach agreement) BT may
offer to provide (for commencement of service after the Expiry
Date) services via the Facilities to any third party.
5. The Char~e for the Service
5.1 The Customer agrees to pay BT's annual Charge for the
provision of the Service for the duration of this Contract.
The Charge for the Service is stated in Schedule 1.
5.2 The Customer will pay the Charge in advance on the Due Date by
the method, and into the account at the bank, stated in
Schedule 1. Payments will be in equal monthly instalments
except for the first and last payments which will be
calculated on a pro-rata basis by BT.
5.3 If BT does not receive any payment of the Charge in full, or
any agreed installment, (together with payment of VAT or other
taxes as appropriate) within 30 days of the Due Date for
payment, BT may charge interest upon the sum outstanding from
the Due Date at 4 per cent per annum above the base lending
rate of Midland Bank P.C..
Interest will accrue on a daily basis, will be compounded on a
monthly basis and will be computed on the basis of actual days
and of a 365 day year. The foregoing notwithstanding, Customer
shall not be liable for interest or other taxes or penalties
related to Customer's withholding of payment due to the
performance of BT hereunder. Such withholding by the Customer
shall be only in good faith and only for adjustment reasonably
due.
5.4 The Charge and any other sums payable are exclusive of United
Kingdom Value Added Tax and other local taxes or value added
taxes. Invoices payable under this Contract are subject to the
addition of VAT or other taxes where appropriate.
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5.5 The Customer will pay the Charge (less any credits calculated
by BT under Clause 9.2) and any other sums payable under the
Contract without set off, counter claim or other deductions.
Any sum falling due on a day which is not a business day will
be payable on the immediately preceding business day. For the
purposes of this Clause, a business day is any day which is a
legal business day in London.
5.6 BT will issue invoices to the Customer but the Customer's
obligation to pay will not depend on prior receipt of an
invoice.
5.7 The Customer will remain liable for all Charges due or to
become due for Service provided during any period in which the
Customer fails to comply with any provision of this Contract.
5.8 Upon signature of the Contract, the Customer agrees to pay BT
the Deposit of US$300,000. The Deposit will be off-set against
the initial monthly payments of the Charge payable to BT.
6. Unavailabilitv of the Service
6.1 The Service will be regarded as Unavailable during the
Transmission Period in the following circumstances:
6.1.1 failure of the Facilities or their degradation below the
parameters set out in Schedule 2; or
6.1.2 if the Service cannot be provided because of an event of Force
Majeure; and "Unavailable" and "Unavailability" will be
construed accordingly.
6.2 Any loss of Service caused by the act or omission of, or a
request by, the Customer its employees, agents or contractors
will not be counted as Unavailability.
6.3 The Service will not be Unavailable:
6.3.1 during any periods when the Customer is unable to
access the Satellite due to failure or fault in the
Uplink Antenna;
6.3.2 during any period when the Customer fails to generate
the Uplink Signals; or
6.3.3 while suspended under Clause 13.
6.4 Periods of Unavailability will be recorded in accordance with
Schedule 4. Such periods will be measured from the time such
Unavailability is reported to BT (and confirmed by BT's
operations staff) or such other time (if earlier) when the
Unavailability becomes known to BT. Unavailability will
continue until the time the Service is restored to the
standard specified in Schedule 2 or as otherwise agreed in
writing between the parties.
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7. Alternative Facilities
7.1 If the Service has been Unavailable during a Transmission
Period for:
7.1.1 a continuous period of 8 hours; or
7.1.2 sooner if in BT's reasonable judgement the
Unavailability is unlikely to be remedied within that
period,
BT will consult with the Customer and use reasonable
endeavours to identify alternative facilities.
7.2 After written approval from the Customer of any identified
alternative facilities, BT will make the alternative
facilities available to the Customer while the Service is
Unavailable. The Customer shall continue to pay the Charge
while the alternative facilities are provided.
7.3 BT will bear the cost of providing the alternative facilities
up to the daily amount stated in Schedule I and the Customer
will bear the rest of the costs in addition to the Charge.
8. Credits
8.1 Subject to Clause 8.3, the Customer will receive credit
calculated as provided in Schedule I for any continuous
periods of Unavailability lasting one minute or more.
8.2 The calculation of credit under in Clause 8.1 above will be
carried out for each calendar month of this Contract. BT will
allow an appropriate credit to the Customer in the next but
one monthly invoice and the Customer will pay the invoice for
that month's portion of the Charge reduced by the amount of
the credit. Where any credit becomes due to the Customer for
the penultimate or the last month of the term of this Contract
BT will pay to the Customer an amount equal to such credit on
or before the last day of the month immediately following that
last month.
8.3 For the avoidance of doubt credit will not be given under this
Clause 8 for:
8.3.1 periods of Unavailability while alternative
facilities are being provided to the Customer;
8.3.2 periods when Service is not being provided due
directly or indirectly to the act or omission OF, or
request by, the Customer or any of its employees,
agents or contractors;
8.3.3 periods when Service is not being provided due to sun
outage or adverse weather conditions; or
8.3.4 periods during which the Service is suspended
pursuant to Clause 13 of this Contract.
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8.4 Allowance of credits by BT under this Contract shall be in
full and final settlement of any claim resulting from any
period of Unavailability.
9. Information
9.1 BT will, as far as is practical, keep the Customer informed
of:
9.1.1 the plans, practices and policies of the Space
Segment Operator to the extent that they may
adversely affect the provision of the Service; and
9.1.2 any changes in the operating characteristics of the
Satellite to the extent that such changes adversely
affect the provision of the Service.
9.2 By the fifteenth day of each calendar month, for the duration
of this Contract, BT will deliver to the Customer a summary of
any periods of Unavailability occurring during the immediately
preceding month. Such summary will include the times and
duration of such periods and will describe the reason for such
Unavailability.
9.3 The obligations of BT under this Clause 9 relate only to such
information as is in BT's possession (or which BT can
reasonably obtain) and which BT can reveal without being in
breach of any duty to a third party. The Customer will comply
with all BT's reasonable requirements which it notifies to the
Customer for protecting the confidentiality of such
information.
10. Termination by the Customer
10.1 The Customer may terminate this Contract before the Expiry
Date for Unavailability of the Facilities, immediately by
written notice to BT:
10.1.1 after the Service has been Unavailable for a single
continuous period of 30 days or sooner if BT is able
to secure more advantageous provisions relating to
unavailability of the Facilities from the Space
Segment Operator: or
10.1.2 sooner when it is agreed by both parties that the
Unavailability will continue for longer than 30 days
from the day it started and alternative facilities
will not be provided within that 30 day period.
10.2 The Customer may terminate this Contract or renegotiate its
terms and conditions before the Expiry Date for intermittent
Unavailability of the Facilities, by 30 days prior written
notice to BT if there have been 20 or more periods of
Unavailability of at least 15 minutes duration between the
hours of 18.00 CET and 01:00 CET ("Interruptions") in any 90
day period or less if BT is able to secure more advantageous
provisions relating to such Interruptions from the Space
Segment Operator.
For the purposes of this clause any number of Interruptions that occur
in any one 7 hour period between 18.00 CET and 01.00 CET shall count as
one Interruption only.
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Interruptions relate to the technical performance of the Facilities
only and external causes are excluded.
Periods where the parties have agreed on alternative facilities meeting
the Customer's requirements and those alternative facilities are
provided through the Space Segment Operator under Clause 7 then such
periods will not be counted for the purposes of this Clause 10.1. if BT
offers other alternative facilities under a separate agreement these
can be accepted by the Customer without prejudice to the Customer's
right to terminate this Contract in accordance with Clause 10.1.
10.3 The Customer may terminate this Contract before the Expiry
Date by written notice to BT if BT commits a substantial
breach of this Contract (other than matters provided for in
lO.l and 10.2):
10.3.1 if the breach of Contract is capable of remedy, and
BT fails to remedy the breach within 30 days after
receipt of written notice to do so; or
10.3.2 if it is not possible to remedy the breach.
10.4 The Customer may terminate this Contract before the Expiry
Date by written notice to BT if BT is the subject of a
bankruptcy order or becomes insolvent or makes any arrangement
or composition with or assignment for the benefit of its
creditors or goes into liquidation, either voluntary
(otherwise than for reconstruction or amalgamation) or
compulsory, or if a receiver or administrator is appointed
over its assets.
10.5 The Customer shall be entitled to terminate this Contract
prior to the Expiry Date subject to giving BT 12 months prior
written notice and payment of the Termination Payment
calculated in accordance with Schedule 6. For the avoidance of
doubt, where the Customer exercises this right of termination,
then the element of the Termination Payment described in
section 1(i) of Schedule 6 shall be payable within 30 days of
delivery of the notice of termination to BT and the Charge for
the Service during the 12 month notice period shall be
increased to the total amount calculated in accordance with
section 1 (ii) of Schedule 6 and shall be paid in accordance
with Clause 5 of this Contract.
11. Termination by BT
11.1 BT may immediately terminate this Contract by written notice
to the Customer if the Space Segment Operator gives written
notification to BT that the Facilities have become permanently
unavailable. Upon such termination BT will advise the Customer
of the availability, if any, of alternative facilities and
will use reasonable endeavours to arrange for the provision of
alternative facilities on terms to be agreed.
11.2 BT may (without prejudice to any other right or remedy)
without notice summarily terminate this Contract if BT does
not receive any payment and interest due on it within 30 days
of the Due Date and the Customer fails to remedy failure to
pay within 30 days of receipt of written notice requiring it
to do so.
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11.3 BT may terminate this Contract before the Expiry Date by
written notice to the Customer if the Customer commits a
substantial breach of this Contract (other than matters
provided for in Clause 11.2):
11.3.1 if the breach of Contract is capable of remedy, and
the Customer fails to remedy the breach within 30
days after receipt of written notice to do so; or
11.3.2 if it is not possible to remedy the breach.
11.4 BT may terminate this Contract before the Expiry Date by
written notice to the Customer if the Customer is the subject
of a bankruptcy order or becomes insolvent or makes any
arrangement or composition with or assignment for the benefit
of its creditors or goes into liquidation, either voluntary
(otherwise than for reconstruction or amalgamation) or
compulsory, or if a receiver or administrator is appointed
over its assets.
12. Effect of Termination
12.1 Termination or expiry of this Contract will be without
prejudice to the rights and liabilities of either BT or the
Customer which may accrue on or up to the Termination Date.
12.2 In addition where BT terminates this Contract under Clause 11
(excluding 11.1) or where the Customer purports to terminate
before the Expiry Date (other than under Clause 10), the
Customer shall pay an early termination payment ("the
Termination Payment") calculated in accordance with Schedule
6.
12.3 The Customer must pay the Termination Payment to BT within 30
days of either:
12.3.1 the Termination Date; or
12.3.2 if later, the date on which the Customer receives
from BT written notice of the amount of the
Termination Payment.
Interest calculated in accordance with Clause 5.3 may also be
charged upon payments of the Termination Payment which are not
made by the Customer within the timescales set out above.
12.4 Where after termination of this Contract and payment by the
Customer of the Termination Payment BT secures another
Customer or Customers (which BT shall use reasonable
endeavours to do) for the service using the Facilities for the
12 month period immediately following the date of such
termination, BT shall pay to the Customer an equivalent amount
to all such monies as BT receives thereunder in respect of
such services during the 12 month period up to an amount equal
to the element of the Termination Payment applying for that 12
month period less all reasonable costs incurred by BT in
effecting such use of the Facilities.
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12.5 Where the Termination Payment calculated in accordance with
Schedule 6 is greater than the sum that would otherwise be
payable in respect of the unexpired term of the Contract at
the Termination Date, then the Termination Payment shall be an
amount equivalent to all such sums that would be payable in
respect of the period of the Contract from the Termination
Date to the Expiry Date.
At the Customer's election, the Customer may pay the
Termination Payment described in this Clause 12.5 either:
(i) within 30 days of the later of the Termination Date
and the date on which BT provides written notice of
the amount of the Termination Payment;
or:
(ii) monthly 100% of the Charges payable under this
Contract from the Termination Date to the Expiry
Date.
12.6 Where the Customer pays the Termination Payment in accordance
with Clause 12.5(i) the Termination Payment shall be
discounted by the Interbank rate quoted by Barclays Bank P.C.
London at 11.00am on the last business day of the preceding
month for the three month time deposits in the Euro-Currency
market applying to ECUs calculated for the period between the
Termination Date and the Expiry Date.
12.7 Where after termination of this Contract and payment by the
Customer of the Termination Payment as described in Clause
12.5 above BT secures another Customer or Customers (which BT
shall use reasonable endeavours to do) for the service using
the Facilities for the balance of the period between the
Termination Date and the Expiry Date, BT shall pay to the
Customer an equivalent amount to all such monies as BT
receives thereunder in respect of such services during that
period up to an amount equal to the Termination Payment less
all reasonable costs incurred by BT in effecting such use of
the Facilities.
13. Suspension by BT
13.1 BT may (without prejudice to any other right or remedy)
suspend the Service:
13.1.1 by seven days written notice if BT does not receive
any payment within 30 days of the Due Date together
with any interest due;
13.1.2 immediately by written notice if the Customer commits
a substantial breach of this Contract; or
13.1.3 immediately by written notice if any of the events
which are grounds for suspension under Clause 2.10
occurs.
Suspension will continue until the grounds for suspension are
removed to BT's reasonable satisfaction or BT terminates the
Contract.
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13.2 The Customer remains liable to pay the Charges for any period
of suspension except where pursuant to Clause 13.1.3.
14. Use and Assignment
14.1 The Customer may assign any rights or obligations under the
Contract only with the prior written consent of BT (such
consent not to be unreasonably withheld). A change in the
ownership or control of the Customer or its business or of a
substantial part of the Customer's assets will also constitute
an assignment.
14.2 If the Customer wishes to permit a third party to use part of
the Service then the Customer must notify BT in advance of
that party's name and the proposed extent of their use of the
Service. The Customer remains responsible under the Contract
for the use of the Service and will ensure that the third
party is aware of and complies with the provisions of the
Contract. Notification to BT does not imply any approval by BT
of the third party or its proposed usage nor does it prejudice
any of the Customer's obligations or BT's rights under the
Contract.
15. Force Majeure
15.1 If either BT or the Customer is unable to perform any
obligation under this Contract because of a matter beyond its
reasonable control such as lightning, flood, exceptionally
severe weather, fire, explosion, war, civil disorder,
industrial disputes (whether or not involving their
employees), sun outage, satellite or launch failure or acts of
local or central Government or other competent authorities it
will have no liability to the other party.
15.2 In addition BT will not be liable for any breach of this
Contract directly or indirectly occasioned by or resulting
from:
15.2.1 compliance with the Licence; or
15.2.2 regulatory action taken by any relevant regulatory
authority not brought about by the acts or omissions
of BT under this Contract
15.3 A party affected by Force Majeure must promptly give written
notice to the other party:
15.3.1 on commencement; and
15.3.2 on cessation of the Force Majeure event.
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16. Limitation of Liability
16.1 BT's duty in performing any obligation under this contract is only to
exercise the reasonable skill and care of a competent
telecommunications service provider.
16.2 BT accepts liability under this Contract only to the extent state&in
the Contract.
16.3 BT does not exclude or restrict its liability for death or personal
injury resulting from BT's negligence.
16.4 BT's liability to the Customer in contract, tort (including negligence)
or otherwise in relation to this Contract is limited to (pound)1
million for any one incident or series of related incidents and to
(pound)2 million for all incidents in any period of 12 months.
16.5 BT is not liable to the Customer, either in contract, tort (including
negligence) or otherwise for loss (whether direct or indirect) of
profits, business or anticipated savings, or for any indirect or
consequential loss or damage whatever.
16.6 Each provision of this Clause 16 limiting or excluding liability
operates separately. If any part is held unreasonable or inapplicable
the other parts shall continue to apply.
17. Indemnity
17.1 Subject to Clause 16, each party ("the First Party") shall indemnify
the other against any actions, proceedings, claims or demands for loss
or damages including death or personal injury in any way connected with
this Contract brought or threatened against the other by a third party
arising out of or caused by the negligence or willful misconduct of the
First Party, its employees or agents.
17.2 Without prejudice to the generality of Clause 17.1 the Customer must
indemnify BT in the event of:
17.2.1 actual or alleged libel, slander, invasion of privacy or
infringement of copyright;
17.2.2 actual or alleged infringement of intellectual property rights
arising from use of the Service with facilities or
services, apparatus or systems not provided by BT for use with
the Service;
17.2.3 use of the Service contrary to the provisions of this Contract;
17.2.4 claims relating to the quality or contents of the Television
Service;
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17.2.5 claims relating to any actual or alleged failure, not caused
by BT, to meet an obligation to any person to transmit the
Television Service; or
17.2.6 any actions, proceedings, claims or demands connected with
the Service which are brought or threatened against due to BT
acting in accordance with the instructions of the Customer.
17.3 BT will promptly notify the Customer of any claim to which the
indemnity in this Clause 17 relates and will:
17.3.1 make no admission without the Customer's consent;
17.3.2 allow the Customer to conduct any proceedings or settle any
claims in each case at the expense of the Customer and must do
so at BT's written request; and
17.3.3 give to the Customer at the cost and expense of the Customer
reasonable assistance in connection with such proceedings.
18. Notices
18.1 Notices given under this Contract will be in writing and will be
sent to the address of the Customer and BT as specified below.
If to Customer:
▇▇▇▇▇ ▇▇▇▇
President
Country Music Television, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇ ▇▇▇▇▇
Director of International Operations
Country Music Television, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Corporate Legal Services
Gaylord Entertainment
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
19
20
If to BT:
Group Business Manager
BT Broadcast Services
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
18.2 All notices will be delivered by hand or sent by telex, facsimile
or, in the United Kingdom, by registered post or by recorded
delivery, and outside of the United Kingdom by registered airmail
letter. All notices will be deemed to have been received when
delivered by hand or on the date on which they would be received
in the normal course of posting (if posted) or when the proper
answerback code or confirmation is received by the sender if sent
by telex or facsimile.
19. Confidentiality
19.1 BT and the Customer will keep in confidence any information of a
confidential nature obtained under this Contract and will not
divulge it to any person (other than their employees who need to
know the information and subject to their employer making them fully
aware of and causing them to comply with the provisions of this
Clause) without the consent of the other party.
19.2 Clause 19.1 will not apply to:
19.2.1 information in the public domain otherwise than in breach
of this Contract;
19.2.2 information in the possession of the receiving party prior
to its disclosure to them under the terms of this Contract;
19.2.3 information obtained from a third party who is free to
divulge it;
19.2.4 information which is independently developed by the
receiving party without any breach of confidentiality under
this Contract or otherwise; or
19.2.5 the disclosure of information as required by a court of law
or other competent authority.
20. Variations and Amendments
20
21
20.1 No variation, amendment or change to this Contract will be effective
unless contained in a document agreed by the parties and signed by
their authorized representatives.
20.2 If the Customer wishes BT to modify the Service it must notify BT
in writing. If the proposed modification is acceptable to BT
(such acceptance not to be unreasonably withheld) the parties will
negotiate the applicable terms and conditions in good faith.
21. No Partnership
Nothing in this Contract will give rise to any partnership between
BT and the Customer.
22. Severability
Any part of this Contract which is determined illegal or invalid
will not affect the legality or validity of the remainder.
23. Waiver
If BT delays in acting upon a breach of Contract by the Customer
that delay will not be regarded as a waiver of that breach. If BT
waives a breach of the Contract by the Customer, that waiver is
limited to the particular breach.
24. Entire Agreement
This Contract governs the provision of the Service to the Customer
to the exclusion of all other written or verbal representations,
statements, understandings, negotiations, proposals or agreements.
In the event of conflict between the clauses of this Contract and
the Schedules, the Clauses will prevail.
25. Proper Law and Jurisdiction
This Contract will be governed and construed in accordance with
English law and the parties agree to submit to the exclusive
jurisdiction of the English Courts.
26. Security
26.1 Notwithstanding any other provision of this Contract, the
performance
21
22
by BT of this Contract is conditional upon the
Customer delivering to BT the Security referred to in
Schedule I. The Customer must procure delivery of the
Security to BT on or before signature of this Contract.
26.2 The Security must be in a form acceptable to BT and must be
maintained to provide continuing direct obligation to BT by
the issuer of the Security of the amounts as specified in
Schedule I.
AS WITNESS THESE AGREEMENTS THE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES
HAVE SIGNED THIS CONTRACT ON THE DAY AND YEAR STATED ON PAGE 3 ABOVE.
SIGNED FOR AND ON BEHALF OF THE COUNTRY MUSIC TELEVISION, INC.
SIGNATURE
▇▇▇▇▇ ▇▇▇▇, PRESIDENT
SIGNED FOR AND ON BEHALF OF BT SIGNATURE
NAME AND TITLE
22
23
SCHEDULE 1
CUSTOMER AND CONTRACT DETAILS
A. SERVICE DEFINITION
CHARGE 3.366 MECU for each 12 months from the OSD or
anniversary of the OSD, excluding VAT
EXPIRY DATE 12 years after OSD
FACILITIES capacity in transponder [TBA] on the Eutelsat II
"Hotbird 3" Satellite
OSD 1st March 1997 or, subject to Clause 2.12, other
date announced by Eutelsat.
RENEWAL PERIOD 39 months before the Expiry Date.
SATELLITE Hotbird 3
SPACE SEGMENT
OPERATOR Eutelsat
TRANSMISSION PERIOD 24 hours per day
UNAVAILABILITY CALCULATION
ACS
x QPF
No. of hours/minutes of
Service contracted for that year
where:
ACS is the applicable Charge for the
Service payable under this Contract;
and
QPF is the duration of the qualifying
period of failure in minutes.
24
CONTRACT SPECIFIC INFORMATION
ADDRESS FOR NOTICES Group Business Manager
to BT BT Broadcast Services
Room 2021
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
ADDRESS FOR NOTICES
▇▇▇▇▇ ▇▇▇▇
President
Country Music Television, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
With copies to:
▇▇▇▇ ▇▇▇▇▇
Director of International
Operations
Country Music Television, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Corporate Legal Services
Gaylord Entertainment
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
ALTERNATIVE FACILITIES 9,222 ECU per day
SUM TO BE BORNE BY BT (Total payable = 9,222ECU x total
days when alternative facilities
provided)
BT BANK DETAILS AND
PAYMENT METHODS Payments made in foreign currency
or from bank accounts outside the
UK shall be made by Telegraphic
transfer (SWIFT) to: National
Westminster
25
Batik, 41 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇,
Sort Code: 60-00-00, Account No.
▇▇▇-▇▇-▇▇▇▇▇▇▇▇.
CUSTOMER SERVICE NUMBER TBA
SECURITY In a format acceptable to BT and
to the values set out in
Schedule 6.
26
SCHEDULE 6
TERMINATION PAYMENT CALCULATION
1. Subject to paragraph 2 below the Termination Payment for the
Customer terminating this Contract after the Operational
Service Date shall be calculated as follows:
(i) the difference between the sums in (a) and (b) below,
reactualised at 12%
(a) the total sums payable by BT to Eutelsat in respect
of BT's lease for the Facilities for the period from
the OSD to the date of termination ("the Assumed
Lease Charge"); and
(b) the sum which would have been payable by BT to
Butelsat for a lease term for the Facilities
commencing on the OSD and ending 12 months after the
date of termination of the Contract ("the Resultant
Lease Char~e);
ADDED TO
(ii) the Charge for one Year of Service plus an amount being the
difference between the Assumed Lease Charge pro-rata for
one Year and the Resultant Lease Charge pro-rata for one
Year.
2 The above method of calculation has been arrived at as a result
of Eutelsat's current policy with regard to early termination of
Hot Bird I leases. Eutelsat have yet to confirm the policy that
will apply for early termination of Hot Bird 3 leases. If
Eutelsat change their policy then BT shall have the right to
change the above method of calculation.
EXAMPLES OF TERMINATION PAYMENTS DUE AFTER THE OSD CALCULATED IN
ACCORDANCE WITH PARAGRAPH 1 ABOVE ARE SHOWN BELOW FOR ILLUSTRATIVE
PURPOSES ONLY. THE TERMINATION PAYMENT WILL BE FORMALLY ADVISED TO
THE CUSTOMER BY BT AT THE TIME OF TERMINATION.
Termination at
Year end:
Element for 1.(i) above
Element for 1. (ii) above
Total Termination Payment
27
Year 2 2,550,000 ECU 4,486,000 ECU 7,036,000
ECU
Year 4 4,619,000 ECU 4,266,000 ECU 8,885,000
ECU
Year 6 5,927,000 ECU 4,046,000 ECU
9,973,000 Ecu All payments are exclusive of UK VAT.