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Exhibit
10.57
MOBILE SATELLITE VENTURES
(CANADA) INC.
- and
–
3051361 NOVA SCOTIA
UNLIMITED LIABILITY COMPANY
CAPACITY LEASE
AGREEMENT
November 26,
2001
Osler, Hoskin &
Harcourt LLP
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| ARTICLE 1 |
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DEFINITIONS AND PRINCIPLES OF INTERPRETATION |
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1 |
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1.1 Definitions |
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1 |
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1.2 Obligation
to Act in Good Faith |
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4 |
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1.3 Headings |
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4 |
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1.4 Schedules |
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4 |
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1.5 Consent |
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5 |
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1.6 Calculation
of Time |
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5 |
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1.7 Business
Day |
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5 |
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1.8 Obligations
as Covenants |
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5 |
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| ARTICLE 2 |
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DEMISE AND LEASE |
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5 |
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2.1 Demise of
the Balance |
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5 |
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| ARTICLE 3 |
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CONSIDERATION |
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6 |
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3.1 Consideration |
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6 |
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3.2 Payment of
Lease Payments |
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6 |
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3.3 Adjustments
to Lease Payments |
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6 |
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3.4 Sales
Taxes |
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7 |
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| ARTICLE 4 |
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THE SATELLITE SYSTEM |
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7 |
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4.1 Ownership of
the Spectrum Capacity and the Satellite System |
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7 |
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4.2 Maintenance
and Operation of the Satellite System |
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8 |
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4.3 Comply with
All Laws |
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9 |
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| ARTICLE 5 |
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EXTENSIONS AND EXPANSIONS TO EXISTING SATELLITE
SYSTEM |
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9 |
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5.1 Extensions
to Existing Satellite System |
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9 |
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5.2 Lease
Supplements |
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10 |
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| ARTICLE 6 |
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NEXT GENERATION SATELLITE SYSTEM |
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10 |
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6.1 Next
Generation Satellite System |
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10 |
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| ARTICLE 7 |
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NEW SERVICES |
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11 |
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7.1 New
Services |
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11 |
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| ARTICLE 8 |
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RELATIONSHIP TO END USERS |
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12 |
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8.1 Obligations
to End Users |
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12 |
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| ARTICLE 9 |
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INDEMNITY AND LIMITATION OF LIABILITY |
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12 |
TABLE OF
CONTENTS
(continued)
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9.1 Indemnity
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12 |
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9.2 No
Consequential or Special Damages
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13 |
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| ARTICLE 10 |
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REPAIRS
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13 |
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10.1 Newco’s
Repairs
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13 |
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10.2 Canadian License Co.’s
Repairs
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13 |
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10.3 Newco
may Inspect State of Repair
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13 |
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10.4 Notify
Canadian License Co. of Any Damage
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13 |
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| ARTICLE 11 |
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MARKS
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14 |
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11.1 Parties’ Interest In
Marks
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14 |
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| ARTICLE 12 |
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REPRESENTATIONS AND WARRANTIES
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14 |
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12.1 Representations and
Warranties of Canadian License Co.
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14 |
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12.2 Representations and
Warranties of Newco
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15 |
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| ARTICLE 13 |
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COVENANTS
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16 |
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13.1 Covenants of Canadian License
Co.
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16 |
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13.2 Covenants of Newco
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16 |
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13.3 Additional Covenants
Regarding the Satellite System
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17 |
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| ARTICLE 14 |
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TERM AND TERMINATION
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17 |
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14.1 Term
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17 |
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14.2 Extension Term
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17 |
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14.3 Termination
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17 |
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14.4 Acknowledgement by Canadian
License Co.
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18 |
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14.5 Survival of
Obligations
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19 |
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| ARTICLE 15 |
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PUBLICITY AND ADVERTISING
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19 |
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15.1 Prior
Approval of Other Party
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19 |
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15.2 Parties’ Right to
Approval
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19 |
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| ARTICLE 16 |
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DELIVERY OF INFORMATION
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19 |
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16.1 Notice
of Certain Events
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19 |
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| ARTICLE 17 |
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UNAVOIDABLE DELAYS
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-ii-
TABLE OF
CONTENTS
(continued)
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17.1 Unavoidable Delays
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20 |
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| ARTICLE 18 |
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GENERAL
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21 |
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18.1 Notices
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21 |
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18.2 Time
of the Essence
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21 |
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18.3 Assignment
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22 |
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18.4 Successors and
Assigns
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22 |
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18.5 Further Assurances
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22 |
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18.6 Governing Law
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22 |
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18.7 Severability
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23 |
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18.8 Currency
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23 |
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18.9 Confidentiality
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23 |
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18.10 Rights and
Remedies
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23 |
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18.11 Counterparts
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- iii -
CAPACITY LEASE
AGREEMENT
THIS LEASE AGREEMENT dated as of
November 26, 2001
BETWEEN:
MOBILE SATELLITE VENTURES
(CANADA) INC., a
corporation incorporated under the laws of Ontario
(“Canadian License
Co.”)
- and-
3051361 NOVA SCOTIA
UNLIMITED LIABILITY COMPANY, an unlimited liability company
governed by the laws of Nova Scotia
(“Newco”)
RECITALS:
| A. |
Canadian License Co. owns and operates a Canadian mobile
satellite system; and |
| B. |
Canadian License Co. agrees, subject to the terms and
conditions of this Lease, to lease to Newco the balance of the
satellite capacity and the right to use the spectrum capacity
associated with Canadian License Co.’s mobile satellite
system that is not utilized by Canadian License Co. for the
purposes of fulfilling its existing contractual obligations to the
Government of Canada and the terms and conditions of its spectrum
licenses and orbital authorizations. |
THEREFORE in
consideration of the mutual covenants contained herein the Parties
agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES
OF INTERPRETATION
In this Lease, the following words and
terms shall have the meanings set out below:
“ Authorizations
” means any of the Spectrum Licenses, the satellite orbital
slot(s) authorizations granted by Industry Canada to Canadian
License Co., and such other approvals as are either currently held
or required to be held by Canadian License Co. in order to conduct
its business and to operate the Satellite System.
“ Balance
” means the right to use that portion of the Spectrum
Capacity and Satellite Capacity which is not utilized by Canadian
License Co. for the purposes of fulfilling its Other
Obligations.
“ Business Day
” means a day, other than a Saturday or Sunday, on which the
principal commercial banks located at the City of New York, New
York are open for business during normal banking hours.
“ Effective Date
” means the date this Lease is made between the
Parties.
“ Encumbrances
” means any charge, lien, interest or encumbrance of
whatsoever nature or kind.
“ End User
” means an individual or entity purchasing radiocommunication
services (including satellite services) from Newco.
“ Existing Satellite
System ” means the Facilities, the Unowned Assets, and
the Underlying Rights, all of which are held by Canadian License
Co. and includes any expansion, extension, alteration,
reconfiguration or reduction of such system, but does not include
any Next Generation Satellite System.
“Extension
Term” has the meaning set out in Section 14.2 of
this Agreement.
“ Facilities
” means the radio apparatus, switches, satellite(s),
satellite equipment, service and feeder links, L- Band transceiver
equipment, transponder and any other equipment, including portions
of any of the foregoing that form a part of the Existing Satellite
System or the Next Generation Satellite System, as the case may
be.
“ Government of
Canada ” means Her Majesty the Queen in Right of
Canada.
“ Indemnifying
Party ” has the meaning set out in Section 9.1 of
this Agreement.
“ Industry
Canada ” means the agency of the federal government of
Canada which, among other things, issues licenses for the use of
radio frequency spectrum in Canada, or successor agency or
department thereto.
“ Lease ”
means this Lease including all Schedules attached to this Lease,
all as amended from time to time pursuant hereto.
“ Lease Payments
” has the meaning set out in Section 3.1 of this
Lease.
- 2 -
“ Lease
Supplement ” means an agreement entered into by the
Parties pursuant to the terms of Section 5.2 of this
Lease.
“ Marks ”
means all service marks, trademarks, and trade names used by a
Party on or in connection with the provision of service under this
Lease or in the provision of services (including satellite
services) either domestically or internationally.
“ Next Generation
Satellite System ” means the Facilities, the Unowned
Assets, and the Underlying Rights held by Canadian License Co. in
any future satellite system in which Canadian License Co. acquires
an interest.
“ New Services
” has the meaning set out in Section 7.1 of this
Agreement.
“ Notice ”
has the meaning set out in Section 18.1 of this
Agreement.
“ Other
Obligations ” means the obligations which Canadian
License Co. must fulfil at the Effective Date in relation to its
Government Telecommunications and Information Services contract
with the Government of Canada and, during the Term of the lease, in
relation to: 1) the terms and conditions of its Authorizations; and
2) any Canadian end-user customers who, regardless of where such
customers are located in Canada, have been unable to obtain
services from Newco on non-discriminatory terms and conditions that
are customary within the industry.
“ Parties
” means Canadian License Co. and Newco, and “
Party ” means any one of them.
“ Rights ”
has the meaning set out in Section 13.1 of this
Lease.
“ Satellite
Capacity ” means the current satellite capacity of
Canadian License Co.’s Existing Satellite System or any
future capacity of any Next Generation Satellite System in which
Canadian License Co. acquires an interest, as the case may
be.
“Satellite
System ” means the Existing Satellite System and any Next
Generation Satellite System in which Canadian License Co. acquires
an interest.
“ Specifications
” means the design, specifications and operating parameters
for the Existing Satellite System as more particularly set out in
Schedule “A”, and the Next Generation Satellite System,
as may be set out in Schedules from time to time.
“Spectrum
Capacity” means the current radio spectrum that has been
granted by Authorization to Canadian License Co. by Industry Canada
for use in conjunction with the Existing Satellite System and any
radio spectrum that may be granted by Authorization to Canadian
License Co. by Industry Canada in the future for use in conjunction
with Canadian License Co’s Existing Satellite System, or in
conjunction with any Next Generation Satellite System in which
Canadian License Co. acquires an interest, as the case may
be.
- 3 -
“ Spectrum
Licenses ” means the radio spectrum granted by Industry
Canada to Canadian License Co. from time to time.
“ Term ”
is as defined in Section 14.1 of this Lease.
“ Underlying
Rights ” means all interconnection agreements, building
access agreements, roof-top leases, easements, leases, licenses of
occupation, rights-of-way, permits or other similar rights held,
owned or acquired, or which shall be held, owned or acquired, by
Canadian License Co. from third parties with respect to the
Spectrum Licenses in the Existing Satellite System or the Next
Generation Satellite System, as the case may be.
“ Unowned Assets
” means all equipment and other infrastructure related
thereto which are not owned by Canadian License Co. but in respect
of which Canadian License Co. acquires rights from time to time in
connection with the Spectrum Licenses in the Existing Satellite
System or the Next Generation Satellite System, as the case may
be.
| 1.2 |
Obligation to Act in Good Faith |
Newco and Canadian License
Co. acknowledge and agree that they will act in good faith in
carrying out the spirit and intent of this Lease and will do all
things and take all steps as may reasonably be required to give
effect to their obligations under this Lease.
Article and section headings
are inserted for convenience of reference only and are not to be
considered part of the actual terms of this Lease.
The Schedules to this Lease,
as listed below, are an integral part of this Lease. The Parties
agree that Schedules may be added from time to time and each new
Schedule shall be incorporated into, and form an integral part of,
this Lease.
Schedule “A” -
Specifications.
Whenever a provision of this
Lease requires an approval or consent by a Party and notification
of such approval or consent is not delivered within the applicable
time limit, then, unless otherwise specified, the Party whose
consent or approval is required shall be conclusively deemed to
have withheld its consent or approval.
- 4 -
Unless otherwise specified,
time periods within or following which any payment is to be made or
any act is to be done shall be calculated by excluding the day on
which the period commences and including the day which ends the
period and by extending the period to the next Business Day
following if the last day of the period is not a Business
Day.
Whenever any payment to be
made or any action to be taken under this Lease is required to be
made or taken on a day other than a Business Day, such payment
shall be made or action shall be taken on the next Business Day
following.
| 1.8 |
Obligations as Covenants |
Any obligation of a Party to
this Lease is deemed to be a covenant of that Party.
ARTICLE 2
DEMISE AND
LEASE
| 2.1 |
Demise of the Balance |
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(a) |
For the Term and subject to the provisions of this Lease,
Canadian License Co. hereby demises and leases unto Newco, and
Newco hereby leases from Canadian License Co., such amount of the
Balance as Newco may request from time to time. For greater
certainty, the Parties agree that Canadian License Co. shall be
able to provide the entire Balance, if requested. |
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(b) |
The Parties acknowledge that appurtenant to the leasehold
rights granted to Newco in respect of the Balance pursuant to
Section 2.1(a) of this Lease, Newco shall enjoy and have the
benefit of all rights to use the Satellite System for purposes of
resale subject to the terms and conditions of this Lease. The
Parties further acknowledge that such rights to use the Satellite
System are integral to, and an absolute requirement in connection
with, Newco’s use and enjoyment of the Balance. Therefore,
Canadian License Co. shall use reasonable commercial efforts to
obtain, maintain, maximize, renew, expand and apply for all
Authorizations, licenses and approvals necessary to ensure that it
will, at all times, have the ability and capability to lease to
Newco the Balance. In addition, Canadian License Co. shall not take
(or omit to take) any actions in respect of the Satellite System
which will or may adversely affect Newco’s existing or
planned use of the Balance directly or indirectly, including, but
not limited to, any act or omission that may adversely affect
Newco’s use of the Underlying Rights or the Unowned
Assets. |
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(c) |
Newco shall be entitled to use the Balance for any lawful
purpose. Any resale of the Balance by Newco to provide services in
Canada shall be subject to and comply with applicable regulatory
requirements and laws of Canada. |
ARTICLE 3
CONSIDERATION
In consideration for this
Lease of the Balance and access to and use of the Satellite System
and the other rights granted by Canadian License Co. to Newco
herein, Newco agrees to make lease payments (the “Lease
Payments”) to Canadian License Co. in an amount to be set by
the Parties from time to time based on a number of factors,
including the proportion of the Balance utilized by Newco, the fair
market value of the Balance as determined on an arm’s length
basis which the Parties agree shall be equal to no more than cost
plus a reasonable margin, not to exceed ten per cent (10%), or any
other rights granted by Canadian License Co. to Newco under this
Lease.
| 3.2 |
Payment of Lease Payments |
The Lease Payments shall be
payable by Newco in advance on the first Business Day of January,
April, July and October in each year. Newco shall have the right to
set off any Lease Payments payable hereunder against any amounts as
may be owed to Newco by Canadian License Co.
| 3.3 |
Adjustments to Lease Payments |
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(a) |
In the event that the Balance, or access to and use of the
Satellite System or any other rights granted by Canadian License
Co. under this Lease are reduced, the Lease Payments payable by
Newco shall be reduced proportionately by such amounts as the
Parties shall agree at the time of the reduction, and a rebate paid
to Newco by Canadian License Co. if applicable. |
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(b) |
In the event that Canadian License Co. extends or expands the
Existing Satellite System in accordance with the provisions of
Article 5 of this Lease, the Lease Payments shall be adjusted by
such amounts as the Parties shall agree upon at the time to reflect
the cost of providing any additional Spectrum Capacity and
Satellite Capacity. |
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(c) |
In the event that New Services are established in accordance
with the provisions of Article 7 of this Lease, the Lease Payments
shall be adjusted by such amounts as the Parties shall agree upon
at the time to reflect the cost of providing any New
Services. |
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(d) |
In the event that a Next Generation Satellite System is
established in accordance with the provisions of Article 6, then
payment for any Spectrum Capacity and Satellite Capacity relating
to such Next Generation Satellite System shall be as provided in
Article 6. |
In addition to the Lease
Payments, Newco shall pay all sales taxes payable in connection
with this Lease.
ARTICLE 4
THE SATELLITE
SYSTEM
| 4.1 |
Ownership of the Spectrum Capacity and the Satellite
System |
The Parties acknowledge and
agree that as and between themselves:
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(a) |
the Spectrum Capacity, including the Balance, and the Satellite
System shall at all times remain the property of Canadian License
Co.; |
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(b) |
this Lease does not convey to Newco ownership of the spectrum
associated with the Balance of the Spectrum Capacity or the
Satellite System; and |
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(c) |
nothing in this Lease is intended to diminish or restrict
Canadian License Co.’s obligations as a holder of
Authorizations from Industry Canada and both Parties desire that
the Lease be compliant with all applicable laws, regulations and
Canadian License Co.’s Other Obligations. Any term of this
Lease that would otherwise violate such laws, regulations or Other
Obligations shall be deemed amended and modified to the full extent
required to comply with such requirements, while preserving to the
greatest extent practicable the benefits intended to be conveyed to
the Parties hereunder, and the Parties will document such
amendments and modifications by written amendment, unless the same
would cause Newco substantial direct economic or regulatory harm in
which case Newco shall be entitled to terminate this
Lease. |
| 4.2 |
Maintenance and Operation of the Satellite
System |
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(a) |
Throughout
the Term, Canadian License Co. shall use reasonable commercial
efforts to maintain, repair, expand, and replace, if necessary, the
Satellite System, including the Next Generation Satellite System,
in accordance with the Specifications and industry standards.
Unless otherwise agreed to by Newco, Canadian License Co. shall
provide the Balance exclusively by means of Facilities operated and
controlled by Canadian License Co. In the event that Canadian
License Co. subcontracts for maintenance and repair services,
Canadian License Co. shall consult with Newco in advance of
entering into any such
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subcontract in order that
Newco may satisfy itself that the subcontractor will meet
maintenance and repair standards for the Satellite System which
will be at least as high as those standards set forth in the
Specifications.
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(b) |
The Parties shall co-operate in good faith in planning the
design and construction of expansions, extensions and
modifications, to the Existing Satellite System and in planning the
design and construction of any Next Generation Satellite System in
which Canadian License Co. will acquire an interest. Not less
frequently than quarterly, Canadian License Co. and Newco shall
meet to evaluate Canadian License Co.’s construction plans
and network design and consider Newco’s
requirements. |
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(c) |
In carrying out any frequency co-ordination activities,
Canadian License Co. shall coordinate with Newco in order to ensure
that Newco’s requirements for the Balance are taken into
account. |
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(d) |
Without limiting the generality of the foregoing, Canadian
License Co. will afford Newco a reasonable opportunity to evaluate
the performance capabilities of the Satellite System at all times
during the term of this Lease. Evaluation of the Satellite System
may include, without limitation: physical evaluations and visual
inspections of the Facilities; assessments of Canadian License
Co.’s processes and systems; and tests of the Satellite
System’s overall performance capabilities. These evaluations
may be used by Newco to determine Canadian License Co.’s
compliance with the Specifications for the Satellite System.
Without limiting the generality of the foregoing, Canadian License
Co. will at no additional cost to Newco make such changes in the
Satellite System as may be reasonably requested from time to time
by Newco (including pointing and reconfiguring the Satellite
System) in order to improve the Satellite System’s overall
performance or to cause it to perform in a manner more consistent
with the requirements of End Users; provided, however, that such
changes will not interfere with the ability of Canadian License Co.
to carry out its Other Obligations. |
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(a) |
Canadian License Co. shall, at its expense and provided it is
not otherwise prohibited from doing so because of the acts or
omissions of third parties, promptly comply with and conform to the
requirements of every applicable statute, law, by-law, regulation,
ordinance and or |
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