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CAPACITY LEASE AGREEMENT November 26, 2001

Lease Agreement

CAPACITY LEASE AGREEMENT November 26, 2001 | Document Parties: 3051361 NOVA SCOTIA UNLIMITED LIABILITY COMPANY | MOBILE SATELLITE VENTURES (CANADA) INC | Osler, Hoskin & Harcourt LLP | SATELLITE SYSTEM You are currently viewing:
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3051361 NOVA SCOTIA UNLIMITED LIABILITY COMPANY | MOBILE SATELLITE VENTURES (CANADA) INC | Osler, Hoskin & Harcourt LLP | SATELLITE SYSTEM

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Title: CAPACITY LEASE AGREEMENT November 26, 2001
Governing Law: New York     Date: 3/16/2007
Industry: Misc. Financial Services     Sector: Financial

CAPACITY LEASE AGREEMENT November 26, 2001, Parties: 3051361 nova scotia unlimited liability company , mobile satellite ventures (canada) inc , osler  hoskin & harcourt llp , satellite system
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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

 


ARTICLE 1
  DEFINITIONS AND PRINCIPLES OF INTERPRETATION    1
  1.1        Definitions    1
  1.2        Obligation to Act in Good Faith    4
  1.3        Headings    4
  1.4        Schedules    4
  1.5        Consent    5
  1.6        Calculation of Time    5
  1.7        Business Day    5
  1.8        Obligations as Covenants    5
ARTICLE 2
  DEMISE AND LEASE    5
  2.1        Demise of the Balance    5
ARTICLE 3
  CONSIDERATION    6
  3.1        Consideration    6
  3.2        Payment of Lease Payments    6
  3.3        Adjustments to Lease Payments    6
  3.4        Sales Taxes    7
ARTICLE 4
  THE SATELLITE SYSTEM    7
  4.1        Ownership of the Spectrum Capacity and the Satellite System    7
  4.2        Maintenance and Operation of the Satellite System    8
  4.3        Comply with All Laws    9
ARTICLE 5
  EXTENSIONS AND EXPANSIONS TO EXISTING SATELLITE SYSTEM    9
  5.1        Extensions to Existing Satellite System    9
  5.2        Lease Supplements    10
ARTICLE 6
  NEXT GENERATION SATELLITE SYSTEM    10
  6.1        Next Generation Satellite System    10
ARTICLE 7
  NEW SERVICES    11
  7.1        New Services    11
ARTICLE 8
  RELATIONSHIP TO END USERS    12
  8.1        Obligations to End Users    12
ARTICLE 9
  INDEMNITY AND LIMITATION OF LIABILITY    12

 


TABLE OF CONTENTS

(continued)

 

     Page

9.1        Indemnity

   12

9.2        No Consequential or Special Damages

   13
ARTICLE 10   

REPAIRS

   13

10.1     Newco’s Repairs

   13

10.2     Canadian License Co.’s Repairs

   13

10.3     Newco may Inspect State of Repair

   13

10.4     Notify Canadian License Co. of Any Damage

   13
ARTICLE 11   

MARKS

   14

11.1     Parties’ Interest In Marks

   14
ARTICLE 12   

REPRESENTATIONS AND WARRANTIES

   14

12.1     Representations and Warranties of Canadian License Co.

   14

12.2     Representations and Warranties of Newco

   15
ARTICLE 13   

COVENANTS

   16

13.1     Covenants of Canadian License Co.

   16

13.2     Covenants of Newco

   16

13.3     Additional Covenants Regarding the Satellite System

   17
ARTICLE 14   

TERM AND TERMINATION

   17

14.1     Term

   17

14.2     Extension Term

   17

14.3     Termination

   17

14.4     Acknowledgement by Canadian License Co.

   18

14.5     Survival of Obligations

   19
ARTICLE 15   

PUBLICITY AND ADVERTISING

   19

15.1     Prior Approval of Other Party

   19

15.2     Parties’ Right to Approval

   19
ARTICLE 16   

DELIVERY OF INFORMATION

   19

16.1     Notice of Certain Events

   19
ARTICLE 17   

UNAVOIDABLE DELAYS

   20

 

-ii-

 


TABLE OF CONTENTS

(continued)

 

     Page

17.1     Unavoidable Delays

   20
ARTICLE 18   

GENERAL

   21

18.1     Notices

   21

18.2     Time of the Essence

   21

18.3     Assignment

   22

18.4     Successors and Assigns

   22

18.5     Further Assurances

   22

18.6     Governing Law

   22

18.7     Severability

   23

18.8     Currency

   23

18.9     Confidentiality

   23

18.10   Rights and Remedies

   23

18.11   Counterparts

   24

 

- 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

 

1.1 Definitions

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.

 

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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.

 

1.3 Headings

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.

 

1.4 Schedules

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.

 

1.5 Consent

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 -

 


1.6 Calculation of Time

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.

 

1.7 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

 

  (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.

 

  (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.

 

- 5 -

 


  (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

 

3.1 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

 

  (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.

 

  (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.

 

  (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.

 

- 6 -

 


  (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.

 

3.4 Sales Taxes

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:

 

  (a) the Spectrum Capacity, including the Balance, and the Satellite System shall at all times remain the property of Canadian License Co.;

 

  (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

 

  (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

 

  (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

 

- 7 -

 


 

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.

 

  (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.

 

  (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.

 

  (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.

 

4.3 Comply with All Laws

 

  (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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