EXHIBIT 4.3
THIS DOCUMENT HAS BEEN REDACTED IN ACCORDANCE WITH RULE 24B-2 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. A COMPLETE COPY OF THIS EXHIBIT,
WITHOUT OMISSIONS, HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
OMISSIONS ARE INDICATED HEREIN WITH [*****].
CONTRACT AMENDMENT NO. 4
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS....................................................... 2
ARTICLE 2. SCOPE OF WORK..................................................... 7
2.1. Provision of Services and Materials............................... 7
2.1.1.The Sub-1 Exhibits.......................................... 7
2.1.2.The Sub -2 Exhibits......................................... 7
2.2. Election of Exhibits.............................................. 8
2.3. Launch Agencies................................................... 8
ARTICLE 3. DELIVERABLE ITEMS AND DELIVERY SCHEDULE........................... 9
3.1. Deliverable Items................................................. 9
ARTICLE 4. PRICE............................................................ 10
4.1. Delivery Price................................................... 10
4.2. Taxes and Duties................................................. 11
ARTICLE 5. PAYMENTS......................................................... 12
5.1. Payment Plan..................................................... 12
5.2. Payment Conditions............................................... 12
5.3. Guaranties....................................................... 13
5.4. Payment Deferral................................................. 14
5.5. Purchaser Financing.............................................. 15
ARTICLE 6. PURCHASER FURNISHED ITEMS........................................ 15
6.1. Facilities for In-Orbit Testing.................................. 15
6.2. Satellite Quarterly Reports...................................... 16
ARTICLE 7. FUNCTIONS NOTE THE RESPONSIBILITY OF PARTIES..................... 17
7.1. Radio Frequency Coordination..................................... 17
7.2. Interface and Interconnections................................... 17
7.3. General.......................................................... 17
ARTICLE 8. ACCESS TO WORK IN PROGRESS....................................... 17
8.1. Work in Progress at Contractor's Plant........................... 17
8.2. Work Progress at Subcontractors' Plants.......................... 18
8.3. Purchaser's Resident Representatives............................. 18
8.4. Competition...................................................... 19
8.5. Interference with Operations..................................... 19
ARTICLE 9. PRE-SHIPMENT INSPECTION.......................................... 19
9.1. Time, Place and Notice of Inspection............................. 19
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9.2. Pre-Shipment Inspection.......................................... 20
9.3. Pending Waivers.................................................. 20
9.4. Purchaser's Inspection Agents.................................... 20
9.5. Inspection Results............................................... 21
9.6. Inspection Equipment and Facilities.............................. 21
9.7. Warranty Obligations............................................. 22
9.8. Repaired or Replaced Items....................................... 22
ARTICLE 10. SATELLITE ACCEPTANCE............................................. 22
10.1. Satellite Acceptance Procedure................................... 22
10.2. Unqualified Acceptance........................................... 23
10.3. Qualified Acceptance............................................. 23
10.4. Satellite Replacement............................................ 23
ARTICLE 11. ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER
THAN SATELLITES.................................................. 25
11.1. Inspection....................................................... 25
11.2. Pending Waivers.................................................. 25
11.3. Purchaser's Inspection Agents.................................... 26
11.4. Acceptance Inspection Results.................................... 26
11.5. Acceptance Inspection; Equipment and Facilities.................. 26
11.6. Warranty Obligations............................................. 27
ARTICLE 12. SHIPMENT, DELIVERY, TITLE, RISK OF LOSS AND CIP.................. 27
12.1. Satellites....................................................... 27
12.2. Deliverable Items Other than Satellites.......................... 27
12.3. Carriage and Insurance Paid...................................... 28
12.4. Transfer to Third Parties........................................ 28
ARTICLE 13. ORBITAL PERFORMANCE INCENTIVES................................... 28
13.1. General.......................................................... 28
13.2. Advance Payment; Unqualified Acceptance.......................... 29
13.3. Advance Payment; Qualified Acceptance............................ 29
13.4. Daily Rate of Orbital Performance Incentives..................... 30
13.5. On-Board Redundancy.............................................. 31
13.6. Orbital Storage.................................................. 31
13.7. Temporary Outages................................................ 31
13.8. Purchaser's Change to Inclined Orbit Operation................... 32
13.9. Satellite Failure After IOT...................................... 32
13.10. Payments......................................................... 33
13.11. Negligent Operation of the Satellite............................. 33
13.12. Access to In-Orbit Data and Measurements......................... 34
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ARTICLE 14. WARRANTY PAYBACK................................................. 34
14.1. Warranty Payback Payments........................................ 34
14.2. Parental Guaranty................................................ 34
ARTICLE 15. WARRANTY......................................................... 35
15.1. Terms and Period of Warranty..................................... 35
15.2. Repair or Replacement............................................ 36
ARTICLE 16. FORCE MAJEURE.................................................... 37
ARTICLE 17. PURCHASER DELAY OF WORK.......................................... 39
ARTICLE 18. PATENT INDEMNITY................................................. 39
18.1. Indemnification.................................................. 39
18.2. Infringing Equipment............................................. 40
18.3. Combinations and Modifications................................... 40
ARTICLE 19. INDEMNITY -- PERSONAL INJURY/PROPERTY DAMAGE..................... 41
19.1. Contractor's Indemnification of Purchaser........................ 41
19.2. Purchaser's Indemnification of Contractor........................ 41
ARTICLE 20. TERMINATION FOR CONVENIENCE...................................... 42
20.1. Reimbursement of Contractor...................................... 42
20.2. Partial Termination.............................................. 43
20.3. Title Transfer................................................... 43
20.4. Termination Liability............................................ 44
ARTICLE 21. PENALTIES FOR LATE DELIVERY OF SATELLITE......................... 44
21.1. Reimbursement for Satellite Delivery Delay....................... 44
21.2. Invoice for Reimbursement........................................ 45
21.3. Exclusive Damages................................................ 46
ARTICLE 22.DEFAULT........................................................... 46
22.1. Failure to Perform by Contractor................................. 46
22.2. Termination Liability............................................ 46
22.3. Payment for Incomplete Items..................................... 47
22.4. Special Termination.............................................. 47
22.5...Contractor Termination........................................... 48
ARTICLE 23. DAMAGES.......................................................... 49
23.1. Qualified Acceptance............................................. 49
23.2. Calculation of Damages........................................... 49
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ARTICLE 24. ARBITRATION...................................................... 49
ARTICLE 25. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES..................... 50
ARTICLE 26. RISK INSURANCE................................................... 50
26.1. Insurance........................................................ 50
26.2. Risk Insurance Aspects........................................... 51
26.3. Third Party Indemnity Insurance.................................. 51
ARTICLE 27. INTER-PARTY WAIVER OF THIRD PARTY LIABILITY...................... 51
ARTICLE 28. ADDITIONAL SATELLITES OPTION..................................... 52
28.1. Additional Satellites............................................ 52
28.2. Option Prices.................................................... 52
28.3. Escalation....................................................... 54
28.4. Payment Plan..................................................... 54
28.5. Terms and Conditions............................................. 55
ARTICLE 29. GROUND STATION EQUIPMENT OPTION.................................. 55
29.1. Ground Station Equipment......................................... 55
29.2. Ground Station Equipment not Provided by Contractor.............. 55
29.3. Options for Selected Ground Station Equipment.................... 56
29.4. Terms and Conditions............................................. 57
ARTICLE 30. SATELLITE LONG LEAD PARTS OPTION................................. 57
30.1. Satellite Long Lead Parts........................................ 57
30.2. Spare Parts...................................................... 58
30.3. Credit........................................................... 58
ARTICLE 31. GROUND STORAGE OPTION............................................ 58
31.1. Notification..................................................... 58
31.2. Storage Location................................................. 59
31.3. Storage Prices................................................... 59
31.4. Payments......................................................... 59
31.5. Title and Risk of Loss........................................... 60
31.6. Notification of Intention to Launch a Previously Stored
Satellite....................................................... 60
31.7. Orbital Performance Incentives................................... 60
31.8. Storage Period................................................... 61
31.9. Stored Satellite Refurbishment................................... 61
31.10. Terms and Conditions............................................. 61
ARTICLE 32. STOP-WORK ORDER.................................................. 62
32.1. Stop-Work Order.................................................. 62
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32.2. Resumption of Work............................................... 62
32.3. Stop Work Order Claims........................................... 63
ARTICLE 33. TERMINATION IN THE EVENT OF TWO SUCCESSIVE SATELLITE
FAILURES (OPTION)................................................ 63
33.1. Notice of Option................................................. 63
33.2. Termination...................................................... 63
33.3. Rebate of Payments............................................... 64
33.4. Non-Election..................................................... 64
33.5. Sole Remedy...................................................... 64
ARTICLE 34. LAUNCH VEHICLE COST SHARING OPTION............................... 65
34.1. Launch on a PROTON Launch Vehicle................................ 65
34.2. Calculation of Price Reduction................................... 65
ARTICLE 35. OPTION FOR ALTERNATE ORBITAL LOCATIONS........................... 66
35.1. Alternate Delivery Location...................................... 66
35.2. Option........................................................... 66
35.3. Option Price..................................................... 66
35.4. Payment Plan..................................................... 67
35.5. Terms and Conditions............................................. 67
ARTICLE 36. SATELLITE SIMULATOR OPTION....................................... 67
36.1. Satellite Simulator and Training................................. 67
36.2. Price............................................................ 68
36.3. Terms and Conditions............................................. 68
ARTICLE 37. DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION............... 68
ARTICLE 38. RIGHTS IN DATA................................................... 69
38.1. Deliverable Data................................................. 69
38.2. Other Data....................................................... 69
38.3. No Additional Obligation......................................... 70
ARTICLE 39. AUTHORITY OF PURCHASER REPRESENTATIVE............................ 70
ARTICLE 40. PUBLIC RELEASE OF INFORMATION.................................... 71
ARTICLE 41. NOTICES.......................................................... 71
41.1. Written Notification............................................. 71
41.2. Change of Address................................................ 72
ARTICLE 42. ORDER OF PRECEDENCE.............................................. 72
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ARTICLE 43. GENERAL........................................... 73
43.1. Limitation of Liability........................... 73
43.2. Binding Effect; Assignment........................ 74
43.3. Severability...................................... 75
43.4. Waiver............................................ 75
43.5. Intentionally Omitted............................. 76
43.6. Gender; Captions.................................. 76
43.7. Relationships of the Parties...................... 76
43.8. Amendment......................................... 76
43.9. Entire Agreement.................................. 77
43.10. Standard of Conduct............................... 77
43.11. Construction...................................... 77
43.12. "Including"....................................... 77
43.13. Counterparts...................................... 78
43.14. Applicable Law.................................... 78
43.15. Survival.......................................... 78
ARTICLE 44. ATTACHMENTS....................................... 78
vi
Contract Amendment Number 4
for
TEMPO DIRECT BROADCAST SATELLITES
PREAMBLE
The Parties have determined that it is in the best interest of the
Program to proceed on the basis of delivery two Satellites in-orbit inclusive of
launch services, mission operation support through in-orbit testing, training,
documentation, and other options and services for the TEMPO Direct Broadcast
Satellite System, and such a change in requirements has significantly altered
the terms of the original contract. Therefore, the purpose of this Contract
Amendment Number 4 is to amend and restate in their entirety the terms and
conditions of Contract Number TPO-1-290.
This Contract is entered into as of the 22nd day of February, 1990
(the "Effective Date of Contract") between TEMPO Satellite, Inc., a corporation
organized and existing under the laws of the State of Oklahoma, having an office
and place of business at 0000 XXX Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(hereinafter referred to as the "Purchaser") and Space Systems/Loral, Inc., a
corporation organized and existing under the laws of the State of Delaware,
having an office and place of business at 0000 Xxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx
00000 (hereinafter referred to as the "Contractor").
1
WITNESSETH
----------
WHEREAS, Purchaser desires to procure Satellites, associated ground
equipment and certain services from Contractor for use on the TEMPO Direct
Broadcast Satellite System, and
WHEREAS, Contractor is willing to furnish such Satellites,
associated ground equipment and certain services as stated herein in
consideration of the price and other terms and conditions of this Contract.
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
-----------
The following terms shall have the meanings assigned to them in this
Contract:
1.1. "Acceptance" with respect to any Deliverable Item other than
Satellites shall be as defined in Article 11 hereof. "Acceptance"
with respect to Satellites shall be defined in Section 10.2 and 10.3
hereof.
1.2. "BLS" means the Bureau of Labor Statistics.
1.3. "CIP" shall have the meaning set forth in Section 12.3 hereof.
1.4. "Contract" means this amended, restated and executed Contract, its
Exhibits and its Attachments, plus any amendments thereto, to which
the Parties agree in writing.
1.5. "Contractor" means Space Systems/Loral, Inc.
2
1.6. "Deferral" shall have the meaning set forth in Section 5.4 hereof.
1.7. "Deliverable Data" shall have the meaning set forth in Exhibit A
hereto.
1.8. "Deliverable Items" shall have the meaning set forth in Section 3.1
hereof.
1.9. "Delivery" for Deliverable Items other than Satellites shall occur
upon Acceptance as confirmed in writing by Purchaser as described in
Section 12.2 hereof. "Delivery" for Satellites shall be as defined
in Section 12.1 hereof.
1.10. "Effective Date of Contract" means February 22, 1990.
1.11. "Effective Date of Grant" means May 1, 1992, the date on which the
FCC awarded a construction permit to Purchaser.
1.12. "Execution Date" means July 19, 1993.
1.13. "FCC" means the Federal Communications Commission or any successor
agency or governmental authority.
1.14. "Firm Fixed Price" shall have the meaning set forth in Section 4.1
hereof.
1.15. "Force Majeure" shall have the meaning set forth in Article 16
hereof.
1.16. "Ground Station Equipment" means the satellite control facilities
equipment described in Section 29.1 hereof.
1.17. "Ground Storage" of a Satellite means a condition where the
Satellite or its component parts are secured in a controlled
environment for preservation on the ground.
1.18. "In-Orbit Testing" or "IOT" means the testing of a Satellite after
Launch as more fully described in the Program Test Plan.
1.19. "Item" means a unit of the deliverable hardware.
3
1.20. "Launch" of a Satellite means the launch as defined in the
applicable Launch Services Agreement.
1.21. "Launch Agency" means three stage expendable launch vehicle
providers which are responsible for the Launch Sites and conducting
the Launch of the Satellites on behalf of Contractor.
1.22. "Launch Services Agreement" means the contract between Contractor
and a Launch Agency which provides for Launch of Satellites.
1.23. "Launch Site" means the launch site at Eastern Missile and Space
Center (EMSC), Cape Canaveral, Florida, or the ARIANE Launch
Facility, Kourou, French Guiana, or such other launch site selected
by Contractor, which will be used by a Launch Agency for purposes of
launching a Satellite.
1.24. "Launch Support" means those services provided by Contractor,
pursuant to Exhibit A, the Statement of Work hereto, in support of a
Launch by a Launch Agency.
1.25. "Launch Vehicle" means an Atlas or ARIANE expendable launch vehicle
or such other launch vehicle selected by Purchaser.
1.26. "Mission Operations Support Services" means the services performed
by Contractor including orbit raising of the Satellite and In-Orbit
Testing of the Satellite.
1.27. "Non-Disclosure Agreement" means the non-disclosure agreement in the
form of Attachment B hereto.
4
1.28. "Orbital Incentive Performance Period" means the 4380 consecutive
days commencing on the day following the completion of Acceptance
and Delivery of a Satellite.
1.29. "Orbital Performance Incentives" means monies that may be earned by
Contractor based on performance of each Satellite on-orbit, as may
be adjusted pursuant to Section 13.3 hereof. For Satellite No. 1 and
Satellite No. 2 (or their replacements), the Orbital Performance
Incentives are designated in the Payment Plan as milestone M-63 and
milestone M-66.
1.30. "Orbital Storage" means any period of time of intentional non-use by
Purchaser of a Satellite that has been Launched and is capable of
performing in accordance with the Performance Specification.
1.31. "Party" or "Parties" means Purchaser and/or Contractor who are the
principals to this Contract.
1.32. "Payment Plan" means, within the context of the Article using the
term, the applicable payment plan attached hereto as Attachment A.
1.33. "Performance Specification" means the performance specification
attached hereto as Exhibit B.
1.34. "Primary Parties" shall have the meaning set forth in Section 18.1
hereof.
1.35. "Program Test Plan" means the satellite program test plan attached
hereto as Exhibit D.
1.36. "Purchaser" means TEMPO Satellite, Inc., its designee or permitted
assignee.
5
1.37. "Resurrected Transponder" shall have the meaning set forth in
Section 13.3 hereof.
1.38. "Satellite" means a communications satellite which is manufactured
by Contractor and Delivered to Purchaser pursuant to this Contract.
1.39. "Satellite Anomaly" shall have the meaning set forth in Section 6.2
hereof.
1.40. "Satellite Failure" means a Satellite (I) that, at the completion of
the In-Orbit Testing, is determined to have a Service Life of fewer
than six (6) years or (ii) that, at any point in time, has fewer
than fifty percent (50%) of its transponders which meet the criteria
of the Performance Specification.
1.41. "Satellite Simulator" means the simulator referred to in Article 36.
1.42. "Service Life" means the in-orbit useful life of any Satellite.
1.43. "Statement of Work" means the statement of work attached hereto as
Exhibit A.
1.44. "Sub-1 Exhibits" means those Exhibits listed in Section 2.1.1
hereof. Exhibits X-0, X-0 and C-1 are the same as Exhibits A, B and
C previously delivered to Purchaser in connection with this
Contract.
1.45. "Sub-2 Exhibits" means those Exhibits listed in Section 2.1.2
hereof.
1.46. "TWTA" means a traveling wave tube amplifier.
1.47. "Warranty Payback" means the method of repayment by Contractor to
Purchaser of the unearned Orbital Performance Incentives pursuant to
Article 14 hereof.
6
ARTICLE 2. SCOPE OF WORK
-------------
2.1 Provision of Services and Materials.
-----------------------------------
Contractor shall provide the necessary personnel, material, services
and facilities, to manufacture, test and deliver on-orbit, two
Satellites in accordance with the Performance Specification, Exhibit
B to this Contract, to perform the services described in Exhibit A,
Statement of Work, to the extent specified in this Contract, and to
perform the work required hereunder in accordance with the Exhibits
listed below, which are attached hereto and make a part hereof:
2.1.1. The Sub-1 Exhibits.
------------------
Exhibit A-1, TEMPO Direct Broadcast Satellite System (DBSS),
Statement of Work, dated January 12, 1990; Exhibit B-1,
TEMPO DBS System Performance Specification, dated January
12, 1990; Exhibit C-1, Product Assurance Program Plan, dated
July 1989; and Exhibit D-1, Program Test Plan (deliverable
under Exhibit A-1, Annex 2).
2.1.2. The Sub -2 Exhibits.
-------------------
Exhibit A-2, entitled TEMPO Director Broadcast Satellite
System (DBSS), Statement of Work and dated June 17, 1993;
Exhibit B-2, entitled TEMPO Direct Broadcast Satellite
System (DBSS), BSS Satellite Specification and dated June
17, 1993; Exhibit C-2, entitled TEMPO Direct Broadcast
Satellite System (DBSS), BSS Product Assurance Plan and
dated June 17, 1993; and
7
Exhibit D-2, entitled TEMPO Direct Broadcast Satellite
System (DBSS), BSS Satellite Program Test Plan and dated
June 17, 1993.
2.2. Election of Exhibits.
--------------------
Contractor shall perform its obligations under this Contract in
accordance with the Sub-1 Exhibits until such time as Purchaser
directs Contractor in writing to perform its obligations in
accordance with the Sub-2 Exhibits. Purchaser shall not direct
Contractor to proceed under the Sub-2 Exhibits until Purchaser has
received any necessary authority from the FCC to have constructed
satellites having the specifications set forth in Exhibit B-2. Until
such time as Purchaser notifies Contractor to perform its
obligations in accordance with the Sub-2 Exhibits, all references to
Exhibits in this Contract shall be deemed to be references to the
Sub-1 Exhibits, and after Purchaser has notified Contractor to
perform its obligations in accordance with the Sub-2 Exhibits, all
references to Exhibits in this Contract shall be deemed to be
references to the Sub-2 Exhibits.
2.3. Launch Agencies.
---------------
Contractor and Purchaser recognize the critical need of Purchaser to
have at least one Satellite purchased under this Contract
operational by October 1996 and that the availability of reliable
Launch Vehicles is essential to timely Delivery. Therefore,
Contractor shall have the right to choose which Launch Agency
launches Satellites No. 1 and No. 2; provided, however, that subject
to the provisions of Article 34 hereof, one Satellite must be
launched using an [*****]
8
Launch Vehicle and the other Satellite must be launched using
[*****] Launch Vehicle, unless the Parties otherwise mutually agree.
ARTICLE 3. DELIVERABLE ITEMS AND DELIVERY SCHEDULE
---------------------------------------
3.1. Deliverable Items.
-----------------
The equipment, services and documentation to be delivered and the
corresponding delivery schedule under this Contract are as follows
(collectively, the "Deliverable Items"):
Item Description Delivery Schedule Delivery Location
---------------------------------------------------------------------------------------------
1. Satellite No. 1 [*****] [*****]
2. Satellite No. 2 [*****] [*****]
3. Two-Channel [*****] TBD
Transponder Simulator
4. Technical Training of [*****] TBD
operational staff
designated by Purchaser
5. Technical Data and [*****] TBD
Documentation
6. Satellite Simulator [*****] TBD
7. Additional Satellites [*****] TBD
8. Ground Station [*****] TBD
Equipment
9. Satellite Long Lead Parts [*****] TBD
10. Ground Storage [*****] TBD
9
ARTICLE 4. PRICE
-----
4.1. Delivery Price.
--------------
The Firm Fixed Price to be paid by Purchaser to Contractor for the
Deliverable Items 1 through 4, set forth in Section 3.1 hereof for
the scope of work detailed in Exhibit A, Statement of Work, is
[*****]. The prices for those Deliverable Items subject to an option
under this Contract are described in the particular Articles which
set forth those options. The Parties hereby acknowledge that
Purchaser has paid, and Contractor has received, the amount of
[*****] in consideration for the study phase of the TEMPO Direct
Broadcast Satellite System. Contractor hereby waives all rights to
the payment in the amount of [*****] payable by Purchaser to
Contractor pursuant to Amendment No. 3 of this Contract which
amendment has been superseded in its entirety. It is further agreed
that the Firm Fixed Price includes [*****] for two flight TWTAs to
be used in the Two-Channel Transponder Simulator, and Contractor
shall use reasonable efforts to obtain these TWTAs at a lower cost,
the difference being rebated to Purchaser in the form of a credit
against the Firm Fixed Price. The itemization of the Firm Fixed
Price is as follows:
10
Item Description Amount
-------------------------------------------------------------------------------------------
1. Satellite No. 1 [*****]
---------------
(as described in Section 2.3.1 of Exhibit A)
(Item price includes all design, manufacturing, tests,
documentation, Orbital Performance Incentives, Launch and
placement into assigned orbital location, Launch Vehicles,
Launch Support, Mission Operation Support Services, In-Orbit
Testing, all costs of shipment and transportation and launch risk
insurance.)
2. Satellite No. 2 [*****]
---------------
(as described in Section 2.3.1 of Exhibit A)
(Item price includes all design, manufacturing, tests,
documentation, Orbital Performance Incentives, Launch and
placement into assigned orbital location, Launch Vehicles,
Launch Support, Mission Operation Support Services, In-Orbit
Testing, all costs of shipment and transportation and launch risk
insurance.)
3. Two-Channel Transponder Simulator [*****]
---------------------------------
(as described in Section 2.7 of Exhibit A)
4. Technical Training of Operational Staff [*****]
---------------------------------------
(as described in Section 2.3.5 of Exhibit A)
4.2. Taxes and Duties. Tariffs, duties, taxes, or other charges levied
----------------
by any taxing authority on the goods, equipment, materials or effort
covered by this Contract shall be paid by Contractor.
11
ARTICLE 5. PAYMENTS
--------
5.1. Payment Plan.
------------
Payments by Purchaser to Contractor of the Firm Fixed Prices set
forth in Article 4 hereof shall be in accordance with the Payment
Plan set forth in Attachment A hereto. In the event that Purchaser
exercises any of the options under this Contract, Purchaser shall
make payments for such options in accordance with the Payment
Plan(s) which are subsets under Attachment A hereto.
5.2. Payment Conditions.
------------------
All payments due from Purchaser in particular months pursuant to
Attachment A hereto shall be due on the twenty-fifth (25th) day of
the payment month indicated in Attachment A hereto. Contractor shall
submit an invoice for the applicable amount thirty (30) days prior
to the due date. All payments due Purchaser upon the completion of a
milestone described in Attachment A shall be due twenty-five (25)
days after submission of an invoice by Contractor, including all
necessary documentation evidencing that the milestone has been met.
In the event that Purchaser does not make payment by the due date,
Purchaser shall pay Contractor interest at the rate of LIBOR + 2%
(30 day rate) per annum on the unpaid balance until such time as
payment is made by Purchaser. All payments to Contractor from
Purchaser shall be in United States Dollars and shall be made by
electronic funds transfer to the following account or other such
accounts as Contractor may specify from time to time in written
notices to Purchaser:
12
[*****]
5.3. Guaranties.
----------
On the Execution Date, Purchaser shall provide to Contractor written
guaranties substantially in the form of Attachment D hereto from
entities specified in Attachment D, and a letter of credit on behalf
of [*****]., which guaranty the payment of any amounts due
to Contractor pursuant to this Article 5 in the proportionate
amounts set forth in Attachment D. The guaranties and letter of
credit, and any and all obligations of any guarantor [*****]
hereunder, shall terminate, without further action by guarantor,
[*****] or any other party, upon (i) the date that the agreement
between Contractor and Purchaser pertaining to the purchase and sale
of satellites, ground equipment or services for a fixed satellite
service system (Contract No. TPO-1-693, dated July 19, 1993) becomes
effective pursuant to Section 1.2 thereof; (ii) any transfer of work
in progress under this Contract to a fixed satellite system at the
direction of Purchaser; or (iii) termination of the Deferral (as
that term is defined in Section 5.4 hereof) by reason of [*****]
obtaining construction financing to fund the payments due to
Contractor under this Contract as and when such payments become due,
provided, however, that if such construction financing is obtained
in an amount less than the Firm Fixed Price, the guaranties shall
not terminate, but the amount for which each of the guarantors
[*****] is obligated under its respective guaranty (and the letter
of credit) shall be reduced to its respective proportionate amount
(as set forth in each guaranty and the letter of credit) of the
total amount by which the
13
Firm Fixed Price exceeds the total amount of the construction
financing. Except for amounts deferred under Section 5.4 hereof, in
the event that an invoice duly submitted by Contractor in accordance
with the Payment Plan has gone unpaid for a period of thirty (30)
days, Contractor shall have the right to require the guarantors of
Purchaser's obligation (and Newchannels Corp.) to pay the amount
outstanding pursuant to the terms of their respective guaranties
(and the letter of credit). In the event that the amount of be paid
to Contractor is in dispute and the issue has been referred to
arbitration, Contractor shall not be permitted to invoke the
guaranties (and the letter of credit) as to the sum in dispute until
a judgment has been rendered by the arbitrator requiring Purchaser
to pay a certain amount to Contractor, which amount shall be
tendered to Contractor inclusive of interest at the rate of LIBOR +
2% (30 day rate) per annum as provided in Section 5.2 hereof.
5.4. Payment Deferral.
----------------
In recognition of Purchaser's intention to obtain construction
project financing, Contractor shall defer the progress and milestone
payments specified in this Article 5 and Attachment A (the
"Deferral"). The Deferral shall apply to all payments for a period
of up to ninety (90) days after the Execution Date. Deferred
payments shall accrue interest at the rate of LIBOR + 2% (30 day
rate) per annum on the unpaid amounts, and will be subject to
guaranty described in Section 5.3 hereof. The Parties acknowledge
that it may take longer than ninety (90) days to put in place the
construction financing for this project. In the event
14
that it is necessary to extend the Deferral, the Parties will
cooperate in developing a mutually agreeable approach for the
extension.
5.5. Purchaser Financing. It is the Purchaser's intention to obtain
-------------------
construction financing for the project which is the subject of this
Contract. Contractor acknowledges that in the process of obtaining
such financing and/or as a continuing condition of such financing,
Purchaser may be required to comply with certain requests or
requirements of the potential or actual lenders, including supplying
information related to this Contract. Contractor covenants that it
will provide Purchaser or its potential lenders with such
information, documentation and assistance as the Purchaser may
reasonably request, and will otherwise cooperate with Purchaser in
any reasonable manner requested by Purchaser or its potential or
actual lender for the purpose of obtaining construction financing,
including any commercially reasonable amendments to this Contract
that may be reasonably requested by such lender which do not result
in financial detriment to Contractor.
ARTICLE 6. PURCHASER FURNISHED ITEMS
-------------------------
6.1. Facilities for In-Orbit Testing.
-------------------------------
Purchaser shall make available to Contractor the use of Purchaser's
designated satellite control facilities and access to the
communications uplink facility for the purposes of In-Orbit Testing
of the Satellite(s). The radio frequency equipment to be supplied by
Purchaser at the communications uplink facility is identified in
Attachment F to this Contract. Such equipment is to be available for
Contractor's
15
use sixty (60) days prior to Launch. Purchaser and Contractor will
conduct a radio frequency equipment meeting one hundred and eighty
days (180) days prior to Launch to confirm the availability of such
equipment.
6.2. Satellite Quarterly Reports.
---------------------------
Purchaser shall provide to Contractor, no less frequently than
quarterly during the Service Life of the Satellites, an informal
letter report which shall describe the general health and operating
status of the Satellite(s) and specifically identify any defined
Satellite Anomalies. For the purpose of this Article 6, a Satellite
Anomaly means any on-orbit occurrence that was not anticipated in
the Satellite Orbital Operation Handbook delivered to Purchaser
pursuant to Annex 2 of Exhibit A. At Purchaser's request, Contractor
shall investigate any Satellite Anomaly and use its best efforts to
correct such Satellite Anomaly. Purchaser shall provide and/or give
access to any data Contractor may require for investigation and/or
correction of any Satellite Anomaly. Further, Purchaser shall grant
reasonable access to ground stations and the Satellite as Contractor
might require for investigation and/or correction of any Satellite
Anomaly.
ARTICLE 7. FUNCTIONS NOTE THE RESPONSIBILITY OF PARTIES
--------------------------------------------
7.1. Radio Frequency Coordination.
----------------------------
Contractor is not responsible for radio frequencies coordination, or
the preparation of filings for International Telecommunications
Union/International Frequency Registration Board (ITU/IFRB)
registration or FCC requirements; provided, however, that Contractor
shall render assistance to Purchaser and its designees as
16
may be reasonably requested in connection with their filings with
the FCC or other governmental agencies.
7.2. Interface and Interconnections.
------------------------------
Contractor shall not be responsible for any interface and
interconnections of the Satellites, including but not limited to
connecting terrestrial facilities, voice and teletype switches.
7.3. General.
-------
Neither Party shall be responsible for any undertakings not
expressly and specifically set forth in this Contract as being the
assigned responsibility of such Party.
ARTICLE 8. ACCESS TO WORK IN PROGRESS
--------------------------
8.1. Work in Progress at Contractor's Plant.
--------------------------------------
For the purpose of observing the quality and progress of
Contractor's performance of work, a limited number of Purchaser's
personnel and consultants shall be allowed to observe work being
performed at the system level and above for the Satellites and other
Deliverable Items at Contractor's plant. Such observation shall
occur during normal working hours and during other hours that are
reasonable under the circumstances. For purposes of scheduling
meetings and program reviews between Purchaser's and Contractor's
personnel, Purchaser shall coordinate with Contractor reasonably in
advance of such meetings or program reviews.
17
8.2. Work Progress at Subcontractors' Plants.
---------------------------------------
To the extent permitted by Contractor's major subcontractors (for
the purpose of this Article 8, subcontractors supplying services or
goods valued in excess of [*****] in connection with any Satellite),
Contractor shall allow Purchaser's personnel and consultants access
to work being performed pursuant to this Contract in subcontractors'
plants in connection with any Satellite for the purpose of observing
the quality and progress of subcontractor's performance of work,
subject to the right of Contractor to accompany Purchaser on any
visit to a subcontractor's plant. Contractor will use its best
efforts in subcontracting to obtain permission for such access to
subcontractors' facilities as described in this Section 8.2.
8.3. Purchaser's Resident Representatives.
------------------------------------
For the purpose of monitoring the progress of this Contract,
Contractor shall provide office facilities for a limited number of
resident Purchaser's personnel (or its consultants) during the
course of this Contract, and for the period covered by the exercise
of any option for additional Satellites provided pursuant to Article
28 hereof. The office facilities to be provided shall include
without limitation a reasonable about of office space, office
furniture, regular parking facilities, local telephone service,
access to copy machines and access to facsimile machines.
8.4. Competition.
-----------
Purchaser's consultants shall not be selected from companies or
entities which are in direct competition with Contractor to produce
items such as those being
18
manufactured hereunder. Purchaser shall formally advise Contractor
of the names, title/function, business relationship and employer of
its intended consultants and arrange for these consultants to
execute a confidentiality agreement directly with Contractor
substantially the same as the Non-disclosure Agreement attached
hereto as Attachment B.
8.5. Interference with Operations.
----------------------------
Purchaser shall exercise its rights to access work in progress under
this Article 8 so that it does not unreasonably interfere with
Contractor's normal business operations or Contractor's performance
of its obligations under this Contract.
ARTICLE 9. PRE-SHIPMENT INSPECTION
-----------------------
9.1. Time, Place and Notice of Inspection.
------------------------------------
With respect to Satellite(s), the pre-shipment inspection shall take
place at a date and time mutually agreeable to the Parties, but for
Satellite No. 1, not later than one (1) month prior to shipment.
With respect to all other Deliverable Items, Contractor shall notify
Purchaser in writing at least thirty (30) days prior to the date
when the Deliverable Item covered thereby will become ready for
inspection, and the schedule for inspection times and locations
shall be determined by mutual agreement of the Parties to ascertain
whether the Deliverable Item conforms to the Performance
Specification.
19
9.2. Pre-Shipment Inspection.
-----------------------
The purpose of the pre-shipment inspection is to determine through
ground tests and analyses whether the completed Deliverable Item(s)
conform to the standards and requirements of the Performance
Specification. The pre-shipment inspection shall be performed in
accordance with the procedures described in Section 2.2.4 of Exhibit
A.
9.3. Pending Waivers.
---------------
Waivers for deviations from the Performance Specification for
Deliverable Items shall be submitted to Purchaser promptly as and
when they occur. Any waivers still pending at the time of pre-
shipment inspection shall be presented to Purchaser at the
commencement of the pre-shipment inspection. The Parties shall
negotiate mutually agreeable consideration for approval of any
waivers. Shipment of Satellites is contingent upon all waivers being
approved by Purchaser, and the Performance Specification, as
modified by any waivers approved by Purchaser, shall constitute the
performance baseline of the applicable Satellite for purposes of
Acceptance and the determination of damages and Orbital Performance
Incentives.
9.4. Purchaser's Inspection Agents.
-----------------------------
Purchaser may, upon giving prior notice to Contractor, cause any
agent(s) designated by Purchaser to conduct such pre-shipment
inspection in whole or in part; provided, however, that such
agent(s) will not be selected from companies or entities which are
in direct competition with Contractor to produce items such as
20
those being manufactured hereunder. Purchaser shall formally advise
Contractor of the names, title/function, business relationship and
employers of its intended agents and arrange for these agents to
execute a confidentiality agreement directly with Contractor
substantially the same as the Non-disclosure Agreement attached
hereto as Attachment B.
9.5. Inspection Results.
------------------
Upon completion of pre-shipment inspection, Purchaser shall promptly
notify Contractor of the results thereof in writing. In the event
Contractor receives a notice of rejection from Purchaser for any
Deliverable Items, Contractor shall, if it is directed to do so by
Purchaser, correct or repair the Deliverable Item and submit it for
reinspection by Purchaser after having corrected and/or repaired all
defects.
9.6. Inspection Equipment and Facilities.
-----------------------------------
Contractor shall make available to Purchaser or its agents such
equipment and facilities as Purchaser may require to conduct any
pre-shipment inspections. All expenses in connection with such
assistance, as well as transportation to and from the inspection
site, any and all losses resulting from any deterioration, wear and
tear, and damage in the process of any pre-shipment inspection, and
any other expenses and losses incurred due to implementation of such
pre-shipment inspections shall be borne by Contractor, except for
such expenses and losses that may be incurred due to any willful or
negligent act by Purchaser. All expenses
21
that may be required for Purchaser to dispatch its personnel for
pre-shipment inspections, including travel and living expenses,
shall be borne by Purchaser.
9.7. Warranty Obligations.
--------------------
In no event shall Contractor be released from any of its warranty
obligations as set forth in Article 15 hereof as a result of any
Deliverable Item having successfully passed the pre-shipment
inspection set forth in this Article 9.
9.8. Repaired or Replaced Items.
--------------------------
The provisions of this Article 9 shall apply to corrected, repaired
or replaced items Delivered in place of rejected, damaged, or
defective Deliverable Items.
ARTICLE 10. SATELLITE ACCEPTANCE
--------------------
10.1. Satellite Acceptance Procedure.
------------------------------
Following the successful completion of pre-shipment inspection of
any Satellite, Contractor shall proceed with the Launch of the
Satellite. Thirty (30) days prior to Launch of the Satellite,
Contractor shall notify Purchaser of the IOT schedule. Purchaser may
observe the IOT at Contractor's site. When IOT has been completed,
Contractor shall submit to Purchaser the test results, together with
a certification by Contractor that the Satellite meets the
Acceptance criteria described in Section 10.2 or 10.3 hereof, or
with an explanation of the criteria that the Satellite does not
meet. Contractor and Purchaser shall hold an acceptance review (as
defined in Exhibit A), and Purchaser shall either accept the
Satellite in accordance with Section 10.2 or Section 10.3 hereof if
Purchaser is reasonably
22
satisfied with the IOT results and Contractor's certification, or
reject the Satellite as a Satellite Failure, in which event the
provisions of 10.4 hereof shall apply.
10.2. Unqualified Acceptance.
----------------------
Purchaser shall be obligated to accept in writing without
qualification a Satellite only if (I) the Satellite has successfully
passed the Program Test Plan, (ii) it has been verified at the
acceptance review that the Satellite's Service Life will be at least
twelve (12) years, (iii) the Satellite satisfies all the
requirements specified in the Performance Specification and (iv) all
of the transponders on the Satellite perform in accordance with the
Performance Specification.
10.3. Qualified Acceptance.
--------------------
Purchaser shall be obligated to accept in writing a Satellite when
it has been verified at the acceptance review that, although it does
not fully satisfy the requisite acceptance conditions set forth in
Section 10.2 hereof, its Service Life will be at least six (6) years
and fifty percent (50%) or more of the transponders meet the
criteria of the Performance Specification. Purchase may claim
damages against Contractor as set forth in Article 23 for any
Satellite which it is required to accept pursuant to this Section
10.3.
10.4. Satellite Replacement.
---------------------
Contractor is obligated to make four (4) attempts to deliver two (2)
Satellites on-orbit that satisfy the criteria of Sections 10.2 and
10.3 hereof. If there is a Satellite Failure of Satellite No. 1 and
Delivery has not yet occurred for such Satellite, or in the event
Satellite No. 1 fails to be placed into its assigned orbital
23
location, Contractor shall, at its risk and expense, deliver to
Purchaser a replacement Satellite on-orbit no later than [*****]
after the date of Satellite Failure. The preceding sentence also
applies to Satellite No. 2. If a replacement Satellite launched
pursuant to the two (2) immediately preceding sentences is a
Satellite Failure prior to Delivery, or if such Satellite fails to
be placed into its assigned orbital location, and Contractor has not
fulfilled its obligation to make [*****] attempts to deliver [*****]
Satellites, Contractor shall, at its risk and expense, deliver to
Purchaser another replacement Satellite on-orbit no later than
twenty-nine (29) months after the date of the replacement Satellite
Failure. Purchaser may, at its option, use Satellite(s) which have
not been accepted pursuant to Section 10.2 or 10.3 hereof consistent
with the salvage and use measurers available in Contractor's
satellite risk insurance policy. Contractor shall review its
satellite risk insurance policies with Purchaser prior to execution
of the policies and shall use reasonable efforts to maximize the
usefulness, for the Purchaser, of the salvage and use measures
available under the policy. The provisions of Sections 10.1, 10.2
and 10.3 hereof shall apply to the replacement satellite(s) set
froth in this Section 10.4. Subject to the provisions of Article 33
and Section 22.4 hereof, only if after four (4) attempts, Contractor
fails to deliver two (2) Satellites on-orbit which satisfy the
acceptance criteria in Section 10.2 or Section 10.3 hereof,
Purchaser may terminate this Contract upon written notice to
Contractor, and Purchaser shall receive [*****] (as set forth in
Section 4.1 hereof) less (i) [*****] (ii) the unpaid Orbital
Performance Incentive payments for such Satellite
24
for each Satellite that experiences a Satellite Failure in-orbit, up
to a maximum of [*****] Satellites. Alternatively, Purchaser may
terminate this Contract upon the terms described in Article 33
hereof.
ARTICLE 11. ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER THAN SATELLITES
-----------------------------------------------------------------
11.1. Inspection.
----------
With respect to all Deliverable Items other than Satellites,
Purchaser, within thirty (30) days after delivery of a Deliverable
Item to Purchaser's facility, shall perform acceptance inspection in
accordance with the procedures described in Section 2.2.7 of Exhibit
A. The purpose of the acceptance inspection is to determine whether
the completed and delivered Deliverable Item(s) conform to the
standards and requirements of the Performance Specification.
11.2. Pending Waivers.
---------------
Waivers for deviation of Deliverable Items (other than Satellites)
from the Performance Specification shall be submitted to Purchaser
promptly as and when they occur. Any waivers still pending at the
time of acceptance inspection shall be presented to Purchaser. The
Parties shall negotiate mutually agreeable consideration for
approval of any waivers. Acceptance of any Deliverable Items (other
than Satellites) is contingent upon all waivers being approved by
Purchaser.
25
11.3. Purchaser's Inspection Agents.
-----------------------------
Purchaser may, upon giving prior notice to Contractor, cause any
agent(s) designated by Purchaser to conduct such acceptance
inspection in whole or in part; provided, however, that such
agent(s) will not be selected from companies or entities which are
in direct competition with Contractor to produce items such as those
being manufactured hereunder. Purchaser shall formally advise
Contractor of the names, title/function, business relationship and
employers of its intended agents and arrange for these agents to
execute a confidentiality agreement directly with Contractor
substantially the same as the Non-disclosure Agreement attached
hereto as Attachment B.
11.4. Acceptance Inspection Results.
-----------------------------
Upon completion of acceptance inspection, Purchaser shall promptly
notify Contractor of the results thereof in writing. In the event
Contractor receives a notice of rejection from Purchaser for any
Deliverable Items (other than Satellites), Contractor shall, if it
is directed to do so by Purchaser, correct or repair the Deliverable
Item and submit it for reinspection by Purchaser after having
corrected and/or repaired all defects.
11.5. Acceptance Inspection; Equipment and Facilities.
-----------------------------------------------
Contractor shall make available to Purchaser or its agents such
equipment and facilities as Purchaser may require to conduct any
acceptance inspections. All expenses in connection with such
assistance, as well as any and all losses resulting from any
deterioration, wear and tear, and damage in the process of any
26
acceptance inspection, and any other expenses and losses incurred
due to implementation of such acceptance inspections shall be borne
by Contractor, except for such expenses and losses that may be
incurred due to any willful or negligent act by Purchaser. All
expenses that may be required for Purchaser to dispatch its
personnel for acceptance inspections, including travel and living
expenses, shall be borne by Purchaser.
11.6. Warranty Obligations.
--------------------
In no event shall Contractor be released from any of its warranty
obligations as set forth in Article 15 hereof as a result of any
Deliverable Item having successfully passed the acceptance
inspection set forth in this Article 11.
ARTICLE 12. SHIPMENT, DELIVERY, TITLE, RISK OF LOSS AND CIP
-----------------------------------------------
12.1. Satellites.
----------
Risk of loss and title to each Satellite shall pass from Contractor
to Purchaser upon Delivery. Delivery shall occur upon Acceptance in
writing pursuant to Section 10.2 or 10.3 hereof, and delivery of a
xxxx of sale in form and substance satisfactory to Purchaser,
including a warranty of good and marketable title to each Satellite,
free and clear of any claims, security interests, liens and
encumbrances.
12.2. Deliverable Items Other than Satellites.
---------------------------------------
Risk of loss and title to all Deliverable Items other than
Satellites shall pass from Contractor to Purchaser upon Acceptance
as confirmed in writing by Purchaser pursuant to Section 11.4.
Delivery of all Deliverable Items other than Satellites
27
shall occur upon Acceptance and delivery of a xxxx of sale in form
and substance acceptable to Purchaser, including a warranty of good
and marketable title to such Deliverable Items, free and clear of
any claims, security interests, liens and encumbrances.
12.3. Carriage and Insurance Paid.
---------------------------
The Carriage and Insurance Paid ("CIP") for all deliverable hardware
items specified in Section 3.1 hereof shall be at the location where
title passes. All deliverable data and documentation specified in
Article 3.1 hereof and in Annex 2 of Exhibit A shall be delivered
CIP, Purchaser's designated delivery sites.
12.4. Transfer to Third Parties.
-------------------------
Purchaser may direct Contractor to transfer title of any Deliverable
Item directly to a third party designated by Purchaser; provided,
however, that Purchaser shall arrange for the third party designee
to execute a confidentiality agreement directly with Contractor
substantially the same as the Non-disclosure Agreement attached
hereto as Attachment B, and provided further that in no event shall
such a designation release Purchaser from its obligations hereunder
(unless otherwise provided in Section 43.2 hereof).
ARTICLE 13. ORBITAL PERFORMANCE INCENTIVES
------------------------------
13.1. General.
-------
The Orbital Performance Incentives shall be paid in accordance with
milestones M-63 and M-66 as described in the Payment Plan and shall
be considered an advance payment. [*****] For the purpose of
calculating Orbital Performance
28
Incentives, the first day of the Orbital Incentive Performance
Period shall be deemed to commence at midnight Greenwich Mean Time
on the first day after Delivery and such day shall last for twenty-
four (24) hours. If the performance of the Satellite changes over
the Service Life of the Satellite, the Parties shall adjust the
amount of Orbital Performance Incentive earned in accordance with
the provisions of Section 13.4 hereof. [*****]
13.2. Advance Payment; Unqualified Acceptance.
---------------------------------------
Upon Acceptance of Satellite No.1 and Satellite No.2 (or their
replacements) pursuant to Section 10.2 hereof, Contractor shall be
paid a total amount of [*****] payment for the Orbital Performance
Incentives for each Satellite.
13.3. Advance Payment; Qualified Acceptance.
-------------------------------------
Upon Acceptance of a Satellite pursuant to Section 10.3 hereof, the
amount of advance payment for the Orbital Performance Incentives to
be paid to Contractor for Satellites No. 1 and No. 2 or their
replacements shall be adjusted in accordance with the following
formula:
T = number of Transponders meeting the Performance
Specification
P = [*****]
D = number of days of expected Service Life, [*****]
AOPI = Adjusted Orbital Performance Incentives
AOPI = P x (T/[*****] x (D/[*****]
In the event that a Satellite transponder that did not perform in
accordance with the Performance Specification on the date of the
advance payment subsequently
29
begins performing in accordance with the Performance Specification
(a "Resurrected Transponder"), [*****]
R = number of Resurrected Transponders
[*****] x R x ([*****]- number of days since Delivery).
13.4. Daily Rate of Orbital Performance Incentives.
--------------------------------------------
For Satellites accepted by Purchaser pursuant to Section 10.2
hereof, Contractor shall earn Orbital Performance Incentives at a
daily rate of [*****] and [*****] per transponder for each day that
a transponder operates in accordance with Performance Specification
up to a maximum of [*****] days. For Satellites accepted by
Purchaser pursuant to Section 10.3 hereof, Contractor shall accrue
and be entitled to earn Orbital Performance Incentives at a daily
rate of [*****] per transponder for each day that a transponder
operates in accordance with performance Specification, but in no
event shall contractor be entitled to earn more than the total of
the advance payment made pursuant to Section 13.3 hereof. Any
amounts of the Orbital Performance Incentive paid in advance and
subsequently not earned by Contractor shall be returned to Purchaser
as a Warranty Payback in accordance with Article 14 hereof.
13.5. On-Board Redundancy.
-------------------
The use of any Satellite on-board redundancy to maintain service
shall not in and of itself be deemed to constitute less than
satisfactory operation under this Article 13, and use of such
redundancy shall be deemed normal operating procedure so long as the
Performance Specification is met by such Satellite.
13.6. Orbital Storage.
---------------
30
If Purchaser places a Satellite in Orbital Storage, Contractor shall
continue to earn Orbital Performance Incentives at the same daily
rate as Contractor was earning prior to the Satellite being placed
in Orbital Storage for the balance of the Orbital Incentive
Performance Period. If a Satellite is returned to service following
a period of Orbital Storage, the daily Orbital Performance Incentive
amount shall be earned based on the performance of the Satellite
consistent with Section 13.4 hereof.
13.7. Temporary Outages.
-----------------
For purposes of determining whether Contractor has earned an Orbital
Performance Incentive for any transponder on any day, in the event
that a transponder fails to perform in accordance with the
Performance Specification for a period of time in excess of [*****]
seconds during in-orbit operation, Contractor shall forfeit the
daily amount of Orbital Performance Incentive for each transponder
and each day in which such outage occurs. At such time as the
transponder resumes operation in accordance with the Performance
Specification, Contractor shall resume earning Orbital Performance
Incentives at the appropriate daily rate, beginning the next day
following the day in which the outage occurred, for each day in
which the transponder functions in accordance with the Performance
Specification with no outrages in excess of [*****] seconds. If,
after Acceptance, a transponder fails to meet the requirements of
the Performance Specification of a period of [*****] and Purchaser
declares it a transponder failure, Purchaser [*****]- number of days
between Acceptance and Purchaser
31
declaration of transponder failure.) Any amounts of the Orbital
Performance Incentives forfeited by Contractor pursuant to this
Section 13.7, shall be [*****] hereof.
13.8. Purchaser's Change to Inclined Orbit Operation.
----------------------------------------------
If, during the Orbital Incentive Performance Period, Purchaser
changes the mode of operation of a Satellite to inclined orbit
operation, Contractor shall be entitled to earn the Orbital
Performance Incentives at the same daily rate as Contractor was
earning prior to the date of such change. The change to inclined
orbital operation shall not extend the Orbital Incentive Performance
Period.
13.9. Satellite Failure After IOT.
---------------------------
Upon the occurrence of a Satellite Failure after IOT, Contractor
shall not be entitled to earn Orbital Performance Incentives, and
shall have no claim against Purchaser regarding such Orbital
Performance Incentives. Any unearned amount of the Orbital
Performance Incentives as of the date of Satellite Failure shall
[*****] hereof. In the event of a Satellite Failure after Delivery
of such Satellite, Contractor shall not be subject to the provisions
of Article 10.4 hereof.
13.10. Payments.
--------
Any amount payable to Contractor under this Article 13 shall be paid
as provided in Article 5 hereof. Contractor's right to Orbital
Performance Incentives under this Article 13 with respect to any
Satellite accepted pursuant to Article 10 prior to termination of
this Contract in accordance with either Article 20 or Article 22
hereof, shall not be affected by such termination.
32
13.11. Negligent Operation of the Satellite.
------------------------------------
If, solely because of negligence on the part of Purchaser or
Purchaser's representatives, consultants or subcontractors in the
operation of, testing of, or communication with, a Satellite, such
Satellite operates in a manner that is not in accordance with the
Performance Specification, Contractor shall continue to earn Orbital
Performance Incentives at the same rate as determined prior to the
occurrence of the degraded performance caused by Purchaser, or
Purchaser's representatives, consultants or subcontractors for the
remaining period of the Orbital Performance Incentive Period,
subject to any reduction in the Orbital Performance Incentive
resulting from subsequent operation of the Satellite below the
Performance Specification for reasons other than the negligence of
Purchaser or Purchaser's representatives, consultants or
subcontractors.
13.12. Access to In-Orbit Data and Measurements.
----------------------------------------
Over the Service Life of a Satellite, Contractor shall have access
to the Satellite data archives necessary to ascertain Satellite
performance conditions. All measurements, computations and analyses
performed to determine whether a reduction in the orbital incentive
amounts earned by Contractor is warranted shall take into account
tolerances for measurement accuracy of the measurement equipment.
33
ARTICLE 14. [*****]
14.1. [*****].
[*****] interest at a rate of LIBOR + 2% (30 day rate) per annum on
the unpaid balance until such time as payment is made by [*****]
14.2 Parental Guaranty.
-----------------
Thirty (30) days prior to the Launch of any Satellite procured
hereunder, [*****] shall provide to [*****] a written guaranty from
an entity acceptable to Purchaser which guarantees the payment of
any amounts which [*****] hereof. In the event that an invoice duly
submitted by [*****] has gone unpaid for a period of thirty (30)
days, [*****] shall have the right to require the guarantor(s) of
[*****] obligation to pay the amount outstanding pursuant to the
terms of the guaranty which shall be substantially in the form of
Attachment E hereto. In the event that the amount to be returned to
[*****] is in dispute and the issue has been referred to
arbitration, [*****] shall not be permitted to invoke the guaranty
until a judgment has been rendered by the arbitrator requiring
[*****] to return any unearned amount of the Orbital Performance
Incentives to [*****], which amount shall be tendered to [*****]
inclusive of interest at the rate of LIBOR + 2% (30 day rate) per
annum.
ARTICLE 15. WARRANTY
--------
15.1. Terms and Period of Warranty.
----------------------------
Contractor warrants that until the Launch of any Satellite, such
Satellite shall be free from any defects in material or workmanship
and shall meet the Performance
34
Specification (as the Performance Specification may have been
modified pursuant to Section 9.3 hereof) in every respect.
Contractor warrants that the Deliverable Items other than Satellites
shall perform in accordance with the Performance Specification and
other requirements of this Contract, and will be free from defects
in materials and workmanship for a period of one (1) year after the
date of Acceptance.
15.2 Repair or Replacement.
---------------------
a. With respect to Deliverable Items other than Satellites,
during the one (1) year warranty period, any defect
discovered by Purchaser shall be remedied by Contractor at
Contractor's expense by repair or replacement of the
defective component at Contractor's election. Contractor
shall determine if repair or replacement is required to be
performed at Contractor's plant. Purchaser shall ship to
Contractor's designated facility any defective Deliverable
Items (other than Satellites) requiring repair and
replacement. Contractor shall be responsible for the cost of
shipment (including any taxes, duties) for defective
Deliverable Items (other than Satellites) shipped to
Contractor, and the cost of shipment for return or repaired
or replacement equipment shipped to Purchaser. Title and
risk of loss for defective Deliverable Items (other than
Satellites) shall transfer to Contractor upon delivery of
such Deliverable Items to the shipping carrier by Purchaser,
and title and risk of loss shall transfer to Purchaser for
35
returned repair or replacement equipment upon receipt of such
equipment by Purchaser.
b. With respect to Deliverable Items other than Satellites, if the
defect is not covered by the warranty, Purchaser shall pay
Contractor the cost of repairs or replacement, the transportation
charges and a mutually agreed upon profit; provided, however,
that Contractor shall repair the Transponder Simulator [*****]
after Delivery. Such repair cost shall be invoiced to Purchaser
pursuant to the provisions of Section 5.2 hereof. Subsequent to
the one (1) year warranty period, Purchaser shall pay the
transportation costs for return of the Satellite Simulator to
Contractor as well as the return to Purchaser after repair.
c. The warranty under this Article 15 shall not apply if adjustment,
repair, or parts replacement is required because of accident,
unusual physical or electrical stress, negligence, misuse,
failure of environmental control prescribed in operations and
maintenance manuals, repair or alterations by other than
Contractor, or causes other than ordinary uses. Further, the
warranty is contingent upon Contractor being given access, if
required, to delivered equipment at Purchaser's facility in order
to effect any repair and/or replacement.
ARTICLE 16. FORCE MAJEURE
-------------
The term "Force Majeure" means fire, casualty, flood, earthquake,
strikes, riots, embargoes, war, any future law, order, regulation,
ordinance or other act of
36
government, delays in transportation, energy shortages or material
shortages beyond a Party's reasonable control or other events of a
similar nature and magnitude beyond the reasonable control of either
a Party or its supplier and subcontractor and without the fault or
negligence of either a Party or its suppliers and subcontractors. If
the performance of this Contract is prevented, restricted or
interfered with by reason of Force Majeure, (i) the Party whose
performance is prevented, restricted or interfered with shall give
prompt written notice to the other Party of the event, and, to the
extent that such enumerated condition was beyond the control of such
Party, such Party shall be excused from performance to the extent
delayed or prevented by Force Majeure; provided, however, that the
Party whose performance is prevented or delayed shall, when possible
without material financial penalty, take reasonable steps to avoid
or remove such causes of nonperformance, including without
limitation taking all reasonable steps to obtain alternative sources
of supplies, components and raw materials, and shall continue
performance whenever and to the extent such causes are removed; and
(ii) if it appears that a time for delivery or performance scheduled
pursuant to this Contract shall be extended for more than one
hundred eighty (180) days due to Force Majeure, the Party receiving
notice under subsection (i) above shall have the right to terminate,
by written notice to the other Party, any portion of this Contract
covering the delayed performance, and upon such termination, the
rights, obligations and liabilities of all Parties with respect to
such portion of this Contract shall thereupon terminate, except to
the extent such rights, obligations
37
and liabilities are intended to survive pursuant to this Contract in
accordance with Section 43.15 hereof. In the event of a termination
pursuant to this Article 16, the Parties shall negotiate in good
faith to allocate the costs of the termination giving effect to
equitable factors, including without limitation the availability of
insurance proceeds to either Party.
ARTICLE 17. PURCHASER DELAY OF WORK
-----------------------
If the performance of all or any part of the work required by this
Contract is delayed or interrupted (except for Force Majeure) by
Purchaser's failure to perform its contractual obligations within
the time specified in this Contract or within a reasonable time if
no time is specified, or an act by Purchaser that unreasonably
interferes with Contractor's performance of its obligations under
this Contract, this Contract shall be equitably adjusted in the
price, performance requirements, schedule, and/or any other affected
terms of this Contract.
ARTICLE 18. PATENT INDEMNITY
----------------
18.1. Indemnification.
---------------
Subject to the limitations of Section 43.1 hereof, Contractor, at
its own expense, shall defend, indemnify and hold harmless
Purchaser, its permitted assignees, PRIMESTAR Partners, L.P. and its
partners, the FCC licensee(s) of the Satellite(s) (collectively, the
"Primary Parties"), and any entities controlling, controlled by or
under common control with any of the Primary Parties and their
respective officers and directors, or any of them, from and against
any claim or suit based on an allegation that the manufacture of any
Deliverable Item or the normal intended use, lease or sale of any
Deliverable Item
38
infringes letters patent, copyright, mask work, trademark, service
xxxx, trade name or other intellectual property rights
(collectively, "Intellectual Property Claim(s)") and shall pay any
royalties and other losses, damages (increased, actual or
statutory), liabilities, costs (including court costs and reasonable
attorneys fees) related to or resulting from such Intellectual
Property Claim; provided that Purchaser promptly notifies Contractor
in writing of any such Intellectual Property Claim and gives
Contractor authority and such assistance and information requested
by Contractor as is available to Purchaser for the defense of such
Intellectual Property Claim.
18.2. Infringing Equipment.
--------------------
If the manufacture of any Deliverable Item or the normal intended
use, lease or sale of any Deliverable Item under this Contract is
enjoined as a result of an Intellectual Property Claim or is
otherwise prohibited, Contractor shall (i) resolve the matter so
that the injunction or prohibition no longer pertains, (ii) procure
for Purchaser the right to use the infringing item or (iii) modify
the infringing item so that it becomes noninfringing while remaining
in compliance with the Performance Specification in all respects. If
Contractor is unable to accomplish (i), (ii) or (iii), Purchaser
shall have right to terminate this Contract, return the Deliverable
Item to Contractor, and receive a refund of the price of such
Deliverable Item (less a reasonable allowance for depreciation).
18.3. Combinations and Modifications.
------------------------------
39
Contractor shall have no liability under this Article 18 for any
Intellectual Property Claim arising solely from (i) use of
Deliverable Items in combination with other items, unless Contractor
sold, made or specifically recommended them as a combination, or the
specific combination would be necessary for use of the Deliverable
Item in the normal course of events in connection with the use of
Deliverable Items or (ii) modifications of Deliverable Items after
Delivery, unless Contractor made or specifically recommended the
modification, or the modification constitutes normal repair,
replacement or implementation of Contractor provided options and
enhancements for the Deliverable Items sold hereunder.
ARTICLE 19. INDEMNITY -- PERSONAL INJURY/PROPERTY DAMAGE
--------------------------------------------
19.1. Contractor's Indemnification of Purchaser.
-----------------------------------------
Contractor shall defend, indemnify and hold harmless the Primary
Parties and any entities controlling, controlled by or under common
control with any of the Primary Parties from any loss, damage,
claim, liability, cost and expense (including court costs and
reasonable attorneys' fees) (collectively, "Damages") caused by,
relating to or arising from third party claims for personal injury
or third party property damage (including claims arising out of
Contractor's relationships with its employees, suppliers,
subcontractors, agents and consultants) resulting from or related to
(i) Contractor's performance under this Contract, (ii) Contractor's
material misrepresentation, breach of warranty or covenant, default,
40
nonfulfillment of Contractor's obligations under this Contract or
(iii) any negligent act or omission or willful misconduct of
Contractor.
19.2. Purchaser's Indemnification of Contractor.
-----------------------------------------
Purchaser shall defend, indemnify and hold harmless Contractor from
any Damages caused by, relating to or arising from third party
claims for personal injury or third party property damage (including
claims arising out of Purchaser's relationships with its employees,
suppliers, subcontractors, agents and consultants) resulting from or
related to (i) Purchaser's performance under this Contract, (ii)
Purchaser's material misrepresentation, breach of warrant or
covenant, default, nonfulfillment of Purchaser's obligations under
this Contract or (iii) any negligent act or omission of willful
misconduct of Purchaser.
ARTICLE 20. TERMINATION FOR CONVENIENCE
---------------------------
20.1. Reimbursement of Contractor.
---------------------------
Purchaser may terminate this Contract without cause in whole or in
part by giving Contractor written notice. In the event of such
termination, Contractor will cease work as directed in the
termination notice. Contractor shall submit its claim for the work
performed in connection with the terminated portion of this
Contract, and for its termination costs plus a reasonable profit as
provided in items (a) - (e) of this Section 20.1. Except as
otherwise set forth in Section 20.4 hereto, if Purchaser terminates
this Contract pursuant to this Section 20.1, Contractor may provide
an invoice to Purchaser, and be paid at the termination settlement,
for:
41
a. Price for Deliverable Items completed prior to the termination
and accepted by Purchaser before or after termination for which
payment has not been made by Purchaser.
b. Actual out-of-pocket costs incurred by Contractor in
performance of work on terminated Deliverable Items which have
not been accepted by Purchaser.
c. Actual out-of-pocket costs incurred by Contractor in completing
the termination process.
d. Actual out-of-pocket costs incurred by Contractor in settling
claims of subcontractors and other suppliers and vendors in
connection with the termination; provided that Contractor shall
use its bests efforts to minimize such costs.
e. A mutually agreed upon profit for items (b), (c) and (d) above
to be negotiated by Purchaser and Contractor at the time of
termination.
20.2. Partial Termination.
-------------------
If the termination by Purchaser is partial, the price for the non-
terminated portion of this Contract shall be increased by an amount
equal to the additional costs, if any, which must be borne by such
portion because of the partial termination, plus a mutually agreed
upon profit on such additional costs.
20.3. Title Transfer.
--------------
In the event of a termination pursuant to this Article 20, a
termination settlement shall be held at a mutually agreeable time
and place no later than sixty (60) days
42
after submission of the claim from Contractor. After completion of
the termination settlement, Contractor may submit an invoice to
Purchaser for payment pursuant to Section 5.2 hereof. At or prior to
the termination settlement, Contractor shall provide Purchaser with
such documentation of the costs set forth in Sections 20.1 and 20.2
hereof as Purchaser may reasonably request. At the termination
settlement, Contractor shall transfer title at Contractor's or
subcontractor's plant to Purchaser for all Deliverable Items
included in Section 20.1(a), and all other partially completed or
incomplete Deliverable Items for which Contractor is entitled to
payment under this Article 20 at the time of the termination
settlement. Notwithstanding the above, Purchaser may direct
Contractor to dispose of the residual property as a result of a
termination under this Article 20 for the purpose of receiving a
price refund or an offset against Contractor's termination claim.
Upon receipt of such direction, Contractor, shall on a best efforts
basis, attempt to sell the residual property and provide a refund to
Purchaser or an offset against Contractor's termination claim, less
any reasonable selling expenses.
20.4. Termination Liability.
---------------------
Notwithstanding any other provisions of this Article 20, in the
event Purchaser terminates this Contract in full during the eighteen
(18) month period after the Execution Date, Purchaser's maximum
liability for termination will be as specified in Attachment C
hereof. After the eighteen (18) month period described in the
preceding sentence, upon Purchaser's request, Contractor shall
prepare and
43
promptly deliver to Purchaser an estimate of the cost of termination
of this Contract pursuant to Section 20.1 or 20.2 hereof, as the
case may be.
ARTICLE 21. PENALTIES FOR LATE DELIVERY OF SATELLITE
----------------------------------------
21.1. Reimbursement for Satellite Delivery Delay.
------------------------------------------
If one of the two (2) Satellites is not delivered by the last day of
the [*****] after the Execution Date, and such delay is not due to
Force Majeure, then Contractor shall reimburse Purchaser for actual
and reasonable expenses directly incurred due to Satellite Delivery
delay, including without limitation [*****] by Purchaser during the
period of the delay. Such reimbursement shall not exceed [*****] per
month for each of [*****]. In aggregate, such reimbursement shall
not exceed [*****]. The maximum period for which reimbursement for
Satellite Delivery delay shall apply is from the first day of the
[*****] month through the [*****] month after the Execution Date. In
no event shall the limitation on reimbursement described in this
Section 21.1 be applicable to any actual and reasonable expenses
incurred by Purchaser due to delayed Satellite Delivery resulting
from Contractor's gross negligence or willful misconduct.
21.2. Invoice for Reimbursement.
-------------------------
Purchaser shall submit an invoice to Contractor for the expenses
described in Section 21.1 hereof and shall provide to Contractor in
a timely manner, copies of written evidence as substantiation of
expenses set forth in the invoice. Contractor shall pay the amounts
set forth in the invoice within thirty (30) days after the date of
invoice; provided, however, that if Contractor notifies Purchaser of
a good faith
44
dispute of any item set forth in such invoice within five (5) days
of its receipt; Contractor may withhold payment only with respect to
the disputed item until such time as the dispute is resolved.
21.3. Exclusive Damages.
-----------------
If the Delivery of a Satellite is delayed for other than Force
Majeure and Purchaser does not terminate this Contract for default
pursuant to Article 22, the compensation contemplated by this
Article 21 shall be the sole compensation to which Purchaser shall
be entitled for such Delivery delay.
ARTICLE 22. DEFAULT
-------
22.1. Failure to Perform by Contractor.
--------------------------------
If Contractor (i) fails to deliver the Deliverable Items or perform
the work under this Contract within the time frames specified herein
(or any extension thereof approved in writing by Purchaser) or (ii)
fails to prosecute the work hereunder thereby endangering
performance of this Contract, or (iii) fails to perform any of the
other material provisions of this Contract, and in each case does
not cure such failure within thirty (30) days (or such longer period
as authorized in writing by Purchaser) after receipt from Purchaser
of written notice of such failure, Purchaser may terminate this
Contract in whole or in part by written notice of default.
22.2. Termination Liability.
---------------------
In the event of termination pursuant to Section 22.1 hereof,
Contractor shall be reimbursed for the terminated work as follows:
(i) at the price set forth in this Contract for delivered items for
which a line item price exists and (ii) at the cost
45
incurred for (a) completed items not yet delivered, (for which no
line item price exists), (b) partially completed items/services, or
work-in-progress, and (c) completed items that have been delivered
to Purchaser for which no line item price exists less (iii) the
proceeds of any undelivered items or work-in-progress that
Contractor, at Purchaser's direction, has transferred to another
effort or returned to supplier.
22.3. Payment for Incomplete Items.
----------------------------
To the extent that this Contract is terminated under Section 22.1
hereof, Purchaser may require that all partially completed items be
delivered by Contractor as directed by Purchaser and that Contractor
pay Purchaser all costs reasonably incurred by Purchaser to have
such items completed by other responsible contractors, to the extent
such costs exceed the total amount which Purchaser would have had to
pay Contractor for such items had Contractor completed this Contract
as required. If, after termination, it is finally determined by
arbitration pursuant to Article 24 hereof that Contractor was not in
default, or that the default was excusable, the rights and
obligations of the Parties shall be the same as if the termination
had occurred under Article 20.
22.4. Special Termination.
-------------------
If Contractor fails to deliver any Satellite [*****] month after the
Execution Date, Purchaser may terminate this Contract by written
notice and all amounts previously paid by Purchaser for any
Deliverable Items that have not been delivered at the time of
termination shall be refunded to Purchaser within thirty
46
(30) days after the date of termination and Purchaser shall have no
further obligations to Contractor under this Contract. The preceding
sentence shall not apply if the failure to deliver any Satellite
[*****] is due to two successive Satellite Failures which would give
rise to Purchaser's right to terminate this Contract pursuant to
Section 33.2 or Section 33.4 hereof.
22.5. Contractor Termination.
----------------------
By giving written notice to Purchaser of its intention to do so,
Contractor may terminate this Contract for Purchaser's failure to
comply with any material provision of this Contract and such notice
shall set forth which provision is being violated and a reasonably
detailed explanation of the claimed failure to comply. Such
termination shall become effective should Purchaser fail to correct
such nonperformance within thirty (30) days (or such longer period
as agreed to by Contractor) after receipt of such notice in writing
from Contractor. In the event of termination pursuant to this
Section 22.5, Contractor shall be paid as if the termination were
for convenience pursuant to Article 20 hereof. If, after
termination, it is finally determined by arbitration pursuant to
Article 24 hereof that Purchaser was not in default, Contractor
shall be liable to Purchaser for damages resulting from Contractor's
wrongful termination of this Contract.
47
ARTICLE 23. DAMAGES
-------
23.1. Qualified Acceptance.
--------------------
In the event Purchaser accepts any Satellite (including replacement
Satellites) pursuant to Section 10.3 hereof, Contractor shall pay
damages to Purchaser in accordance with this Article 23.
23.2. Calculation of Damages.
----------------------
The damages set forth in Section 23.1 hereof shall be calculated
based on the price of the relevant Satellite for which there has
been qualified Acceptance pursuant to Section 10.3, but the amount
of damages shall not exceed the amount Purchaser paid for the such
Satellite. Calculations of damages shall be made pursuant to the
following formula:
T = Number of transponders on relevant Satellite for which there
has been qualified Acceptance pursuant to Section 10.3 that
meet Performance Specification.
P = Price in Section 4.1 attributable to the relevant Satellite for
which there has been qualified Acceptance pursuant to Section
10.3 (excluding the Orbital Performance Incentives)
D = Number of days of expected Service Life, not to exceed [*****]
days.
Damages = P x (1 - T/[*****] x D/[*****]
Any Satellite which has not been accepted by Purchaser under Section
10.2 or 10.3 hereof shall be considered a Satellite Failure.
ARTICLE 24. ARBITRATION
-----------
Any disputes which may arise between the Parties with respect to
performance of obligations or interpretation of this Contract, which
cannot be settled by
48
negotiation between the Parties themselves within a period of one
hundred eighty (180) days, shall be submitted for settlement or
arbitration to the American Arbitration Association ("AAA") in Los
Angeles, California, in accordance with the rules of conciliation
and arbitration of the AAA using three arbitrators, whose decision
shall be final and binding on the Parties. In resolving any dispute,
the arbitrators shall apply the laws of the State of New York with
respect to all matters, including the interpretation of the terms
and conditions of this Contract.
ARTICLE 25. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES.
--------------------------------------------
If the data available from a launched Satellite shows that Satellite
performance departs from that specified in Exhibits A and B as may
be modified pursuant to Section 9.3, Contractor shall, at its sole
cost, take appropriate corrective measures in all unlaunched
Satellites so as to eliminate therefrom the deficiencies noted in
the launched Satellite.
ARTICLE 26. RISK INSURANCE
--------------
26.1. Insurance.
---------
Contractor shall obtain insurance for each Satellite applicable from
Launch through Acceptance. Contractor shall use its best efforts to
obtain the insurer's written agreement to waive all rights of
subrogation against Purchaser and against Contractor's major
subcontractors. Contractor shall indemnify and hold harmless
Purchaser from and against all costs, expenses or losses of
Purchaser resulting, directly or indirectly, from any subrogation
action brought by the Satellite insurers.
49
26.2. Risk Insurance Aspects.
----------------------
Contractor shall obtain risk insurance coverage [*****] (including
the amount that would be payable to Purchaser if it elects its
option under Section 33.2 hereof). In terms of replacing satellites,
the insurance policy [*****].
26.3. Third Party Indemnity Insurance.
-------------------------------
With respect to third party indemnity liability insurance for claims
arising out of the Launch of a Satellite, Contractor shall obtain
insurance that insures Purchaser against third party claims to the
same extent as Contractor is insured and such insurance proceeds
shall be Purchaser's sole compensation for third party claims
arising out of the Launch of a Satellite.
ARTICLE 27. INTER-PARTY WAIVER OF THIRD PARTY LIABILITY
-------------------------------------------
Purchaser, on behalf of itself and its officers, employees,
affiliates, agents, insurers, owners and customers, agrees to accept
the inter-party waiver and related indemnity provisions required by
the applicable Launch Services Agreement for a Launch. Copies of
these provisions will be furnished to Purchaser for review prior to
and upon execution of the Launch Services Agreement. In addition,
Purchaser agrees that, except as provided in Articles 10, 11, 13,
14, 19, 21, 22, 23 and 33 hereof, it will waive claims against
Contractor and its owners, officers, affiliates, subsidiaries,
employees, agents, insurers and suppliers at any tier arising out of
the defective or late performance or the nonperformance of the
Launch Services Agreement, unless such defective or late performance
or nonperformance is due solely to the gross negligence or willful
misconduct of Contractor.
50
ARTICLE 28. ADDITIONAL SATELLITES OPTION
----------------------------
28.1. Additional Satellites.
---------------------
Purchaser may, at its option to be exercised in writing at any time
and as specified below, order Contractor to produce and deliver up
to three (3) additional Satellites substantially identical to the
Satellites being furnished pursuant to Article 3 hereof. The three
optional Satellites may be ordered [*****] after the Execution Date.
If ordered separately, each shall be delivered to the Launch Site
[*****] after Purchaser's exercise of this option. However, in no
event shall the first optional Satellite be deliverable [*****]
after the Delivery of the last Satellite to be furnished pursuant to
Article 3. Further, in no event shall Contractor be required to
deliver [*****] after Delivery of the preceding optional
Satellite.
28.2. Option Prices.
-------------
The prices for the three optional Satellites are set forth in the
pricing schedule below. Prices are stated in [*****] and may be
adjusted by Contractor in accordance with Section 28.3 hereof if the
Execution Date does not occur prior to June 15, 1993.
No. of Ordered Ordered
Satellites [*****] [*****]
Ordered After Execution After Execution
Date Date
-----------------------------------------------
[*****] [*****] [*****]
[*****] [*****] [*****]
[*****] [*****] [*****]
51
No. of Ordered
Satellites [*****]
Ordered After Execution
Date
-----------------------------
[*****] [*****]
[*****] [*****]
[*****] [*****]
This option may be exercised at different times within the [*****]
period specified above, for up to a total of [*****]. The per
satellite price is dependent upon the number of Satellites ordered
at any one time. The above option prices include all design,
manufacturing, tests, documentation, Orbital Performance Incentives,
Launch and placement into assigned orbital location, Launch Support,
Launch Vehicles, Mission Operating Support Services, In-Orbit
Testing, all shipping costs and transportation and launch risk
insurance.
28.3. Escalation.
----------
The prices set forth in this Article 28 shall be escalated from the
Execution Date to the date of order in accordance with the formula
below:
[*****]
where
[*****]
52
[*****]
28.4. Payment Plan.
------------
If Purchaser elects to purchase additional Satellites under this
Article 28, Purchaser shall make payments to Contractor for such
Satellites in accordance with the payment plan set forth in
Attachment A. The total price for each additional Satellite
purchased under this Contract shall be payable [*****] payments, the
exact milestones of such payment plan may be mutually agreed to by
the Parties within thirty (30) days after Contractor's receipt of
Purchaser's notice of election of this option.
28.5. Terms and Conditions.
--------------------
In the event that the options provided for under this Article 28 are
exercised by Purchaser, the terms and conditions of this Contract
shall be applicable to the Satellites purchased pursuant to the
option.
ARTICLE 29. GROUND STATION EQUIPMENT OPTION
-------------------------------
29.1. Ground Station Equipment.
------------------------
Purchaser may, at its option to be exercised in writing up to six
(6) months after the Execution Date, order Contractor to produce and
deliver two (2) sets of satellite control facility equipment
(telemetry, command and ranging equipment and software) including
two (2) years of spares for delivery twenty-four (24) months after
exercise of this option, and training of Purchaser's personnel as
53
provided for in Section 2.3.3 of Exhibit A ("Ground Station
Equipment"), to a location in the United States designated by
Purchaser. If Purchaser elects to exercise this option, Purchaser
shall diligently provide to Contractor any documentation with
respect to Purchaser's designated site reasonably required by
Contractor. The price for the delivery of the above Ground Station
Equipment and training as described in Exhibit A is [*****]. Payment
shall be made in accordance with the Payment Plan for this option
included in Attachment A.
29.2. Ground Station Equipment not Provided by Contractor.
---------------------------------------------------
In the event Purchaser elects to contract for ground station
equipment with an entity other than Contractor, Contractor shall be
obligated to provided coordination, requirements development,
training and support, to Purchaser and Purchaser's selected
contractor for a price and subject to terms and conditions mutually
agreeable to the Parties.
29.3. Options for Selected Ground Station Equipment.
---------------------------------------------
Purchaser may, at its option to be exercised in writing up to six
(6) months after the Execution Date, order Contractor to deliver up
to six (6) units of any of the below noted equipment, each unit at
the noted purchase price:
Unit Price
----------
[*****] [*****]
[*****] [*****]
[*****] [*****]
54
In addition, Purchaser may, at its option to be exercised in writing
up to six (6) months after the Execution Date, order Contractor to
produce and deliver satellite control facility (SCF) Software. The
price for the delivery of such software is [*****]. A short
description of requirements for each of the above items of equipment
is contained in Attachment G. Payment shall be made in accordance
with the Payment Plan (Unit Price) for these options included in
Attachment G. Prior to Purchaser's exercise of any of the options in
this Section 29.3, the Parties shall agree on detail requirements
and delivery schedule(s) and such information shall be reflected in
Purchaser's option exercise letter.
29.4. Terms and Conditions.
--------------------
In the event that the options provided for under this Article 29 are
exercised by Purchaser, the terms and conditions of this Contract
shall be applicable to the equipment purchased pursuant to the
options.
ARTICLE 30. SATELLITE LONG LEAD PARTS OPTION
--------------------------------
30.1. Satellite Long Lead Parts.
-------------------------
Purchaser, at its option to be exercised in writing [*****] after
the Execution Date, may direct Contractor to procure long lead parts
for any Satellite to be delivered hereunder (or any other satellite
ordered from time to time by Purchaser from Contractor), other than
Satellite No.1 and Satellite No. 2. The price for the long lead
parts is [*****] and payments shall be made in accordance with the
Payment Plan for this option included in Attachment A. If Purchaser
directs Contractor to use the long lead parts for a replacement
Satellite described in
55
Section 10.4 hereof, the Delivery schedule for such replacement
Satellite shall be reduced from [*****]. If Purchaser directs
Contractor to use the long lead parts for an additional satellite
described in Article 28 hereof, the Delivery schedule for such
Satellite shall be reduced from [*****]. The direction of Purchaser
to use such parts for an additional Satellite ordered under Article
28 hereof shall not obligate Contractor to deliver such Satellite
[*****] after the Delivery of any other Satellite to be delivered
pursuant to Article 3 hereof.
30.2. Spare Parts.
-----------
If Purchaser elects to exercise the option in this Article 30, but
never orders an additional Satellite pursuant to Article 28 hereof,
and Contractor is not obligated to deliver a replacement Satellite,
Purchaser at its option may (i) direct Contractor to deliver the
parts to a delivery destination designated by Purchaser, (ii)
authorize Contractor to use all or any part of the parts, in which
event Contractor shall compensate Purchaser for the fair market
value of the parts it retains for its use or (iii) direct Contractor
to dispose of the parts as residual property in accordance with the
procedures described in Section 20.3 hereof.
30.3. Credit.
------
If Purchaser has exercised its option under this Article 30, and
Contractor uses the parts for an additional Satellite, Purchaser
shall be entitled to a [*****] credit against the purchase price of
such Satellite.
56
ARTICLE 31. GROUND STORAGE OPTION
---------------------
31.1. Notification.
------------
Prior to the shipment of a Satellite to the Launch Site, Purchaser,
at its option to be exercised no later than [*****] to the projected
Delivery date of a Satellite, may direct Contractor to store a
Satellite [*****].
31.2. Storage Location.
----------------
Ground Storage shall be performed at a Contractor controlled
facility and shall be conducted in accordance with the Satellite
Storage Plan delivered to Purchaser pursuant to Annex 2 of Exhibit
A.
31.3. Storage Prices.
--------------
The price for Ground Storage of a Satellite shall be [*****] for the
Satellite verification tests to be conducted upon removal of the
Satellite from Ground Storage plus [*****] per month storage cost
while the Satellite is in Ground Storage.
31.4. Payments.
--------
If the Ground Storage option is exercised, the payment schedule
shall be as follows: the first monthly payment for Ground Storage
costs shall be due thirty (30) days after the date the Satellite is
stored and continuing monthly until Purchaser directs Contractor to
remove the Satellite from Ground Storage, conduct the verification
tests and ship the Satellite to the Launch Site. Payment for the
verification testing shall be due thirty (30) days after Purchaser's
receipt of Contractor's invoice for such testing. In addition,
Purchaser shall pay Contractor
57
its reasonable actual out of the pocket costs for launch services
and insurance in excess of the costs Contractor would have incurred
if Purchaser had not directed Ground Storage of the Satellite.
Payments under this Article 31 shall be made by wire transfer as set
forth in Article 5 hereof.
31.5. Title and Risk of Loss.
----------------------
Title and risk of loss to a Satellite delivered for Ground Storage
shall remain with Contractor at the storage site and notwithstanding
the provisions of Article 15 hereof, Contractor shall assume full
responsibility for any loss or damage to the Satellite during Ground
Storage.
31.6. Notification of Intention to Launch a Previously Stored Satellite.
-----------------------------------------------------------------
Purchaser shall notify Contractor in writing that a Satellite in
Ground Storage should be removed from Ground Storage and delivered
on-orbit subject to the availability of a Launch Vehicle. This
notification must be received by Contractor [*****] prior to the
scheduled date for Delivery of the Satellite. Failure to notify
Contractor in a timely manner will result in an adjustment to the
Delivery schedule for such Satellite.
31.7. Orbital Performance Incentives.
------------------------------
In the event that Purchaser elects to exercise the Ground Storage
option provided in this Article 31, after direction from Purchaser
to place the Satellite in Ground Storage, Purchaser shall pay
interest to Contractor at a rate of LIBOR + 2% (30 day rate) per
annum on the amount of Orbital Performance Incentives specified in
Section 13.2 hereof for the period of Ground Storage. Following the
Delivery on-
58
orbit of a previously stored Satellite, the provisions of Article 13
hereof shall apply to Contractor's right to be paid and earn Orbital
Performance Incentives.
31.8. Storage Period.
--------------
If a Satellite is stored for [*****], Contractor shall have no
further responsibility for that Satellite (except as provided in
Section 31.9 hereof) and Purchaser shall provide Contractor with
directions for delivery and disposition of the Satellite. Purchaser
shall pay Contractor the full amount of the Orbital Performance
Incentives specified in Article 13 hereof. Contractor shall refund
any Launch Vehicle costs less any costs associated with termination
of the Launch Services Agreement.
31.9. Stored Satellite Refurbishment.
------------------------------
For a Satellite stored for [*****], Purchaser may notify Contractor
of its desire to have such Satellite refurbished or to continue
ground storage. Within sixty (60) days after receipt of Purchaser's
notice electing refurbishment or continued ground storage,
Contractor shall provide Purchaser with (I) a plan for refurbishment
and a retest plan to recertify the Satellite as launch worthy or
(ii) a plan for continued ground storage, in either case together
with proposed adjustments to the applicable provisions of this
Contract.
31.10. Terms and Conditions.
--------------------
In the event that the options provided for under this Article 31 are
exercised by Purchaser, the terms and conditions of this Contract
shall be applicable to the services purchased pursuant to these
options.
59
ARTICLE 32. STOP-WORK ORDER
---------------
32.1. Stop-Work Order.
---------------
Purchaser may, at any time, by written order to Contractor, require
Contractor to stop all, or any part, of the work called by this
Contract for a period of [*****] after the order is delivered to
Contractor, and for any further period to which the Parties may
agree. The order shall be specifically identified as a stop-work
order issued under this Article 32 and the work to be stopped will
also be identified. Upon receipt of the stop-work order, Contractor
shall immediately comply with its terms and take all reasonable
steps to minimize the incurrence of costs allocable to the work
covered by the order during the period of stop-work order. If the
Purchaser anticipates the issuance of a stop-work order, the
Purchaser may so notify Contractor and, after receiving the
requisite information concerning the anticipated length of delay and
the work to be delayed, Contractor shall provide an estimate of the
claim that would be asserted pursuant to Section 32.3 hereof.
32.2. Resumption of Work.
------------------
If Purchaser cancels the stop-work order within a [*****] after the
stop-work order is delivered to Contractor, or within any extension
of that period to which the Parties shall have agreed, Contractor
shall resume work. In the event a stop-work order is issued under
this Article 32 and the period of the order or any extension thereof
expires, then Contractor shall resume work.
60
32.3. Stop Work Order Claims.
----------------------
Purchaser shall make an equitable adjustment in the delivery
schedule or contract price, or both and this Contract shall be
modified, in writing, if the stop-work order results in an impact to
the delivery schedule, or in Contractor's cost. Contractor shall
assert its rights to an adjustment within sixty (60) days, or any
extension to which the Parties have agreed, after the end of the
period of work stoppage.
ARTICLE 33. TERMINATION IN THE EVENT OF TWO SUCCESSIVE SATELLITE FAILURES
-------------------------------------------------------------
(OPTION)
--------
33.1. Notice of Option.
----------------
Purchaser, within [*****] after the Execution Date, may exercise an
option to terminate this Contract as provided in this Article 33. As
consideration for this option, Purchaser shall pay Contractor
[*****] in accordance with the Payment Plan set forth in Attachment
A.
33.2. Termination.
-----------
If Purchaser exercises the option and pays the amount specified in
Section 33.1 hereof, then in the event of two successive Satellite
Failures, Purchaser may within thirty (30) days after the second
Satellite Failure terminate this Contract by giving written notice
of termination to Contractor; provided, however, that the [*****]
Satellite described in Section 10.4 hereof shall commence on the
earlier of (I) the date of Purchaser's notice that it is not
terminating this Contract hereunder or (ii) the expiration of the
[*****] period.
33.3. Rebate of Payments.
------------------
61
Within ninety (90) days of receipt of a notice of termination
pursuant to Section 33.2 hereof, Contractor shall rebate to
Purchaser the price of the relevant undelivered Satellites as set
forth in Section 4.1 hereof, less any amount of the price of the
relevant undelivered Satellite unpaid by Purchaser and less the
amount of any unpaid Orbital Performance Incentive. Any expense
incurred by Contractor in performing its obligation to replace
Satellites No. 1 and No. 2 shall be settled in accordance with
Article 20 hereof.
33.4. Non-Election
------------
If Purchaser does not elect the option described in Section 33.1
hereof, in the event of two successive Satellite Failures, Purchaser
may terminate this Contract and receive for the relevant undelivered
Satellite a rebate equal to the insurance proceeds less any amount
of the unpaid purchase price for the relevant undelivered Satellite.
Any expense incurred by Contractor in performing its obligations to
replace Satellites No. 1 and No. 2 shall be settled in accordance
with Article 20 hereof.
33.5. Sole Remedy.
-----------
If Purchaser terminates this Contract pursuant to this Article 33,
Contractor's rebate of the relevant undelivered Satellite price
pursuant to this Article 33 shall be the sole compensation to
Purchaser in the event of two successive Satellite Failures.
62
ARTICLE 34. LAUNCH VEHICLE COST SHARING OPTION
----------------------------------
34.1. Launch on a PROTON Launch Vehicle.
---------------------------------
The Firm Fixed Price specified in Section 4.1 hereof contemplates
the Launch of one Satellite on an [*****] Launch Vehicle and the
Launch of one Satellite on an [*****] Launch Vehicle for Satellites
No. 1 and No. 2. In the event Contractor and Purchaser mutually
agree to replace either Launch Vehicle with a launch on a [*****]
Launch Vehicle, the price set forth in Section 4.1 hereof for the
relevant Satellite, shall be reduced by an amount [*****] of the
amount by which the price of the [*****] Launch is less than the
price of the replaced [*****] Launch. The price reduction stated
herein shall be offset by [*****] of any additional actual and
reasonable direct costs incurred by Contractor associated with the
Launch on a [*****] Launch Vehicle.
34.2. Calculation of Price Reduction.
------------------------------
For purposes of determining the price reduction in Section 34.1
hereof, the price basis [*****].
ARTICLE 35. OPTION FOR ALTERNATE ORBITAL LOCATIONS
--------------------------------------
35.1. Alternate Delivery Location.
---------------------------
Purchaser, at no additional cost, may direct, at any time [*****]
after Execution Date that the place of delivery of either Satellite
No.1 or Satellite No. 2 be changed to a geostationary longitude
Delivery location other than that specified in Section 3.1 hereof.
Any alternative geostationary longitude Delivery location
63
selected by Purchaser must be authorized by the FCC or other
appropriate governmental authority.
35.2. Option.
------
Purchaser may, at its option to be exercised [*****] after the
Execution Date, advise Contractor, in writing, that Purchaser will
select an additional specific geostationary longitude Delivery
location for either or both of the two Satellites as provided in
this Article 35. It is understood by the Parties that Contractor's
antenna design and fabrication effort to accommodate an additional
Delivery location will be conducted in parallel to the basic design
until such time as Purchaser notifies Contractor, in writing, of the
final selection of the Delivery location.
35.3. Option Price.
------------
In the event that Purchaser decides to exercise the option pursuant
to Section 35.2 above, Purchaser shall have up to [*****] after the
Execution Date to specify the selected Delivery location. The prices
noted below are a function of when Purchaser finally selects the
Delivery location of either or both of the two (2) Satellites.
64
[*****] [*****] [*****]
Months After Months After Months After
Execution Execution Date Execution Date
Date
----------------------------------------------
Per [*****] [*****] [*****]
Satellite:
----------
Both Satellites [*****] [*****] [*****]
(within 4 degrees of
each other)
-----------
35.4. Payment Plan.
------------
The payment plan for this option is contained in Attachment A.
35.5. Terms and Conditions.
--------------------
In the event the option provided for under this Article 35 is
exercised by the Purchaser, the terms and conditions of this
Contract shall apply.
ARTICLE 36. SATELLITE SIMULATOR OPTION
--------------------------
36.1 Satellite Simulator and Training.
--------------------------------
Purchaser, at its option to be exercised in writing [*****] after
the Execution Date, may order Contractor to produce and deliver a
Satellite Simulator to a location in the United States designated by
Purchaser within twenty-four (24) months after exercise of the
option described in this Article 36. As part of this option,
Purchaser may direct Contractor to train Purchaser's personnel and
consultants as provided for in Exhibit A at the location designated
by Purchaser contemporaneously with delivery of the Satellite
Simulator. Subsequent to the completion of the Contractor's warranty
obligations pursuant to Article 15 hereof,
65
Contractor shall repair the Satellite Simulator for [*****] years at
cost. Such repair costs will be invoiced to Purchaser for payment
pursuant to the provisions of section 5.2 hereof. Subsequent to the
one (1) year warranty period, Purchaser shall pay the transportation
costs for return of the Satellite Simulator to Contractor as well as
its return to Purchaser after repair.
36.2. Price.
-----
For the delivery of the Satellite Simulator and training of
Purchaser's personnel and consultants, Purchaser shall pay
Contractor [*****]. The payment plan for this option, exclusive of
repair costs, is contained in Attachment A hereto.
36.3. Terms and Conditions.
--------------------
In the event that the option provided for under this Article 36 is
exercised by Purchaser, the terms and conditions of this Contract
shall be applicable to the Satellite Simulator purchased pursuant to
this option.
ARTICLE 37. DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION
--------------------------------------------------
The Parties recognize that in the performance of obligations under
this Contract, it may be necessary to exchange selected company
proprietary, competition sensitive or trade secret information
(hereinafter referred to as "Proprietary Information"). For this
purpose, the Parties have executed a Non-Disclosure Agreement which
is identified as, and attached to this Contract as, Attachment B.
The confidentiality obligations imposed on the Parties with regard
to data provided under this Contract shall survive the termination,
for whatever reason, of this Contract in accordance with the
requirements of Attachment B.
66
ARTICLE 38. RIGHTS IN DATA
--------------
38.1. Deliverable Data.
----------------
Contractor shall retain all rights, title and interest in any
Contractor data utilized or developed by Contractor during the
performance of this Contract. Purchaser's officers, directors,
agents, affiliates, employees, consultants and representatives shall
have the nonexclusive right to use the Deliverable Data for the
purpose of establishing, operating and maintaining the TEMPO Direct
Broadcast Satellite System and for no other purpose. Purchaser's
officers, directors, agents, affiliates, employees, consultants, and
representatives shall not disclose Deliverable Data to other
companies, organizations or persons without the express written
consent of Contractor.
38.2. Other Data.
----------
All other non-proprietary data marked confidential to which
Purchaser may have access to in the course of Contractor's
performance of this Contract shall remain the property of Contractor
or its subcontractors and shall not be duplicated, used, or
disclosed to persons other than Purchaser's officers, directors,
agents, affiliates, employees, consultants or representatives and
shall be used solely to assist Purchaser in establishing, operating
and maintaining the TEMPO Direct Broadcast Satellite System.
67
38.3. No Additional Obligation.
------------------------
Nothing contained in this Article 38 shall require Contractor to
provide any data beyond that set forth in Exhibit A.
ARTICLE 39. AUTHORITY OF PURCHASER REPRESENTATIVE
-------------------------------------
No request, notice, authorization, direction or order received by
Contractor and issued either pursuant to an article of this
Contract, to a provision of any document incorporated in this
Contract by reference, or otherwise, shall be binding upon either
Contractor or Purchaser, unless issued or confirmed in writing by,
Purchaser or by its authorized representative. Designations of
authorized representatives (i) shall be in writing, signed by
Purchaser's executive, and (ii) shall define the scope and
limitations of the authorized representatives' authorities. A copy
of each such designation and of each modification or cancellation
thereof, shall be furnished to Contractor. Contractor shall
immediately notify, in writing, Purchaser or its authorized
representative whenever a request, notice, authorization, direction
or order has been received from a representative of Purchaser other
than Xxxxx X. Xxxxxx or his authorized representative, which, by the
lack of authorization on the part of the issuing Purchaser's
representative, would require an amendment to this Contract within
the meaning of this Article 39, or an increase in the contract
amount or amount allotted to this Contract, or which, but for such
lack of authorization, would otherwise be the basis for a
modification of the Statement of Work, delivery or performance
schedule, price or any other terms and conditions of this Contract.
68
ARTICLE 40. PUBLIC RELEASE OF INFORMATION
-----------------------------
Within a reasonable time prior to the issuance of news releases,
articles, brochures, advertisements, prepared speeches and other
information releases concerning the work performed hereunder by
Contractor, a subcontractor or any employee or a consultant of
either, Contractor shall obtain the written approval of Purchaser
concerning the content and timing of such releases. Purchaser's
approval will not be unreasonably delayed or denied.
ARTICLE 41. NOTICES
-------
41.1. Written Notification.
--------------------
Any notice(s) or correspondence required or permitted to be given or
made hereunder shall be in writing (except where oral notice is
specifically authorized). Wherever one Party is required or
permitted to give written notice to the other pursuant to this
Contract, such notice(s) shall be deemed to be duly given on the
earliest of (i) actual receipt, irrespective of whether sent by
post, telex, cable, facsimile transmission (followed by mailing of a
hard copy), overnight courier or other method, or (ii) on the
seventh (7th) day after the mailing by registered or certified mail,
return receipt requested, postage prepaid and addressed as follows:
In the case of Purchaser: TEMPO Satellite, Inc.
c/o Tele-Communications, Inc.
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
With a separately
delivered copy to: Purchaser's legal department.
69
And a separately
delivered copy to: PRIMESTAR Partners, L.P.
000 Xxxxx Xxxxxxxxxxxx Xxxx.
Xxxx Xxxxxx, XX 00000
Attn: General Counsel
Telecopy No.: (000) 000-0000
In the case of Contractor: Space Systems/LORAL
0000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000-0000
Attn: TEMPO Contract Manager
Telecopy No.: (000) 000-0000
Alternate: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
41.2. Change of Address.
-----------------
Either Party from time to time may change its notice address and/or
the Parties to be notified by giving the other Party written notice
(as provided above) of the new address and/or Parties and the date
upon which the change shall become effective.
ARTICLE 42. ORDER OF PRECEDENCE
-------------------
In the event of conflict between this Contract and the Exhibits
hereto, the following order of decreasing precedence shall apply:
. Contract
. Exhibit A
. Exhibit B
. Exhibit C
. Exhibit D
70
ARTICLE 43. GENERAL
-------
43.1. Limitation of Liability.
------------------------
NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER OR
TO PERMITTED ASSIGNEES OR SUCCESSOR OWNERS OF THE SATELLITE (S) FOR
ANY AMOUNTS (INCLUDING ANY SUCH AMOUNTS CLAIMED BY THIRD PARTIES)
REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT,
SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES (EXCLUDING ANY
DAMAGES FOR WHICH CONTRACTOR BECOMES OBLIGATED TO INDEMNIFY
PURCHASER PURSUANT TO ARTICLE 18 WHICH DAMAGES ARE OF A TYPE
TYPICALLY AWARDED FOR INTELLECTUAL PROPERTY CLAIMS TO COMPENSATE
CLAIMANT FOR THE VALUE OF THE USE OF INTELLECTUAL PROPERTY AT ISSUE,
INCLUDING LOST ROYALTIES OR LICENSE FEES), ARISING FROM THE
PERFORMANCE OR NONPERFORMANCE OF THIS CONTRACT OR ANY ACTS OR
OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMS OR
SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF THE LIABILITY IS
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT
LIABILITY), STATUTES OR ANY OTHER LEGAL THEORY, UNLESS SUCH ACT OR
OMISSION ARISES FROM THE NON-CLAIMING PARTY'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. PURCHASER
71
SHALL USE ITS BEST EFFORTS, WHEN NEGOTIATING AGREEMENTS WITH
SATELLITE USERS AND OTHER PARTIES HAVING A FINANCIAL INTEREST IN THE
OPERATION AND USE OF THE SATELLITES, TO OBTAIN SUCH PARTY'S
AGREEMENT TO AN EQUIVALENT LIMITATION OF LIABILITY WITH RESPECT TO
CONTRACTOR AND ITS SUBCONTRACTORS AND SUPPLIERS AT ANY TIER;
PROVIDED, HOWEVER, THAT PURCHASER SHALL HAVE NO LIABILITY TO
CONTRACTOR FOR PURCHASER'S FAILURE TO OBTAIN SUCH LIMITATIONS OF
LIABILITY.
43.2. Binding Effect; Assignment.
--------------------------
This Contract shall be binding on and inure to the benefit of the
Parties and their respective successors and assigns. Except as
otherwise provided herein, this Contract may not be assigned, either
in whole or in part, by either Party without the express written
approval of the other Party; provided that such approval shall not
be unreasonably withheld and provided further that this Section 43.2
does not restrict Contractor from utilizing subsidiaries, its other
divisions or stockholder companies to manufacture subsystems or
components of the Satellites or other hardware, nor does it restrict
Purchaser from assigning this Contract to any entity that, directly
or indirectly, controls, is controlled by or is under common control
with Purchaser. Either Party may assign security interests in their
respective rights hereunder to lenders that provide financing for
the performance by such Party under this Contract. In the event
either Party is sold to or merged into
72
another company, its responsibilities under this Contract shall not
be altered and the successor shall become liable for performance of
this Contract.
43.3. Severability.
------------
If any provision of this Contract is declared or found to be
illegal, unenforceable or void, the Parties shall negotiate in good
faith to agree upon a substitute provision that is legal and
enforceable and is as nearly as possible consistent with the
intentions underlying the original provision. If the remainder of
this Contract is not materially affected by such declaration or
finding and is capable of substantial performance, then the
remainder shall be enforced to the extent permitted by law.
43.4. Waiver.
------
No delay or omission by either Party to exercise any right or power
shall impair any such right or power or be construed to be a waiver
thereof. No payment of money by any person or entity shall be
construed as a waiver of any right or power under this Contract. A
waiver by any Party of any of the covenants, conditions or contracts
to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any
other covenant, condition or contract herein contained. No change,
waiver or discharge hereof shall be valid unless in writing and
signed by an authorized representative of the Party against which
such change, waiver or discharge is sought to be enforced.
73
43.5. Intentionally Omitted.
---------------------
43.6. Gender; Captions.
----------------
As used herein, the singular shall include the plural and the plural
may refer to only the singular. The use of any gender shall be
applicable to all genders. The use of any gender shall be applicable
to all genders. The captions contained herein are for purposes of
convenience only and are not a part of this Contract.
43.7. Relationships of the Parties.
----------------------------
It is expressly understood that Contractor, on the one hand, and
Purchaser, on the other hand, intend by this Contract to establish
the relationship of independent contractors, and do not intend to
undertake the relationship of principal and agent or to create a
joint venture or partnership between them or their respective
successors in interests. Neither Contractor, on the one hand, nor
Purchaser, on the other hand, shall have any authority to create or
assume, in the name or on behalf of the other Party, any obligation,
expressed or implied, nor to act or purport to act as the agent or
the legally empowered representative of the other Party hereto for
any purpose whatsoever.
43.8. Amendment.
---------
Any modification, amendment or change to this Contract shall become
effective only upon the execution in writing by the Parties of an
amendment to this Contract setting forth such modification,
amendment or change.
74
43.9. Entire Agreement.
----------------
This Contract, including all Exhibits and Attachments hereto,
represents the entire understanding and agreement between the
Parties hereto with respect to the subject matter hereof, supersedes
all prior negotiations and agreements with respect to the subject
matter hereof, and can be modified, amended, supplemented or changed
only by an agreement in writing which makes specific reference to
this Contract and which is signed by both Contractor and Purchaser.
43.10. Standard of Conduct.
-------------------
Both Parties agree that all their actions in carrying out the
provisions of this Contract shall be in compliance with applicable
laws and regulations and neither Party will pay or accept bribes,
kickbacks or other illegal payments, or engage in unlawful conduct.
43.11. Construction.
------------
This Contract, the Exhibits and the Attachments hereto have been
drafted jointly by the Parties and in the event of any ambiguities
in the language hereof, there shall be no inference drawn in favor
or against either Party.
43.12. "Including".
---------
Whenever the terms "including" or "include" are used in this
Contract in connection with a list of items within a particular
classification (whether or not the term is followed by the phrase
"but not limited to" or words of similar effect), that list shall be
interpreted to be illustrative only, and shall not be interpreted as
a limitation on, or an exclusive list of, the items within that
classification.
75
43.13. Counterparts.
------------
This Contract may be signed in any number of counterparts with the
same effect as if the signature(s) on each counterpart were upon the
same instrument.
43.14. Applicable Law.
--------------
This Contract shall be interpreted, construed and governed, and the
rights of the Parties shall be determined, in all respects,
according to the laws of the State of New York.
43.15. Survival.
--------
Termination or expiration of this Contract for any reason shall not
release either Party from any liabilities or obligations set forth
in this Contract which (i) the Parties have expressly agreed shall
survive any such termination or expiration, including the
obligations in Articles 13, 14, 15, 18, 19, 26, 27, 37 and 38 or
(ii) remain to be performed or by their nature would be intended to
be applicable following any such termination or expiration.
ARTICLE 44. ATTACHMENTS
-----------
The following Attachments are incorporated in this Contract:
Attachment A Payment Plan
B Non-Disclosure Agreement
C Termination Liability Schedule
D Form of Limited Guaranty (BSS)
E Form of Parental Guaranty (Contractor)
76
F RF Equipment for BSS Satellite In-Orbit Test to be
Provided by Purchaser
G Ground Station Equipment
IN WITNESS THEREOF, the Parties have executed this Contact as of the Execution
Date.
SPACE SYSTEMS/LORAL, INC. TEMPO SATELLITE, INC.
_________________________ ____________________________
Title: President Title: _____________________
Date: _____________ Date: ______________
77
EXHIBIT A-2, TEMPO DIRECT BROADCAST
SATELLITE SYSTEM (DBSS)
STATEMENT OF WORK
[*****]
EXHIBIT B-2, TEMPO DIRECT BROADCAST
SATELLITE SYSTEM (DBSS)
BSS SATELLITE SPECIFICATION
[*****]
EXHIBIT C-2, TEMPO DIRECT BROADCAST
SATELLITE SYSTEM (DBSS)
BSS PRODUCT ASSURANCE PLAN
[*****]
EXHIBIT D-2, TEMPO DIRECT BROADCAST
SATELLITE SYSTEM (DBSS)
BSS SATELLITE PROGRAM TEST PLAN
[*****]
BSS
ATTACHMENT A
[*****]
BSS
ATTACHMENT B
(NON-DISCLOSURE)
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made and entered into this 18 day of May 1993, by and between
PrimeStar Partners and Space Systems/Loral ("SS/L").
WITNESSETH:
----------
In consideration of the mutual covenants and promises set forth herein,
PrimeStar Partners and SS/L as follows:
1. Acknowledgment of CONFIDENTIAL INFORMATION. PrimeStar Partners and SS/L (the
------------------------------------------
"Parties") acknowledge and agree that CONFIDENTIAL INFORMATION is claimed to
be proprietary to and a valuable trade secret of each of the Parties and
that any unauthorized use thereof may cause irreparable harm and loss to
such Party. "CONFIDENTIAL INFORMATION" means all information, documentation,
terms, conditions and compensation arrangements disclosed in writing, or
made available by one Party to the other, which is clearly marked as being
confidential or proprietary, including, but not limited to, business,
present and future plans, present and future products and policies of each
Party.
"CONFIDENTIAL INFORMATION" does not include information or documentation
which (1) was acquired by a Party before the contemplated discussions and
when such Party was under no obligation to keep such information
confidential; (2) is or becomes publicly known through no wrongful act of
a Party hereto; (3) is received from a third person or entity who is legally
entitled to possession of such information; (4) is developed by a Party
other than in the course of performance of contractual obligations under any
contract between the Parties; or (5) was given orally, unless it is so
designated at the time of disclosure and is summarized and identified as
such in writing within thirty (30) days after disclosure.
2. Obligations of Nondisclosure. In consideration of the disclosure to each
----------------------------
other of CONFIDENTIAL INFORMATION, the Parties agree to treat such
CONFIDENTIAL INFORMATION in the same manner and degree of care as it would
its own CONFIDENTIAL INFORMATION, and to undertake the following additional
obligations with respect thereto:
(a) to use CONFIDENTIAL INFORMATION only for the purposes of determining
whether the Parties will pursue further negotiations, and in the
performance of any subsequent contractual obligations, if any;
(b) not to copy, in whole or in part, CONFIDENTIAL INFORMATION, except as
required to review such information;
(c) to limit dissemination of CONFIDENTIAL INFORMATION to:
(i) SS/L PrimeStar
---- ---------
X.X. Xxxxxxx Xxxxx Xxxxxx
X.X. Xxxxxxxx Xxxx Xxxxx
X.X. Xxxxx Xxxx Xxxxxx
X.X. Xxxxxx Xxxx Xxxxxxxxx
W.E. Xxxxxxxxxxx
N.J. Barberis
(ii) those of each Party's employees who have a need to know
to perform the limited tasks set forth in item (a) above;
and
(iii) not to disclose CONFIDENTIAL INFORMATION outside of the
receiving Party, other than to a Parties attorneys or
accountants or a Parties related affiliates or individual
partners as the case may be;
(d) to return any written CONFIDENTIAL INFORMATION, including all
copies and records thereof, to the disclosing Party upon request.
3. Survival. The restrictions and obligations of Paragraph 2 of this
--------
Agreement shall survive any expiration, termination or cancellation of
this Agreement or of any other agreement between the Parties, and
shall continue to bind the Parties, their successors, heirs and
assigns, for a period of three years from the date hereof.
4. Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of Colorado.
5. Legally Required Disclosure. If a Party or any of its representatives
---------------------------
becomes legally compelled to disclose any of the CONFIDENTIAL
INFORMATION, such Party agrees to provide the Party which provided the
CONFIDENTIAL INFORMATION with prompt notice of such requirement and to
cooperate with the Party which provided the CONFIDENTIAL INFORMATION
in seeking to obtain a protective order or other arrangements pursuant
to which the confidentiality of the CONFIDENTIAL INFORMATION is
preserved. If such an order or arrangement is not obtained, the Party
to which the CONFIDENTIAL INFORMATION is provided agrees that it and
its representatives will disclose only that portion of the
CONFIDENTIAL INFORMATION as is legally required.
6. No Agency. Neither this Agreement nor the disclosure or receipt of
---------
CONFIDENTIAL INFORMATION shall constitute or imply any promise or
intention to enter into a partnership, agency or joint venture between the
parties, to make or purchase any products or services by either party, or to
make any commitment by either party with respect to the present or future
marketing of any product or service.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives.
[LOGO OF PRIMESTAR APPEARS HERE]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Date:
------------------------
[LOGO OF SPACE SYSTEMS/LORAL APPEARS HERE]
By:
--------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------
Title: Executive Director
-----------------------
Date: 18 May 1993
------------------------
BSS
ATTACHMENT C
[*****]
BSS
ATTACHMENT D
[*****]
BSS
ATTACHMENT E
[*****]
BSS
ATTACHMENT F
[*****]
BSS
ATTACHMENT G
[*****]
CONTRACT AMENDMENT NO. 5
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 5 (the "Amendment") is entered into effective
as of the 30th day of July, 1993 between TEMPO SATELLITE, INC. (the "Purchaser")
and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 4 dated as of July 19, 1993 (as so amended,
the "Contract").
WHEREAS, Contractor and Purchaser desire to further amend the Contract.
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. The following Paragraph 20.5 is hereby added to the Contract:
--------------
20.5 Payment Default Certificate From PRIMESTAR Partners, L.P. In the
---------------------------------------------------------
event Contractor receives a certificate and termination notice from
PRIMESTAR Partners, L.P. ("PRIMESTAR") substantially in the form of
Attachment I attached to this Contract (the "Certificate"), Purchaser shall
------------
be deemed to have duly elected to terminate this Contract in its entirety
pursuant to this Article 20, without further action by Contractor,
Purchaser, PRIMESTAR or any other party, effective as of the date
Contractor receives such Certificate. In such event, Contractor shall
transfer all right, title and interest in and to assets, in the manner
required in this Article 20, to PRIMESTAR in lieu of Purchaser, make all
payments to be made by Contractor under this Article 20 to PRIMESTAR in
lieu of Purchaser, and shall perform all of its other obligations under
this Article 20 for the benefit of PRIMESTAR in lieu of Purchaser, in all
cases as if PRIMESTAR were substituted for Purchaser under this Article 20,
all pursuant to any directions thereafter provided by PRIMESTAR (to the
extent such directions do not conflict with this Article 20).
1
2. The provisions of this Amendment may not be terminated or modified
except upon the execution in writing by the Parties and by PRIMESTAR of a
document setting forth such termination or modification. Purchaser and
Contractor acknowledge that PRIMESTAR has the right to enforce the provisions of
this Amendment.
3. The form of Certificate attached to this Amendment as Exhibit A is
---------
hereby added to the Contract as Attachment I thereto.
------------
4. All capitalized terms in this Amendment, not otherwise defined
herein, shall have the meanings ascribed to them in the Contract.
5. The Contract, as modified by the express terms of this Amendment, is
hereby ratified and affirmed by Purchaser and Contractor, and shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER:
TEMPO SATELLITE, INC.
By: ___________________________________
Xxxx X. Xxxxxx
Vice President
CONTRACTOR:
SPACE SYSTEMS/LORAL, INC.
By: ___________________________________
Name: X.X.XxXxxx
-----------------------------------
Title: Vice President
-----------------------------------
Finance & Administration
-----------------------------------
2
CONTRACT AMENDMENT NO. 6
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 6 (the "Amendment") is entered into effective
as of the 7th day of September, 1993 between TEMPO SATELLITE, INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 5 dated as of July 30, 1993 (as so amended,
the "Contract").
WHEREAS, Contractor and Purchaser desire to further amend the Contract.
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. The pages from Exhibit B-2 to the Contract, attached to this Amendment
-----------
as Exhibit A and incorporated herein by reference, are hereby substituted for
---------
existing pages in Exhibit B-2, in their entirety, as follows:
-----------
Existing Pages Substituted Pages (Attached)
-------------- ----------------------------
1-3 1-3
3-3 3-3
3-5 3-5 and 3-5a
3-9 3-9 and 3-9a
3-19 3-19
3-20 3-20
1
2. All capitalized terms in this Amendment, not otherwise defined herein,
shall have the meanings ascribed to them in the Contract.
3. The Contract, as modified by the express terms of this Amendment, is
hereby ratified and affirmed by Purchaser and Contractor, and shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER:
TEMPO SATELLITE, INC.
By: __________________________________
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Vice President
----------------------------------
CONTRACTOR:
SPACE SYSTEMS/LORAL, INC.
By: ___________________________________
Name: X.X.XxXxxx
-----------------------------------
Title: Vice President
-----------------------------------
Finance & Administration
-----------------------------------
2
CONTRACT AMENDMENT NO. 7
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 7 (the "Amendment") is entered into effective
as of the 14th day of October, 1993 between TEMPO SATELLITE, INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No.6 dated as of September 7, 1993 (as so
amended, the "Contract").
WHEREAS, Contractor and Purchaser desire to further amend the Contract.
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Pointing Accuracy Specification Amendments. Page 2-3 from Exhibit B-2
------------------------------------------ -----------
to the Contract, attached to this Amendment as Exhibit A and incorporated herein
---------
by reference, is hereby substituted for the existing Page 2-3 in Exhibit B-2 in
-----------
its entirety.
2. Defined Terms. All capitalized terms in this Amendment, not otherwise
-------------
defined herein, shall have the meanings ascribed to them in the Contract.
3. Ratification and Affirmation. The Contract, as modified by the
----------------------------
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
1
PURCHASER:
TEMPO SATELLITE, INC.
By: ___________________________________
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice Predisent
-----------------------------------
CONTRACTOR:
SPACE SYSTEMS/LORAL, INC.
By: ___________________________________
Name: X.X. XxXxxx
-----------------------------------
Title: Vice President
-----------------------------------
Finance & Administration
-----------------------------------
2
CONTRACT AMENDMENT NO. 8
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 8 (the "Amendment") is entered into effective
as of the 17th day of June, 1994, between TEMPO SATELLITE, INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 7 dated as of October 14, 1993 (as so
amended, the "Contract").
WHEREAS, Contractor and Purchaser desire to further amend the Contract.
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Exhibit B-2 Substitution. Exhibit B-2 to the Contract (the "Old
------------------------ -----------
Exhibit B-2") is hereby deleted in its entirety, and replaced with the version
-----------
of Exhibit B-2 attached to this Amendment as Exhibit A and incorporated herein
----------- ---------
by reference (the "New Exhibit B-2").
-----------
2. Description of Exhibit B-2 Changes. Without limiting the generality
----------------------------------
of the Exhibit B-2 substitution contemplated in Paragraph 1 of this Amendment,
----------- -----------
the following describes certain features of New Exhibit B-2 that differ from Old
-----------
Exhibit B-2:
-----------
PAGE NUMBERS IN
FEATURES IN NEW EXHIBIT B-2 NEW EXHIBIT B-2
--------------------------- ---------------
a. Incorporates a separate receive antenna to the BSS 1-1, 1-2 and 1-3
spacecraft to maintain the EIRP and G/T
specification.
b. Revises the command receiver to operate at both 5-1(b), 5-1(c), 5-5
17GHz and 14GHz for the BSS spacecraft. and 5-6
1
PAGE NUMBERS IN
FEATURES IN NEW EXHIBIT B-2 NEW EXHIBIT B-2
--------------------------- ---------------
c. Modifies the TT&C antenna system to incorporate 5-1(b) and 5-4
wider angled omni antennas for the BSS spacecraft.
d. Incorporates TT&C coverage on the communication 1-2, 1-3, 5-1, 5-1(a),
receive antenna on the BSS spacecraft. 5-1(b), 5-5 and 5-5(a)
e. Revises performance of Channel 2 frequency 3-19, 3-19(a), 3-20
response and group delay on the BSS spacecraft to and 3-20(a)
incorporate the directional filter required for the
TT&C.
f. Adds block diagram defining the new TT&C design 5-1(b)
for the BSS spacecraft.
g. Assigns TT&C frequencies for the BSS spacecraft 5-1(c), 5-4 and 5-6
and revises the frequency plan.
h. Revises the on-axis EIRP for the telemetry beacon to 5-4
7dBW left hand circular polarization for the BSS
spacecraft, and revises the edge of coverage EIRP to
3dBW.
i. Revises the command uplink saturated flux density to 5-1 and 5-5
minus 91.8 dBW/m/2/ using the on-axis
communication receive antenna, and revises the
TT&C to ranging saturated flux density to minus 87
dBW/m/2/ using the on-axis communication receive
antenna.
j. Incorporates a specification to adjust, by ground 5-3 and 5-6
command, for aging variations of the command
receive center frequency on the BSS spacecraft.
k. Incorporates a specification to enable or disable, by 5-6
ground command, the command receiver AFC
functions on the BSS spacecraft.
l. Revises the command receiver to bit detector 5-1b and 5-6
interface to include switches in the cross-strap
connection.
2
PAGE NUMBERS IN
FEATURES IN NEW EXHIBIT B-2 NEW EXHIBIT B-2
--------------------------- ---------------
m. Revises the TWTA redundancy switch arrangement 1-2
to include redundancy of channel amplifiers as shown
in payload block diagram in Figure 1.2.
n. Revises specification to provide compatibility with 1-1 and 2-1
Proton launch vehicle.
o. Revises EIRP city tables to incorporate optimization 3-6 and 3-10
of polygon EIRP values and revises city EIRP values
in accordance with final polygon EIRP.
p. Revises communications frequency plan to include 3-4
TT&C frequencies.
q. Revises the block diagram of payload gain 3-2
distribution, Figure 3-1, for proper levels.
r. Revises the allowable variation in SFD between any 3-16
two transponders in the event of two failed receivers
on the same equipment deck from 3.7dB to 4.2dB.
s. Revises the allowable AM/PM conversion 3-21, 3-21a
specification.
t. Revises telemetry transmitter specification to 5-4
incorporate from one to three subcarriers, selectable
by ground command.
u. Incorporates a loop stress voltage in the telemetry 5-6
for monitoring tuning of the command receiver
center frequency.
v. Defined the demarcation for transponder input and 3-1a
output sections.
w. Updated contents, illustrations and tables. iii, iv, vi
The foregoing descriptions of New Exhibit B-2 are solely for ease of reference.
-----------
In the event of any inconsistency between the descriptions of New Exhibit B-2
-----------
set forth in this Xxxxxxxxx 0, xxx Xxx Xxxxxxx X-0, the language in New Exhibit
----------- ----------- -------
B-2 shall govern.
---
3. Defined Terms. All capitalized terms in this Amendment, not otherwise
-------------
defined herein, shall have the meanings ascribed to them in the Contract.
3
4. Ratification and Affirmation. The Contract, as modified by the
----------------------------
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
5. Counterparts. This Amendment may be executed in one or more
------------
counterparts, all of which taken together shall constitute the Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER:
TEMPO SATELLITE, INC.
By: ___________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
CONTRACTOR:
SPACE SYSTEMS/LORAL, INC.
By: ___________________________________
Name: X.X.XxXxxx
Title: Vice President,
Finance & Xxxxxxxxxxxxxx
0
XXXXXXXX XXXXXXXXX XX. 0
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 9 (the "Amendment") is entered into effective
as of the 15th day of July, 1994, between TEMPO SATELLITE, INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 8 dated as of June 17, 1994 (as so amended,
the "Contract").
WHEREAS, Contractor and Purchaser desire to further amend the Contract.
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Launch Vehicles. Notwithstanding any provision in Section 34.1 or
--------------- ------------
elsewhere in the Contract to the contrary, the [*****] Launch Vehicle is hereby
replaced with a launch on a [*****] Launch Vehicle, with no resulting reductions
or other modifications to the price set forth in Section 4.1.
-----------
2. Dual Path. At all times during the term of the Contract prior to and
---------
including the Dual Path Termination Date (as hereinafter defined), Contractor,
at Contractor's sole expense, shall maintain a dual path to support the
construction, launch and delivery of satellites and the delivery of ground
equipment and services contemplated in Contract No. TPO-1-693 dated July 19,
1993 (the "FSS Contract"), between Contractor and Purchaser, and shall otherwise
take any and all actions necessary to timely fulfill all of Contractor's
obligations under the FSS Contract as if the FSS Contract were in full force and
effect, simultaneously with the performance of Contractor's obligations under
the Contract. For the purposes of the Contract and this Amendment, "Dual Path
Termination Date" shall be defined as the date that is the earlier to occur of
the following: (i) July 31, 1994; (ii) the date that the FSS Contract actually
becomes effective pursuant to Section 1.2 thereof; or (iii) any transfer of work
-----------
in progress under the Contract to a fixed satellite system at the direction of
Purchaser.
5
3. Price Increase. In consideration of Contractor's dual path efforts
--------------
under the Contract, the Firm Fixed Price set forth in Section 4.1 of the
-----------
Contract shall be increased by [*****] from [*****] to [*****] which [*****]
increase shall be invoiced in the same manner as all other installments of the
Firm Fixed Price, and shall be due and payable in three equal installments, each
in the amount of [*****] in June 1994, July, 1994 and August 1994 respectively.
4. Defined Terms. All capitalized terms in this Amendment, not otherwise
-------------
defined herein, shall have the meanings ascribed to them in the Contract.
5. Ratification and Affirmation. The Contract, as modified by the
----------------------------
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in one or more
------------
counterparts, all of which taken together shall constitute the Amendment.
IN WITNESS THEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER:
TEMPO SATELLITE, INC.
By: ____________________________________
Xxxxx X. Xxxxxx, Vice President
CONTRACTOR:
SPACE SYSTEMS/LORAL, INC.
By: ____________________________________
X.X. XxXxxx, Vice President,
Finance & Xxxxxxxxxxxxxx
0
XXXXXXXX XXXXXXXXX XX. 00
TO
CONTRACT NO. TPO-1-290
BETWEEN
TEMPO SATELLITE, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 10 (the "Amendment") is entered into effective
as of the 29/th/ day of September, 1994, between TEMPO SATELLITE, INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 9 dated as of July 15, 1994 (as so amended,
the "Contract");
WHEREAS, the Contract currently provides for Satellite No. 1 delivery to
geostationary longitude location 119 degrees X. X. and Satellite No. 2 delivery
to geostationary longitude location 166 degrees X.X.;
WHEREAS, Purchaser's affiliate, Tempo DBS, Inc ("TDBS"), and Advanced
Communications Corporation ("ACC") have filed an application with the Federal
Communication Commission ("FCC") requesting consent to the assignment of the
direct broadcast satellite construction permit held by ACC to TDBS; and
WHEREAS, Contractor and Purchaser, subject to FCC approval of the pending
application of TDBS, desire to further amend the Contract to have Satellite No.
1 and Satellite No. 2 delivered to geostationary longitude location 110 degrees
X.X. and to order three additional satellites to be delivered to geostationary
longitude locations 119 degrees, 166 degrees and 148 degrees X.X., respectively,
all in the manner set forth in this Amendment.
NOW THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Alternate Orbital Location. The Purchaser hereby exercises its option
pursuant to Article 35 of the Contract and designates the alternate
geostationary longitude Delivery location for both Satellite No. 1 and Satellite
No. 2 to be 110 degrees X.X., and Contractor agrees to such alternate orbital
location election notwithstanding any provision in Article 35 to the contrary.
1
2. Additional Satellites. The Purchaser exercises its option pursuant to
Article 28 of the Contract, subject to FCC approval, to purchase additional
satellites for Delivery as follows: (a) Satellite No. 3 for Delivery by May,
1998 at 119 degrees X.X.; (b) Satellite No. 4 for Delivery by May, 1998 at 166
degrees X.X.; and (c) Satellite No. 5 for Delivery by December 1998 at 148
degrees X.X., and Contractor agrees to construct such additional satellites
pursuant to such Delivery dates notwithstanding any provision in Article 28 to
the contrary.
3. Price Increase. Notwithstanding any provision in Article 35 or
elsewhere in the Contract to the contrary, in consideration of the Purchaser's
exercise of the alternate orbital location option pursuant to paragraph 1 of
this Amendment, Purchaser shall pay Contractor, the sum of [*****] Contractor
shall invoice Purchaser for accumulated payments due to date under the Contract
Attachment A - Option For Alternate Orbital Location (2 Satellites), Article 35,
Payment Plan less the amount of [*****] and thereafter invoice the Purchaser in
accordance with the "Decision in Mth 13-24" column of the payment plan.
Notwithstanding any provision in Article 28 or elsewhere in the Contract to the
contrary, in consideration of Purchaser's order of additional satellites
pursuant to paragraph 2 of this Amendment, Contractor acknowledges that, for the
purposes of payment under the Contract Attachment A- Additional Satellites
Option, Article 28, [*****] the Date of Order (DO) shall be deemed to occur
sixty (60) days following the date on which Purchaser has received the necessary
FCC authority to construct the relevant additional satellites. Purchaser
further acknowledges that the Delivery dates specified in paragraph 2 of this
Amendment are subject to the Purchaser obtaining timely regulatory approval.
4. Exhibits. The attached exhibits are hereby incorporated and made part
of this Amendment.
Exhibit A-2, Statement of Work for 110 degrees West
Exhibit A-2, Statement of Work for 148 degrees West
Exhibit B-2, BSS Satellite Specification for 110 degrees West
Exhibit B-2, BSS Satellite Specification for 148 degrees West
Exhibit C-2 BSS Product Assurance Plan for 110 degrees West
Exhibit C-2 BSS Product Assurance Plan for 148 degrees West
Exhibit D-2 BSS Satellite Program Test Plan for 110 degrees West
Exhibit D-2 BSS Satellite Program Test Plan for 148 degrees West
5. Defined Terms. All capitalized terms in this Amendment, not otherwise
defined herein, shall have the same meanings ascribed to them in the Contract.
6. Ratification and Affirmation. The Contract, as modified by the
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
7. Counterparts. This Amendment may be executed in one or more
counterparts, all of which taken together shall constitute the Amendment.
2
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER: CONTRACTOR:
TEMPO SATELLITE, INC. SPACE SYSTEMS/LORAL, INC.
By:______________________________ By:________________________________
Xxxxx X. Xxxxxx, Vice President X.X. XxXxxx, Vice President
Finance & Xxxxxxxxxxxxxx
0
XXXXXXXX XXXXXXXXX XX. 00
TO
CONTRACTS NO. TPO-1-290
BETWEEN
TEMPO SATELLITE INC.
AND
SPACE SYSTEMS/LORAL
FOR
TEMPO DIRECT SATELLITE SYSTEMS
THIS CONTRACT AMENDMENT NO. 11 (the "Amendment") is entered into effective
as of the 30th day of May 1995, between TEMPO SATELLITE, INC. (the "Purchaser")
and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated July 19, 1993, as amended by the parties thereto, most recently pursuant
to Contract Amendment No. 10 dated September 29, 1994 (as so amended, the
"Contracts"),
WHEREAS, Contractor and Purchaser have agreed to proceed immediately with
the design, analysis, fabrication and test of six (6) sets of antennas
(excluding the 110 degrees receive antenna) to support four (4) orbital
locations at 61.5 degrees, 110 degrees, 119 degrees and 166 degrees with an
anticipated Contract Amendment date of June 24, 1995 pending Purchaser's final
assessment of TEMPO satellite design and locations, (The 61.5 degrees and 166
degrees antennas will be designed to cover both 61.5 degrees and 166 degrees in
one design.)
WHEREAS, Purchaser has notified Contractor that it shall select the final
designs of the TEMPO satellites on or about June 15, 1995,
WHEREAS, Contract and Purchaser have agreed that Purchaser's total
liability for the effort to be provided by Contractor through June 30, 1995, in
this Amendment, shall be [*****] and such amount reflects only the termination
liability for the efforts to be provided by this Amendment through June 30,
1995,
WHEREAS, Contractor and Purchaser have agreed that the effort to be
provided by this Amendment includes: Contractor initiation of (a) in-house
efforts on six (6) Sets of Antennas, engineering and planning and (b)
procurement of long lead items (e.g., Antenna molds, Cray rental and graphite),
WHEREAS, Contractor and Purchaser agree that subsequent to the final design
selection by Purchaser, an equitable adjustment to the affected terms and
conditions of the Tempo Contract, including schedule, schedule penalties, and/or
price (including insurance effect), as may be applicable, will be negotiated and
subject of a separate modification to the TEMPO BSS Contract;
1
and, TEMPO shall be credited for the price of this amendment in the subsequent
amendment, and such amendment shall not duplicate any efforts to be provided by
this Amendment,
WHEREAS, Contractor and Purchaser desire to amend the BSS Contract price to
reflect an increase in the BSS Contract price of $1,000,000;
NOW THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Design Effort. Contractor shall immediately commence design efforts
-------------
for six (6) sets of antennas from the effective date of this Amendment through
June 24, 1995.
2. Price Increase. In consideration of Contractor's efforts under the
--------------
Contract, the Firm Fixed Price set forth in Section 4.1 of the Contract shall be
increased by [*****] from [*****] to [*****] which [*****] increase shall be
invoiced in the same manner as all other installments of the Firm Fixed Price,
and shall be due and payable in one payment in July 1995.
3. Defined Terms. All capitalized terms in this Amendment, not otherwise
-------------
defined herein, shall have the meanings ascribed to them in the Contracts.
4. Ratification and Affirmation. The Contracts, as modified by the
----------------------------
express terms of this Amendment, are hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
CONTRACTOR: PURCHASER:
SPACE SYSTEMS/LORAL, INC. TEMPO SATELLITE, INC.
By: __________________________ By: _________________________
Name: X.X. XxXxxx Name: Xxxxx X. Xxxxxx
-------------------------- -------------------------
Title: Vice President, Title: Vice President
-------------------------- -------------------------
Finance & Administration
--------------------------
2
CONTRACT AMENDMENT NO. 12 TO CONTRACT NO. TPO-1-290
BETWEEN TEMPO SATELLITE, INC. AND SPACE SYSTEMS/LORAL, INC.
FOR TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 12 (the "Amendment") is entered into
effective as of the 11th day of August, 1995, between TEMPO SATELLITE, INC.
(the "Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 11 dated May 30, 1995 (as so amended, the
"Contract"); and
WHEREAS, Contractor and Purchaser have agreed to Amendment No. 11 to
negotiate an equitable adjustment to the affected terms and conditions of the
Tempo Contract;
NOW THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Antenna Construction. Contractor shall proceed with the design,
analysis, fabrication and test of four (4) transmit antennas for the 110
degreesW. L. orbital location (the "110 degrees Antenna Option") and undertake
such as work as may be necessary to be able to complete four (4) transmit and
two (2) receive antennas for the 119 degreesW. L. orbital location (the "119
degrees Antenna Option"), provided the notification of a change from 110 degrees
to 119 degrees orbital location is provided, in writing, to the Contractor by
the Purchaser no later than October 1, 1995.
2. Price Increase. Notwithstanding any provision in the Contract to the
contrary, in consideration of the 110 degrees Antenna Option the Firm Fixed
Price set forth in Section 4.1 of the Contract and amended by Amendment No. 11
shall be increased by [*****] from [*****] to [*****] which [*****] increase
shall be invoiced in the same manner as all other installments of the Firm Fixed
Price, and shall be due and payable on the following schedule.
1
110 degrees OPTION ANTENNA PAYMENT SCHEDULE
-------------------------------------------
=====================================================================
Amendment No. 11
Firm Fixed Price [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
Amendment No. 12
Firm Fixed Price [*****]
=====================================================================
If the notification of a change from the 110 degrees to 119 degrees orbital
location is given, in writing, to the Contractor by the Purchaser no later than
October 1, 1995, thereby exercising the 119 degrees Antenna Option, the Firm
Fixed Price set forth in Section 4.1 of the Contract and amended by Amendment
no. 11 shall be increased by [*****] from [*****] to [*****] which [*****]
increase shall be invoiced in the same manner as all other installments of the
Firm Fixed Price, and shall be due and payable on the following schedule.
2
119 degrees OPTION ANTENNA PAYMENT SCHEDULE
-------------------------------------------
=====================================================================
Amendment No. 11
Firm Fixed Price [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
[*****] [*****]
--------------------------------------------
Amendment No. 12
Firm Fixed Price [*****]
=====================================================================
3. Schedule. Attached as Exhibit A to this Amendment No. 12 is the
schedule for Satellite No. 1 (FM-1) and Satellite No. 2 (FM-2) delivered to
geostationary longitude location 110 degrees X.X. or 119 degrees X.X. The
Purchase shall provide the Contractor with approval of antenna patterns within
five (5) working days of submittal of the patterns by the Contractor to the
Purchaser. Notwithstanding any provision in Article 21 or elsewhere in the
Contract to the contrary, the Contractor and the Purchaser agree to change the
first sentence of Section 21.1, Reimbursement for Satellite Delivery Delay, is
------------------------------------------
hereby amended to change [*****] after Execution to [*****] after Execution".
4. Defined Terms. All capitalized terms in this Amendment, not otherwise
defined herein, shall have the same meanings ascribed to them in the Contract.
5. Ratification and Affirmation. The Contract, as modified by the
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in one or more
counterparts, all of which taken together shall constitute the Amendment.
3
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER: CONTRACTOR:
TEMPO SATELLITE, INC. SPACE SYSTEMS/LORAL, INC.
By:______________________________ By:________________________________
Xxxxx X. Xxxxxx, Vice President X. X. XxXxxx, Vice President
Finance & Xxxxxxxxxxxxxx
0
XXXXXXXX XXXXXXXXX XX. 00 TO CONTRACT NO. TPO-1-290
BETWEEN TEMPO SATELLITE, INC. AND SPACE SYSTEMS/LORAL, INC.
FOR TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 13 (the "Amendment") is entered into effective
as of the 15th day of March, 1996, between TEMPO SATELLITE, INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 12 dated as of August 11, 1995 (as so
amended, the "Contract"); and
WHEREAS, Contractor and Purchaser have agreed to proceed immediately with
(i) the design, analysis, fabrication and test of six (6) antennas to support an
orbital location of 82 degrees X.X. (the "Optional Parts") and (ii) termination
of all partial design efforts associate with the orbital location of 61.5
degrees,
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Optional Parts - Antennas. Contractor shall proceed with the design,
-------------------------
analysis, fabrication and test of four (4) transmit antennas and two (2) receive
antennas for the 82 degrees X.X. Orbital location. The Contract Specification
document, Exhibit B-2, is hereby amended and replaced in its entirety by the
Exhibit B-2 document dated "23 February 1996 FINAL" and attached hereto. The
Contractor shall, upon written instructions from the Purchaser, such
instructions to be given no later than June 1, 1996, install either the 82
degrees Antenna Option antennas or the 110 degrees (revised) Antenna Option
antennas on Tempo Flight 1 or Flight 2, as the case may be. Current schedule
assessments for Tempo Flight 1 or Flight 2 are attached hereto. Should
Purchaser, by written notification to the Contractor, direct the launch of
Flight 1 or Flight 2 to be delayed, then the June 1, 1996 notification date will
be changed by mutual agreement.
2. Launch Options. The Contractor has obtained confirmation a new launch
--------------
window, November 1 - 30, 1996, for the Proton launch vehicle. The Purchaser
agrees to the new launch window which is provided to Contractor and Purchaser at
no additional cost by International Launch Services ("ILS") on behalf of
Lockheed-Khrunichev-Energia, Inc. ("LKEI"). The currently scheduled launch
window for the Atlas IIA launch vehicle is September 17 through October 17,
1996. The Contractor has confirmed an option, to be exercised no later than
March 30, 1996, for a new Atlas IIA launch window, March 1, 1997 through April
1, 1997. The Purchaser agrees to the new launch window option which is provided
to Contractor and Purchaser at a price of [*****] by ILS on behalf of Lockheed
Xxxxxx Commercial Launch Services. The Contractor shall, prior to March 30,
1996, or at least five (5) days prior to any date to which the exercise of the
Atlas IIA
1
option is postponed by mutual agreement, provide the Purchaser with an itemized
list of any additional cost to be incurred by the delay in the Atlas IIA launch.
3. Price Increase. Notwithstanding any provision in the Contract to the
--------------
contrary, in consideration of the 82 degrees Antenna Option and the Atlas IIA
launch window option the Firm Fixed Price set forth in Section 4.1 of the
Contract shall be increased by [*****] from [*****] to [*****] which [*****]
increase shall be invoiced in the same manner as all other installments of the
Firm Fixed Price, and shall be due and payable on the following schedule.
82 degrees OPTION ANTENNA PAYMENT SCHEDULE
------------------------------------------
=============================================================================
Firm Fixed Price DEFINED IN TABLE BELOW [*****]
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
Amendment No. 13 [*****]
Firm Fixed Price
=============================================================================
CALCULATION OF FIRM FIXED PRICE PRIOR TO AMENDMENT NO. 13
---------------------------------------------------------
=============================================================================
BSS Firm Fixed Price as of Amendment #4 [*****]
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
[*****] [*****]
-------------------------------------------
AMENDMENT NO. 12 as of Amendment #12 [*****]
=============================================================================
2
If Purchaser terminates, by written notice, the 110 degrees Option Antenna, as
defined in Amendment No. 12 and FM-1 and/or FM-2 are launched with antennas
designed for an orbital location other than the 110 degrees X.X. BSS orbital
location the Contractor (i) acknowledges that the antennas may not be used on
any other satellite program without the written consent of the Purchaser, shall
use its best efforts to use the Purchaser's 110 degrees Option Antennas on any
subsequent BSS satellite construction program for 110 degrees, and (iii.a)
---
refund to the Purchaser the sum of [*****], within thirty (30) days of the date
on which any set of 110 degrees Option Antenna is mounted on any satellite which
is not the subject of the Contract, or (iii.b) refund to the Purchaser the sum
--
of [*****] within thirty--(30) days of the date on which any set of 110 degrees
antenna where the antenna Pattern design work and/or antenna mold which is the
subject of this Contract is used in the design and construction of such a 110
degrees antenna, is mounted on any satellite which is not the subject of the
Contract.
If Purchaser terminates, by written notice, the 82 degrees Option Antenna, as
defined in this Amendment No. 13, (i) on or before April 1, 1996, the obligation
of the Purchaser to make the 82 degrees Option Antenna payments for May through
August 1996, as defined in the table above, shall also terminate and the
Amendment No. 13 Firm Fixed Price shall be adjusted accordingly, or (ii) on or
before May 1, 1996, the obligation of the Purchaser to make the 82 degrees
Option Antenna payments for June and August 1996, as defined in the table above,
shall also terminate and the Amendment No. 13 Firm Fixed Price shall be adjusted
accordingly.
4. Schedule. Attached to this Amendment No. 13 are the schedules for
--------
Tempo Flights 1 and 2 to be delivered to the geostationary longitude location 82
degrees or 110 degrees X.X. Purchaser has provided Contractor with approval of
antenna patterns within five (5) working days of submittal of the patterns by
Contractor to Purchaser. The Delivery of F-1 an F-2 are contingent upon
availability of the Proton and Atlas IIA launch vehicle. Notwithstanding any
provision in Article 21, as amended by Amendment No. 12 or elsewhere in the
Contract to the contrary, Contractor and Purchaser agree to change the first
sentence of Section 21.1, Reimbursement for Satellite Delivery Delay, to read
[*****] after Execution or [*****]
5. Defined Terms. All capitalized terms in this Amendment, not otherwise
-------------
defined herein, shall have the same meanings ascribed to them in the Contract.
6. Ratification and Affirmation. The Contract, as modified by the
----------------------------
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
7. Counterparts. This Amendment may be executed in one or more
------------
counterparts, all of which taken together shall constitute the Amendment.
3
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER: CONTRACTOR
TEMPO SATELLITE, INC. SPACE SYSTEMS/LORAL, INC.
By: ____________________________ By: ________________________
Xxxxx X. Xxxxxx, Vice President X.X. XxXxxx, Vice President
Finance & Xxxxxxxxxxxxxx
0
XXXXXXXX XXXXXXXXX XX. 00 TO CONTRACT No. TPO-1-290
BETWEEN TEMPO SATELLITE, INC. AND SPACE SYSTEMS/LORAL, INC.
FOR TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 14 (the "Amendment") is entered into effective
as of the 6th day of May, 1996, between TEMPO SATELLITE, INC. (the "Purchaser")
and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are parties to Contract No. TPO-1-290
dated February 22, 1990, as amended by the parties thereto, most recently
pursuant to Contract Amendment No. 13 dated as of March 15, 1996 (as so amended,
the "Contract"); and
WHEREAS, Contractor and Purchaser have agreed that Contractor shall provide
insurance for Purchaser's Satellite launch and a one hundred eighty (180) day
initial operations period (the "Insurance Coverage"), as more fully described in
Attachment A - SATELLITE LAUNCH AND INITIAL OPERATIONS INSURANCE POLICY (the
"Policy"); and
WHEREAS, Contractor and Purchaser have agreed that Purchaser's total
liability for the Insurance Coverage provided by the Contractor under this
Amendment shall remain unchanged.
NOW, THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Insurance Coverage. Contractor shall obtain Insurance Coverage
------------------
for each of the Purchaser's Satellites including launch and an initial operating
period of one hundred eighty (180) days from launch of the satellite (the
"Period"). Subsequent to in-orbit testing and Acceptance or Qualified
Acceptance, the Purchaser shall have the exclusive right to use and operate the
Satellite(s); provided, however, that Contractor shall remain as designated Loss
Payee of the Insurance Coverage policy for the duration of the one hundred
eighty (180) day period from launch of the satellite.
2. Warranty and Damages. If a Partial Loss occurs during the Period for
--------------------
which an insurance claim is honored, Damages will be paid to the Purchaser by
the Contractor in accordance with Article 23 of the Contract, such payment to be
adjusted only to take into account the Deductible under the Policy. The Policy
Deductible is five percent (5%). Nothing in this Amendment alters the
Contractor's obligation to the Purchaser as to Warranty Payback under Articles
13 and 14 of the Contract. If during the Period Satellite fails to meet the
criteria for Qualified Acceptance, the Contractor's obligations under Article
10, Section 4 and Article 33, as the case may be, shall apply.
3. Defined Terms. All capitalized terms in this Amendment, not otherwise
-------------
defined herein, shall have the same meanings ascribed to them in the Contract.
1
4. Ratification and Affirmation. The Contract, as modified by the
----------------------------
express terms of this Amendment, is hereby ratified and affirmed by Purchaser
and Contractor, and shall remain in full force and effect.
5. Counterparts. This Amendment may be executed in one or more
------------
counterparts, all of which taken together shall constitute the Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER: CONTRACTOR
TEMPO SATELLITE, INC. SPACE SYSTEMS/LORAL, INC.
By: _____________________________ By: ____________________________
Xxxxx X. Xxxxxx, Vice President X.X. XxXxxx, Vice President
Finace & Xxxxxxxxxxxxxxx
0
XXXXXXXX XXXXXXXXX XX. 00 TO CONTRACT NO. TPO-1-290
BETWEEN TEMPO SATELLITE, INC. AND SPACE SYSTEMS/LORAL, INC.
FOR TEMPO DIRECT BROADCAST SATELLITE SYSTEM (DBSS)
THIS CONTRACT AMENDMENT NO. 15 (the "Amendment") is entered into effective
as of the 12/th/ day of June, 1996, between TEMPO SATELLITE INC. (the
"Purchaser") and SPACE SYSTEMS/LORAL, INC. (the "Contractor").
WHEREAS, Contractor and Purchaser are the parties to Contract NO. TPO-1-290
dated February 22, 1990, as amended by the paries thereto, most recently
pursuant to Contract Amendment No. 14 dated as of May 6, 1995 (as so amended,
the "Contract"); and
WHEREAS, Contractor and Purchaser have agreed to new terms regarding the
continuation of the fabrication and test of three (3) antennas to support an
orbital location of 119 degrees X.X.
NOW THEREFORE, in consideration of the mutual covenants and conditions in
this Amendment and in the Contract, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. 119 degrees Antenna Continuation for Flight 2. Contractor shall
--------------------------------------------
proceed with the fabrication and test of two (2) transmit antennas and one (1)
receive antennas for the 119 degrees X.X. orbital location, as previously
designed and analyzed in accordance with the Contract Specification. The
Contractor shall, upon written instructions from the Purchaser, such
instructions to be given [*****], install either the 119 degrees or 82 degrees
Antenna Option antennas or the 110 degrees (revised) Antenna Option antennas on
Tempo Flight 2, currently scheduled to be launched on an Atlas IIA vehicle in
February/March 1997 launch window. Schedule attached - Tempo 2, 6/21/96.
2. Flight 1. The Contractor shall, upon written instructions from the
--------
Purchaser, such instructions to be given [*****], install either the 82 degrees
Antenna Option antennas or the 110 degrees (revised) Antenna Option antennas on
Tempo Flight 2, currently scheduled to be launched on a Proton vehicle in the
December 1996 launch window.
3. Price Increase. Notwithstanding any provision in the Contract to the
--------------
contrary, in consideration of maintaining the flexibility for antenna usage as
stated above, the Firm Fixed Price set forth in Section 4.1 of the Contract
shall be increased by [*****] from [*****] to [*****] which [*****] increase
shall be invoiced in the same manner as all other installments of the Firm Fixed
Price, and shall be due and payable on the following schedule.
1
119DEGRESS ANTENNA CONTINUATION PAYMENT SCHEDULE
-----------------------------------------------------------------
Firm Fixed Price Defined in Table Below [*****]
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------==================
[*****] [*****]
-----------------------------------------========================
Amendment No. 15
Firm Fixed Price [*****]
=================================================================
CALCULATION OF FIRM FIXED PRICE PRIOR TO AMENDMENT NO. 15
---------------------------------------------------------
=================================================================
BSS Firm Fixed Price As of Amendment #4 [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
-----------------------------------------
[*****] [*****]
====================
[*****] [*****]
-----------------------------------------========================
Amendment No. 14 [*****]
=================================================================
4. Defined Terms. All capitalized items in this Amendment, not otherwise
-------------
defined herein, shall have the same meanings ascribed to them in the Contract.
2
5. Ratification and Affirmation. The Contract, as modified by the express
----------------------------
terms of this Amendment, is hereby ratified and affirmed by Purchaser and
Contractor, and shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in one or more
------------
counterparts, all of which taken together shall constitute the Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the date first above written.
PURCHASER: CONTRACTOR:
TEMPO SATELLITE, INC SPACE SYSTEMS/LORAL, INC.
By: _________________________________ By: ______________________________
Xxxxx X. Xxxxxx, Vice President X. X. XxXxxx, Vice President
Finance & Administration
3
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made and entered into this 18 day of May, 1993, by and between
PRIMESTAR PARTNERS and SPACE SYSTEMS/LORAL ("SS/L").
WITNESSETH:
-----------
In consideration of the mutual covenants and promises set forth herein,
PrimeStar Partners and SS/L agree as follows:
1. ACKNOWLEDGMENT of CONFIDENTIAL INFORMATION. PrimeStar Partners and SS/L
------------------------------------------
(the "Parties") acknowledge and agree that CONFIDENTIAL INFORMATION is
claimed to be proprietary to and a valuable trade secret of each of the
Parties and that any unauthorized use thereof may cause irreparable harm
and loss to such Party. "CONFIDENTIAL INFORMATION" means all information,
documentation, terms, conditions and compensation arrangements disclosed in
writing, or made available by one Party to the other, which is clearly
marked as being confidential or proprietary, including, but not limited to,
business, present and future plans, present and future products and
policies of each Party.
"CONFIDENTIAL INFORMATION" does not include information or documentation
which (1) was acquired by a Party before the contemplated discussions and
when such Party was under no obligation to keep such information
confidential; (2) is or becomes publicly known through no wrongful act of a
Party hereto; (3) is received from a third person or entity who is legally
entitled to possession of such information; (4) is developed by a Party
other than in the course of performance of contractual obligations under
any contract between the Parties; or (5) was given orally, unless it is so
designated at the time of disclosure and is summarized and identified as
such in writing within thirty (30) days after disclosure.
2. OBLIGATIONS OF NONDISCLOSURE. In consideration of the disclosure to each
----------------------------
other of CONFIDENTIAL INFORMATION, the Parties agree to treat such
CONFIDENTIAL INFORMATION in the same manner and degree of care as it would
its own CONFIDENTIAL INFORMATION, and to undertake the following additional
obligations with respect thereto:
(a) to use CONFIDENTIAL INFORMATION only for the purposes of determining
whether the Parties will pursue further negotiations, and in the
performance of any subsequent contractual obligations, if any;
(b) not to copy, in whole or in part, CONFIDENTIAL INFORMATION, except as
required to review such information;
1
(c) to limit dissemination of CONFIDENTIAL INFORMATION to:
(I) SS/L PrimeStar
---- ---------
X.X. Xxxxxxx Xxxxx Xxxxxx
X.X. Xxxxxxxx Xxxx Xxxxx
X.X. Xxxx Xxxx Xxxxxx
X.X. Xxxxxx Xxxx Xxxxxxxxx
W.E. Xxxxxxxxxxx
N.J. Barberis
(ii) those of each Party's employees who have a need to know to
perform the limited tasks set forth in item (a) above; and
(iii) not to disclose CONFIDENTIAL INFORMATION outside of the
receiving Party, other than to a Partys' attorneys or
accountants or a Partys' related affiliates or individual
partners as the case may be;
(d) to return any written CONFIDENTIAL INFORMATION, including all copies
and records thereof, to the disclosing Party upon request.
3. SURVIVAL. The restrictions and obligations of Paragraph 2 of this Agreement
--------
shall survive any expiration, termination or cancellation of this Agreement
or of any other agreement between the Parties, and shall continue to bind
the Parties, their successors, heirs and assigns, for a period of three
years from the date hereof.
4. GOVERNING LAW. This Agreement shall be construed and enforced in accordance
-------------
with the laws of the State of Colorado.
5. LEGALLY REQUIRED DISCLOSURE. If a Party of any of its representatives
---------------------------
becomes legally compelled to disclose any of the CONFIDENTIAL INFORMATION,
such Party agrees to provide the Party which provided the CONFIDENTIAL
INFORMATION with prompt notice of such requirement and to cooperate with
the Party which provided the CONFIDENTIAL INFORMATION in seeking to obtain
a protective order or other arrangement pursuant to which the
confidentiality of the CONFIDENTIAL INFORMATION is preserved. If such an
order or arrangement is not obtained, the Party to which the CONFIDENTIAL
INFORMATION is provided agrees that it and its representatives will
disclose only that portion of the CONFIDENTIAL INFORMATION as is legally
required.
6. NO AGENCY. Neither this Agreement nor the disclosure or receipt of
---------
CONFIDENTIAL INFORMATION shall constitute or imply any promise or intention
to enter into a partnership, agency or joint venture between the parties,
to make or purchase any
2
products or services by either party, or to make any commitment by either
party with respect to the present or future marketing of any product or
service.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives.
PRIMESTAR
By:_____________________
Name:___________________
Title:__________________
Date:___________________
SPACESYSTEMS/LORAL
By:_____________________
Name:Xxxxxx X. Xxxxxxx
-------------------
Title:Executive Director
------------------
Date:18 May 1993
-------------------
3
