EXHIBIT 10.55
Confidential treatment has been requested for portions of this contract. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [***]. A complete version of this contract
has been filed separately with the Securities and Exchange Commission.
CONTRACT
FOR
LAUNCH SERVICES
BETWEEN
SEA LAUNCH LIMITED PARTNERSHIP
Acting through its General Partner,
Sea Launch Company, L.L.C.
AND
XM SATELLITE RADIO HOLDINGS INC.
XM and Sea Launch Proprietary
TABLE OF CONTENTS
ARTICLE 1 -- DEFINITIONS................................................4
ARTICLE 2 -- CONTRACTUAL DOCUMENTS......................................7
ARTICLE 3 -- SERVICES TO BE PROVIDED BY SEA LAUNCH......................7
ARTICLE 4 -- CONTRACT PRICE.............................................8
ARTICLE 5 -- PAYMENTS...................................................8
ARTICLE 6 -- LAUNCH SCHEDULE...........................................11
ARTICLE 7 -- LAUNCH POSTPONEMENTS AND ACELERATION......................12
ARTICLE 8 -- EXCUSABLE DELAYS..........................................14
ARTICLE 9 -- OBLIGATIONS BEFORE AND AFTER LAUNCH.......................15
ARTICLE 10 -- COMMUNICATION and COORDINATION BETWEEN SEA
LAUNCH and XM.........................................17
ARTICLE 11 -- PERMITS AND APPROVALS....................................18
ARTICLE 12 -- RESERVED.................................................18
ARTICLE 13 -- REPLACEMENT LAUNCH.......................................18
ARTICLE 14 -- TERMINATION..............................................19
ARTICLE 15 -- RISK ALLOCATION..........................................21
ARTICLE 16 -- PROPRIETARY DATA.........................................26
ARTICLE 17 -- RIGHTS TO INVENTIONS AND DATA............................27
ARTICLE 18 -- CHANGES..................................................28
ARTICLE 19 -- ASSIGNMENT...............................................28
ARTICLE 20 -- PUBLIC RELEASE OF INFORMATION............................28
ARTICLE 21 -- DISPUTE SETTLEMENT.......................................29
ARTICLE 22 -- APPLICABLE LAW...........................................29
ARTICLE 23 -- SEVERABILITY.............................................29
ARTICLE 24 -- WAIVERS..................................................29
ARTICLE 25 -- ENTIRE AGREEMENT.........................................29
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XM and Sea Launch Proprietary
CONTRACT FOR LAUNCH SERVICES
This Contract is made and entered into by and between Sea Launch
Limited Partnership, an exempted limited partnership organized under the laws of
the Cayman Islands acting through its General Partner, Sea Launch Company,
L.L.C., a United States limited liability company organized under the laws of
the State of Delaware (hereinafter referred to as "Sea Launch") and having
offices in Long Beach, California; and XM Satellite Radio Holdings Inc.
(hereinafter referred to as "XM" or "CUSTOMER"), and having offices at 0000
Xxxxxxxxx Xxxxx XX, Xxxxxxxxxx, XX 00000-0000.
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ARTICLE 1 -- DEFINITIONS
The terms used in the Contract shall have the meaning provided for in these
definitions:
1.1. Business Day means any day other than the following: a Saturday,
Sunday, and any other day on which national banks are authorized to be
closed in New York City, New York.
1.2. Contract means this Contract as defined in Article 2.
1.3. Constructive Total Failure means a Constructive Total Loss due to
performance of the Launch Vehicle.
1.4. Constructive Total Loss shall have the meaning assigned to the term
"Constructive Total Loss" in XM's policy of Launch and In-Orbit
Insurance in place at the time of Launch. XM shall provide a copy of
such definition to Sea Launch promptly after the issuance of such
policy of Launch and In-Orbit Insurance.
1.5. Day or day means a calendar day unless otherwise indicated.
1.6. Effective Date means the date of last signature by an authorized
representative of Sea Launch or XM.
1.7. Home Port means the payload processing area and surrounding facilities
for the loading and unloading of the Launch Vehicle and Spacecraft on
the Assembly and Command Ship and the Launch Platform.
1.8. Launch means the point in time when the electronic signal sent to
command the opening of any first stage propellant valves is received
by the Launch Vehicle, as verified by either the flow of
propellant/oxidizer, or telemetry indicating that the signal reached
the propellant valve. A Launch is deemed not to have occurred in the
event of a Terminated Ignition.
1.9. Launch and In-Orbit Insurance means insurance covering the risks of
Launch and the risks of in-orbit failures with respect to partial
loss, constructive total loss and total loss of the Spacecraft.
1.10.Launch Base means the Sea Launch marine launch platform from which
the Launch will take place, as well as the assembly and command ship
from which Launch operations will be directed and monitored.
1.11. Launch Day means the calendar day within the Launch Slot established
for the Launch pursuant to the Contract.
1.12. Launch Opportunity means the availability of a position in the Sea
Launch manifest for the Launch of the Spacecraft, and is based upon
these criteria: 1) adequate time to make the necessary preparations
for the Launch; and 2) existing commitments to other Sea Launch
customers.
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1.13. Launch Period means a period of time not less than ninety (90) days
as established in Article 6 during which the Launch will occur.
1.14. Launch Schedule means the then current Launch Period or the then
current Launch Slot or Launch Day, if established.
1.15. Launch Services means the services provided by Sea Launch as defined
in Article 3.
1.16. Launch Slot means a thirty (30) day period of time within the Launch
Period during which the Launch will occur.
1.17. Launch Vehicle means the expendable 6000kg launch vehicle Zenit 3SL,
utilized by Sea Launch to perform the Launch of the Spacecraft.
1.18. Launch Vehicle Performance means:
1.18.1. The environmental conditions experienced by the Spacecraft as
measured and recorded by Sea Launch via telemetry. Sea Launch
uses the measurements to ascertain compliance with the
environments agreed to by the Parties in the "Sea Launch to
Spacecraft Interface Control Document (ICD)".
1.18.2. If applicable, the functional interface between the Launch
Vehicle and the Spacecraft as measured and recorded by Sea Launch
via telemetry. Sea Launch uses such measurements to ascertain
compliance with the functional interface requirements agreed to
by the Parties in the "Sea Launch to Spacecraft Interface Control
Document (ICD)".
1.18.3. The Spacecraft injection orbit parameters as measured and
recorded by Sea Launch via telemetry. Sea Launch uses the
measurements to ascertain compliance with the injection orbit
parameters as agreed to by the Parties in the "Sea Launch to
Spacecraft Interface Control Document (ICD)".
1.19 Launch Window means a specific daily time period or periods within
each of one or more potential Launch Days during which the Launch can
occur and meet mission requirements.
1.20 Licensed Launch Activities means the launch of a launch vehicle as
defined in the Commercial Space Transportation Licensing Regulations
or the applicable license issued by the Associate Administrator for
Commercial Space Transportation and as carried out pursuant to such
license, and shall include all launch and pre-launch activities
carried out pursuant to such license wherever performed (whether in
the U.S. or elsewhere).
1.21 Partial Failure means a Partial Loss due to performance of the Launch
Vehicle.
1.22 Partial Loss shall have the meaning assigned to the term "Partial
Loss" in XM's policy of Launch and In-Orbit Insurance in place at the
time of Launch. XM
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shall provide a copy of such definition to Sea Launch promptly after
the issuance of such policy of Launch and In-Orbit Insurance.
1.23 Party or Parties means Sea Launch or CUSTOMER or both depending on the
context.
1.24 Option Launch means the ability of CUSTOMER to order from Sea Launch
an additional Launch to be performed under the same provisions as the
Launch Services under this Contract.
1.25 Payload means the Spacecraft supplied by CUSTOMER to be launched on
the Launch Vehicle.
1.26 Postlaunch Services means the reports and range services as defined in
the Statement of Work that are to be provided by Sea Launch to
CUSTOMER after Launch.
1.27 Related Third Parties means any of the following parties, but in each
case only if such party is involved in Launch Services or Licensed
Launch Activities:
1.27.1 Employees, directors, officers or agents of Sea Launch,
including its affiliates, parents or partner entities, or
CUSTOMER;
1.27.2 Customers of Sea Launch and the employees of those customers;
1.27.3 Contractors and subcontractors at any tier of Sea Launch or
CUSTOMER and the employees of those contractors and
subcontractors; and
1.27.4 Any party with a financial interest in Sea Launch, CUSTOMER,
the Launch Vehicle, or the Payload.
1.28 Spacecraft means the hardware, including any hardware supplied in
connection with the Option Launch, supplied by CUSTOMER for Launch by
Sea Launch pursuant to the Contract and which is compatible with the
Launch Vehicle.
1.29 Terminated Ignition means that, following the time when the electronic
signal is sent to command the opening of any first stage propellant
valves, the first stage engines of the Launch Vehicle are shut down
for any reason before the hold down mechanism is released and the pad
is officially declared safe by Sea Launch.
1.30 Third Party means any individual or legal entity other than the
Parties or Related Third Parties.
1.31 Total Failure means a Total Loss due to performance of the Launch
Vehicle.
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1.32 Total Loss shall have the meaning assigned to the term "Total Loss" in
XM's policy of Launch and In-Orbit Insurance in place at the time of
Launch. XM shall provide a copy of such definition to Sea Launch
promptly after the issuance of such policy of Launch and In-Orbit
Insurance.
1.33 Assembly and Command Ship or "ACS" means the ship which serves as the
facility for assembly, processing and checkout of the Launch Vehicle;
houses the Launch Control Center; acts as the base for tracking the
initial ascent of the LV; and, provides accommodations for marine and
launch crews.
1.34 Launch Platform or "LP" means the marine platform from which the
Launch is conducted.
1.35 Interface Control Document or "ICD" means the document that defines in
detail the needs and accommodations of the specific mission.
ARTICLE 2 -- CONTRACTUAL DOCUMENTS
2.1 This Contract shall consist of the following documents:
2.1.1. General Provisions, Articles 1 through 25
2.1.2. Statement of Work (including the ICD once it is completed and
signed by XM and Sea Launch)
2.2 In the event of conflict, the General Provisions shall have precedence
over the Statement of Work.
ARTICLE 3 -- SERVICES TO BE PROVIDED BY SEA LAUNCH
3.1 Sea Launch shall provide Launch Services in accordance with the
Statement of Work for the Launch of the XM-4 Spacecraft (and the XM-5
Spacecraft if XM exercises its Option Launch for XM-5) provided by XM.
Except for Postlaunch Services, Launch Services for the applicable
Spacecraft provided under this Contract shall be deemed to have been
completed upon Launch of such Spacecraft.
3.2 Each of the Launch Services provided by Sea Launch under this Contract
shall include one (1) round trip transit of the Assembly and Command
Ship (ACS) and Launch Platform (LP) between Home Port and the Launch
Site, except to the extent that Sea Launch requests or experiences a
postponement pursuant to Article 7, Launch Postponements and
Accelerations, of this Contract after the departure of the ACS and the
LP from Home Port in which event Sea Launch will bear the additional
costs between Home Port and the Launch Site. If after departure of
either vessel, XM requests a postponement (other than requests by XM,
with the concurrence of Sea Launch (not to be unreasonably withheld),
due to any technical issues with the Launch Vehicle) that results in
the vessels' return to Home Port, XM shall bear the additional
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requested with respect to the omitted portions.
costs, not to exceed [***] per such XM requested delay or postponement that
occurs after the departure of either vessel.
ARTICLE 4 -- CONTRACT PRICE
4.1 The Contract price is as follows:
XM-4 Spacecraft [***]
Option Launch for XM-5 Spacecraft* [***]
*May be exercised at XM's option no later than [***] at the price
stated above and no later than [***] at the price stated above plus
[***].
4.2 Taxes
The Launch Services price(s) set forth above include(s) all taxes,
duties and other levies imposed on any Sea Launch furnished service or
materials by the U. S. Government or any foreign government and/or any
political subdivisions thereof; but exclude(s) any taxes, duties, or
other levies that may be imposed on any XM-furnished Spacecraft or
XM-furnished support equipment or materials. Any taxes, duties, or
other levies imposed on any XM-furnished Spacecraft or XM-furnished
support equipment or materials that become the obligation of Sea
Launch to pay, will be reimbursed to Sea Launch by XM within thirty
(30) days of the receipt of Sea Launch's request for payment.
ARTICLE 5 -- PAYMENTS
5.1 XM shall pay the Contract price in U.S. dollars as follows:
5.1.1 XM shall make payments of the Contract price for the XM-4
Spacecraft Launch in [***] payments, beginning on [***], and in
accordance with the following payment schedule:
XM-4 Firm Launch
-------------------------------
Cumulative
Payment Due Date Payments
-------------------------------
[***] [***] [***]
-------------------------------
[***] [***] [***]
-------------------------------
[***] [***] [***]
-------------------------------
[***] [***] [***]
-------------------------------
[***] [***] [***]
-------------------------------
NOTE: For payment purposes under this Article 5 and for purposes of
Paragraphs 7.4 and 14.1.2, "L" is defined as the first Business Day of
the applicable Launch Schedule.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
5.1.2 Right to Suspend Payments and Reselect Launch Period
XM has the right to suspend [***] payments under the foregoing
payment schedule by providing written notice to Sea Launch at any
time prior to [***]. If XM exercises its right to suspend such
payments, the payment schedule shall resume when XM notifies Sea
Launch in writing of its new Launch Period selection, and Sea
Launch agrees to such selection (Sea Launch agrees, where
possible, to provide such Launch Period starting no later than
[***] after XM provides such notice). The [***] payments will
then be due at [***] based on the newly established Launch
Period. During the period commencing on the date XM provides the
suspension notice and ending on the date [***], the [***]
remaining to be paid shall increase at the rate of [***] per
month or partial month. Such [***] per month or partial month
increase shall be paid by XM quarterly within [***] after receipt
by XM of an invoice from Sea Launch. Sea Launch will send an
invoice for this increased amount for the prior [***] on the
first Business Day of each [***].
5.1.3 If XM exercises the option for the Launch of the XM-5
Spacecraft, the following payment schedule shall apply:
XM-5 Option
-------------------
Payment Increment
Date %
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
[***] [***]
-------------------
*EDOE means the Effective Date of Option Exercise. The L-
and L+ numbers above are expressed in months.
[***]
5.2 Sea Launch shall submit invoices to XM [***] in advance of the
scheduled due date. Payment is due [***], but in no event sooner than
the scheduled due date. If the due date for any payment falls on a day
other than a Business Day, payment is due on the following Business
Day.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
5.3 Payment shall be made by electronic bank transfer, free of charge to
Sea Launch, in the amount specified in the invoice and pursuant to the
instructions contained in the invoice. Payment shall be deemed to have
been made when credit for the payable amount has been established in
the payee's designated bank account.
5.4 In the event payment has not been received by Sea Launch by the due
date, or has been received in part only, XM shall pay Sea Launch
interest on any unpaid amount based on [***]. No later than [***], all
payments then due and owing, including any interest thereon, must be
made to Sea Launch.
5.5. In the event of postponement requested by Sea Launch pursuant to
Paragraph 7.2 of Article 7, Launch Postponement, or any postponement
due to an excusable delay as defined in Article 8 Excusable Delays,
the payments shall be suspended for the duration of the delay and then
resumed with all remaining payments shifted by the amount of the delay
to be consistent with the revised Launch Schedule. In the event of
postponement requested by XM pursuant to Paragraph 7.1 of Article 7,
Launch Postponements, excluding any postponement due to an excusable
delay, the payments must continue according to the then current
payment schedule.
5.6 In the event that one Party has not paid the second Party any amount
that is due and payable to the second Party under this Contract, such
second Party shall have the right to set off such amount against any
payment(s) due and payable or to become due and payable to the first
Party, provided, however, any amount being disputed under Article 21
of this Contract shall not be considered due and payable until the
dispute is finally resolved.
5.7 No payment made under this Contract shall relieve Sea Launch of any of
its obligations under this Contract.
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ARTICLE 6 -- LAUNCH SCHEDULE
6.1 The Launch of the Spacecraft shall take place during the following Launch
Period(s):
Launch Launch Period
------ -------------
XM-4 [***]
XM-5 [***]
6.2 The Launch Slot shall be determined by mutual agreement of the Parties at
least [***] prior to the first day of the established Launch Period based
on the availability of Launch Opportunities. Sea Launch shall submit a
proposed Launch Slot to XM at least [***] prior to the first day of the
established Launch Period.
6.3 The Launch Day shall be determined by mutual agreement of the Parties at
least [***] prior to the first day of the Launch Slot based on the
availability of Launch Opportunities. Sea Launch shall submit a proposed
Launch Day to XM at least [***] prior to the first day of the Launch Slot.
Upon commitment to a Launch Day, XM agrees to deliver the spacecraft to Sea
Launch's Home Port no earlier than [***] prior to the Launch Date and no
later than [***] prior to the Launch Date.
6.4 The Launch Window shall be determined by mutual agreement of the Parties no
later than [***] prior to the Launch Day based on the availability of
Launch Opportunities.
6.5 XM shall notify Sea Launch at least [***] prior to delivery of the
Spacecraft to either Home Port or in the instance of foreign Spacecraft
manufacture to a local airport.
6.6 The following rules shall govern the establishment of Launch Schedule
priorities between Sea Launch, XM, and other customers of Sea Launch,
excluding any commitments or obligations by Sea Launch prior to the
Effective Date of this Agreement:
6.6.1. In the event of a Sea Launch delay or postponement, for any reason,
the launching order remains in effect as of the date of Sea Launch's
delay or postponement, excluding the following:
i) Scientific missions which are time sensitive in nature shall not
be postponed.
ii) Reflight or Replacement launches due to previous launch failures
shall be initially scheduled on a priority basis. After the
initial scheduling procedure, a Reflight or Replacement launch
shall maintain its position in the launching order and shall be
treated as a standard launch service for any subsequent Sea
Launch postponement.
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6.6.2. In the event of a scheduling conflict during the initial scheduling
of a Launch Period or Launch Slot due to overlapping Launch Periods
between two or more customers, the Sea Launch customer with the
earlier Contract effectivity date (i.e. contract award date or option
exercise date) shall have precedence.
6.6.3. In the event of a scheduling conflict during the scheduling of a
Launch Period or Launch Slot due to a postponement by XM or any other
Sea Launch customer, the Sea Launch customer (i.e. XM or the other
customer) initially scheduled for the Launch Period or Launch Slot
shall have precedence.
ARTICLE 7 -- LAUNCH POSTPONEMENTS AND ACCELERATION
7.1 Postponements requested by XM
7.1.1 Prior to the departure of the LP from Home Port to the launch site,
XM may request a change to the Launch Schedule for any reason by
providing written notice of any desired change. XM must request a
change as soon as XM knows that XM will not maintain the current
Launch Schedule. At the time of the request for a change, XM will
propose a new Launch Schedule that XM is ready and able to maintain.
Within [***] of the receipt of the written request of a Launch
Schedule change, Sea Launch will inform XM if a Launch Opportunity is
available as requested or will propose an alternative Launch Schedule
as close as possible to the Launch Schedule requested by XM. If an
alternative Launch Schedule is proposed by Sea Launch, XM will respond
within [***] by accepting the alternative Launch Schedule proposed by
Sea Launch or will propose another Launch Schedule.
7.1.2 Once the LP has departed Home Port for the launch site, any
postponement requested by XM (other than requests by XM, with the
concurrence of Sea Launch (not to be unreasonably withheld) due to any
technical issues with the Launch Vehicle) which results in a delay of
the Launch and a return of the vessel(s) to Home Port shall result in
additional Sea Launch incurred costs and expenses which additional
costs and expenses shall be paid in full by XM within [***] of the
invoice (such amount not to exceed [***]).
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requested with respect to the omitted portions.
7.1.3 In the event that a single postponement or cumulative postponements
exceed [***] for a Launch, the exclusive right and remedy of Sea
Launch shall be repricing of the Launch Services for the postponed
Launch in accordance with the following sentence. For any such
postponements that exceed [***], the price of the Launch Services for
the postponed Launch shall increase by [***] of the original price per
month or partial month exceeding such [***] postponement. The price
increase shall be paid [***] within [***] after receipt by XM of the
invoice from Sea Launch. Sea Launch will send an invoice for this
increased amount for the prior [***] on the first Business Day of each
[***].
7.2 Postponements requested by Sea Launch
7.2.1 Sea Launch may request a change to the Launch Schedule in the event
that a Launch Opportunity does not exist within the current Launch
Schedule (but only if it is due to excusable delay, technical
problems, or the launch schedule priorities set forth in Paragraph
6.6). Sea Launch will provide written notice of any desired change as
soon as Sea Launch knows that a Launch Opportunity will not be
available. Sea Launch will propose a new Launch Schedule at the time
of the request for a change. Within [***] of the receipt of the
written request of a Launch Schedule change, XM will either accept the
alternative Launch Schedule proposed by Sea Launch or will propose
another Launch Schedule.
7.2.2 Postponements by Sea Launch under this Article shall not exceed a
total of [***] for any Launch. In the event that a single postponement
or cumulative postponements exceed [***] for a Launch or are
reasonably certain to exceed [***], the exclusive right and remedy of
XM shall be either renegotiation of the Contract, including price and
terms, or termination in accordance with Paragraph 14.1.3 of Article
14, Termination. If the Parties do not agree that the postponements
are reasonably certain to exceed [***], the disagreement will be
resolved in accordance with Article 21, Dispute Settlement.
7.2.3 If XM believes it is reasonably certain that Sea Launch will postpone
the Launch in excess of [***], XM may provide Sea Launch with written
notice requesting a work-around plan and schedules verifying that the
launch schedule will not be postponed beyond [***]. If [***] after XM
provides such notice it is still reasonably certain that Sea Launch
will postpone the Launch in excess of [***], then XM may terminate the
Launch in accordance with Paragraph 14.1.3 of Article 14. Any dispute
arising regarding whether a postponement of [***] is reasonably
certain shall be resolved in accordance with Article 21, Dispute
Settlement.
7.3 The length of a postponement under this Article is measured from the first
day of the then current Launch Schedule to the first day of the Launch
Schedule proposed in conjunction with the initial request for a change.
Days during which an excusable delay exists as defined in Article 8,
Excusable Delays, and which affect the Launch Schedule of the postponed
launch, are not included in determining the
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length of a postponement under this Article. Sea Launch agrees that XM's
Launch is not required to be the return to flight launch in the event of
any Sea Launch launch failure. The passage of time resulting from XM
exercising this right shall not be considered a postponement by XM. In
addition, any postponements necessary for XM to ensure that the Launch and
In-Orbit Insurance policy is fully effective following any postponement
(including any that results in a return to Home Port) will not be included
in determining the length of any XM postponement under this Article.
7.4 Acceleration requested by XM
For the launch of XM-4, XM may, at any time prior to [***], provide a
written request to Sea Launch for acceleration of the Launch Period or Slot
to a date which XM will designate. As quickly as possible, and at the
latest within [***] following receipt of an acceleration request, Sea
Launch will inform XM in writing if there is a Launch Opportunity within
the requested period and Sea Launch will make every effort to allocate XM
the Launch Opportunity nearest to the date requested by XM. Sea Launch is
not required to force any other customer to delay or alter its launch
schedule as a result of XM's acceleration request. XM and Sea Launch shall
agree on the cost impact, if any, of acceleration prior to finalizing the
new Launch Period or Slot. The payment schedule will be adjusted to reflect
any acceleration in the Launch Schedule.
For the launch of XM-5, XM may request an acceleration of the proposed
initial Launch Period, Sea Launch will review the existing manifest and
will accommodate XM's request on a priority basis consistent with the
manifest guidelines and the preceding paragraph in this Paragraph 7.4.
ARTICLE 8 -- EXCUSABLE DELAYS
8.1 Neither Sea Launch nor XM shall be liable to the other in the event of a
delay in the performance of its obligations or commitments, and the date on
which those obligations are to be fulfilled shall be extended for a period
of time as caused by the delay, when the delay is due to causes beyond the
control of Sea Launch or XM as the case may be, and not due to their fault
or negligence in reasonably anticipating and avoiding such delays and not
due to a breach of any provision of this Contract. Such excusable delays
also include the excusable delays of contractors and subcontractors when
the item or services provided by the contractor or subcontractor cannot be
reasonably obtained from another source. Such excusable delays shall
include, but not be limited to: acts of God; fires; interruptions of
essential services such as electricity, natural gas, fuels and water;
adverse weather or launch safety conditions that do not permit Launch, any
condition which jeopardizes the safety of the employees of Sea Launch or XM
or their subcontractors; acts (including delay or failure to act) of any
governmental authority (de jure or de facto), embargoes, strikes or labor
stoppages (other than, in the case of Sea Launch, by Sea Launch or its
partner companies (i.e., Boeing Commercial Space Company, RSC Energia, SDO
Yushnoye, P.O. Yuzhmash, and Kvaerner Sea Launch Limited) (provided,
however, that no Boeing Company entity that does not provide services or
hardware comprising any part of the launch
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services described in the Statement of Work (e.g., Boeing Satellite Systems
International, Inc.) shall be deemed a partner company of Sea Launch for
purposes of this Paragraph 8.1) or any entities controlled by Sea Launch or
its partner companies that provide services or hardware related to the
performance of this Contract); wars; riots; revolutions, and hijacking.
Notwithstanding the foregoing, in no event will financial hardship or
insolvency of a Party or any of its contractors or subcontractors
constitute an excusable delay. In addition, for the avoidance of any doubt,
in the case of Sea Launch, any delays caused by a launch failure shall not
constitute an excusable delay. The Party impacted by an excusable delay
shall provide written notice to the other Party within ten (10) Business
Days after the performance of the Party claiming the excusable delay has
been impacted by the occurrence of any such excusable delay. Any such
notice shall contain an assessment of the impact on the Launch Schedule and
the plans of the delayed Party for mitigating the impact of the excusable
delay. In the case of Sea Launch, such notice shall include a detailed
description of the portion of the Launch Services known to be affected by
such excusable delay. In coordination with XM, Sea Launch shall use best
reasonable efforts to avoid or minimize and/or work around such delay
through the implementation of any work-around plans, alternate sources, or
other means Sea Launch may reasonably utilize to minimize a delay in
performance of the Launch Services. A Party claiming an excusable delay
shall provide the other Party prompt written notice when the event
constituting the excusable delay appears to have ended.
8.2 The inability of Sea Launch to perform due to any export control
restrictions or delays caused by or arising from assignment of this
Contract in whole or in part by XM pursuant to Article 19 shall be
conclusively presumed to be an excusable delay event.
ARTICLE 9 -- OBLIGATIONS BEFORE AND AFTER LAUNCH
9.1 Sea Launch shall provide to XM and XM shall provide to Sea Launch the data,
hardware and services as identified in the Statement of Work according to
the schedules provided therein. The data, hardware and services will be
received in a condition suitable for their intended use as defined by the
requirements of the Statement of Work. In the event that the data, hardware
or services are not received according to their schedule or requirements,
and the non-availability will affect the Launch Schedule, the following
procedure shall apply.
9.2 The Party receiving or failing to receive the data, hardware or services
shall promptly notify the other Party including a statement of the
discrepancy and recommended solutions. The Party receiving the notification
shall provide written direction to the other Party on how to proceed,
considering the recommendations of the other Party, within seven (7) days
of the receipt of notice.
9.3 The Party receiving or failing to receive the data, hardware or services
shall use its best efforts to continue its obligations under the Contract
without affecting the Launch Schedule. If, however, this is not possible
despite the best efforts of the receiving Party; and the Launch Schedule is
affected as a result of the failure of one Party to deliver the data,
hardware or services in accordance with the
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schedule or requirements of the Statement of Work; then a launch
postponement shall be declared by the receiving Party and such delay shall
be considered a delay under the appropriate provisions of Article 7, by the
Party providing or failing to provide the data, hardware or services.
9.4 Nothing in this Paragraph 9.4 will be construed as a warranty or as
contradicting the provisions of Paragraph 15.1. At mission readiness review
and at launch readiness review, Sea Launch shall (1) certify in writing
that, to the best of its knowledge and belief, the Launch Vehicle fully
conforms to the SOW requirements and no defects, failures, anomalies, or
out of specification conditions exist, other than as specified in such
certification; and (2) confirm in writing that any known defects, failures,
anomalies, or out of specification conditions in any Sea Launch
manufactured launch vehicle that may be applicable to the Launch Vehicle
have been corrected on the Launch Vehicle, other than as specified in such
certification. Prior to Launch, Sea Launch shall correct any known defects,
failures, anomalies, or out of specification conditions promptly and at no
additional cost or expense to XM, unless waived by XM in writing. Prior to
Launch, Sea Launch will provide a certification that all known defects,
failures, anomalies or out of specification conditions applicable to the
Launch Vehicle have either been corrected by Sea Launch or waived in
writing by XM.
9.5 The Parties recognize that Sea Launch has no ability to alter the
performance or in any way to correct any defect in the Launch Vehicle after
Launch. An agreement by XM to conduct the Launch, given at the final launch
readiness review, shall constitute a waiver by XM of any claim that the
Launch Vehicle or Launch Services do not meet the requirements of the
Statement of Work, or that the Launch Vehicle or Launch Services are not
otherwise suitable for their intended purpose. Except for Postlaunch
Services, the sole liability or obligation of Sea Launch for performance
subsequent to Launch is to provide a replacement launch in accordance with
Article 13, Replacement Launch. This Waiver of claims excludes claims
related to fraud, willful misrepresentations, gross negligence or willful
misconduct on the part of Sea Launch or XM.
9.6 Sea Launch shall promptly provide XM with written notification of any
design, manufacture, performance or in-flight anomaly or failure of any of
its launch vehicles occurring after the date of this Contract, including
any corrective actions to be taken to prevent the reoccurrence of such
anomaly or failure in future launch vehicles.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
ARTICLE 10 -- COMMUNICATION and COORDINATION BETWEEN SEA LAUNCH and XM
10.1 All notices and communications between the Parties relating to financial,
contractual or administrative matters of the Contract that are required or
permitted under the Contract, in order to be given effect, shall be in
writing and shall be addressed and received by the recipient as listed
below.
Notices to Sea Launch: Sea Launch Company, L.L.C.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Childs
Director, Project Development
Phone: (000) 000-0000
Fax: (000) 000-0000
Notices to XM: XM Satellite Radio
0000 Xxxxxxxxx Xxxxx XX
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Exec. Vice President,
General Counsel and Secretary
Fax: (000) 000-0000
With an additional copy to:
Attention: Xxxx Xxxxxx, Sr. Vice President,
Space and Ground Systems
Fax: (000) 000-0000
10.2 Sea Launch and XM each shall designate a Mission Manager no later than
[***] after the effective date of the Contract. The task of the Mission
Managers shall be to supervise and coordinate the respective
responsibilities of the Parties. The Mission Managers are not authorized to
direct work contrary to the requirements of the Contract or to make
modifications to the Contract. Each Party may replace its Mission Manager
provided the other Party has received notification in writing of such
action.
10.3 All documentation, notices, reports and correspondence under the Contract
shall be submitted and maintained in the English language. All
communication at the Home Port and Launch Base between the Parties and with
Related Third Parties and between the personnel of the Parties or Related
Third Parties shall be in English. The Parties shall mutually agree upon
standards for transliteration and translation of non-English information.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
ARTICLE 11 -- PERMITS AND APPROVALS
11.1 Each Party is responsible for obtaining all necessary licenses, permits,
approvals, and authorizations to perform its respective obligations under
the Contract. Each Party agrees to assist and support the other Party to
the extent practicable, in obtaining such licenses, permits, approvals, and
authorizations.
ARTICLE 12 -- RESERVED
ARTICLE 13 -- REPLACEMENT LAUNCH
13.1 XM may request a replacement launch in the event of a Total Loss,
Constructive Total Loss or Partial Loss.
13.2 The request for a replacement launch must be in writing and received by Sea
Launch no later than [***] after the determination of a Total Loss,
Constructive Total Loss or Partial Loss. The request shall indicate the
Launch Period desired for the replacement launch.
13.3 Sea Launch shall inform XM, after receipt of the request, if a Launch
Opportunity exists as requested. If a Launch Opportunity does not exist as
requested, the Parties will negotiate in good faith a mutually acceptable
Launch Period.
13.4 Any agreement reached by the Parties on a replacement launch shall be in
writing. The replacement launch shall be provided in accordance with the
terms and conditions of the Contract.
13.5 The configuration and mission requirements of the Spacecraft selected by XM
for the replacement launch shall be sufficiently similar to avoid any need
for mission analysis or for Launch Vehicle or interface changes.
13.6 XM shall pay Sea Launch [***] for the replacement launch [***], subject to
[***] of the Launch Period agreed upon by the Parties in accordance with
Paragraph 13.3.
13.7 XM shall make payment for the replacement launch in accordance with the
payment schedule set forth in Article 5, Payments. XM shall make the
initial payment at the time of the written agreement on the Launch Period
of the replacement launch in accordance with Paragraph 13.3. The initial
payment shall include all past due sums.
13.8 The remedies set forth in this Article 13, Replacement Launch, shall
constitute the sole and exclusive remedies of XM for Total Failure,
Constructive Total Failure, or Partial Failure except in the event of acts
of fraud, willful misrepresentations, gross negligence or willful
misconduct on the part of Sea Launch.
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
ARTICLE 14 -- TERMINATION
14.1 Termination by XM
14.1.1 The rights of XM to terminate the Contract or any Launch under the
Contract, and the available remedies, are limited to the following:
14.1.2 Prior to Launch, XM may terminate the Contract or any Launch under
the Contract for XM's convenience for any reason. Sea Launch will be
entitled to retain, as a termination charge, and not as a penalty, the
amount specified in the following table as of the date of the
termination of the applicable Launch(es). Within [***] of the date of
the termination, Sea Launch will refund the balance of all payments
made for the Launch terminated in excess of the termination charge.
Termination Liability
---------------------------------------------------------------------
Termination Liability as a percentage
of the applicable Launch Services Price
Date of Customer Termination as adjusted by Escalation
---------------------------------------------------------------------
[***] [***]
---------------------------------------------------------------------
[***] [***]
---------------------------------------------------------------------
[***] [***]
---------------------------------------------------------------------
14.1.3 If XM elects to terminate for excessive delay under Article 7, Sea
Launch will return all payments made by XM for the Launch terminated.
Only the Launch delayed or postponed may be terminated under this
paragraph. The right of XM to terminate under this paragraph is
conditioned upon (i) receipt of a written notification of a launch
postponement or cumulative postponements exceeding [***], or (ii) upon
the occurrence of a launch delay or delays by Sea Launch which exceed
[***] or (iii) upon the occurrence of a delay or delays by Sea Launch
that are reasonably certain to exceed [***], but in the case of this
clause (iii), only if such reasonable certainty continues after the XM
notification and the passage of the [***] period provided in Paragraph
7.2.3. XM must terminate no later than [***] after the first of the
two events above or must waive its right to terminate under this
paragraph unless further delayed by Sea Launch.
14.1.4 If the Sea Launch launch immediately preceding the scheduled Launch
of a Spacecraft is a launch failure, XM may, by written notice to Sea
Launch sent no sooner than [***] and no later than [***] after such
launch failure, elect to terminate the Launch Services under this
Contract and Sea Launch will return all payments made by XM for such
Launch Services, except for [***].
14.1.5 If the launch Sea Launch is providing with respect to the XM-3
spacecraft is a launch failure, XM may, by written notice to Sea
Launch sent no sooner
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
than [***] and no later than [***] after such launch failure, elect to
terminate the Launch Services for the XM-4 Spacecraft, in which case
all of the payments made to Sea Launch with respect to such XM-4
Spacecraft Launch Services shall be applied to the XM-5 Spacecraft
Launch Services. If the option for XM-5 Spacecraft Launch Services had
not yet been exercised, then the option shall be deemed exercised and
it shall be incorporated in a mutually agreed XM-5 Launch Services
amendment with the applicable Launch Period approved by XM. The
payment schedule and other terms applicable to the XM-5 Spacecraft
Launch Services shall apply after the exercise by XM of the special
right provided in this Paragraph 14.1.5.
14.1.6 If cumulative postponements by Sea Launch, including the period of
any postponements during excusable delay(s) asserted by Sea Launch,
exceed a total of [***] for any Launch, then XM shall have the right
to terminate the Launch so postponed and Sea Launch will return all
payments made by XM for the Launch so terminated.
14.1.7 If XM brings any claim for material breach prior to Launch, other
than for a Launch Schedule delay and other than a claim based on
fraud, willful misrepresentation, gross negligence or willful
misconduct (in which case XM will have all of its rights and remedies
under applicable law), the exclusive remedy of XM shall be termination
of the Contract and refund of an amount up to the total of all
payments made for every Launch subject to termination.
14.1.8 The exclusive rights and remedies of XM subsequent to Launch are
limited to a replacement launch in accordance with Article 13,
Replacement Launch. This limitation does not apply to claims based on
fraud, willful misrepresentation, gross negligence or willful
misconduct (in which case XM will have all of its rights and remedies
under applicable law).
14.2 Termination by Sea Launch
14.2.1 The rights of Sea Launch to terminate the Contract or any Launch
under the Contract, and the available remedies, are limited to the
following:
Sea Launch may terminate the Contract in the event that XM fails to
comply with the payment obligations specified in Article 5, Payments.
In no event shall the effective date of termination by Sea Launch
under this Paragraph be earlier than [***] after the due date of any
payment not made. In the case of a multi-launch agreement, only the
Launch for which payments are delinquent may be terminated under this
Paragraph. In the event of such termination, Sea Launch shall retain,
as a termination charge, all payments due under Article 5, Payments,
for the Launch terminated, as of the effective date of termination.
This limitation does not apply to claims based on fraud, willful
misrepresentation, gross negligence or willful misconduct (in which
case Sea Launch will have all of its rights and remedies under
applicable law).
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with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
14.3 Any termination for default or breach under this Article must be preceded
by [***] written notification that specifies the default or breach and the
intent to terminate in the event that the default or breach is not or
cannot be cured within [***] of such notice.
14.4 Both XM and Sea Launch agree that the payments specified in this Article
represent fair compensation for either Party, and shall constitute the
exclusive rights and remedies available to the Parties in the event of
termination by either Party. This limitation does not apply to claims based
on fraud, willful misrepresentation, gross negligence or willful
misconduct.
ARTICLE 15 -- RISK ALLOCATION
The Parties expressly acknowledge and agree that the liabilities of SEA LAUNCH
and/or of XM, resulting from the non execution or late execution of the services
provided by SEA LAUNCH, and of the technical commitments of XM, are strictly
limited to the provisions of this Contract, excluding any other liabilities or
claims.
15.1 Warranty
15.1.1 Warranty Disclaimer. SEA LAUNCH makes no warranty, express or
implied, with respect to the Launch or any services provided to or on
behalf of XM. Nothing in this Contract shall be construed as an
express or an implied warranty. XM acknowledges that it has read and
understands this Article and the exclusion of all warranties has been
bargained for in this Contract.
15.1.2 Limitation of Liability. In no event shall either Party be liable to
the other Party under or in connection with this Contract under any
legal or equitable theory, including negligence, for direct, indirect,
special, consequential, or incidental damages, or indemnities, except
as expressly provided in this Contract. Consistent with this
limitation of liability, each Party shall use commercially reasonable
efforts to ensure that its insurer(s) waive all rights of subrogation
against the other Party. This limitation does not apply to claims
based on fraud, willful misrepresentation, gross negligence or willful
misconduct.
15.2 Licensed Launch Activities
15.2.1 Third Party Liability Insurance (Licensed Launch Activities)
15.2.1.1 SEA LAUNCH shall obtain and maintain in effect a policy of
liability insurance that protects XM and its Related Third
Parties against claims by a Third Party for bodily injury or
property damage resulting from Licensed Launch Activities
performed under this Contract. Such insurance shall be in the
amounts of [***], before Launch and [***] after Launch, or such
other amounts, if higher, determined by the Associate
Administrator of Commercial Space Transportation (the "AST").
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15.2.1.2 Such insurance shall remain in effect from commencement of
Licensed Launch Activities until one year after Launch.
15.2.1.3 The Third Party liability insurance obtained pursuant to this
Article shall not cover loss of or damage to the Spacecraft even
if the claim is brought by a Third Party or Related Third Party.
15.2.2 Indemnification by the United States Government (Licensed Launch
Activities).
15.2.2.1 Subject to the conditions of the Commercial Space Launch Act
(49 U.S.C. (s)(s) 70101-70121), the United States Government
shall pay claims by a Third Party against SEA LAUNCH, XM or their
Related Third Parties for bodily injury or property damage
resulting from Licensed Launch Activities, but only to the extent
that the aggregate of such claims arising out of any particular
Launch is (i) in excess of the amount of insurance required under
paragraph 15.2.1.1 above and (ii) not in excess of $1,500,000,000
(plus any additional sums necessary to reflect inflation
occurring after January 1, 1989).
15.2.2.2 Upon expiration of the insurance policy prescribed under
paragraph 15.2.1.1 above, the United States Government shall,
subject to the conditions of the Commercial Space Launch Act,
provide for payment of claims by a Third Party against SEA
LAUNCH, XM or their Related Third Parties for bodily injury or
property damage resulting from Licensed Launch Activities from
the first dollar of loss up to $1,500,000,000 (plus any
additional sums necessary to reflect inflation occurring after
January 1, 1989).
15.2.2.3 SEA LAUNCH makes no representation nor provides any warranty
that payment of claims by the United States Government will be
made pursuant to the Commercial Space Launch Act or otherwise.
The sole obligation of SEA LAUNCH is to make a good faith effort
to obtain such payment from the United States Government.
15.2.3 Reciprocal Waiver and Release of Claims (Licensed Launch
Activities).
15.2.3.1 Each Party agrees to execute and submit to the AST, at least
forty (40) days prior to commencement of Licensed Launch
Activities under this Contract, the Agreement for Waiver of
Claims and Assumption of Responsibility substantially in the form
set forth at Appendix B to Part 440 in Title 14 of the Code of
Federal Regulations. Such Agreement is binding upon XM, SEA
LAUNCH
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and the U.S. Government only with respect to Licensed Launch
Activities performed under this Contract.
15.2.3.2 Each Party shall implement the reciprocal waiver of claims
provisions provided in paragraph 15.2.3.1 with its Related Third
Parties (other than employees, officers or directors) requiring
them to waive and release all claims of liability they may have
against the other Party and its Related Third Parties.
15.3 Activities other than Licensed Launch Activities
15.3.1 Third Party Liability (other than Licensed Launch Activities) Each
Party agrees to indemnify, defend and hold harmless the other Party
from and against any and all claims of a Third Party (other than
claims by employees, officers or directors of a Party or of its
Related Third Parties) for bodily injury or property damage to the
extent that it is caused by the indemnifying Party or its Related
Third Parties (other than Boeing Satellite Systems International, Inc.
in the case of XM) while performing activities related to this
Contract other than Licensed Launch Activities. Each Party shall
maintain insurance with limits sufficient to cover the aforementioned
indemnification obligation and shall use commercially reasonable
efforts to ensure that its insurer(s) waive all rights of subrogation
against the other Party to the extent the indemnifying Party has
waived its rights of recovery against the indemnified Party.
15.3.2 Reciprocal Waiver and Release of Claims (other than Licensed Launch
Activities)
15.3.2.1 XM and Sea Launch agree to a reciprocal waiver of claims pursuant
to which each Party agrees to be responsible for and to absorb the
financial and any other consequences of any property damage or loss it
sustains or any bodily injury to, death of, or property damage or loss
sustained by its own employees arising out of or relating to any
activities carried out under this Contract other than Licensed Launch
Activities. Neither Party will make any claim or institute any
arbitration or judicial proceedings against the other Party or its
Related Third Parties for such damage, loss, injury or death. This
waiver will not be applicable to the extent that the damage, loss,
injury or death sustained by a Party or its employees is caused by the
gross negligence or intentional misconduct of the other Party or its
Related Third Parties.
15.3.2.2 Each Party further agrees to require its Related Third Parties
(other than employees, officers or directors) to be responsible for
and to make no claims against the other Party or its Related Third
Parties for any property damage or loss they sustained or for any
bodily injury to, death of, or property damage or loss sustained by
their own employees arising out of or relating to any activities
carried out under this Contract other than Licensed Launch Activities.
The waiver required by this Paragraph
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15.3.2.2 will not be applicable to the extent that the damage, loss,
injury or death sustained by a Related Third Party is caused by the
gross negligence or intentional misconduct of the other Party or its
Related Third Parties.
15.3.2.3 If any of a Party's Related Third Parties makes a claim or
institutes any arbitration or judicial proceeding (other than claims
for gross negligence or intentional misconduct which are not subject
to this waiver) against the other Party or its Related Third Parties
for damage, loss, injury or death to the extent required to be waived
in Paragraph 15.2.3.2 or Paragraph 15.3.2.2, the first Party shall
indemnify, hold harmless and defend the other Party and its Related
Third Parties from and against any liability on account of such
damage, loss, injury or death, and shall pay all expenses and satisfy
all awards and judgments which may be incurred by or rendered against
said indemnitee(s).
15.4 Spacecraft
XM assumes the risk of any actual or constructive loss of or damage to the
Spacecraft prior to, during, and after Launch, including any loss or damage
resulting from the non-availability of or inability to use the Spacecraft
following Launch. XM shall indemnify, defend, and hold harmless Sea Launch
and its Related Third Parties (other than Boeing Satellite Systems
International, Inc.) against all claims and actions based in whole or in
part on loss or damage to the Spacecraft, including loss or damage
resulting from the non-availability of or inability to use the Spacecraft.
This assumption of risk and indemnification shall not apply to the extent
that the loss or damage is caused by the gross negligence or intentional
misconduct of Sea Launch or its Related Third Parties. XM shall use
commercially reasonable efforts to ensure that its insurers waive all
rights of subrogation against Sea Launch and its Related Third Parties.
15.5 Indemnification- Intellectual Property Infringement
15.5.1 Sea Launch agrees to defend, hold harmless and indemnify XM and its
Related Third Parties from and against any liabilities, costs, risks,
losses, damages, or injury, or any consequences thereof, resulting
from an infringement or claim for infringement of the patent right or
any other intellectual property right of a Third Party or a Related
Third Party of Sea Launch which may arise from the provisions of the
Launch Services or Postlaunch Services under this Agreement by Sea
Launch.
15.5.2 XM agrees to defend, hold harmless and indemnify Sea Launch and its
Related Third Parties (other than Boeing Satellite Systems
International, Inc.) from and against any liabilities, costs, risks,
losses, damages, or injury, or any consequences thereof, resulting
from an infringement or claim for infringement of the patent right or
any other intellectual property rights of a Third Party or a Related
Third Party of XM which may arise from the design and manufacture of
the Spacecraft.
15.6 Notice and Cooperation
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Sea Launch shall provide customary and normal support to assist XM in
obtaining Launch and In-Orbit Insurance, including (i) supporting XM with
all necessary presentations (oral, written or otherwise), including
attendance and participation in such presentations where requested by XM,
(ii) providing on a timely basis all reasonable and appropriate technical
information, data and documentation, and (iii) providing documentation and
answers to insurer and underwriter inquiries. In addition, Sea Launch shall
provide any other certifications, confirmations or other information with
respect to the Launch Vehicle as reasonably required by XM's Launch and
In-Orbit Insurance insurers and underwriters and shall take any other
action reasonably requested by XM or any such insurers or underwriters that
is necessary or advisable in order for XM to obtain and maintain Launch and
In-Orbit Insurance on reasonable and customary terms.
Each Party agrees to cooperate with the other Party in obtaining relevant
reports and other information in connection with the presentation by either
Party of any claim under insurance required by this Article. A Party
seeking indemnification under this Article shall (i) promptly advise the
indemnitor of any damage or injury incurred, or the filing of any suit or
any written or oral claim against it; (ii) provide the indemnitor with
copies of all relevant documentation and (iii) cooperate with the
indemnitor and its insurers in every reasonable manner in making or
defending against such claim. A Party seeking indemnification shall not
make any admission nor shall it reach a compromise or settlement without
the prior written approval of the indemnitor.
Sea Launch shall cooperate with and provide reasonable support to XM in
making and perfecting claims for insurance recovery and as to any legal
proceeding associated with any claim for insurance recovery. Such support
shall include (i) providing on-site inspections as required by XM's
insurers and underwriters, (ii) participating in review sessions with a
competent representative selected by the insurers and underwriters to
discuss any continuing issue relating to such occurrence, including
information conveyed to either Party, (iii) using its best efforts to
secure access for the insurers and underwriters to all information used in
or resulting from any investigation or review of the cause or effects of
such occurrence, (iv) making available for inspection and copying all
information reasonably available to Sea Launch that is necessary to
establish the basis of a claim, and (v) supporting XM in establishing the
basis of any Total Loss, Constructive Total Loss or Partial Loss.
The cooperation and support provided for in this Paragraph 15.6 is included
within the firm fixed price of this Contract.
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15.7 Evidence of Insurance
For any of the insurance policies required under this Contract, each Party
shall provide the other Party with a certificate evidencing such insurance
within 30 days of a written request by the other Party and require its
insurer(s) to provide the other Party written notice at least 30 days
before cancellation or a material change in policy coverage.
ARTICLE 16 -- PROPRIETARY DATA
16.1 The Parties recognize that technical information may be disclosed by one
Party to the other Party in the course of performance under the Contract
and that the disclosing Party may desire to protect such information
against unrestricted use or disclosure to others. To provide protection for
such information, each Party agrees to respect such information and, to the
extent it includes proprietary data, to handle such information as provided
for in this Article.
16.2 For the purpose of this Contract, the term "proprietary data" means each
Party's proprietary, secret, or confidential information, data, processes,
and physical materials, including information originated by, or available
only from the disclosing Party and information originating with a Third
Party or Related Third Party with respect to which the disclosing Party has
limited disclosure rights, and which the disclosing Party desires to
protect against unrestricted disclosure to others, provided that such
information, data, processes, and physical materials are marked
"proprietary data" or with an equivalent legend or, if disclosed orally, is
identified as proprietary at the time of initial disclosure and then
summarized in a written document marked as "proprietary data" that is
supplied to the receiving Party within ten (10) days of initial disclosure.
16.3 Except as permitted in the last sentence of this Paragraph 16.3 and in
Paragraph 16.4 below, a Party receiving proprietary data shall take all
reasonable precautions to prevent publication or disclosure of proprietary
data to others, and shall use such data only for the purpose of performance
under the Contract. Except as permitted in the last sentence of this
Paragraph 16.3 and in Paragraph 16.4 below, any other use of such
proprietary data shall be made only upon prior written consent of the
disclosing Party. Each Party agrees to protect the other Party's
proprietary data with the same degree of care as it protects its own
proprietary data (but in no event less than a reasonable degree of care),
and to restrict disclosures of such proprietary data to those persons,
entities (e.g., insurance underwriters) and subcontractors having a need to
know the data, provided any such person, entity or subcontractor must first
agree in writing to treat any such proprietary data as confidential.
16.4 The aforementioned restrictions on the use and disclosure of proprietary
data shall not apply if the proprietary data:
16.4.1 Is in the public domain at the time of receipt or comes into public
domain thereafter through no act of the receiving Party that is
inconsistent with the aforementioned restrictions;
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16.4.2 Known to the receiving Party prior to disclosure by the disclosing
Party;
16.4.3 Disclosed with the prior written approval of the disclosing Party;
16.4.4 Independently developed by the receiving Party;
16.4.5 Lawfully disclosed to the receiving Party by a Third Party under
conditions permitting such disclosure; or
16.4.6 Is required by applicable law, regulation or governmental order to
be disclosed (but in such case only to the extent so required to be
disclosed).
16.5 Upon termination or upon completion of performance under the Contract, and
upon the request of one Party, the other Party shall return all proprietary
data (including any copies thereof) received from that Party, or provide
written certification that such proprietary data has been destroyed, except
that either Party may retain a legal file copy.
16.6 Information exchanged under this Agreement may be subject to U.S. export
control laws and regulations, such as the U.S. International Traffic in
Arms Regulations (ITAR) or the Export Administration Regulations (EAR). The
disclosing Party shall xxxx any such document to clearly indicate the laws
and regulations that apply to the disclosed information. The receiving
Party agrees that information subject to such export control laws and
regulations shall not be disclosed or transferred to a Third Party or a
Related Third Party without complying with all applicable U.S. export
control laws and regulations. Such approval shall not be unreasonably
withheld.
16.7 Information exchanged under this Agreement may be subject to Russian and
Ukrainian export control laws and regulations. The disclosing Party shall
xxxx any such document to clearly indicate the laws and regulations that
apply to the disclosed information. The receiving Party agrees that
information subject to such export control laws and regulations shall not
be disclosed or transferred to a Third Party or a Related Third Party
without first obtaining written approval from the disclosing Party and
complying with all applicable U.S. export control laws and regulations.
Such approval shall not be unreasonably withheld.
ARTICLE 17 -- RIGHTS TO INVENTIONS AND DATA
17.1 Sea Launch and XM agree that neither Party shall by entry into the Contract
or by performance of the Contract, acquire any rights to or under the other
Party's patents, proprietary data, or other intellectual property or
technical information, unless the grant of any such right is expressly
provided for herein or in a separate written agreement duly executed by the
granting Party.
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requested with respect to the omitted portions.
ARTICLE 18 -- CHANGES
18.1 Except as set forth in Paragraph 18.2, the Contract shall be modified only
upon mutual consent and such modification shall be made in writing and
shall be signed by both Parties.
18.2 XM may at any time up to [***], by a written notice, request changes within
the general scope of this Contract. If XM requests a change after [***],
any such change will be implemented by Sea Launch only if the launch date
would remain unaffected as a result of such implementation, unless
otherwise agreed to by Sea Launch. If any such change causes an increase or
decrease in the cost of, or the time required for, the performance of any
part of the work under this Contract, an equitable adjustment, to be
negotiated in good faith between the Parties, shall be made in the price,
delivery schedule, or other terms affected by the requested change, and the
Contract shall be modified in writing accordingly. Any claim by Sea Launch
for an adjustment must be made in writing within thirty (30) days of the
receipt of any such notice. Nothing in this Article 18 shall excuse Sea
Launch from proceeding without delay to perform this Contract as changed.
18.3 Sea Launch shall have the right to recommend changes within the general
scope of this Contract. Sea Launch shall submit any such change to XM in
writing and XM shall accept or reject such change in its sole discretion.
XM shall respond to any such change proposed by Sea Launch promptly but in
no event later than forty-five (45) days after the date on which Sea Launch
submitted the proposed change. Sea Launch shall not proceed with any change
under this Paragraph until an amendment to this Contract is executed by
both Parties authorizing the change and making the corresponding
adjustments to the work and/or the terms of this Contract necessitated by
the change.
18.4 Launch Service(s) postponements by XM or Sea Launch shall be resolved in
accordance with Article 7 of this Contract.
ARTICLE 19 -- ASSIGNMENT
The Parties agree not to assign their respective rights or obligations under the
Contract without the prior written consent of the other Party. Notwithstanding
the foregoing, XM may assign or transfer this Contract or all of its rights
hereunder to: (i) any parent, wholly-owned subsidiary or other affiliate of XM,
or (ii) any corporation in connection with the sale, transfer or assignment of
all or substantially all of XM's assets or capital stock, whether by way of
merger, consolidation, or otherwise. XM shall provide notice to Sea Launch of
any such assignment within 10 days of that assignment.
ARTICLE 20 -- PUBLIC RELEASE OF INFORMATION
20.1 Except as required by law or regulation, no news release, public
announcement, or advertising material concerned with this Contract shall be
issued by either Party without prior written consent of the other Party.
Such consent shall not be unreasonably withheld. All releases shall be
coordinated between both Parties.
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20.2 The above notwithstanding, XM shall have the right (without the prior
approval of Sea Launch) to provide general information about Sea Launch
that is not false or misleading, including pictures of Sea Launch, in its
public documents, news releases and advertising. In addition, Sea Launch
agrees to provide XM with suitable pictures (or models) of launch vehicles
for use in XM literature and advertising.
ARTICLE 21 -- DISPUTE SETTLEMENT
21.1 The Parties shall endeavor to reach an amicable settlement of any dispute
or controversy resulting from, or arising in connection with, the
performance of this Contract. In the event a settlement cannot be reached
in a timely manner by the Sea Launch and XM Mission Managers, the dispute
or controversy shall be referred to the respective Presidents of Sea Launch
and XM, who shall use their reasonable best efforts to reach a settlement
acceptable to both Parties. If such a settlement cannot be reached the
dispute or controversy shall be submitted to arbitration to be conducted in
Washington, D.C. under the Rules of Conciliation and Arbitration of the
American Arbitration Association by three arbitrators appointed pursuant to
the governing rules. The arbitration shall be conducted in English. The
arbitration award shall be final and binding, and the execution thereof may
be entered in any court having jurisdiction.
ARTICLE 22 -- APPLICABLE LAW
22.1 The Contract and any matter arising under the Contract, regardless of
whether such matter is addressed in the Contract, shall be governed by the
laws of the State of New York, USA, excluding its choice of law rules.
ARTICLE 23 -- SEVERABILITY
23.1 In the event any of the provisions of the Contract shall, for any reason
whatsoever, be held to be invalid or unenforceable, the remaining
provisions shall not be affected.
ARTICLE 24 -- WAIVERS
24.1 No waiver of any of the provisions of the Contract shall be binding on
either Party unless evidenced by a written notice signed by the Party to be
bound. Failure of either Party to insist upon performance of any of the
terms or conditions herein or to exercise any right or privilege shall not
constitute a waiver. A waiver by either Party of a breach of any provision
of this Contract does not constitute a waiver of any succeeding breach of
the same or any other provision, nor shall it constitute a waiver of the
provision itself.
ARTICLE 25 -- ENTIRE AGREEMENT
25.1 The Contractual documents referred to in Article 2 and the letter from Sea
Launch to XM dated August 1, 2003 (the "August 1 Letter") comprise the
entire understanding between the Parties with respect to the subject matter
of the
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Contract and shall supersede all prior and contemporaneous discussions
between the Parties. Except for the August 1 Letter, neither Party shall be
bound by any conditions, warranties, definitions, statements, or documents
previous to the Contract unless the Contract makes express reference
thereto.
IN WITNESS WHEREOF, the Parties hereto have executed the Contract as of the day
and year stated:
XM Satellite Radio Holdings Inc. Sea Launch Limited Partnership acting
through its General Partner, Sea Launch
Company, L.L.C.
By: By:
------------------------------- --------------------------------
Title: Title:
------------------------------- --------------------------------
Date: Date:
------------------------------- --------------------------------
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XX xxx Xxx Xxxxxx Xxxxxxxxxxx
XXXXXXXXX OF WORK
For
XM Satellite Radio
LAUNCH SERVICES
August 4, 2003
[LOGO]
SEA LAUNCH (R)
Sea Launch Company, LLC
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxxxxx 00000, XXX
SEA LAUNCH PROPRIETARY
SEA LAUNCH PROPRIETARY
TABLE OF CONTENTS
ABBREVIATIONS AND ACRONYMS.....................................................3
SCOPE..........................................................................5
Reference Documents............................................................5
1. PROGRAM MANAGEMENT.......................................................6
1.1 Documentation, Reports, Meetings and Reviews...........................6
1.1.1 Documentation..........................................................6
1.1.2 Reports................................................................7
1.1.3 Schedules..............................................................8
1.1.4 Meetings and Reviews...................................................8
1.2 Quality..................................................................9
1.3 Safety...................................................................9
2. LAUNCH VEHICLE...........................................................9
2.1 Launch Vehicle Hardware..................................................9
2.2 Performance.............................................................10
2.2.1 Launch Vehicle Performance - Orbit and Mass...........................10
2.2.2 Mission Optimization..................................................10
2.3 Spacecraft to Launch Vehicle Interfaces.................................10
2.3.1 Mechanical Interfaces.................................................10
2.3.2 Electrical Interfaces.................................................10
2.3.3 Spacecraft/spacecraft Adapter Interface Test Support..................11
2.4 Spacecraft Separation Conditions........................................11
2.5 Environmental Requirements..............................................11
3. MISSION ANALYSIS........................................................11
4. LAUNCH SERVICES AND FACILITIES..........................................13
4.1 Sea Launch Home Port, Long Beach, California, United States of America..13
4.1.1 Facilities............................................................13
4.1.2 Services..............................................................13
4.2 Assembly and Command Ship (Acs).........................................14
4.2.1 Facilities............................................................14
4.2.2 Services..............................................................14
4.2.3 Number of Xm and Bss Personal On the Acs for the Launch Campaign At
Sea................................................................14
4.3 Launch Platform.........................................................14
4.3.1 Facilities............................................................15
4.3.2 Services..............................................................15
4.3.3 Number of Xm and Bss Personal On the Lp for the Launch Campaign At
Sea................................................................15
4.4 Communications..........................................................15
4.5 Launch Services.........................................................16
4.6 Range Services..........................................................16
5. POST LAUNCH SERVICES.....................................................17
6. SEA LAUNCH RESPONSIBILITIES..............................................17
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7. XM RESPONSIBILITIES......................................................17
LIST OF TABLES
Table 1.1.4-1. Sea Launch Meetings and Reviews.................................9
Table 3-1. Sea Launch Mission Analysis Tasks.................................13
Table 6.1. Sea Launch Deliverables...........................................17
Table 7-1. XM Deliverables....................................................18
ABBREVIATIONS AND ACRONYMS
ACS Assembly and Command Ship
BSS Boeing Satellite Systems
CDR Critical Design Review
CLA Coupled Loads Analysis
DTM Displaced Transformation Matrix
EMC Electromagnetic Compatibility
EMI Electromagnetic Interference
GMM Geometric Math Model
GSE Ground Support Equipment
HAR Hardware Acceptance Review
HP Home Port, Long Beach, CA
ICD Interface Control Document
ILV Integrated Launch Vehicle
LLC Limited Liability Company
LP Launch Platform
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LV Launch Vehicle
L- Launch Minus
PDR Preliminary Design Review
PLA Payload Accommodations
PLU Payload Unit
PPF Payload Processing Facility at Sea Launch Home Port, Long Beach, CA
SC Spacecraft
SL Sea Launch
SOW Statement of Work
SEA LAUNCH PROPRIETARY
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Scope
This Statement of Work (SOW) encompasses the launch services to be supplied by
Sea Launch Limited Partnership acting through its general partner, Sea Launch
Company, LLC (Sea Launch) to XM Satellite Radio Holdings Inc. (XM) for the XM-4
mission utilizing a BSS-702 spacecraft (SC) manufactured by Boeing Satellite
Systems (BSS).
Sea Launch shall perform the tasks and provide the equipment and facilities
specified in this SOW to provide launch services for the XM-4 spacecraft. Launch
Services shall be provided using the Sea Launch launch vehicle (LV), the
Zenit-3SL. The mission shall be conducted from Sea Launch's Assembly and Command
Ship (ACS) and Launch Platform (LP) in the equatorial region of the Pacific
Ocean. Sea Launch, at no additional cost to XM, will interface with BSS as
required for the design, integration, test and launch of the XM-4 spacecraft,
including Sea Launch provision of the services, deliverable data and equipment
specified in the SOW.
This Statement of Work includes the following areas:
1. Program Management
2. Launch Vehicle
3. Mission Analysis
4. Launch Services and Facilities
5. Post Flight Reporting
6. Sea Launch Responsibilities
7. XM Responsibilities
Unless specified otherwise, times are presented in months prior to launch,
'L-x'.
Reference Documents
Parts of the following documents are incorporated into this Exhibit to the
extent that they are specifically referenced herein. Where a conflict exists,
the Statement of Work takes precedence.
1) D688-10009-1, Sea Launch User's Guide, Revision C, January 2003
2) D688-10024-1, Sea Launch Safety Regulations Manual (Chapters 3 and 4), Rev.
New, 16 July 1998
3) D688-10658-1, Sea Launch Facilities Accommodations Handbook, Rev Draft, 14
March 2001
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1. Program Management
Sea Launch shall supply the Program Management necessary to cover all aspects of
the Contract for Launch Services. Program Management tasks shall include the
following:
. LV hardware production
. Document generation, control and delivery
. Meetings and reviews
. Mission analysis
. Applicable Home Port activities including joint operations (Sea Launch
shall support, but not provide direct management of, autonomous SC
activities)
. All launch site activities
. Post launch reports
. Safety provisions
. Quality provisions
Sea Launch shall assign a dedicated Sea Launch Mission Manager no later than one
month after contract signature. All Sea Launch deliverable documentation shall
be transmitted through the Sea Launch Mission Manager to XM and/or BSS. The Sea
Launch Mission Manager shall be responsible for all XM-4 functions related to
the execution of the Contract for Launch Services.
XM shall assign an XM Mission Manager no later than one month after contract
signature. All XM deliverable documentation shall be transmitted through the XM
Mission Manager to Sea Launch. The XM Mission Manager shall be responsible for
all XM-4 functions related to the execution of the Contract for Launch Services.
1.1 Documentation, Reports, Meetings and Reviews
1.1.1 Documentation
Sea Launch shall prepare all documentation required to provide the launch
services, as specified in section 6, table 6-1. Sea Launch shall maintain a
configuration control system for the mission unique documentation. XM shall
provide timely inputs to Sea Launch to support development of documentation, as
specified in section 7, table 7-1.
Sea Launch shall maintain configuration control of signed mission specific
documentation subject to the agreement of both parties. Formal change proposals
shall be submitted to XM for
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review and approval. Contract modifications may be required for changes that
exceed the scope of the launch services contract.
Sea Launch shall accept mission specific documentation directly from BSS as
required. Sea Launch shall provide mission specific documentation to BSS and XM
as required.
The Sea Launch Mission Manager and XM shall agree upon the specific number of
copies and medium type for document deliveries, on a case-by-case basis.
Interface Control Documentation: Sea Launch shall develop a SC to LV Interface
Control Document (ICD) based on timely inputs from XM and/or BSS. Once signed by
both Sea Launch, BSS and XM, the ICD shall become the contractual document
defining the technical requirements for launch services, superseding the
technical integration requirements of this Statement of Work. Sea Launch and XM
shall each verify their respective requirements as defined in the ICD. All
verification shall be completed prior to launch.
Procedures: All Sea Launch operations are conducted in accordance with Sea
Launch approved, released procedures that are maintained under configuration
control. All combined procedures that address joint operations between the SC
and the Sea Launch system are reviewed and agreed to with XM and BSS prior to
commencement of operations. All SC hazardous and on-site procedures shall be
under BSS configuration control and will be provided to Sea Launch for review
per section 7, table 7-1.
1.1.2 Reports
Sea Launch shall provide to XM the reports specified in section 6, table 6-1. A
preliminary delivery schedule for these reports is provided in table 6-1. Sea
Launch and XM shall mutually agree upon a final delivery schedule after contract
award.
Sea Launch shall provide XM with access to documents, which are not normally
deliverable items, at the request of XM, which are reasonable and not restricted
by any applicable export regulation.
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1.1.3 Schedules
Sea Launch shall maintain mission integration schedules that cover all aspects
of program management for the launch services. Sea Launch shall provide the
schedules to XM on a quarterly basis.
Sea Launch and XM shall develop and mutually agree to a mission-specific
milestone and documentation schedule within 30 days of Contract signature by
both parties. This milestone schedule shall provide all major technical
milestones necessary for successful completion of the Contract for Launch
Services. This milestone schedule shall be based upon table 6-1 and table 7-1.
The mission integration schedule shall be presented at applicable reviews.
1.1.4 Meetings and Reviews
Sea Launch and XM agree to conduct meetings/reviews as often as necessary to
allow timely execution of all activities to support the Mission. These shall
include, but not be limited to the meetings/reviews identified in table 1.1.4-1.
Approximate timing of the meeting/review is shown, with the final timing to be
agreed to between Sea Launch and XM.
XM is invited to all meetings listed in table 1.1.4-1. The Sea Launch Mission
Manager and the XM Mission Manager shall agree upon specific meeting locations,
agendas, logistics and participation in advance, on a case-by-case basis.
Meetings and reviews shall be normally held at Sea Launch facilities in Long
Beach, California, unless otherwise agreed to by XM and Sea Launch.
XM shall invite Sea Launch to attend the XM-4 SC design reviews and readiness
reviews.
Sea Launch and XM shall have access to the Sea Launch, XM and BSS facilities to
attend meetings and reviews as defined above. Sea Launch and XM shall obtain
necessary approvals for their respective personnel to attend the meetings and/or
reviews.
Sea Launch shall (i) submit an agenda at least ten (10) days in advance of the
meeting or review, (ii) take minutes, (iii) maintain an action items list, and
(iv) circulate the minutes and action items to XM within five (5) days following
the meeting or review.
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Table 1.1.4-1. Sea Launch Meetings and Reviews
[***]
1.2 Quality
Sea Launch shall maintain a mission success and quality assurance program for
the processes, procedures, and documentation in place at Sea Launch 's
facilities and operations to ensure effective mission success and quality
assurance for the XM-4 mission.
Sea Launch shall also present the design and qualification status of all new
(not previously, successfully flown) hardware and software whether mission
unique or generic. Sea Launch shall also present the design and qualification
status of ground support systems hardware and software. Appropriate reviews
(PDR, CDR, and HAR) shall be held as defined in table 1.1.4.
1.3 Safety
To ensure safety related to the XM mission, XM shall submit safety data to the
Sea Launch, as defined in the Sea Launch Safety Regulations Manual (chapters 3
and 4). XM shall provide the safety inputs defined in section 7, table 7-1. Sea
Launch shall deliver the safety deliverables defined in section 6, table 6-1.
2. Launch Vehicle
Sea Launch shall supply all the LV hardware, software and consumables necessary
to provide the Launch Service. This shall include the design, manufacture, and
qualification of all standard and mission-unique hardware and software defined
herein.
2.1 Launch Vehicle Hardware
Sea Launch shall provide the Zenit-2S booster, the Block XX-XX upper stage, and
Payload Accommodations (PLA). The PLA consists of the spacecraft adapter (SCA),
payload structure, interface skirt, payload fairing, flight avionics and
instrumentation. The PLU consists of the PLA with the SC encapsulated in it.
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2.2 Performance
2.2.1 Launch Vehicle Performance - Orbit and Mass
The launch vehicle shall deliver equivalent performance, based on a separated SC
mass of 6,000 kg to [***].
2.2.2 Mission Optimization
Sea Launch shall optimize the mission design consistent with the constraints of
the LV and Paragraph 2.2.1 above. The orbital parameters shall be optimized for
[***]. Performance curves of the Launch Vehicle shall be provided to XM and BSS
to support this optimization.
2.3 Spacecraft to Launch Vehicle Interfaces
The SC to LV interfaces are as specified in the herein-referenced sections of
the Sea Launch User's Guide. Once signed, the XM-4 SC to Sea Launch System ICD
shall supercede the interfaces defined here.
2.3.1 Mechanical Interfaces
The Spacecraft shall be mated to the upper stage via a Sea Launch provided
SCA702+ spacecraft adapter (SCA) and separation system. The adapter and the SC
shall be encapsulated in the payload fairing prior to mating with the Zenit 3SL.
The SC to LV mechanical interfaces shall be compatible with the mechanical
interfaces specified in the Sea Launch User's Guide, section 7.1.
2.3.2 Electrical Interfaces
The Sea Launch provided electrical interfaces shall include separation
connectors, umbilical wiring, SC telemetry and command links including RF
reradiation system, and in flight interfaces. Electrical interfaces shall be as
specified in the Sea Launch User's Guide, section 7.2 and Sea Launch Facilities
Accommodations Handbook, section 6.
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Sea Launch shall provide interface skirt umbilical path during transit to the
launch site. The T-0 umbilical path is not available during transit.
Sea Launch shall provide a reradiation system for SC telemetry and command that
supports a frequency range of [***]. Frequencies required outside this range may
be negotiated.
2.3.3 Spacecraft/Spacecraft adapter interface test support
SC to SCA interface tests are performed to verify proper fit and clearances of
the Sea Launch -provided SCA and separation system with the SC, and to provide a
flight-representative separation shock environment for purposes of spacecraft
environmental verification. Sea Launch, with support from XM as specified in
section 6, shall perform [***]. This test shall be performed at the spacecraft
manufacturer's factory. For the [***].
2.4 Spacecraft Separation Conditions
Preliminary injection accuracy, attitude accuracy, and minimum relative
separation velocity of the Block XX-XX at the time of SC separation shall be as
specified in the Sea Launch User's Guide, section 3.5. The final separation
conditions shall be as specified in the ICD.
2.5 Environmental Requirements
Sea Launch shall ensure that during transportation, handling, and from launch
through SC separation, the SC is not exposed to environments exceeding those
defined in the Sea Launch User's Guide section 5.
3. Mission Analysis
Sea Launch shall perform the following analyses for the XM mission to ensure
compatibility between the XM SC/GSE and the Sea Launch system. Each analysis
shall be performed in two cycles (preliminary and final) unless otherwise noted
in table 3-1. XM provided inputs to
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integration analysis are defined in section 7. A preliminary delivery schedule
for analysis results is defined in table 6-1.
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Table 3-1. Sea Launch Mission Analysis Tasks
[***]
4. Launch Services and Facilities
Sea Launch shall provide XM with pre-launch and launch-site facilities and
support services necessary for the processing, assembly, installation,
transportation, fueling, and launch of commercial SC.
4.1 Sea Launch Home Port, Long Beach, California, United States of America.
4.1.1 Facilities
Sea Launch shall provide facilities at the Home Port for SC processing, SC
fueling, and encapsulation into the payload fairing. Details of Sea Launch
Payload Processing Facilities (PPF) and customer office and storage areas are
documented in the Sea Launch Facilities Accommodations Handbook, section 3.
Mission unique facility configurations shall supersede the Sea Launch Facilities
Accommodations Handbook, and shall be specified in the ICD.
4.1.2 Services
Sea Launch shall assist in transportation of the SC in its shipping container
and GSE from local airports to the Home Port.
Sea Launch shall perform [***].
Sea Launch shall provide SC environmental control during all phases of SC
processing, per the Sea Launch Facilities Accommodations Handbook, section 3.2.
Sea Launch shall provide equipment as defined in the Sea Launch Facilities
Accommodations Handbook, section 3.2.23 and 3.11.
Sea Launch shall provide security services for XM SC, SC GSE, and personnel as
defined in the Sea Launch Facilities Accommodations Handbook, section 3.8.
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Sea Launch shall provide miscellaneous services defined in the Sea Launch
Facilities Accommodations Handbook, section 3.14.
4.2 Assembly and Command Ship (ACS)
4.2.1 Facilities
Sea Launch shall provide facilities aboard the ACS for the mechanical and
electrical integration of the encapsulated SC with the Zenit 3SL prior to
transfer to the Launch Platform. The ACS shall provide provisions for XM launch
support, living accommodations, customer office area and storage as defined in
the Sea Launch Facilities Accommodations Handbook, section 4. Mission unique
facility configurations shall be specified in the ICD.
4.2.2 Services
Sea Launch shall provide meal, recreation, and medical services as defined in
the Sea Launch Facilities Accommodations Handbook, section 4.5.
Sea Launch shall provide security for XM SC GSE and personnel as defined in the
Sea Launch Facilities Accommodations Handbook, section 4.6.
Sea Launch shall provide miscellaneous services defined in the Sea Launch
Facilities Accommodations Handbook, section 4.10.
Sea Launch shall provide communication services as defined in the Sea Launch
Facilities Accommodations Handbook, section 7.2.
4.2.3 Number of XM and BSS Personal on the ACS for the Launch Campaign at Sea
Sea Launch shall provide accommodations for a maximum of 15 combined XM and BSS
persons on the ACS during the portion of the launch campaign when the ACS is at
Sea.4.3 Launch Platform.
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4.3.1 Facilities
Sea Launch shall provide facilities on-board the Launch Platform (LP) for XM GSE
and SC monitoring, storage area, office area, and living accommodations as
defined in the Sea Launch Facilities Accommodations Handbook, section 5. Mission
unique facility configurations shall be specified in the ICD.
4.3.2 Services
Sea Launch shall provide meal, recreation, and medical services as defined in
the Sea Launch Facilities Accommodations Handbook, section 5.4.
Sea Launch shall provide security services for XM SC, SC GSE and personnel as
defined in the Sea Launch Facilities Accommodations Handbook, section 5.5.
Sea Launch shall provide communication services as defined in the Sea Launch
Facilities Accommodations Handbook, section 7.2.
Sea Launch shall provide SC environmental control during all phases of SC
transit and launch operations, per section 2.5 of this exhibit.
4.3.3 Number of XM and BSS Personnel on the LP for the Launch Campaign at Sea
Sea Launch shall provide accommodations for a maximum of 6 combined XM and BSS
persons on the LP during the portion of the launch campaign when the LP is at
Sea.
4.4 Communications
Sea Launch shall provide communications links for XM and BSS personnel between
the ACS, LP, Home Port, and external sites during SC Home Port processing and
mission operations as defined in the Sea Launch Facilities Accommodations
Handbook, sections 7.1 and 7.2.
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Sea Launch shall provide spacecraft communications, which link XM and BSS
personnel with the SC, as defined in the Sea Launch Facilities Accommodations
Handbook, section 7.3.
4.5 Launch Services
The following services are provided:
Sea Launch shall encapsulate the XM SC in the launch vehicle payload fairing in
the PPF, transport the encapsulated SC to the ACS, and integrate the
encapsulated SC with the LV.
Sea Launch shall transport the encapsulated SC from the PPF to the Assembly and
Command Ship.
Sea Launch shall perform testing of the ILV.
Sea Launch shall provide transportation of both vessels from Home Port to the
launch site and return to Home Port for the purpose of conducting the Launch.
Sea Launch shall transport the ILV to the launch site and conduct the launch of
the SC during the launch window specified in the ICD.
Sea Launch shall provide transportation for up to 12 XM and/or BSS persons from
the ACS to Honolulu, Hawaii, as soon as reasonably possible after the launch.
Details shall be specified in the ICD.
Sea Launch shall coordinate special services such as launch events, VIP charter
services to the launch site, and third party communications. Sea Launch and XM
shall agree upon specific requirements, logistics, participation, and costs in
advance, on a case-by-case basis.
4.6 Range Services
Sea Launch shall provide all necessary range telemetry assets and provide
tracking of the launch vehicle from launch through SC separation, via telemetry
data (real time or recorded).
Sea Launch shall provide all necessary telemetry assets to verify LV functions
and conditions from Launch to SC separation. Telemetry coverage (either real
time or recorded) shall be provided during powered flight and for discrete
events.
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5. Post Launch Services
Sea Launch shall provide the following post-launch services, according to the
schedule provided in section 6:
. Post-launch tracking and reporting, including SC post-separation
orbital parameters, to be delivered to XM at the launch site.
. Post-launch Report.
6. Sea Launch Responsibilities
In addition to other obligations of Sea Launch as set forth in this SOW, Sea
Launch shall perform the tasks and provide the equipment and data specified
below at the approximate times indicated. Sea Launch and XM shall develop a
program schedule that shall contain calendar dates for the accomplishment of the
scheduled tasks.
Table 6.1. Sea Launch Deliverables
[***]
7. XM Responsibilities
In addition to other obligations of XM as set forth in this Statement of Work,
XM shall perform the tasks and provide the equipment and data specified below at
the times indicated below. Sea Launch and XM shall develop a program schedule
that shall contain calendar dates for the accomplishment of the scheduled tasks.
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Table 7-1. XM Deliverables
[***]
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