Exhibit 10.37.2
AMENDMENT No. 1 TO
FIXED PRICE CONTRACT
BETWEEN
PANAMSAT CORPORATION
AND
XXXXXX SPACE AND COMMUNICATIONS COMPANY
FOR
GALAXY XI HS702
SPACECRAFT, RELATED SERVICES AND DOCUMENTATION
AMENDMENT No. 1 TO FIXED PRICE CONTRACT FOR GALAXY XI HS702
SPACECRAFT, RELATED SERVICES AND DOCUMENTATION
This AMENDMENT No. 1 (the "Amendment"), entered into as of November __, 1998, by
and between PanAmSat Corporation (as assignee of Xxxxxx Communications Galaxy,
Inc.), a Delaware corporation ("Buyer"), having a principal place of business at
Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxx 00000, and Xxxxxx Space
and Communications Company, a Delaware corporation ("Contractor"), having a
principal place of business at 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xx Xxxxxxx,
Xxxxxxxxxx 00000, amends that certain Fixed Price Contract For Galaxy XI HS702
Spacecraft, Related Services And Documentation dated as of May 7, 1997 (Contract
No. 96-HCG-002) (the "Agreement").
R E C I T A L S
WHEREAS, Buyer (as assignee of Xxxxxx Communications Galaxy, Inc.) and
Contractor are party to the Agreement, providing for Buyer to purchase and
Contractor to provide the Galaxy XI Spacecraft, Documentation, and Related
Services as therein specified;
WHEREAS, the Parties now desire to amend the Agreement;
A G R E E M E N T
NOW, THEREFORE, the Parties hereby agree to amend and restate Amendment as
follows:
1. All references in the Agreement to "HCG" are hereby amended to read "Buyer".
2. Exhibit A, entitled "Galaxy XI Statement of Work," and Exhibit B, entitled
"Galaxy XI Spacecraft Specification," are hereby amended and restated in their
entirety in the forms attached to this Amendment.
3. ARTICLE 1. EXHIBITS AND INCORPORATIONS, Paragraphs 1.1, 1.2 and 1.3 are
hereby amended and restated in their entirety to read as follows:
"1.1 Exhibit A - Galaxy XI Statement of Work - executed on October 30,
1998.
1.2 Exhibit B - Galaxy XI Spacecraft Specification - executed on
November, 1998."
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4. ARTICLE 4. DELIVERABLES AND SCHEDULE is hereby amended as follows:
(a) Section 4.1. The Table in Section 4.1 is replaced in its entirety with
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the following:
Date of Shipment, Integration Delivery
Delivery or Location and
Deliverable(s) Performance Performance Place
1. One Spacecraft March 31, 19991 - Shipment from
(the "Spacecraft") ("Shipment Date") Contractor's Facility
- Delivery to Launch Site
2. Launch Support, In Accordance with - Launch Site
Mission Operations and Exhibit A - Fillmore, California
In-Orbit Testing - Castle Rock, Colorado
(the "Related Services") - El Segundo, California
3. Documentation In Accordance with 0000 Xxxxxx Xxx, Xxx X
(the "Documentation") Exhibit A Long Beach, California
/1/ Contractor represents and warrants that shipment from
Contractor's facility will support a launch of the Spacecraft thirty
(30) days after the Shipment Date. [****************
***************************************************************]
(b) Section 4.2. Section 4.2 (including all subsections thereof) is hereby
-----------
deleted in its entirety and indicated as "[Reserved]."
5. ARTICLE 5. PRICE is hereby amended as follows:
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(a) Section 5.1. Section 5.1 is hereby amended by replacing [************
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**************************************] with [*********************
**********************************************]
(b) Section 5.3. The third-to-last sentence in Section 5.3 is hereby
------------
amended to read in its entirety as follows, and an additional sentence is
hereby inserted:
"Thereafter, the Contract Price shall mean [**********************
***************************************] Buyer and Contractor agree
that such a delay has occurred, and that Buyer is therefore excused
from paying such [***********************] amount."
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
2
6. ARTICLE 6. PAYMENTS is hereby amended as follows:
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(a) Section 6.3. Table 6.3 is hereby amended to read as follows beginning after
the [**********] payment:
[*********************] [***] [*****]
[******] [***] [*****]
[******] [***] [*****]
[******] [***] [*****]
[******] [***] [*****]
[******] [***] [*****]
[******] [***] [*****]
[*************
*****************] [***] [*****]
[*********************
**********************] [***] [*****]
[********************
********************
******************
*****************] [***] [*****]
[****************
*****************] [***] [*****]
1 [***********************************************************************
******************]
2 [***********************************************************************
***************************************************************************
******
***************************************************************************
******]
(b) Section 6.4 Payment Schedule Revision. Section 6.4 is hereby amended
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and restated in its entirety to read as follows:
"The payment plan established in Paragraph 6.3 above is based upon a Launch
Slot between May 1, 1999 and May 31, 1999. If the Launch Date
established in accordance with Article 7, Paragraph 7.1.2 is later
than May 31, 1999, the payment plan in Paragraph 6.3 of this Article
shall be revised by mutual agreement of the Parties to reflect the
established Launch Date."
(c) Section 6.6. The address for submission of invoices to Buyer in
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Section 6.6.1 is hereby amended and restated to read in its entirety as
follows:
"PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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Attention: Xxxxxx Xxxxxxxx, Senior Vice President and
Chief Technology Officer
cc: Xxxxx Xxxxxxxxxxx, Vice President -- Space Systems
Xxxxxxx X. Xxxxx, Senior Counsel (by fax to 000-000-0000)"
7. ARTICLE 7. SPACECRAFT LAUNCH DATE is hereby amended as follows:
----------------------------------
(a) Section 7.1. Section 7.1 is hereby amended and restated to read in its
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entirety as follows:
"This Contract is written on the basis that the Spacecraft supplied
hereunder will be launched on an Ariane 4 or 5 launch vehicle within
the Launch Slot set forth below and within which a Launch Date and
Launch Window shall be established in accordance with Paragraphs 7.1.2
and 7.1.3 below:
Spacecraft Launch Vehicle Launch Slot
---------- -------------- -----------
Galaxy XI Ariane 4 or 5 May 1, 1999 through May 31, 1999
(b) Section 7.1.1. Section 7.1.1 is hereby amended and restated to read
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in its entirety as follows:
"Launch Slot Definition. A thirty (30) day period of time
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during which the Launch will occur. The initial Launch Slot shall be
as specified in Paragraph 7.1.1."
8. ARTICLE 9. INSPECTION AND ACCEPTANCE is hereby amended as follows:
-------------------------------------
(a) Section 9.5. A new Section 9.5 is hereby added to read in its
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entirety as follows:
"9.5 Until there has been a launch of the Spacecraft that does not result
in a Total Failure, Total Constructive Failure or Partial Failure, (as
defined in the applicable launch insurance contract) prior to the
completion of the Related Services, Contractor shall
[*****************************
*********************************************] and shall
[***********************************************************
************] The Parties agree that the foregoing shall not apply
to the following [**************************************************
********************************************************************
***************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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9. ARTICLE 26. NOTICES AND AUTHORIZED COMPANY REPRESENTATIVES is hereby
------------------------------------------------------------
amended as follows:
(a) The information for Buyer is hereby deleted and replaced with the
following:
"1. PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Vice President and
Chief Technology Officer
cc: Xxxxx Xxxxxxxxxxx
Vice President - Space Systems
and
cc: Xxxxxxx X. Xxxxx
Xxxxxxxxx Xxxxxxx
PanAmSat Corporation
0000 Xxxxxx Xxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Authorized Representative(s): Xxxxxxxxx Xxxxxxx,
President and Chief Executive Officer
Xxxxxx Xxxxxxxx
Senior Vice President and
Chief Technology Officer
Xxxxx Xxxxxxxxxxx
Vice President - Space Systems"
(b) The information for Contractor is hereby amended by adding "Xx.
Xxxxxxx X. Ballhaus, Assistant Program Manager" to the list of individuals
to whom a copy of notices should be sent, and by adding "Xxxxxxx X.
Xxxxxxx, Customer Executive" as an Authorized Representative of Contractor.
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10. ARTICLE 33. ASSIGNMENT is hereby amended by amending the second sentence
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of Paragraph 33.1 to read as follows:
"In addition, notwithstanding anything in this Article 33 to the contrary,
the consent of Contractor shall not be required for, and Paragraph 33.2
shall not apply to any assignment by Buyer of its rights, duties and/or
obligations hereunder as security for any indebtedness of Buyer or its
subsidiaries or affiliates."
11. ARTICLE 36. LIQUIDATED DAMAGES FOR LATE SHIPMENT
--------------------------------------------------
A new Article 36, entitled "Liquidated Damages for Late Shipment" is hereby
added to read in its entirety as follows:
"36.1 In the event that the shipment of the Spacecraft is delayed due
to the fault of Contractor and not shipped on or before the Shipment
Date identified under Article 4 (as such date may be adjusted by
mutual agreement of the Parties), Contractor shall pay to Buyer
liquidated damages equal to [*************************************]
for the [**********] of delay. In the event of any delay of a partial
month, the amount specified in the preceding sentence shall be pro
rated on a day-for-day manner based upon the number of days in such
month.
36.2 Contractor shall pay to Buyer the liquidated damages owed
pursuant to Paragraph 36.1 within thirty (30) days of invoice from
Buyer.
36.3 The Parties understand and agree that the liquidated damages
provided under this Article 36 shall be in lieu of all other remedies
of any kind except for Buyer's rights and remedies under Article 11.
The reduction in Contract Price shall constitute liquidated damages
for such late shipment and shall not constitute a penalty. The
Parties acknowledge and agree that such liquidated damages are
believed to represent a genuine estimate of the losses that would be
suffered by reason of any such delay (which losses would be difficult
or impossible to calculate with certainty).
36.4 The maximum reduction in Contract Price under this Article 36
may equal but shall not exceed [********************************
*********]"
12. Each capitalized term used but not defined in this Amendment shall have the
meaning ascribed to such term in the Agreement. Except as amended by this
Amendment, the Agreement shall continue in full force and effect. This
Amendment may be signed in one or more counterparts, each of which shall
constitute an original and together which shall constitute one and the same
instrument.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
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IN WITNESS WHEREOF, Buyer and Contractor have executed this Amendment to become
effective upon the 30th day of November, 1998.
XXXXXX SPACE & COMMUNICATIONS COMPANY
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SIGNATURE: /s/ Xxxxxxx X. Xxxxxxx
----------------------
NAME: Xxxxxxx X. Xxxxxxx
---------------------------------
TITLE: PanAmSat Customer Executive
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DATE: December 1, 1998
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PANAMSAT CORPORATION
--------------------
SIGNATURE: /s/ Xxxxxx X. Xxxxxxxx
----------------------
NAME: Xxxxxx X. Xxxxxxxx
---------------------------------
Senior Vice President and
TITLE: Chief Technology Officer
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DATE: December 3, 1998
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