AMENDED AND RESTATED
OPTION AGREEMENT
FOR
PURCHASE OF ORION 2 SPACECRAFT
This Option Agreement ("Agreement"), dated January 29, 1997 ("Effective
Date") by and between International Private Satellite Partners, L.P., d/b/a
Orion Atlantic, L.P., a Delaware limited partnership with its principal offices
located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, X.X.X. ("ORION"),
and Matra Marconi Space UK Limited, a company organized and existing under the
laws of England and Wales with its registered office at Xxx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxx, XX0 0XX, Xxxxxxx ("MMS"),
WHEREAS, ORION desires to purchase from MMS, and MMS desires to sell to
ORION, an option to purchase a communications satellite ("ORION 2 Spacecraft")
designed, developed, built and delivered in orbit on an Atlas IIAS launch
vehicle with the configuration, schedule and technical performance requirements
set forth in the ORION 2 Purchase Contract, dated the date hereof, as such
contract may be amended from time to time (the "ORION 2 Purchase Contract"); and
WHEREAS, the Parties desire to enforce certain provisions of the ORION
2 Purchase Contract as though such contract were enforceable on the date hereof;
NOW, THEREFORE, in consideration of the mutual promises and
undertakings contained herein, the Parties, intending to be legally bound, agree
as follows:
1. All terms used herein and not defined shall have the meanings
attributed to them in the ORION 2 Purchase Contract.
2. Grant of Option. MMS hereby grants to ORION the option to purchase from
MMS the ORION 2 Spacecraft constructed and delivered in accordance with the
terms and conditions of the ORION 2 Purchase Contract (the "Option").
3. First Installment Payment Date; Option Period. For the purposes of this
Agreement, the "First Installment Payment Date" shall be the date upon which MMS
receives Option Installment Payment 1 and the "Option Period" shall be the
period commencing on the First Installment Payment Date and expiring on the
earlier of (a) the date upon which ORION exercises the Option in accordance with
Section 5 below and (b) the last day of the 16th month following the First
Installment Payment Date, but in no event later than June 30, 1998. At ORION's
request, MMS shall extend the Option Period through July 31, 1998, if, on or
before June 30, 1998, ORION pays to (a) MMS an extension fee of $2 million and
(b) the Launch Vehicle Agency an additional $700,000 in satisfaction of an
increase in the Launch Vehicle price.
4. Consideration for Option.
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4.1 In consideration for MMS' grant of the Option, ORION has paid US $1
million to the Launch Vehicle Agency for a launch reservation covering the
Launch Period and shall pay an additional US $48.4 million in installments as
specified in the table below on or before the dates specified in such table
(each such payment being referred to herein as an "Option Installment Payment"):
Option Option
Option Total Option Installment Installment
Installment Installment Payment Amount Payment Amount
Payment # Payment Date Payment Amount (Spacecraft) (Launch Vehicle)
--------- ------------ -------------- ------------ ----------------
1 Feb. 28, 1997* US$ 2.0 Million
2 March 31, 1997 US$ 22.0 Million
3 June 15, 1997
4 July 31, 1997
5 Dec. 31, 1997
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Total US$ 48.4 Million
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*Or on such earlier date as ORION's planned financings are closed and funds are
disbursed into ORION's account.
The sum of the Option Installment Payments and the US $1 million paid
to the Launch Vehicle Agency prior to the date hereof is referred to herein as
the "Option Price."
4.2 MMS shall provide ORION ten (10) days written notice of each Option
Installment Payment due hereunder after Option Installment Payment 2.
4.3 No portion of the Option Price shall be refundable under any
circumstances, including the bankruptcy or insolvency of ORION.
4.4 If ORION's planned financings are not closed and funds disbursed by
March 31, 1997, ORION may extend Option Installment Payment 2 until April 30,
1997 by making a partial payment of $2.5 million
___________________________________________________________ on or before March
31, 1997. Moreover, to the extent net proceeds from ORION's planned public debt
financings are greater than $250,000,000 (exclusive of pre-funded amounts to pay
interest), ORION shall accelerate the payment of the Launch Vehicle portion of
Option Installment Payments 3 and 5 to the date upon which Option Installment
Payment 2 is made.
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5. Exercise of Option; Effect of Exercise.
5.1 Orion may exercise the Option from the First Installment Payment
Date through the last day of the Option Period by paying to (a) MMS the
cumulative Milestone Payments payable under the ORION 2 Purchase Contract
through the exercise date less the Option Installment Payments (Spacecraft) paid
pursuant to Section 4.1 above to such date and (b) the Launch Vehicle Agency the
cumulative Progress Payments payable under the ORION 2 Purchase Contract through
the exercise date less the Option Installment Payments (Launch Vehicle) paid
pursuant to Section 4.1 above to such date (in the aggregate, the "Option
Exercise Price"). If there is a dispute as to the cumulative Milestone Payments
or Progress Payments payable through the exercise date, the provisions set forth
in Article 6.2 of the ORION 2 Purchase Contract shall apply.
5.2 As of the date ORION exercises the Option, the ORION 2 Purchase
Contract shall be deemed to be fully effective and to have been in full force
and effect from the First Installment Payment Date.
6. Title to Work. Notwithstanding any provision of the ORION 2 Purchase
Contract incorporated by reference herein, MMS shall retain title to the Work
from the Effective Date until ORION exercises the Option. Upon ORION's exercise
of the Option in accordance with this Agreement, title to the Work shall be
governed by the ORION 2 Purchase Contract.
7. MMS' Covenant. MMS covenants to ORION and ORION acknowledges that (a)
MMS will commence to perform the Work on the First Installment Payment Date and
will continue to perform the Work until termination of this Agreement if ORION
pays each Option Installment Payment on or before the date such Payment is
required to be made and (b) to perform the Work according to the schedule set
forth in the ORION 2 Purchase Contract, MMS will be required to expend funds in
excess of the Option Price.
8. Access to Work and Progress Reports. During the Option Period, the
provisions of Exhibit 8 shall govern ORION's access to Work under Article 7 of
the ORION 2 Purchase Contract and MMS' delivery of progress reports under
Article 40 of the ORION 2 Purchase Contract.
9. Representations.
(a) MMS represents, warrants and covenants that (1) it has the power
and authority to grant the Option and to execute, deliver, and perform this
Agreement and (2) its performance of this Agreement will not violate any other
agreement to which MMS is a party.
(b) ORION represents and warrants that (1) it has the power and
authority to execute, deliver, and perform this Option Agreement, (2) its
performance of this Agreement will not violate any other agreement to which
ORION is a party, (3) it is not entering into this Agreement with an intent to
hinder, delay, or defraud any of its creditors, and (4) the making of the
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payments required to be made hereunder will not, at the time such payments are
made, cause ORION to be insolvent.
10. Payments. ORION shall make all Option Installment Payments (Spacecraft)
to MMS and all Option Installment Payments (Launch Vehicle) to the Launch
Vehicle Agency by transferring the amounts required to be paid .to the accounts
designated in Article 6.1.3 of the ORION 2 Purchase Contract. All payments to be
made pursuant hereto shall be made in U.S. Dollars. MMS shall notify, and shall
direct the Launch Vehicle Agency to notify, ORION of any change in the account
information contained in Article 6.1.3 at least ten days before any Option
Installment Payment is required to be made.
11. Failure to Exercise Option or to Make Payments - Sole and Exclusive
Remedy. Notwithstanding any other provision of this Agreement or any provision
of the ORION 2 Purchase Contract incorporated by reference herein, if: (a) ORION
fails to exercise the Option in the manner provided in this Agreement on or
before the date the Option Period expires; or (b) ORION fails to pay any Option
Installment Payment hereof (after receipt of notice under Section 4.2) on or
before the dates specified in Section 4; then, at its option, MMS may terminate
this Option Agreement immediately upon written notice to ORION and retain all
money paid by ORION to MMS pursuant to this Agreement and the ownership of all
Work. This is MMS' sole and exclusive remedy for ORION's failure to make any
Option Installment Payment.
12. Term and Termination. The term of this Agreement shall begin on the
Effective Date and continue until the earliest to occur of the following: (a)
ORION exercises the Option in the manner provided in this Agreement; (b) the
last day of the Option Period expires; (c) MMS terminates this Option Agreement
in accordance with Section 11; and (d) the date upon which ORION and MMS
mutually agree to terminate this Agreement. In addition, MMS may terminate this
Option Agreement if, on March 31, 1997 (or April 30, 1997 if extended pursuant
to Section 4.4 hereof), Restated Amendment # 10 to the Second Amended and
Restated Purchase Contract, between MMS and ORION, is not in full force and
effect and there is no default thereunder. Within 30 days of the termination of
this Agreement for any reason other than ORION's exercise of the Option, ORION
shall return to MMS all copies of all Data and Documentation provided to ORION
in respect of the ORION 2 Spacecraft.
13. Incorporation by Reference. A copy of the ORION 2 Purchase Contract is
attached hereto. Each Amendment to the ORION 2 Contract shall, upon its
execution, be attached to this Agreement. The provisions of the ORION 2 Purchase
Contract identified on Exhibits 8 and 13 hereto shall be incorporated by
reference herein and made a part hereof and shall be enforceable as though
stated in full herein.
14. Notices. Any notice or other communication required or permitted to be
made or given by either Party pursuant to this Agreement shall be sufficiently
given if given in accordance with Article 34 of the ORION 2 Purchase Contract.
15. General.
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15.1 This Agreement (and any Exhibits hereto) sets forth the entire
understanding between the Parties with respect to its subject matter and
supersedes all prior and contemporaneous agreements and understandings with
respect thereto other than the ORION 2 Purchase Contract.
15.2 This Agreement shall not constitute, give effect to, or otherwise
imply, a joint venture, partnership, agency or formal business organization of
any kind between the Parties.
15.3 This Agreement may be amended only by a written instrument signed
by an authorized representative of each Party.
15.4 ORION may not assign or transfer this Agreement except to any
party that (a) demonstrates to MMS' reasonable satisfaction that it has the
financial ability to pay the Option Exercise Price and (b) satisfies any export
license requirements applicable to MMS' performance of the Work. MMS shall not
assign, delegate, or in any manner transfer this Agreement without the prior
written consent of ORION. This Agreement shall be binding upon the successors
and assigns of the Parties hereto.
15.5 No Party shall, by any act, delay, indulgence, omission, or
otherwise (except by a written instrument signed by the Parties hereto), be
deemed to have waived any right hereunder or to have acquiesced in any breach of
any of the terms and conditions hereof and no failure by a Party to exercise or
delay in exercising any right, power, or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power, or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege. A Party's waiver of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that such Party would otherwise have on any future occasion.
15.6 The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently, and are not exclusive of any rights or
remedies provided at law or in equity (other than the remedy in Section 11 for
ORION's failure to make Option Installment Payments at the times specified
therein, which is an exclusive remedy).
15.7 If any provision of this Agreement is declared invalid or
otherwise unenforceable, the enforceability of the remaining provisions shall be
unimpaired, and the Parties shall replace the invalid or unenforceable provision
with a valid and enforceable provision that reflects the original intentions of
the Parties as nearly as possible in accordance with applicable law. This
Agreement shall benefit the Parties hereto only.
15.8 Provisions of this Agreement which by their express terms impose
continuing obligations on the Parties shall survive the expiration or
termination of this Agreement.
15.9 This Agreement may be executed in a number of counterparts, each
of which shall be deemed an original and all of which shall constitute one and
the same instrument.
15.10 This Agreement shall be governed by and construed in accordance
with the substantive laws of the State of Maryland, exclusive of its choice of
law rules.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives, with an Effective Date as set
forth in the introductory paragraph of this Agreement.
INTERNATIONAL PRIVATE MATRA MARCONI SPACE
SATELLITE PARTNERS, L.P. UK LIMITED
By: Orion Satellite Corporation,
General Partner
By: _____________________________ By: ____________________________
Name: Name: Xxxxxx Xxxxxxx
Title: Title: Director
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