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APSTAR V CONDOSAT AGREEMENT
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between
APT SATELLITE COMPANY LIMITED
and
LORAL ORION, INC.
EXECUTION COPY
APSTAR V CONDOSAT AGREEMENT
INDEX
Page
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ARTICLE 1. INTERPRETATION....................................... 1
ARTICLE 2. OWNERSHIP OF THE SATELLITE .......................... 2
ARTICLE 3. PAYMENT PLAN ........................................ 7
ARTICLE 4. STATUS OF REMAINING LORAL TRANSPONDERS
PENDING TAKE UP ..................................... 8
ARTICLE 5. THE SATELLITE ....................................... 8
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
OF THE PARTIES ...................................... 9
ARTICLE 7. LEASE OF ADDITIONAL TRANSPONDERS .................... 10
ARTICLE 8. [RESERVED] .......................................... 11
ARTICLE 9. ORBITAL SLOT ........................................ 11
ARTICLE 10. LANDING RIGHTS ...................................... 14
ARTICLE 11. SUCCESSOR SATELLITE RENEWAL ......................... 14
ARTICLE 12. EFFECTIVE DATE OF TERM SHEET ........................ 15
ARTICLE 13. PLEDGES ............................................. 15
ARTICLE 14. TRANSFER ............................................ 16
ARTICLE 15. RELATIONSHIP OF PARTIES ............................. 16
ARTICLE 16. TAXES ............................................... 16
ARTICLE 17. ENTIRE AGREEMENT, TRANSACTION
DOCUMENTS ........................................... 16
ARTICLE 18. TERMINATION ......................................... 17
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ARTICLE 19. FORCE MAJEURE ....................................... 18
ARTICLE 20. DEFAULT ............................................. 18
ARTICLE 21. CONFIDENTIALITY ..................................... 19
ARTICLE 22. ASSIGNMENT .......................................... 20
ARTICLE 23. GOVERNING LAW ....................................... 20
ARTICLE 24. DISPUTE RESOLUTION .................................. 20
ARTICLE 25. NOTICES ............................................. 21
ARTICLE 26. MISCELLANEOUS ....................................... 22
Schedule 1 Definitions
Annex A Description of Loral Transponders
Annex B Take Up Schedule for the Remaining Loral Transponders
Annex C The Parties' Respective Ownership of the Transponders and Common Elements
Annex D Initial Project Cost
Annex E APSTAR V Transponder Performance Validation
Annex F Material Restrictions or Agreements that impact the Loral Transponders
Annex G Ku-band Beam #2 Modification
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APSTAR V CONDOSAT AGREEMENT
THIS AGREEMENT is dated as of the 10th day of December, 2002 by and between
APT SATELLITE COMPANY LIMITED, a company organized and existing under
the laws of Hong Kong with its registered office at Rooms 3111-3112,
Xxx Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx ("APT")
and
LORAL ORION, INC., a corporation organized and existing under the laws
of the state of Delaware, U.S.A., with its principal place of business
at 000 Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000, X.X.X. ("Loral Orion").
WHEREAS APT and Space Systems/Loral, Inc. ("SS/L") have entered into a satellite
procurement contract dated as of January 8, 2001, as amended through the date
hereof, including Amendment No. 3 entered into contemporaneously with the
execution of this Agreement, for the construction, testing and purchase of the
APSTAR V satellite (the "SS/L Contract");
WHEREAS APT, SS/L and Loral Orion have entered into a Term Sheet (the "Term
Sheet") for the joint acquisition by Loral Orion and APT of the APSTAR V
satellite on a 50-50 basis and the creation of a condosat arrangement between
APT and Loral Orion for such satellite under the terms stated therein, and
relating to certain amendments to the SS/L Contract; and
WHEREAS APT and Loral Orion desire to set forth in this Agreement the detailed
terms and conditions of their agreement with regard to the joint acquisition of
the Satellite and such other matters as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements hereinafter contained, the
parties hereto agree as follows:-
ARTICLE 1
INTERPRETATION
1.1 Words and expressions used in this Agreement shall have the meanings
set out in Schedule 1, unless the context requires otherwise.
1.2 The Schedules and Annexes to this Agreement shall form part of this
Agreement.
1.3 References to a party giving consent or approval shall be deemed to be
in such party's sole judgment and discretion, except as specifically
set forth herein.
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ARTICLE 2
OWNERSHIP OF THE SATELLITE
2.1 Loral Transponders
In consideration of the payments to be made by Loral Orion to SS/L and
APT as described in Article 4 below, Loral Orion will ultimately
acquire a fifty percent (50%) interest in the Satellite, including
complete title to the following transponders on the Satellite:
- 12 standard frequency C-band transponders;
- 7 extended frequency C-band transponders; and
- all 8 Ku-band transponders on Beam #2,
in each case as identified and described on Annex A hereto
(collectively and including any replacement capacity allocated
to Loral Orion, the "Loral Transponders").
References to the Loral Transponders herein shall include all
transponders ultimately identified and agreed to by Loral Orion and APT
as a "Loral Transponder" as set forth in this Article 2, regardless of
whether such transponder was identified as such at the time that any
applicable action was taken or failed to be taken with respect thereto
that impacts or relates to the Loral Transponders as set forth in this
Agreement or in the Transaction Documents.
2.2 Identification and Assignment of Loral Transponders
2.2.1 Six (6) of the twelve (12) standard frequency C-band
transponders will not be identified at the time this Agreement
is executed but will instead be agreed and identified by Loral
Orion and APT no later than March 31, 2003 with respect to the
three (3) transponders scheduled to be taken up on the second
and third anniversaries of the Satellite's in-service date,
and no later than the date of shipment of the Satellite with
respect to the remaining three (3) transponders; provided
however that assuming all transponders are performing
according to specifications, APT shall be entitled, on or
before March 31, 2004, to make minor adjustments to the
designation of such six (6) transponders, subject to obtaining
Loral Orion's consent thereto, which consent shall not be
unreasonably withheld.
2.2.2 APT represents and warrants that the six (6) transponders on
APSTAR I corresponding to the six (6) transponders on the
Satellite which are finally agreed and identified by Loral
Orion and APT as set forth in Paragraph 2.2.1 shall have
historically not experienced any unacceptable level of
interference from adjacent or nearby satellites and can be
fully saturated.
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2.2.3 APT and Loral Orion agree that in assigning the remaining six
(6) Loral Transponders as set forth above, the parties will
adopt the principle that the risk of coordination restrictions
that may be imposed on the Satellite from the Russian filing
submitted to the ITU with respect to the orbital slot at
140(degree) E.L. (the "Russian Filing") shall be shared on an
equal basis between APT and Loral Orion (in no event, however,
shall Loral Orion be allocated more than 7 "at risk" standard
C-band transponders). As long as this principle has been fully
effected, the parties will assign these transponders to
minimize customer migration issues.
2.2.4 APT and Loral Orion agree that they will not enter into any
coordination or other agreement relating to the Russian Filing
or the satellite that is the subject of the Russian Filing
(the "Russian Satellite") that would result in the other party
bearing a disproportionate amount (i.e., more than 50%) of the
potential or actual risk of coordination with the Russian
Filing or the Russian Satellite.
2.2.5 APT will use its reasonable best efforts, subject to the
principles set forth in this Paragraph 2.2 and the
requirements in any coordination agreements affecting the
Orbital Slot presently existing or permitted under Paragraph
9.1 of this Agreement, so that all Loral Transponders will not
suffer unacceptable levels, as reasonably determined by Loral
Orion (after consultation with APT), of interference from
adjacent satellites.
2.2.6 APT will support Loral Orion's selection and loading of the
Loral Transponders by providing technical information
concerning transponder performance, interference
considerations and operation.
2.2.7 APT represents that the interference it has experienced on
APSTAR I, on a historical basis, is as set forth in Annex F
hereto.
2.3 Take Up Schedule
2.3.1 Loral Orion will initially acquire thirteen and one-half
(13.5) of the Loral Transponders, consisting of: -
- 6 standard C-band transponders;
- 3.5 extended C-band transponders; and
- 4 Ku-band transponders;
in each case as identified and described in Annex A hereto.
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2.3.2 The Remaining Loral Transponders shall, subject to the
provisions of Paragraph 2.3.4 below and the relevant payment
by Loral Orion pursuant to Paragraph 3.3 below, be acquired as
follows:
- 2.5 transponders on the second anniversary
of the Satellite's in-service date;
- 3 transponders on the third anniversary of
the Satellite's in-service date; and
- 4 transponders on each of the fourth and
fifth anniversaries of the Satellite's
in-service date (each such date, including
any accelerated take up date as described in
Paragraph 2.3.3 below, a "Take Up Date").
Subject to Loral Orion's acceleration rights set forth in
Paragraph 2.3.3 below, the take up schedule for the Remaining
Loral Transponders is set forth in Annex B hereof.
2.3.3 Loral Orion shall have the right at its option to accelerate
the take down of up to three (3) of the standard frequency
C-band Remaining Loral Transponders and any or all of the
extended frequency C-band and Ku-band Remaining Loral
Transponders; provided however that Loral Orion may not,
without APT's prior written consent, exercise such
acceleration right with respect to any Remaining Loral
Transponder that is then subject to a lease agreement with a
customer or otherwise subject to the contractual rights of a
customer, including any contractually provided renewal term,
if the expiration date of such lease agreement or other
contractual rights shall be later than Loral Orion's proposed
accelerated take up date.
2.3.4 With respect to the Remaining Loral Transponders, APT shall
bear the risk of loss with respect to any such transponder
until payment is made by Loral Orion for such transponder in
accordance with Paragraph 3.3. Accordingly, Loral Orion shall
have no obligation to take up or pay for any Remaining Loral
Transponder (i) that fails to meet the requirements set forth
on Annex E hereto on the relevant Take Up Date, or (ii) for
which APT has submitted an insurance claim.
Loral Orion shall be obligated to take up and pay for a
Remaining Loral Transponder, even if APT shall have previously
received a warranty payback or transponder performance-based
reduction in the amount of the final milestone payment by APT
under the SS/L Contract in respect thereof, if (i) neither of
the requirements set forth in the preceding sentence has been
met and (ii) Loral Orion's purchase price for such transponder
shall be reduced by an amount equal to the amount of such
warranty payback and/or the amount of such final milestone
payment reduction, as applicable, that relates to such
transponder.
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2.4 Ownership of the Common Elements
2.4.1 The Common Elements shall be owned jointly by APT and Loral
Orion, as tenants in common, based on their respective
economic interests (as distinct from title, which is discussed
in Paragraph 2.5 below) in the transponders on the Satellite,
as follows: -
(a) Initially, the economic interest shall be 75% APT and
25% Loral Orion.
(b) Thereafter, Loral Orion's economic interest in the
Common Elements will be automatically increased on each Take
Up Date or the date of payment by Loral Orion for the related
transponders in respect of such Take Up Date, whichever is
later, until the last such Take Up Date or date of payment, at
which time APT and Loral Orion will own a 50/50 economic
interest in the Common Elements.
(c) If there is a change in ownership of the transponders
as a result of a transfer as described in Article 14 hereof,
the respective economic interests of the parties in the Common
Elements shall be adjusted proportionately, as appropriate.
2.5 Transfer of Title
2.5.1 In consideration for the amount paid by Loral Orion as set
forth in Paragraph 3.2, Loral Orion will, simultaneously with
passage of title from SS/L to APT under the SS/L Contract,
automatically and immediately acquire, free and clear of all
liens and encumbrances (other than any liens and encumbrances
that may be created or incurred by Loral Orion), title to its
25% interest in the Satellite (including 50% of the Loral
Transponders) and APT shall retain a 75% interest in the
Satellite.
2.5.2 Title to the Remaining Loral Transponders and the increased
interest in the Common Elements shall automatically and
immediately transfer, free and clear of all liens and
encumbrances (other than any liens and encumbrances that may
be created or incurred by Loral Orion), to Loral Orion on each
Take Up Date or the date of payment by Loral Orion for the
related transponders in respect of such Take Up Date,
whichever is later.
2.5.3 A table of the parties' respective ownership of the
Satellite's transponders and interest in the Common Elements
after each scheduled Take Up Date is set forth in Annex C.
2.5.4 APT shall cooperate with and assist Loral Orion from time to
time as required to evidence Loral Orion's title to the
Initial Loral Transponders and the Remaining Loral
Transponders (and corresponding interest in the Common
Elements) that have been taken up and paid for, including but
not limited to
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executing a certificate of ownership or other documents as may
be reasonably requested by Loral Orion to evidence the
transfer of title for such transponders to Loral Orion.
2.6 Economic Interest Prior to Title Transfer.
2.6.1 Notwithstanding that the SS/L Contract calls for performance
from SS/L to APT only, APT acknowledges and agrees that, prior
to the time that title is transferred pursuant to Paragraph
2.5 above, Loral Orion has a vested economic interest in the
SS/L Contract, including but not limited to work-in-progress
thereunder, to the extent of the following:
(i) the reduction in APT's purchase price for the
Satellite and other deliverable items under the SS/L
Contract, effected by Amendment No. 3 to the SS/L
Contract;
(ii) payments made by Loral Orion to SS/L for the redesign
of Ku-band Beam #2 pursuant to Paragraph 5.2 of this
Agreement;
(iii) Payments made or launch deposits (or other similar
prepayments) applied by Loral Orion toward launch
services for the Satellite; and
(iv) To the extent that the SS/L Contract is amended to
provide for insurance procurement by SS/L, the amount
of any Loral Orion payment made toward such
insurance.
2.6.2 APT represents and warrants to Loral Orion that any pledge or
assignment of its interest under the SS/L Contract to its lenders shall
not extend to Loral Orion rights and interests set forth in Paragraph
2.6.1 above.
2.7 Management Agreement. The Parties acknowledge and agree that
notwithstanding their respective economic interests and title in the
Satellite, all decisions regarding all matters concerning the
construction and operation of the Satellite shall be made in accordance
with the terms and conditions of the Management Agreement which APT and
Loral Orion are entering into contemporaneously with this Agreement and
that they shall exercise their rights with respect to their interests
in the Satellite in accordance with such Agreement.
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ARTICLE 3
PAYMENT PLAN
3.1 The total amount Loral Orion will pay for a fifty percent (50%)
interest in the Satellite shall equal US$115.1 million, payable as set
forth in Paragraphs 3.2 and 3.3 below. Such amount shall be adjusted to
reflect fifty percent (50%) of the amount of any changes in the cost
(the "Project Cost") of constructing, insuring and launching the
Satellite from the initial projected costs set forth in Annex D
(exclusive of the modification costs described in Paragraph 5.2 below,
which shall be borne solely by Loral Orion). Except as otherwise
provided herein, the costs shall include any payment, liability or
other amount paid or incurred by APT or Loral Orion under the SS/L
Contract, the Related Orion Agreement, or the Launch Services Agreement
or to procure launch insurance, whether paid to SS/L, the Launch Agency
or otherwise, excluding any payment, liability or other amount paid or
incurred by a party as a result of such party's willful misconduct,
gross negligence or breach of the relevant agreements or insurance
arrangement (other than any such breach resulting from joint action or
decision of APT and Loral Orion) (the "Other Project Costs").
3.2 Subject to adjustment pursuant to Paragraph 3.4 below, Loral Orion
shall initially pay US$57.55 million (the "Initial Amount") for the
thirteen and one-half (13.5) Initial Loral Transponders specified on
Annex B hereto (consisting of 1/2 of the Loral Transponders) and
twenty-five percent (25%) of the Common Elements, which Initial Amount
shall be paid by Loral Orion to SS/L in accordance with a payment plan
to be agreed upon between Loral Orion and SS/L, if the total purchase
price under the SS/L Contract is US$230.20 million. In such event,
payments made by APT under the SS/L Contract shall be reduced by
US$57.55 million. In the case where the price under the SS/L Contract
is other than US$230.20 million, the Initial Amount shall be paid
pursuant to a payment plan to be agreed upon among SS/L, Loral Orion,
and APT.
3.3 Subject to the provisions of Paragraphs 2.3.3 and 2.3.4 above, Loral
Orion shall pay the remaining balance of US$57.55 million (subject to
any adjustments as agreed pursuant to Paragraph 3.4 below) to APT as
follows for the Remaining Loral Transponders:
(a) On the second anniversary of the Satellite's in-service date,
$10.66 million for the 2.5 additional transponders specified on Annex B
hereto and an additional 5% of the Common Elements.
(b) On the third anniversary of the Satellite's in-service date,
$12.79 million for the 3 additional transponders specified on Annex B
hereto and an additional 6% of the Common Elements.
(c) On the fourth anniversary of the Satellite's in-service date,
$17.05 million for the 4 additional transponders specified on Annex B
hereto and an additional 7% of the Common Elements.
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(d) On the fifth anniversary of the Satellite's in-service date,
$17.05 million for the 4 additional transponders specified on Annex B
hereto and an additional 7% of the Common Elements.
3.4 Payment of any adjustment for increases in costs, or offsets for any
adjustment for decreases in costs (including as a result of the
operation of the first paragraph of Article 13.5 of the SS/L Contract
and the analogous provision in the Related Orion Agreement), in each
case as contemplated in the second sentence of Paragraph 3.1 above,
shall be made as agreed by the parties, having regard to the time such
costs were incurred or reduced, the payments already made by Loral
Orion in respect of the Loral Transponders, the Other Project Costs
paid by the parties, and the payment plan for the Remaining Loral
Transponders set forth in Paragraph 3.3 above.
3.5 APT and Loral Orion hereby agree that in the event any payment (whether
in the form of a refund, reduction or damages) is made by the Launch
Agency in respect of the LSA, APT and Loral Orion shall agree in good
faith upon an allocation of such payment between the two parties
consistent with the intent of the parties and the principles set forth
in this Agreement. Each of APT and Loral Orion hereby agrees that to
the extent that it receives any such payment, whether from the Launch
Agency or otherwise, that is in excess of its agreed upon allocated
amount, it shall promptly remit any such excess amount to the other
party.
3.6 All payments to be made to APT hereunder shall be made by wire transfer
of immediately available funds in U.S. dollar currency to a bank
account designated by APT.
3.7 APT and Loral Orion agree that in the event that either of them issues
an invoice to SS/L where the right to payment depends upon the
respective ownership interests of APT and Loral Orion, it shall provide
a copy of such invoice to the other party and that the SS/L Contract
and the Related Orion Agreement, as the case may be, shall provide that
SS/L shall not pay any invoice to which the other party has notified
SS/L of an objection within 15 days after the date of issuance thereof.
ARTICLE 4
OPERATION OF TRANSPONDERS
Except as set forth in the Marketing Agreement, each of APT and Loral Orion
shall be entitled to all revenues generated from the APT Transponders and the
Loral Transponders, respectively.
ARTICLE 5
THE SATELLITE
5.1 The Satellite shall generally have such design and other specifications
as are set forth in the SS/L Contract and in this Agreement.
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5.2 The footprint of Beam #2 Ku-band transponders on the Satellite will be
modified by SS/L as requested by Loral Orion, which modification costs
shall be borne by Loral Orion. Such modifications, and the costs
thereof, are set forth in Annex G hereto, which modifications are
hereby approved by APT. In the event of any further modification to the
footprint of Beam #2 Ku-band transponders, such further modifications,
and the costs thereof, shall be agreed between SS/L and Loral Orion
provided the modifications do not materially impact the Common Elements
or the APT Transponders. If such modifications do materially impact the
Common Elements or the APT Transponders, APT and Loral Orion shall
jointly approve them pursuant to the Management Agreement.
5.3 Loral Orion acknowledges that it has reviewed the SS/L Contract and
agrees to all the terms and conditions contained therein and that it
shall be bound by all actions taken by APT with respect thereto or with
regard to the selection of the launch services provider or with regard
to the launch services contract, provided such action is taken in full
compliance with the obligations of the Management Agreement.
5.4 Loral Orion acknowledges that:
EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED IN THIS AGREEMENT, APT HAS
NOT MADE, NOR DOES IT MAKE, ANY REPRESENTATION OR WARRANTY, WHETHER
WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
WARRANTY OF DESIGN, OPERATION, CONDITION, QUALITY, SUITABILITY OR
MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, ABSENCE
OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, WITH REGARD TO
THE SATELLITE OR ANY OTHER DELIVERABLE ITEM UNDER THE SS/L CONTRACT,
AND APT HAS NOT MADE ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF
ANY LAUNCH VEHICLE.
5.5 Loral Orion agrees to be bound by the no-fault, no-subrogation
inter-party waiver of liability and related indemnity provisions
provided in the Launch Services Agreement and to cause its contractors
and subcontractors at any tier (including suppliers of any kind) that
are involved in any performance of this Agreement and any other person
who through Loral Orion has an interest in the Satellite or any
transponder thereon, as required by the Launch Services Agreement, to
accede to such waiver. Loral Orion shall execute and deliver any
instrument that may be reasonably required by the Launch Agency to
evidence its agreement to be bound by such waiver. In no event shall
such no-fault, no-subrogation inter-party waiver and related indemnity
provisions have any effect on the rights, obligations, and liabilities
of and between Loral Orion and APT under this Agreement or under the
other Transaction Documents.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each of the parties, as of the date hereof, hereby represents and warrants to
the other, as follows:-
6.1 Organization and Standing. It is a company with limited liability duly
organized, validly existing and in good standing under the laws of the
place of its incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
businesses as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and
authority would neither have a material adverse effect on its financial
condition, business or results of operation nor materially impair or
delay its ability to consummate the transactions contemplated hereby (a
"Material Adverse Effect").
6.2 Authority Relative to this Agreement. It has all corporate power and
authority to execute and deliver this Agreement and the other
Transaction Documents, and to perform all of its obligations hereunder
and thereunder. Its execution and delivery of this Agreement and the
other Transaction Documents, and its performance of its obligations
hereunder and thereunder have been duly authorized by all necessary and
proper corporate action. This Agreement and the other Transaction
Documents have been duly executed and delivered by it and constitute
the legal, valid and binding obligations, enforceable against it in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or
affecting creditors' rights and subject, as to enforceability, to
general principles of equity (regardless whether enforcement is sought
in a proceeding in equity or at law).
6.3 Noncontravention. Its execution and delivery of this Agreement and the
other Transaction Documents, its performance of its obligations to be
performed hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby will not (i) contravene or
conflict with its memorandum and articles of Association, by-laws or
other organizational documents; (ii) contravene or conflict with or
constitute a violation of any provision of any laws or license to which
it or any of its properties or assets is subject; or (iii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, cause it to make an offer to purchase under, create in
any party the right to accelerate, terminate, modify or cancel, require
any notice or give rise to a loss of any benefit under, any contract,
lease, lien or other arrangement to which it is a party or by which is
bound or to which any of its properties or assets is subject or result
in the creation or imposition of any liens on any of its assets, other
than any loss of benefit, lien or any other such event which would not
have a Material Adverse Effect.
6.4 Governmental Proceeding; Litigation. Except for the Consent Agreement
dated January 9, 2002 entered into by Loral Space & Communications Ltd.
with the U.S. Department of State and any export control approvals,
licenses, technical assistance or other similar agreements obtained to
date or required by applicable law, there is not in
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effect any judgment, order, writ, decree, stipulation or injunction by
or with any governmental entity to which it or any of its Affiliates is
party or by which it or any of its Affiliates or any properties or
assets of any of the foregoing is bound, and which relates to or
affects this Agreement or the transactions contemplated hereby, and
neither it nor any of its Affiliates is party to, engaged in or, to its
Knowledge, threatened with any Action which relates to or affects this
Agreement or the transactions contemplated hereby, and, to its
Knowledge, no event has occurred and no condition exists which could
reasonably be expected to result in any such Action. Neither it nor any
of its Affiliates is in default under or with respect to any judgment,
ruling, order, writ, decree, stipulation or injunction of the type
described in this Paragraph.
ARTICLE 7
LEASE OF ADDITIONAL TRANSPONDERS
7.1 Loral Orion may elect to lease from APT additional standard C-band
frequency transponders on the Satellite or on APSTAR VI, if available.
Loral Orion shall give written notice to APT of its desire to lease an
additional transponder, which notice shall identify the desired number
of transponders, the proposed lease term, and the desired protection
level. APT shall respond within fifteen (15) days of receipt of such
notice, as to whether such transponder is available. If APT responds
that such transponder is available, it shall propose the terms and
conditions for such lease. APT agrees that such terms and conditions
shall reflect the fact that Loral Orion is entitled to "most favored
customer" status in respect of such lease, subject to all relevant
terms being equal. The parties agree that they will look to APT's
leases in the ordinary course of business with wholesale customers (as
opposed to retail customers) for purposes of determining "most favored
customer" status and the parties shall negotiate the terms of any such
lease on an arms length basis. APT may decline to lease additional
transponder(s) to Loral Orion under this Paragraph 7.1, even if
available, if Loral Orion's proposed term for such lease is less than
twelve (12) months. Further, if the term of such lease arrangement is
to the End of Life of the Satellite or APSTAR VI, as the case may be,
Loral Orion shall have follow-on rights to continue such lease
arrangement in respect of the relevant successor satellite on terms and
conditions substantially similar to those set forth under the original
lease arrangement, except for price, which shall be agreed upon by the
parties, based on the "most favored customer" pricing then available on
such successor satellite.
7.2 Loral Orion may also elect to lease the transponders on APSTAR 1, if
available, that correspond to the standard C-band Initial Loral
Transponders on the Satellite, on the most favored customer terms
described in Paragraph 7.1 above. Loral Orion shall give written notice
to APT of its desire to lease an additional transponder, which notice
shall identify the desired number of transponders, the proposed lease
term, and the desired protection level. APT shall respond within
fifteen (15) days of receipt of such notice, as to whether such
transponder is available, and if so, shall propose the terms and
conditions for such lease.
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ARTICLE 8
[RESERVED]
ARTICLE 9
ORBITAL SLOT
9.1 Coordination Activities.
9.1.1 APT shall keep Loral Orion fully informed of the status of all
coordination activities relating to the Orbital Slot and
shall, if so requested by Loral Orion, allow Loral Orion to
participate in such activities, subject to the restrictions of
OFTA and other relevant governmental authorities and of any
license arrangements with regard to the Orbital Slot. APT
agrees that it will not, without Loral Orion's prior written
consent, take any action or enter into any agreement in
relation to the Orbital Slot that materially impacts the Loral
Transponders or involves the payment of money or other
financial accommodation which will be borne by Loral Orion.
APT shall use its reasonable best efforts to fully enforce the
terms of coordination agreements entered into for the benefit
of the Satellite or any successor satellite.
9.1.2 APT has taken all actions required of APT to date to
coordinate the Satellite in the Orbital Slot. Annex F sets
forth (i) all material restrictions on the Satellite resulting
from coordination activities as of the date hereof, (ii) all
material agreements or commitments relating to coordination
proceedings for the Orbital Slot and all Summary Record
Documents, true and complete copies of which were previously
provided to Loral, (iii) lists of all the countries and
operators with which the operator of the Satellite has been or
will be required to enter into coordination discussions and
the status of those discussions.
9.1.3 APT will use its reasonable best efforts so that (i) the Loral
Transponders will not suffer from any unacceptable
restrictions, as reasonably determined by Loral Orion (after
consultation with APT), with regard to allowing unencumbered
carrier loading on the transponders and (ii) operation of the
Loral Transponders will be free of unacceptable interference,
as reasonably determined by Loral Orion (after consultation
with APT), from adjacent satellite operations, subject however
in each case to any regulatory restrictions or restrictions
contained in coordination agreements relating to the Orbital
Slot presently existing or permitted under Paragraph 9.1.1.
APT will use its reasonable best efforts so that Loral Orion
may place either analog or digital carriers on the Loral
Transponders without restrictions as full transponders, single
channel per carrier, or multiple channels per carrier.
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9.2 License Rights.
APT shall, in consultation with Loral Orion,
(a) make all regulatory filings and take such other actions on a
timely basis with the MII, the OFTA, TongaSat, the ITU and the
applicable governmental entities of those jurisdictions to
which the Satellite may provide coverage, as may be necessary
or appropriate to secure and maintain its rights to utilize
the Orbital Slot, including without limitation, using its best
efforts to preserve the unencumbered and unrestricted use of
the Orbital Slot and diligently prosecuting renewal of the ITU
authorization during a reasonable period prior to its
scheduled expiration date;
(b) use its best efforts to achieve, maintain and renew
notification for the Orbital Slot at the ITU and have the
filing entered in the ITU Master Frequency Register; and
(c) make such filings as Loral Orion may reasonably request,
including filings to expand the frequencies and coverage area
of the Orbital Slot.
9.3 APT shall use its best efforts to provide Loral Orion with quiet
enjoyment of the Orbital Slot.
9.4 APT shall keep Loral Orion fully informed with regard to its license
agreements and all regulatory filings, correspondence and notices from
or with MII, OFTA, TongaSat, the ITU and relevant governmental entities
relating to the authorization to use the Orbital Slot.
9.5 On or before February 1, 2003, APT and Loral Orion shall jointly
commence negotiations with TongaSat for the renewal of APT's rights to
use the Orbital Slot, including the extended C and Ku-band frequencies.
As part of these negotiations, APT and Loral Orion shall offer to help
TongaSat to improve its filing status in exchange for a lower Orbital
Slot license fee. At the same time, APT will explore the use of the MII
and OFTA filings and possible coordination arrangements with other
networks. After such activities, APT and Loral Orion will evaluate the
results of such efforts in order to jointly decide on a course of
action designed to maximize the parties' ability to use the licensed
frequencies with the fewest constraints, allowing maximum marketability
of their payloads.
9.6 Loral Orion and APT will share the Orbital Slot license fees as
follows:
(a) if such fee is a fixed one-time fee, then 50/50;
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(b) if such fee is a fixed periodic fee, then in a ratio equal to
the ratio between the number of transponders held by each
party during the period in question (pro rated for any change
in relative ownership during such period); and
(c) if such fee is revenue-based, then such fee will be borne by
the owners of the transponder(s) generating the revenues.
If the negotiations with TongaSat for the renewal of APT's rights to
use the Orbital Slot result in any part of the Orbital Slot license
fees being different from those described in clauses (a), (b) and (c)
above, the parties shall agree on how to share such fees. Following the
said negotiations with TongaSat, the parties shall agree on the payment
method to be adopted for payment of each party's share of the fees with
the understanding that any revenue-based fees shall be paid by each
party directly to the Orbital Slot licensor. Neither party shall have
rights to information regarding the revenue-based payments of the other
party, and any audit rights required by the Orbital Slot licensor with
regard to such revenue-based payments shall be solely for the benefit
of the Orbital Slot licensor. APT and Loral Orion agree that except as
set forth in this Paragraph 9.6 or in the Services Agreement, no other
amounts shall be payable by Loral Orion with regard to the Orbital
Slot, except as may be incurred by Loral Orion with respect to its
participation in coordination activities as contemplated by Paragraph
9.1.1 above.
ARTICLE 10
LANDING RIGHTS
10.1 APT and Loral Orion will each cooperate with, and assist the other, on
a reasonable best efforts basis, in obtaining such consents, and
otherwise complying with such requirements, as may be required or
imposed, from time to time, by the governments of the People's Republic
of China and the United States in connection with the use of
transponders on the Satellite, in each case to the extent such approval
or compliance is needed for a party's transponders to be allowed to
provide service in the People's Republic of China or the United States,
respectively.
10.2 Each of APT and Loral Orion agrees, and each will require any lessee or
user of any transponder to agree, to restrict its use of the
transponders to transmission only for any lawful purpose and agrees to
comply in all material respects with all applicable laws and government
regulations.
ARTICLE 11
SUCCESSOR SATELLITE RENEWAL
11.1 Loral Orion shall have the right, but not the obligation, to
participate in the ownership of up to fifty percent (50%) of the
transponder capacity on the successor satellite, if any, to the
Satellite or the number of transponders on Loral Orion's Payload at the
End of Life
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of the Satellite, whichever is greater; provided it exercises such
right by giving written notice thereof to APT no later than three (3)
years before the scheduled End of Life of the Satellite, as notified by
APT in writing to Loral Orion.
11.2 The terms and conditions of such participation shall be substantially
similar to the terms hereof (including but not limited to transponder
types and specific transponder assignments and rights with respect to a
successor satellite) except for appropriate adjustments based on
satellite capabilities and cost; provided however that if Loral Orion
shall participate in less than forty percent (40%) of Adjusted
Transponder Capacity, the price shall not be at cost, but rather shall
be calculated using a cost-plus formula based on the percentage of
Adjusted Transponder Capacity taken up, as follows:
------------------------------------------------------------------------------
Percentage of Adjusted Transponder Capacity Price Calculation
------------------------------------------------------------------------------
1 - 4% Cost plus 40%
------------------------------------------------------------------------------
5 - 9% Cost plus 35%
------------------------------------------------------------------------------
10 - 14% Cost plus 30%
------------------------------------------------------------------------------
15 - 19% Cost plus 25%
------------------------------------------------------------------------------
20 - 24% Cost plus 20%
------------------------------------------------------------------------------
25 - 29% Cost plus 15%
------------------------------------------------------------------------------
30% - 34% Cost plus 10%
------------------------------------------------------------------------------
35 - 39% Cost plus 5%
------------------------------------------------------------------------------
40% - 100% Cost
------------------------------------------------------------------------------
11.3 "Adjusted Transponder Capacity" shall equal
(a) the amount of the transponder capacity on the Satellite, if
the transponder capacity on the successor satellite is greater than the
transponder capacity on APSTAR V; or
(b) the transponder capacity on the successor satellite, if the
transponder capacity on the successor satellite is less than the
transponder capacity on APSTAR V.
11.4 If APT decides not to launch a replacement satellite having capacity
and capability that is the same as or better than that of the
Satellite, Loral Orion shall be offered the first opportunity to
replace the Satellite, including assignment, subject to any necessary
consents, of the TongaSat and ChinaSat orbital slot agreements and any
other relevant licenses so that replacement can occur before the End of
Life of the Satellite. If such assignment cannot be effected in whole
or in part, then APT and Loral Orion shall enter into an agreement to
enable Loral Orion to use the Orbital Slot with respect to such license
rights which cannot be assigned. If Loral Orion launches a replacement
satellite, APT shall have the same rights, mutatis mutandis, as Loral
Orion to participate in the ownership of capacity in the successor
satellite as set forth in Paragraphs 11.1 through 11.3 above.
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ARTICLE 12
EFFECTIVE DATE OF THIS AGREEMENT
This Agreement shall become effective on the date (the "Effective Date") set
forth on the signature page hereof.
ARTICLE 13
PLEDGES
Neither APT nor Loral Orion shall have the right to pledge, mortgage, charge,
grant any security interest in, or otherwise encumber all or part of its
interest in the Satellite, except for the purpose of security relating to
financing (whether new or existing), and then only provided that:
(a) such party shall remain liable for all obligations hereunder relating
to such interest;
(b) the encumbrance shall be subject to any necessary approvals or
restrictions of any relevant governmental authority or
telecommunications administration; and
(c) satisfactory arrangements as agreed between the parties (including a
party's lenders) shall have been made to recognize and protect the
rights of the other party under this Agreement and the Transaction
Documents.
ARTICLE 14
TRANSFER
14.1 In the event APT or Loral Orion desires to transfer (other than sales
to customers in the ordinary course of business in the form of long
term leases or otherwise) all or part of its interest in the Satellite
other than to an Affiliate, such transfer shall be subject to a right
of first offer in favor of the other party, the terms and procedures of
which are set forth in the Management Agreement.
14.2 In the event the other party declines to exercise its right of first
offer, the transferring party may transfer its interests to a third
party in accordance with the terms set forth in the Management
Agreement, provided the transferee agrees to be bound by the relevant
terms of this Agreement and the Transaction Documents and any necessary
governmental approvals required in connection with maintaining the
right to use the Orbital Slot have been obtained.
14.3 In the event APT transfers its interest in the Satellite to a third
party, APT shall remain fully obligated to Loral Orion, regardless of
such third party's agreement to be bound by the terms of this
Agreement, with regard to the performance of all obligations set forth
herein that do not pertain or relate exclusively to the Satellite,
including but not limited to obligations regarding the Orbital Slot,
the APSTAR 1 satellite, the APSTAR VI satellite, and any successor
satellite.
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ARTICLE 15
RELATIONSHIP OF THE PARTIES
The rights and obligations of the parties hereunder shall be individual, not
joint or collective. It is not the intention of the parties to create, nor shall
this be deemed or construed to create a partnership, joint venture, association
or trust, or as authorizing any party to act as an agent, servant or employee
for any other party for any purpose except as explicitly set forth herein.
ARTICLE 16
TAXES
Each of APT and Loral Orion shall be responsible for the payment of any and all
taxes assessed on the construction, use and operation of its respective Payload.
ARTICLE 17
ENTIRE AGREEMENT, TRANSACTION DOCUMENTS
17.1 APT and Loral Orion are entering into the following agreements
contemporaneously herewith to implement the terms of the Term Sheet: -
(a) Management Agreement
(b) Services Agreement
(c) Marketing Agreement
(d) Confidentiality Agreement
In addition, APT and SS/L are entering into an Amendment of the SS/L
Contract to implement the relevant terms of the Term Sheet solely
relating to the SS/L Contract.
17.2 This Agreement and the other Transaction Documents together constitute
the entire agreement and understanding between the parties in
connection with the transactions hereby contemplated. The Transaction
Documents supersede all previous agreements (including the Term Sheet),
arrangements and understandings between the parties with regard to such
transaction which shall cease to have any further force or effect. No
party is entering into any of the Transaction Documents or any of the
arrangements hereby contemplated in reliance upon any representation,
warranty or undertaking which is not expressly set out or referred to
in any of the Transaction Documents.
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ARTICLE 18
TERMINATION
18.1 This Agreement may be terminated as follows:
(a) By mutual written agreement of the parties;
(b) By either party by written notice to the other and in
accordance with Article 20 hereof in the event of a default by the
other party provided such default meets the requirements stated in said
Article 20; and
(c) By either party by written notice to the other if the other
party becomes insolvent, enters into a general suspension of payments,
bankruptcy, makes a general assignment for the benefit of creditors,
admits in writing its inability to pay debts as they mature, suffers or
permits the appointment of a receiver for substantially all of its
business or assets, or avails itself of or becomes subject to any other
judicial or administrative proceeding that relates to insolvency or
protection of creditors' rights. In such event the other party shall
have a right of first refusal or option to purchase the interest in the
Satellite then owned by such party on the same terms and conditions as
may be offered to any third party in a sale of such party's assets,
including any auction or liquidation sale.
(d) By the Non-Force Majeure Party, by giving at least thirty (30)
days' prior written notice to the Force Majeure Party, if an event of
force majeure as described in Article 19 below prevents the Force
Majeure Party from performing its fundamental obligations hereunder for
a period of more than 120 days.
18.2 Termination of this Agreement shall not affect: (i) either Party's
obligations under any other Transaction Document, (ii) title to the
Loral Transponders and the Common Elements that transferred to Loral
Orion pursuant to Article 2 of this Agreement prior to such
termination, or (iii) either Party's obligations pursuant to Articles
9, 10, 11, and 13 of this Agreement, which obligations shall expressly
continue for so long as both Parties possess an economic interest in
the Satellite.
ARTICLE 19
FORCE MAJEURE
19.1 Neither party shall be liable for nonperformance or delays in
performance when caused by acts or events which are beyond the
reasonable control of the delayed party, including but not limited to
the following: acts of God, acts of the public enemy, acts of civil or
military authority, governmental priorities, strikes or other labor
disturbances, hurricanes, earthquakes, fires, floods, epidemics,
embargoes, war, and riots. In the event of any such delay the date of
delivery or of performance of the obligation affected by the force
majeure event shall be extended for a period equal to the effect of
time lost by reason of the delay.
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19.2 A party claiming delay in delivery or performance due to an event of
force majeure as set forth herein (the "Force Majeure Party") shall
send written notice thereof and a statement of particulars to the other
party (the "Non-Force Majeure Party") within a reasonable time.
19.3 The party affected shall take appropriate measures to minimize or
remove the effects of the event of force majeure and, within the
shortest time possible, shall attempt to resume performance of the
obligations affected by the event of force majeure.
19.4 Each party shall use its best efforts to minimize the losses and
damages caused and/or to be caused to the other party by an event of
force majeure. Both parties shall consult as soon as possible to find
an appropriate solution.
ARTICLE 20
DEFAULT
20.1 Monetary Default. Should either APT or Loral Orion fail to make timely
payment of any amount required hereunder in accordance with the
provisions defined herein, and such failure to pay shall have continued
for a period of three (3) months, the party in breach shall pay
interest to the other party at the 30-day LIBOR rate plus two percent
(2%) per annum in respect of the amounts in arrears. Such interest
shall be calculated on a daily basis from the date payment was due
until the date payment is received by the non-breaching party. Should
the party in breach continue to fail to make such payment for a period
of nine (9) months in the aggregate, then in addition to the interest
amount due from the breaching party, the other party shall have the
right to terminate this Agreement and to claim damages from the party
in breach in accordance with the provisions of Paragraph 20.4 hereof.
20.2 Non-Monetary Default. Should either APT or Loral Orion fail to cure a
material breach of any provisions of this Agreement (other than
provisions regarding payment of monies, which are provided for in
Paragraph 20.1 above) within forty-five (45) days after receipt of
written notice from the other party outlining such breach, then the
other, non-breaching party shall have the right to terminate this
Agreement and to claim damages from the party in breach in accordance
with the provisions of Paragraph 20.4 hereof.
20.3 In the event Loral Orion fails to make timely payment of any amount due
on a Take Up Date pursuant to Paragraph 3.3, APT shall retain the title
to the related Remaining Loral Transponders (and all other Remaining
Loral Transponders for which payment has not yet been made in full) and
all proceeds therefrom and shall not be required to obtain Loral
Orion's consent to enter into commercially reasonable lease agreements
for such Remaining Loral Transponders, even if such lease or other
rights would extend beyond the relevant Take Up Date but Loral Orion's
consent right with respect to future lease agreements which extend
beyond the relevant Take Up Date shall be reinstated at such
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time as it shall have cured its payment default. If such delay
continues for a period of nine (9) months after the scheduled Take Up
Date, Loral Orion shall no longer be entitled to take up the relevant
Remaining Loral Transponders.
20.4 If the other party suffers any cost, liability or loss as a direct
result of a material breach of this Agreement by any party, and such
breach shall not have been cured by such party within forty-five (45)
days from receipt of notice of breach, the party in breach shall
indemnify and hold the non-breaching party harmless in respect of any
such cost, liability or loss; provided always, however, that in no
event shall a party be liable under any theory of tort, contract,
strict liability, or other legal or equitable theory, for any indirect,
special, incidental, or consequential loss or damage (including without
limitation, loss of profit or business opportunity).
ARTICLE 21
CONFIDENTIALITY
21.1 No press release, announcement or disclosure to a third party
concerning the transactions contemplated hereby will be made by any
party hereto without the prior consent of the other party hereto,
except as such release, announcement or disclosure may be:-
(a) required by law or the rules of any applicable securities
exchange;
(b) necessary to be made to a party's lenders for financing
purposes provided that such lenders agree to maintain the
confidentiality of any such disclosed information on customary
and reasonable terms; or
(c) is or becomes publicly known, otherwise than as a consequence
of a breach of this Agreement.
21.2 The parties are entering into a Confidentiality Agreement
contemporaneously herewith covering disclosure of information that may
be made in connection with the parties' performance under the
Transaction Documents. The rights and obligations thereunder shall
apply to all such proprietary information disclosed in the
implementation or performance of this Agreement.
ARTICLE 22
ASSIGNMENT
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither
this Agreement nor any of the rights or obligations hereunder may be assigned
without the prior written consent of the other party except for (i) assignments,
in whole or in part, to an Affiliate, provided that notwithstanding any such
assignment to an Affiliate, the assigning party shall, unless otherwise
consented to by the other
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party, nevertheless remain responsible for all obligations hereunder; and (ii)
assignments by way of security to any entity for the purpose of security
relating to financing, subject to compliance with the requirements of Article 13
hereof, or otherwise with the written consent of the other Party. In the event
that APT shall wish to assign its rights and obligations hereunder to an
Affiliate, it may do so, provided however that Loral Orion will not be adversely
affected or prejudiced by any assignment or delegation by APT to its Affiliate
of its rights and obligations under the MII and OFTA filings and under the
license agreements with TongaSat and ChinaSat with respect to the Orbital Slot.
ARTICLE 23
GOVERNING LAW
This Agreement and the Transaction Documents will be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the choice of law principles therein.
ARTICLE 24
DISPUTE RESOLUTION
In the event that a dispute arises out of or relates to this Agreement, Loral
and APT shall attempt to resolve such dispute through friendly consultation. If
the parties are unable to resolve the matter in dispute through consultation
within thirty (30) days following the date on which one party's request for
consultation is delivered to the other party, the parties shall resolve the
dispute through arbitration. The party shall submit the dispute to arbitration
in Singapore to the Singapore International Arbitration Centre for resolution in
accordance with the arbitration rules of that body, in which case:-
(a) there should be three (3) arbitrators (one appointed by each party and
the third arbitrator appointed by the Singapore International
Arbitration Centre);
(b) all proceedings in any such arbitration shall be conducted in English;
and
(c) any such arbitration award shall be final and binding on the parties.
A dispute arising under this Agreement may be consolidated with any arbitration
proceeding relating to the other Transaction Documents, and vice versa. The
arbitrators may not limit, expand or otherwise modify the terms of this
Agreement or award exemplary or punitive damages or attorney's fees. The
arbitrators shall apply the substantive (not the conflicts) law of the state
specified in the governing law provision set forth in Article 23 above. The
award shall be in U.S. Dollars. Judgment upon the award rendered in the
arbitration may be entered in any court having jurisdiction thereof. Unless
otherwise determined by the arbitration award, each party shall bear its own
expenses (including attorney's fees) and an equal share of the expenses of the
arbitrators and the fees of the Singapore International Arbitration Centre. The
parties shall require that the arbitrators and the arbitral body shall hold the
existence, content and result
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of the arbitration in confidence. Nothing in this clause shall be construed to
preclude any party from seeking injunctive relief in order to protect its rights
pending arbitration. A request by a party to a court for such injunctive relief
shall not be deemed a waiver of the obligation to arbitrate.
ARTICLE 25
NOTICES
Any notice, request, demand, waiver, consent, approval or other communication
required or permitted to be given hereunder shall be in writing and shall be
delivered by hand, by facsimile (with confirmation of receipt), or by DHL or
other comparable international courier service, return receipt required, as
follows:-
If to Loral, to:
Loral Orion, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attention: General Counsel
If to APT, to:
APT Satellite Company Limited
Rooms 3111-3112
Xxx Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Facsimile No.: 852-2522-0419
Attention: Xx. Xxxxx Xx and Xx. Xx Xxxx Xxxx
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed given when so delivered
by hand or faxed, or two business days after being sent in the case of
international courier service.
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ARTICLE 26
MISCELLANEOUS
26.1 Headings
The headings in this Agreement and the Annexes are inserted for
convenience of reference only and shall not constitute a part hereof.
26.2 Severability
Any provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall be ineffective to the extent of such invalidity
or unenforceability without invalidating or rendering unenforceable the
remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
26.3 Expenses
Except as specifically provided otherwise in this Agreement, the
parties hereto shall pay all of their own expenses relating to the
transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel,
accountants and financial advisors.
26.4 Time of the Essence
Time shall be of the essence of this Agreement, both as regards the
dates and periods specifically mentioned and as to any dates and
periods which may be substituted by agreement in writing of the
parties.
26.5 Amendment
No variation or amendment of this Agreement shall be valid unless it is
in writing and signed by or on behalf of both parties to this
Agreement.
26.6 Waivers
No failure or delay by any party in exercising any right or remedy
provided by law under or pursuant to this Agreement shall impair such
right or remedy or be construed as a waiver or variation of it or
preclude its exercise at any subsequent time and no single or partial
exercise of any such right or remedy shall preclude any other or
further exercise of it or the exercise of any other right or remedy.
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26.7 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same document.
26.8 Survival of Obligations
The obligations of the Parties under this Agreement which by their
nature logically would be expected to survive termination,
cancellation, or expiration of this Agreement, including without
limitation those set forth in Paragraphs 9, 10, 11, 13, 15, 17, 18, 20,
23, 24, 25, and 26, shall survive termination, cancellation, or
expiration of this Agreement for the applicable time period specified
in such section or, if no time period is specified, for a reasonable
period of time under the circumstances.
THIS AGREEMENT HAS BEEN SIGNED THIS 10th DAY OF December, 2002.
APT SATELLITE COMPANY LIMITED LORAL ORION, INC.
By: /s/ Xxxxx Xx By: /s/ Xxxxx Xxxxx
--------------------------- -----------------------
Name:Xxxxx Xx Name: Xxxxx Xxxxx
Title: Vice President Title: Vice President and Ass't Secretary
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SCHEDULE 1
DEFINITIONS
In this Agreement the terms set forth hereinafter shall have the meanings
defined in this Article:
"Action" means any action, suit or proceeding at law or in equity,
arbitration, inquiry, investigation or governmental, administrative,
regulatory or other proceeding by or before any governmental entity.
"Adjusted Transponder Capacity" shall have the meaning set forth in
Paragraph 11.3.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common
control with such Person. For purposes of the immediately preceding
sentence, the term "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control with"),
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through ownership of
voting securities, by contract or otherwise.
"Agreement" means this agreement (including the Schedules and Annexes
hereto), as the same may be amended, modified or supplemented from time
to time in accordance with its terms.
"APSTAR I" means the satellite with 24 C-Band transponders located at
geostationary orbital slot at 138 degrees east longitude.
"APSTAR VI" means the new satellite based on a SB4000 model satellite
with 38 C-band and 12 Ku-band transponders to be built and delivered to
APT by Alcatel Space Industries.
"APT Transponders" shall mean all transponders on the Satellite that
are not identified as Loral Transponders.
"APT" shall have the meaning set forth in the preamble to this
Agreement.
"ChinaSat" means China Telecommunications Broadcast Satellite
Corporation.
"Common Elements" means the elements on the Satellite that are common
to and/or shared by the Loral Orion Payload and the APT Payload.
"Confidentiality Agreement" means the confidentiality agreement entered
into by APT and Loral Orion with respect to the confidentiality of
proprietary information relating to the Satellite.
"Effective Date" shall have the meaning set forth in Article 12 hereof.
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"End of Life" means the date on which the actual orbital maneuver life
of a satellite is permanently terminated.
"Force Majeure Party" shall have the meaning set forth in Paragraph
19.2 hereof.
"Hong Kong" means the Hong Kong Special Administrative Region of the
PRC.
"Initial Amount" shall have the meaning set forth in Paragraph 3.2
hereof.
"Initial Loral Transponders" shall mean the 13.5 Loral Transponders
which are initially acquired by Loral Orion as described in Paragraph
2.3.1 hereof.
"Knowledge" means actual knowledge after reasonable inquiry and
investigation.
"Launch Agency" means the provider responsible for conducting the
launch services for the Satellite pursuant to the Launch Services
Agreement.
"Launch Services Agreement" or "LSA" means the contract entered into by
SS/L (and if the Launch Agency so agrees, APT and Loral Orion as
additional parties) with a Launch Agency pursuant to Article 6 of the
SS/L Contract, which contract provides for launch services for the
Satellite, as such contract may be amended from time to time in
accordance with its terms.
"LIBOR" means the rate of interest per annum, at any relevant time, at
which thirty (30) day U.S. dollar deposits are offered at such time in
the London interbank market.
"Loral Orion" shall have the meaning set forth in the preamble to this
Agreement.
"Loral Transponders" shall have the meaning set forth in Paragraph 2.1
hereof.
"Management Agreement" means the agreement entered into by APT and
Loral Orion with regard to the management of all matters regarding the
construction and operation of the Satellite and the decision-making
authority relative thereto.
"Marketing Agreement" means the agreement entered into by APT and Loral
Orion with regard to the marketing of the Remaining Loral Transponders
prior to their take up by Loral Orion.
"MII" means the Ministry of Information Industries of the PRC.
"Non-Force Majeure Party" shall have the meaning set forth in Paragraph
19.2 hereof.
"OFTA" means the Office of Telecommunication Authority in Hong Kong.
"Orbital Slot" means the geostationary orbital slot located at 138
degrees east longitude.
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"Payload" of a party means the transponders on the Satellite to which
such party has title on the date in question.
"Person" means any individual, partnership, joint venture, trust,
corporation, limited liability entity, unincorporated organization or
other entity (including a governmental entity).
"PRC" means the People's Republic of China, excluding, for purposes of
this Agreement only, Hong Kong, Macau and Taiwan.
"Related Orion Agreement" shall mean the agreement dated December __,
2002 entered into between SS/L and Loral Orion pursuant to which among
other things, Loral Orion agrees to pay a portion of the purchase price
of the Satellite under the SS/L Contract.
"Remaining Loral Transponders" shall mean all the Loral Transponders
other than those which are identified and designated as Initial Loral
Transponders.
"Satellite" means the SS/L FS 1300 satellite designated as APSTAR V and
to be built and delivered by SS/L to APT pursuant to the SS/L Contract.
"Services Agreement" means the agreement entered into by APT and Loral
Orion with regard to the TT&C, Access Management and Coordination
services to be provided by APT for the Satellite.
"SS/L" shall have the meaning set forth in the preamble to this
Agreement.
"SS/L Contract" means the satellite procurement contract dated as of
January 8, 2001, between APT and SS/L, including all amendments
thereto.
"Subsidiary" of a specified Person means any corporation or other
entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the Board of Directors or other
Persons performing similar functions are directly or indirectly owned
by such Person.
"Take Up Date" shall have the meaning set forth in Paragraph 2.3.2
hereof.
"Term Sheet" shall have the meaning set forth in the preamble to this
Agreement.
"TongaSat" means Friendly Islands Satellite Communication Ltd. of the
Kingdom of Tonga.
"Transaction Documents" means this Agreement, the Management Agreement,
the Services Agreement, the Marketing Agreement and the Confidentiality
Agreement.
"TT&C" means telemetry, tracking and command.
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