Exhibit 10.15.5
PanAmSat /MultiLaunch Amdt 3/95.5.933
Confidential ARIANESPACE PROPRIETARY
AMENDMENT#3 TO THE
AGREEMENT FOR THE
LAUNCHING INTO GEOSTATIONARY
TRANSFER ORBIT
OF PANAMSAT SATELLITES
BY AN ARIANE LAUNCH VEHICLE
1
AMENDMENT #3 TO THE
MULTI LAUNCH SERVICES AGREEMENT
This Amendment 3 to the Multi Launch Services Agreement is entered into
BY AND BETWEEN
PanAmSat Corporation, hereinafter referred to as "Customer", a company
organized under the laws of the State of Delaware, with principal offices
located at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx XX, 00000 X.X.X.
ON THE ONE HAND,
AND
ARIANESPACE, a company organized under the laws of France with principal
offices located at Boulevard de l'Europe, Xxxxxxxx Xxxxxx, 00000 XXXX,
Xxxxxx, hereinafter referred to as "ARIANESPACE".
ON THE OTHER HAND,
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WHEREAS Customer has approached ARIANESPACE with a view to launching up to four
(4) PanAmSat Satellites using an ARIANE Launch Vehicle, and
WHEREAS ARIANESPACE has proposed to Customer either dedicated Launches, i.e.
Launches by an ARIANE Launch Vehicle the only payload of which is Customer's
Satellite, or Shared Launches, i.e. Launches by an ARIANE Launch Vehicle the
payload of which is made up at the same time of Customer's Satellite and the
satellites of Third Party Customer(s) of ARIANESPACE, and
WHEREAS Customer has selected Shared Launches under the conditions set forth
under this Agreement, being aware of the particular constraints involved in such
a Launch, and
WHEREAS Customer and ARIANESPACE, aware of the constraints involved in any
Launch operation and of the complex nature of the technologies involved, have
reached an agreement in accordance with the terms and conditions set forth in
Agreement 95.5.933 entered into by the Parties on 20 December 1995 ("the
Agreement").
WHEREAS the Parties have agreed to amend the Agreement in the manner set forth
in this Amendment #3 to the Agreement which shall replace the initial Terms and
Conditions of the Agreement and constitutes an amendment to the Agreement within
the terms of its Paragraph 20.6.
WHEREAS PanAmSat International Systems, Inc., formerly known as PanAmSat
Corporation ("PanAmSat International") has contemporaneously with the execution
of this amendment with ARIANESPACE's consent, assigned this Agreement to the new
PanAmSat Corporation.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS :
3
CONTENTS
PART I
TERMS AND CONDITIONS
Pages
ARTICLE 1 DEFINITIONS..................................................9
ARTICLE 2 SUBJECT OF THE AGREEMENT.....................................17
ARTICLE 3 CONTRACTUAL DOCUMENTS........................................18
ARTICLE 4 ARIANESPACE'S SERVICES......................................19
ARTICLE 5 CUSTOMER TECHNICAL ..........................................25
ARTICLE 6 LAUNCH SCHEDULE ............................................26
ARTICLE 7 COORDINATION BETWEEN ARIANESPACE AND CUSTOMER................28
ARTICLE 8 REMUNERATION.................................................29
ARTICLE 9 PRICE ESCALATION FORMULA.....................................38
ARTICLE 10 PAYMENT SCHEDULE............................................41
ARTICLE 11 LAUNCH POSTPONEMENTS/ACCELERATION...........................51
ARTICLE 12 RIGHT OF OWNERSHIP AND CUSTODY..............................60
ARTICLE 13 REPLACEMENT LAUNCH..........................................61
ARTICLE 14 ALLOCATION OF POTENTIAL LIABILITIES AND RISKS...............66
ARTICLE 15 INSURANCE...................................................72
ARTICLE 16 OWNERSHIP OF DOCUMENTS AND WRITTEN INFORMATION..............74
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CONFIDENTIALITY/PUBLIC STATEMENTS......................................74
ARTICLE 17 PERMITS AND AUTHORIZATIONS - GROUND STATIONS................77
ARTICLE 18 TERMINATION BY CUSTOMER.....................................78
ARTICLE 19 TERMINATION BY ARIANESPACE..................................84
ARTICLE 20 MISCELLANEOUS...............................................85
ARTICLE 21 APPLICABLE LAW..............................................89
ARTICLE 22 ARBITRATION.................................................90
ARTICLE 23 EFFECTIVE DATE..............................................91
PART II
A N N E X E S
ANNEX 1 LAUNCH SPECIFICATIONS
ANNEX 2 ARIANESPACE TECHNICAL COMMITMENTS
ANNEX 3 CUSTOMER'S TECHNICAL COMMITMENTS
ANNEX 4 LAUNCH RISK GUARANTEE
ANNEX 5 ESA - ARIANESPACE CONVENTION (EXTRACT)
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P A R T I
T E R M S A N D C O N D I T I O N S
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ARTICLE 1 DEFINITIONS
In this Agreement the terms set forth hereafter shall have the meaning given in
this Article:
Agreement means this Agreement as defined in Article 3 of this document, as
amended at the date hereof, including, without limitation, this Amendment #3.
Ancillary Equipment means all equipment, devices and software to be provided by
Customer on the Launch Base in order to make Satellite ready for Launch.
Associated Service(s) means those supplementary launch services defined in
Sub-paragraphs 4.2.2. and 4.2.3. of Article 4 of this Agreement.
Associates means all individuals or legal entities, organized under public or
private law, who shall act, directly or indirectly, on behalf or at the
direction of either Party to this Agreement or of the Third Party Customer(s) of
ARIANESPACE to fulfill the obligations undertaken by such Party in this
Agreement, or by the Third Party Customer(s) of ARIANESPACE including, without
limitation, the employees of each of the Parties, or of the Third Party
Customer(s) of ARIANESPACE, their suppliers and subcontractors at any tiers.
Base Rate means the Chase Manhattan Bank (N.Y.) prime rate plus one (1)
percentage point for any amount expressed in U.S. dollars, or the Taux de base
bancaire of Credit Lyonnais (Paris) plus one (1) percentage point for any amount
expressed in French Francs, or the yield at maturity of short term ECU
denominated bonds as published weekly on Wednesday by the Luxembourg Stock
Exchange plus one (1) point for any amount expressed in ECU.
Cash Option means, only in the event an Ariane 4 Launch Vehicle is designated to
perform the Launch Services, the option provided to Customer to receive a
payment from ARIANESPACE subject to the conditions specified in Sub-paragraph
4.6.2. of Article 4.
Combined Space Vehicle means the Launch Vehicle, and/or the Satellite, and/or
the satellite of any Third Party Customer(s) of ARIANESPACE, and/or their
components.
Commercial Insurance Market means the providers of insurance or reinsurance for
first party space-related risks on a regular basis that are not affiliated with
or controlled directly or indirectly by Customer.
Deviation means non compliance with the specifications included in the D.C.I.
(Document de Controle des Interfaces / Interface Control Document, including its
reference documents, applicable documents and annexes) of:
a) the performance of the various systems of the Launch Vehicle; and/or the
environmental conditions to which the Satellite was subjected during the
period from the
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instant when the Launch occurred until the instant when the
activation of either the propulsion and/or orientation systems of the
Satellite should have occurred; and/or
b) the behavior of the Satellite of (a) Third Party Customer(s) of ARIANESPACE
from the instant when the Launch occurred until the earlier of the
following:
-the instant when the propulsion and/or orientation systems of the
satellite of the Third party Customer(s) of ARIANESPACE are activated,
or
-the instant when the activation of either the propulsion and/or
orientation systems of the Satellite should have occurred.
Double Launch means a Launch with two satellites including the Satellite
supplied by Customer.
Elected Amount means an amount comprised between Thirty Million European
Currency Units (ECU30,000,000) and Eighty Five Million European Currency Units
(ECU85,000,000) elected by Customer when exercising the Relaunch Credit Option
or the Cash Option.
Events of Force Majeure means events such as but not limited to explosions,
fires, earthquakes, floods, bad weather and other Acts of God, wars, whether or
not declared, social uprisings, strikes, lock-outs and other labor problems,
governmental or administrative measures, and all other events beyond the
reasonable control of either Party or its Associates that impede the execution
of the obligations of either Party or its Associates and, including, but without
limitation, the accomplishment of the Launch within the Launch Period, Slot,
Day, Window or at Launch Time, provided such difficulties may not be overcome
using efforts which may reasonably be expected of the Party affected and/or its
Associates under the circumstances.
Guarantee Amount means an amount in European Currency Units (ECU's) determined
as follows:
0.7 ECU x LSP
$
Where LSP means the Launch Services Price determined under Paragraph 8.1.1. of
this Agreement, without taking into consideration the ECU/$ exchange rate.
For example, the Guarantee Amount for the Launch Services Price of the Firm
Launch #1 as set forth under Paragraph 8.1.1.A) shall be [**************]
Interested Party (ies) in the Launch means any individual or legal entity
governed by private or public law, that has commissioned ARIANESPACE to proceed
with the Launch, or has any interest including without limitation a legal
interest in the Launch Vehicle. For the
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
8
purpose of Article 14 of the Agreement,Interested Party(ies) in the Launch
shall be deemed ARIANESPACE Associates.
Interested Party(ies) in the Satellite means any individual or legal entity
governed by private or public law, that has commissioned Customer to proceed
with the Launch, or has any interest including without limitation a legal
interest in the Satellite to be so launched, including without limitation,
insurers, any person or entity to whom Customer has sold or leased, directly or
indirectly, or otherwise agreed to provide any portion of the Satellite or
Satellite service. For the purpose of Article 14 of this Agreement, Interested
Party(ies) in the Satellite shall be deemed Customer's Associates.
Interested Party(ies) in the satellite of the Third Party Customer(s) of
ARIANESPACE means any individual or legal entity that has commissioned the Third
Party Customer(s) of ARIANESPACE to proceed with the Launch or has any interest
including without limitation legal interest in this satellite to be so launched,
including without limitation, insurers, any person or entity to whom Third Party
Customer(s) of ARIANESPACE has sold or leased, directly or indirectly, or
otherwise agreed to provide any portion of the satellite or satellite services.
For the purpose of Article 14 of this Agreement, Interested Party(ies) in the
satellite of the Third Party Customer(s) of ARIANESPACE shall be deemed Third
Party Customer(s) of ARIANESPACE's Associates.
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L means the first day of the most recently agreed Launch Period or Launch Slot
(except for construing Articles 10 and 13.2.2 of this Agreement where, subject
to Paragraph 11.4. of this Agreement, L refers to the first day of the initial
Launch Period). Notwithstanding the foregoing, in the case of Optional Launch #1
and Optional Launch #2, for the purpose of the application of Article 10 to the
initial Launch Period, L shall mean the first day of the three month Launch
Period defined pursuant to Paragraph 6.2 for all payments due further to such
narrowing of the initial Launch Period.
Launch or Launching means the ignition of the 1st stage engine(s) (Viking
engines on Ariane 4 - Vulcain engine on Ariane 5) of the Launch Vehicle that has
been integrated with the Satellite supplied by Customer and with other
satellite(s) supplied by (a) Third Party Customer(s) of ARIANESPACE, if said
ignition is followed by (i) opening of the table clamps with consequent release
of the said Launch Vehicle for an Ariane 4 Launch Vehicle; or (ii) the order of
ignition of solid propellant booster(s) for an Ariane 5 Launch Vehicle.
Launch Abort means the launch operations of the Launch Vehicle that has been
integrated with the Satellite supplied by Customer and with other satellite(s)
supplied by (a) Third Party Customer(s) of ARIANESPACE up to the ignition of
first stage engine(s) of the Launch Vehicle (Viking engines on Ariane 4 -
Vulcain engine on Ariane 5) without the Launch occurring.
Launch Base means the ARIANE launch base in Kourou, French Guiana, including all
its facilities and equipment.
Launch Day or Day means a calendar day (established for the Launch pursuant to
this Agreement) within the Launch Slot during which the Launch Window is open.
Launch Failure means that:
a) the Satellite is destroyd or lost during the period extending from the
instant when the Launch occurred and the instant when the Satellite is
separated from the Launch Vehicle, or if such Satellite cannot be separated
from the Launch Vehicle; or
b) the occurrence, due to Deviation of a reduction, expressed in percentage,
of more than LFF of the operational capability of the Satellite for
Customer's intended communication purposes, using reasonable business
judgment.
10
LFF (Launch Failure Factor) means FIFTY PERCENT (50%), unless Customer procures
on the Commercial Insurance Market a policy of launch insurance applying the
Loss Quantum for the relevant Satellite, in which case LFF shall mean the
percentage specified in that insurance policy to define a constructive total
loss providing for the payment of the full amount of insurance. Said reduction
of the operational capability shall be determined by using the Loss Quantum.
Launch Opportunity means the availability to Customer of a Satellite position
within a Launch Period or Launch Slot for a Launch on a Launch Vehicle on which
the other allocated satellite(s) have a launch mission and a satellite mission
compatible with that of Customer(s)' Satellite(s) in accordance with Annex 1 to
this Agreement. This availability is linked to the time required to complete the
mission analysis studies and to select the Launch Vehicle/Satellite
configuration.
Launch Period or Period means a period of (3) three consecutive calendar months,
except in the case of Optional Launch #1 and Optional Launch #2, for which the
initial Launch Periods shall extend over a six month period.
Launch Possibility means a position for Customer's Satellite, made available by
ARIANESPACE (if necessary) postponing the launch of another satellite, on the
next scheduled launch within a Launch Period or Launch Slot, whose other
allocated satellite(s) have a launch mission, launch window, frequency, mass,
volume and satellite mission compatible with those of Customer's Satellite in
accordance with Annex 1. The availability of such a position is conditioned upon
there being sufficient time after the date of any request for postponement of
the Launch to have the mission analysis and the adaptation of the Launch/payload
interfaces carried out.
Launch Rank means the chronological position of the Satellite in order of the
satellites to be launched by ARIANESPACE fixed by reference to the Launch Period
or Launch Slot allocated to Customer's Satellite (as the same may from time to
time be postponed) pursuant to the Agreement and by reference to the Launch
Period or Launch Slot allocated to the satellites of other clients of
ARIANESPACE (as the same may from time to time be postponed) pursuant to the
agreements between ARIANESPACE and other clients.
Launch Services means the services to be provided by ARIANESPACE as defined in
(i) Paragraphs 1 and 4 of Annex 2 to this Agreement and (ii) Paragraph 4.5.
hereof. or if the Relaunch Credit Option or the Cash Option is exercised and
maintained (iii) Paragraph 4.6. hereof.
Launch Services Price means the price indicated under Paragraph 8.1.1. for the
relevant Launch including the discounts or escalators, if any.
Launch Slot or Slot means a period of one calendar month within a Launch Period
with daily Launch Window possibilities.
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Launch System means the launch assembly complex consisting of the ARIANE Launch
Vehicle, the Launch Base (ELA), and the Payload Preparation Assembly (EPCU).
Launch Time means the instant, within the Launch Window, that the ignition of
the first stage engines is scheduled to take place, defined in hours, minutes
and seconds (GMT Universal Time). The initial Launch Time occurs at the first
second of the opening of the Launch Window.
Launch Vehicle means the vehicle belonging to the ARIANE family chosen by
ARIANESPACE to perform the Launch.
Launch Vehicle Mission or Launch Mission means the mission assigned to the
ARIANE Launch Vehicle as defined in Annex 1 to this Agreement.
Launch Window means a time period as defined in Annex 1 to this Agreement.
Loss Quantum means the degradation factor of the Satellite resulting from the
application of determination mode as mutually agreed in good faith by the
Parties on or prior to L minus (-) THREE (3) months based on a Customer's
written proposal; provided, that, if Customer has taken out, either in insurance
or in reinsurance, on the Commercial Insurance Market for at least EIGHTY PER
CENT (80%) of the amount insured, one or more policy(ies) of launch insurance,
the determination mode of the loss quantum provided for in the insurance policy
with the higher cover, as delivered by Customer to ARIANESPACE on or prior to L
(-) minus THREE (3) months, shall apply. If a different determination mode is
further agreed with the Commercial Insurance Market, for that policy with higher
cover, this new determination mode shall consequently apply; it being understood
that Customer shall promptly inform ARIANESPACE, and in any event before the
Launch has occurred of any change.
Optional Launch means a Launch ordered by Customer as the result of the exercise
of a Launch Option.
Partial Failure means the occurrence due to a Deviation of a reduction of more
than a percentage defined as PFF but not more than LFF of the operational
capability of the Satellite for Customer's intended communication purposes,
using reasonable business judgment.
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PFF (Partial Failure Factor) means TWENTY PERCENT (20%), unless Customer
procures on the Commercial Insurance Market a policy of launch insurance
applying the Loss Quantum for the relevant Satellite in which case PFF shall
mean the percentage specified in that insurance policy to define the deductible
applicable for a partial loss. Said reduction of the operational capability
shall be determined by using the Loss Quantum.
Party or Parties means Customer or ARIANESPACE or both according to the context.
Payload Preparation Complex (Ensemble de Preparation Charges Utiles "EPCU")
means the complex composed of various facilities and equipment located in
Kourou, French Guiana, that is to be used by Customer for the preparation of the
Satellite for Launch.
[*******************************************************************************
**********]
Postlaunch Services means (i) the reports and range services as defined in
Paragraphs 1, 2, 3, and 4 of Annex 2 to this Agreement that are to be provided
to Customer by ARIANESPACE after the Launch and (ii) the services provided for
in Paragraph 4.5. hereof or if the Relaunch Credit Option or the Cash Option is
exercised and maintained (iii) Paragraph 4.6. hereof.
Property means the property that ARIANESPACE, and/or Customer, and/or their
respective Associates, and/or Third Party Customer(s) of ARIANESPACE, and/or
its(their) Associates, according to the context in which this term is used
hereunder, use(s) in connection with the performance of this Agreement or/and
any other agreements which may directly or indirectly have any effect on the
fulfillment of the obligations undertaken by the Parties including without
limitation, agreements entered into between ARIANESPACE and the Third Party
Customer(s) of ARIANESPACE. This Property shall also include the Property of
ARIANESPACE and the Property of Customer.
Property of ARIANESPACE means, for purposes of this Agreement, all tangible
property which ARIANESPACE shall use in connection with the Launch, or shall
place at Customer's disposal for this purpose, including without limitation the
Launch Vehicle and the Launch Base.
Property of Customer means, for purposes of this Agreement, all property which
Customer shall use for the Launch and the interface test(s), including in
particular, but without limitation, the Satellite and its Ancillary Equipment.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
13
Reflight means, only in the case when the previous Launch has been performed on
an Ariane 5 Launch Vehicle, a Replacement Launch under Paragraph 4.5. of Article
4 of this Agreement.
Relaunch Credit Option means, only in the event of an Ariane 4 Launch Vehicle is
designated to perform the Launch Services, the option provided to Customer for
(i) a credit on the price of a Replacement Launch if the Launch Mission results
in a Launch Failure, or (ii) a payment if the Launch Mission results in a
Partial Failure, as determined under Sub-paragraph 4.6.1 of Article 4 to this
Agreement subject to the conditions specified therein.
Replacement Launch means a Launch which, subject to the best efforts of
ARIANESPACE, follows a previous Launch when, for any reason whatsoever, the
Launch Vehicle Mission or the Satellite Mission of the previous launch has not
been accomplished.
Satellite (Spacecraft in Annexes 1, 2, and 3) means a space vehicle supplied by
Customer that is compatible with the Launch Vehicle and the Launch Vehicle
Mission, and meets the specifications set forth in Annex 1 to this Agreement.
Satellite Mission means the mission assigned to the Satellite by Customer after
separation from the ARIANE Launch Vehicle.
Services means any and all services to be provided by ARIANESPACE under this
Agreement.
Shared Launch means a Launch with more than two satellites, including the
Satellite supplied by Customer.
Third Party means any individual or legal entity other than the Associates, a
Third Party Customer(s) of ARIANESPACE, the Interested Party(ies) or the
Parties.
Third Party Customer(s) of ARIANESPACE means other Customer(s) of ARIANESPACE
that use(s) ARIANESPACE's launch services for the same Launch.
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ARTICLE 2 SUBJECT OF THE AGREEMENT
2.1. The subject of this Agreement is the Launch of up to four Satellites
supplied by Customer at the Launch Base for the purpose of accomplishing
the Launch Mission in accordance with the terms and conditions of this
Agreement.
2.2. Any Replacement Launch other than a Reflight shall form the subject of a
separate Launch Services agreement drawn up in accordance with the
provisions of Article 13 of this Agreement.
2.3. The Parties agree to negotiate in good faith, if needed, additional
Launches to be covered under this Agreement to meet Customer's needs in
excess of the Launches covered under this Agreement.
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ARTICLE 3 CONTRACTUAL DOCUMENTS
3.1. This Agreement consists of the following documents which are contractually
binding between the Parties :
1. Terms and Conditions
2. Launch Specifications
3. ARIANESPACE Technical Commitments
4. Customer's Technical Commitments
5. ESA-ARIANESPACE Convention (Extract) (Annex 4)
3.2. Terms and Conditions shall prevail over the Annexes. There is no order of
precedence among the Annexes.
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ARTICLE 4 ARIANESPACE'S SERVICES
4.1. ARIANESPACE undertakes to use its best efforts to perform the Services
specified in this Agreement.
4.2. ARIANESPACE's commitments under this Agreement cover :
4.2.1. Launch Services, ARIANESPACE shall notify Customer in writing as to
the type of Launch Vehicle (i.e. Ariane 4 or Ariane 5) chosen for
the Launch on or prior to L- 4 months.
4.2.2. Associated Service(s) ordered by the Customer as set forth in the
present Agreement and as defined in Annex 2, Paragraph 2, under the
heading "General Range Support Provided by ARIANESPACE and
Additional Options Ordered by the Customer" in accordance with the
conditions as specified therein.
4.2.3. Subject to additional order(s) of the Customer, one or more
Service(s) as set forth in (i) Paragraph 3 of Annex 2 to this
Agreement, under the heading "Additional Options Available to the
Customer"; and/or (ii) the latest issue of the User's Manual
(M.U.A.) as at the date of such additional order(s) of the Customer,
in accordance with the then applicable conditions, as well as any
other service(s) requested by Customer provided that such order for
the said other services is accepted by ARIANESPACE.
4.3. Launch Services for each Launch, to the exception of Postlaunch Services,
shall be deemed to be accomplished by ARIANESPACE once the Launch has taken
place, ARIANESPACE having no control of the Launch Vehicle after the
Launch. In the event that, for any reason whatsoever, a Launch Abort
occurs, ARIANESPACE shall postpone the Launch in accordance with the
conditions set forth in Article 11 of this Agreement.
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4.4. ARIANESPACE hereby grants to Customer the following option rights:
Customer shall have the right to exercise a Launch Option for Optional
Launch #1 and Optional Launch #2 respectively no later than eighteen (18)
months prior to the initial Launch Period of the Optional Launch concerned.
In the absence of exercise of such Launch Option at L-18 months, the
nominal Launch Period shall be postponed for period(s) of six months until
exercise, provided that the Launch Options may not be exercised later than
the following dates:
i) for Optional Launch #1: 30 June 1999
ii) for Optional Launch #2: 31 December 1999
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Upon exercise of a Launch Option, unless otherwise agreed by the Parties at
that time, the then current nominal Launch Period for the Launch for which
the option is exercised shall be deemed to be the `initial Launch Period'.
If the Parties so agree, an initial Launch Period may begin earlier or
later than the nominal Launch Period. Any Launch Option under this
Paragraph 4.4. may not be exercised by Customer later than the dates set
forth hereabove. Upon exercise of the corresponding Launch Option, Customer
shall inform ARIANESPACE of the baseline mass selected between i) 3450 kg
and ii) 4500 kg (all masses without adaptor).
Further Optional Launches may be added to the Launches covered under this
Agreement as set forth under Paragraph 2.3.
4.5. Should the Launch be performed on an Ariane 5 Launch Vehicle and the Launch
Mission result in a:
4.5.1. Launch Failure, ARIANESPACE shall perform a Reflight in accordance
with the provisions of this Agreement, provided that no further
payment by Customer to ARIANESPACE shall be due for the provision
of: (i) Launch Services for the Launch of a replacement Satellite on
condition that the maximum mass of such Satellite is equal to the
mass of the initial Satellite, and (ii) such Associated Services as
are retained by Customer as of the date of execution of this
Agreement, except as provided for in Paragraph 8.1.4. of Article 8
of this Agreement, in case of postponement.
Customer may order additional mass and/or Associated Services for
additional cost under the conditions specified under Article 13
hereof for a Replacement Launch.
4.5.2. Partial Failure, ARIANESPACE shall pay to Customer an amount as
determined by multiplying the Guarantee Amount by the Loss Quantum.
The resulting amount will be subject to a deductible equal to PFF of
the Guarantee Amount provided for the Launch, in accordance with the
following formula:
(Guarantee Amount x Loss Quantum) minus deductible.
19
Notwithstanding the foregoing, if the insurance policy taken out by
Customer (i) provides for a deductible higher or lower than PFF, such
deductible as provided for in the said insurance policy shall apply, or
(ii) does not provide for a deductible, no deductible shall apply.
4.6 Customer shall have the right to exercise the Relaunch Credit Option or the
Cash Option within thirty (30) days following receipt of the written notice
from ARIANESPACE stating that the Launch Vehicle selected for the Launch is
an Ariane 4. Customer written notice shall specify which option is
exercised and which Elected Amount is elected.
4.6.1. Should the Relaunch Credit option be exercised and maintained
ARIANESPACE shall, if the Ariane 4 Launch result in a:
(i) Launch Failure, credit to Customer an amount equal to the Elected
Amount to be applied as partial payment of the Launch Services
Price for the Replacement Launch, or
(ii) Partial Failure, pay to Customer an amount as determined pursuant
to Subparagraph 4.5.2. above except that the Guarantee Amount
shall be replaced by the Elected Amount.
4.6.2. Should the Cash Option be exercised and maintained, ARIANESPACE
shall, if the Ariane 4 Launch results in a:
(i) Launch Failure, pay to Customer an amount equal to the Elected
Amount, or
(ii) Partial Failure, pay to Customer an amount as determined pursuant
to Subparagraph 4.5.2. above except that the Guarantee Amount
shall be replaced by the Elected Amount
20
4.7. There shall not be any cover for Launch Failure or Partial Failure and
consequently the provisions of Paragraphs 4.5. and 4.6. of Article 4 hereof
shall not apply, in any of the following cases:
4.7.1. If Customer does not notify in writing ARIANESPACE of any event that
would entitle Customer to any right under Paragraphs 4.5 and 4.6. of
Article 4 of this Agreement before the first to occur of any of the
THREE (3) following events;
(i) the day the Satellite is put into commercial operation,
(ii) the SIXTIETH (60th) day following the date of station
acquisition of the Satellite,
(iii) the NINETIETH (90th) day at zero hour following the date of
the Launch.
Notwithstanding the foregoing, an extension of the periods hereabove
might be obtained upon request from Customer if both of the
following conditions occur:
(a) the launching does not conform to the specifications of the
D.C.I. and the Satellite reached its final positioning such
that it cannot be determined that a Launch Failure or
Partial Failure has occurred and;
(b) Customer's request for extension is received before the
first of the THREE (3) events specified above.
In no event shall such extension extend beyond the ONE HUNDRED AND
EIGHTIETH (180th) day following the date of the Launch.
and/or
21
4.7.2. If the Launch Failure or the Partial Failure is caused by, or
results from one or more of the following events A - War, hostile or
warlike action in time of peace or war, including action in
hindering, combating or defending against an actual, impending or
expected attack by (a) any government or sovereign power (de jure or
de facto), or (b) any authority maintaining or using a military,
naval or air force, or (c) a military, naval or air force, or (d)
any agent of any such government, power, authority or force; B - any
anti-satellite device, or device employing atomic or nuclear fission
and/or fusion, or device employing laser or directed energy beams; C
- insurrection, strikes, riots, civil commotion, rebellion,
revolution, civil war, usurpation or action taken by a government
authority in hindering, combating or defending against such an
occurrence whether there be a declaration of war or not; D
confiscation by order of any government or governmental authority or
agent (whether secret or otherwise), or public authority; E nuclear
reaction, nuclear radiation, or radioactive contamination of any
nature, whether such loss or damage be direct or indirect, except
for radiation naturally occurring in the space environment; F -
willful or intentional acts of Customer designed to cause loss or
failure of the Satellite; G - electromagnetic or radio frequency
interference, except for physical damage to the Satellite resulting
from such interference and except for interference naturally
occurring in the space environment.
22
ARTICLE 5 CUSTOMER TECHNICAL COMMITMENTS
5.1. Customer undertakes to fulfill the Technical Commitments set forth in
Annexes 1 and 3 to this Agreement, and in particular to provide the
Satellites at the Launch Base within time limits that are consistent with
the Launch schedule set forth in this Agreement.
5.2. Customer shall notify ARIANESPACE on a timely basis of any event likely to
impact on the Launch schedule of the Satellite to be Launched under this
Agreement or that may result in a termination of the Launch under this
Agreement.
5.3. At L-18 months of each Launch, Customer undertakes to inform ARIANESPACE of
the applicable technical specifications for the relevant Satellite and the
intended use of such Satellite. Subject to applicable technical
constraints, the choice of which Satellite to be Launched may be changed by
Customer, but the initial selection shall remain valid for the application
of Paragraph 18.3 of Article 18 of this Agreement.
23
ARTICLE 6 LAUNCH SCHEDULE
6.1. The Launch of the Satellite(s) shall take place during the following Launch
Period(s) :
A) Firm Launch #1:
The initial Launch Period was 1 July 1997 up to and including 30
September 1997.
By mutual agreement, the Parties have agreed to redefine the Launch
Period as extending from September 1st, 1998 up to and including
October 31st, 1998 ("Redifined Launch Period").
B) Firm Launch #2:
15 May 1999 up to and including 15 August 1999.
C) Optional Launch #1:
The nominal Launch Period shall be:1 January 2000 up to and including
30 June 2000.
D) Optional Launch #2:
The nominal Launch Period shall be:1 January 2001 up to and including
30 June 2001.
24
In the case of Optional Launch #1 and Optional Launch #2, a three
month Launch Period within the six month Launch Period shall be
determined upon exercise of the corresponding Launch Option.
6.2. The Launch Slot within the Launch Period shall be determined by mutual
agreement of the Parties no later than twelve and a half (12 1/2) months
prior to the first day of the Launch Period, taking into account the
available Launch Opportunities and the Satellite Construction and delivery
schedule.
Notwithstanding the foregoing, the Launch Slot within the Redefined Launch
Period for the Firm Launch 1 shall be determined by mutual agreement of the
Parties no later than January 31st, 1998 taking into account the available
Launch Opportunities and the Satellite Construction and delivery schedule.
Customer may request no later than January 31st, 1998 an acceleration of
the Firm Launch 1 to August 1998 and ARIANESPACE will accept such
acceleration provided that there is a Launch Opportunity in August 1998.
6.3. The Launch Day within the Launch Slot shall be determined, no later than
four and a half (4 1/2) months prior to the first day of the Launch Slot,
by mutual agreement of the Parties, based on a proposal made by
ARIANESPACE.
6.4. The Launch Window set forth in Paragraph 1.6 of Annex 1 to this Agreement
shall be determined, no later than the Final Mission Analysis Review, by
mutual agreement of the Parties, based on a proposal made by ARIANESPACE.
6.5. In the event that, for any reason whatsoever, the Parties fail to agree
upon the Launch Slot within the Launch Period, the Launch Day, or the
Launch Window, ARIANESPACE shall determine said Launch Slot, Launch Day, or
Launch Window taking into account the available Launch Opportunities, and
the requirements and respective interests of Customer and of the Third
Party Customer(s) of ARIANESPACE provided that ARIANESPACE shall notify the
Customer of each applicable date not later than ten (10) days after the
last day specified for selection under paragraph 6.2. or 6.3 above as
applicable.
25
ARTICLE 7 COORDINATION BETWEEN ARIANESPACE AND CUSTOMER
7.1. Customer and ARIANESPACE shall each designate a project coordinator
(Mission Manager) no later than two (2) months following the effective date
of this Agreement.
7.2. The task of the project coordinators shall be to supervise and to
coordinate the performance of the Services and of the respective Technical
Commitments of the Parties within the Launch schedule set forth in this
Agreement.
7.3. The project coordinators shall be endowed upon their appointment by each of
the Parties with sufficient powers to enable them to settle any technical
questions that may arise during the performance of this Agreement, as well
as any other questions arising from its day-to-day management.
7.4. Either Party may replace its project coordinator (Mission Manager) by
informing the other Party in writing of such action and indicating the
effective date of designation. Such notification shall be signed by an
official of the respective Party who is authorized to amend this Agreement,
and shall become part of this Agreement when received by the other Party.
26
ARTICLE 8 REMUNERATION
8.1.
8.1.1. The remuneration of ARIANESPACE for the provision of Launch Services
and the Associated Services included in the Launch Services Price as
specified in Annex 2 to this Agreement for the Launch of a Satellite
of the individual masses specified hereafter (without adaptor) are
prices defined as follows:
A) For Firm Launch #1:
[*******************************************************************
********************] for a mass of 3450 kg.
B) For Firm Launch #2:
[*******************************************************************
********************] for a mass of 4500 kg.
C) For Optional Launch #1 and Optional Launch #2:
i) if Customer selects a baseline mass of 3450 kg.: [***************
*****************************************************]
The price under this Subparagraph C)i) is valid for a Launch to take
place prior to 1 April 1998 and for Launches beyond this date this
price shall be increased by application of the escalation formula
contained in Article 9 of this Agreement to the Launch Services
Price from 1 October 1996 up to and including the date that is L-18
months of the initial Launch Period as determined at the date of
exercise of the relevant Launch Option. Notwithstanding the
foregoing, the application of the escalation formula under this
subparagraph i) shall be capped to an increase of the price of [*]
per the number of quarters or portion thereof over the period
considered. OR
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
27
ii) if Customer selects a baseline mass of 4500 kg.: [***************
*************************************************************], or
The price under this Subparagraph C)ii) is valid for a Launch to take
place prior to 1 April 1999, for Launches beyond this date, this price
shall be increased by application of the escalation formula contained
in Article 9 of this Agreement to the Launch Services Price from 1
October 1997 up to and including the date that is L-18 months of the
initial Launch Period as determined at the date of exercise of the
relevant Launch Option. Notwithstanding the foregoing, the application
of the escalation formula under this subparagraph ii) shall be capped
to an increase of the price of [*] per the number of quarters or
portion thereof over the period considered.
D) The Launch Services Prices stated under Paragraphs A), B), and C)
under Subparagraph 13.2.2. hereafter above shall be subject to a price
reduction as follows:
i) For Firm Launch #1:
[*********************************************************************
********************]
ii) For Firm Launch #2:
[*******************************************************************
********************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
28
iii) For Optional Launch #1:
a) if the Launch Option is exercised on or prior to 1 July 1998:
[*] of the Launch Services Price under Subparagraph 8.1.1.C) i) or ii)
(as increased for the initial Launch Period of Optional Launch #1), as
applicable, or
b) if the Launch Option is exercised after 1 July 1998:
[*] of the Launch Services Price under Subparagraph 8.1.1.C) i) or ii)
(as increased for the initial Launch Period of Optional Launch #1), as
applicable.
iv) For Optional Launch #2:
a) if Optional Launch #1 has been exercised or a Replacement Lauch has
been ordered on or prior to 1 July 1998, at the date of exercise of
Optional Launch #2 and provided Optional Launch is exercised on or
prior to 1 July 1999:
the percentage applicable to Optional Launch #1 under Subparagraph
iii) above or, if applicable to the Replacement Launch, plus [*] times
the Launch Services Price under Subparagraph 8.1.1.C) i) or ii) as
applicable (as increased for the initial Launch Period of Optional
Launch #2), or
b) in all other cases:
[*] of the Launch Services Price under Subparagraph 8.1.1.C) i) or ii)
(as applicable and as increased for the initial Launch Period of
Optional Launch #2).
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
29
v) For Replacement Launches ordered under this Agreement:
Provided that the Replacement Launch is ordered no later than 31
December 2001, the percentage applicable to the last Launch ordered
under this Agreement (including Replacement Launches) plus [*] times
the applicable Launch Services Price under Article 13. Further, if a
Replacement Launch is ordered on or prior to 1 July 1998, any further
option(s) exercised hereunder shall be subject to a price reduction
determined under Subparagraph 8.1.1.D)iv) above.
The price reduction as calculated under this Sub-paragraph 8.1.1.D)
shall be deducted from the payment due at L-9 months and, if the price
reduction exceeds this payment, the excess price reduction shall be
deducted equally from the payments at L-8 months and at L-10 months
under Paragraph 10.1.1. A), B) or C) as applicable. Furthermore,
notwithstanding the foregoing, in the event a Launch ordered under
this Agreement is terminated, the Price Reduction of the other
Launches ordered shall be recalculated to take into account such
termination. Notwithstanding the foregoing, the price reduction under
this Sub-paragraph 8.1.1.D) may not in any case exceed [*] of the
relevant Launch Services Price under Paragraph 10.1.1A), B) or C) for
any Launches under this Agreement
8.1.2 The applicable amount mentioned in the above Sub-paragraph 8.1.1.
shall be increased in a firm fixed amount as follows:
A) For all Launches under this Agreement not covered under
Subparagraph 8.1.2.B):
(i) The amount in European Currency Units obtained by multiplying the
Elected Amount by [*******************************], if Customer
exercises the Relaunch Credit Option, or
(ii) The amount in European Currency Units obtained by multiplying the
Elected Amount by [****************], if Customer exercises the
Cash Option
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
30
B) For Launches (i) whose initial Launch Period is beyond 1
January 2000, or (ii) Launches postponed by Customer beyond 1
January 2000 under Paragraph 11.2.1. unless an option under this
Subparagraph 8.1.2. was already exercised and the postponement
does not postpone the Launch Period beyond 1 April 2000 and,
ARIANESPACE shall use its best efforts to offer to Customer a
Launch Risk Guarantee or similar coverage comparable to the
Relaunch Credit option or the Cash Option under this Agreement.
Such coverage shall be offered at the then applicable conditions.
Should eventually the Ariane 5 Launch Vehicle be selected by
ARIANESPACE to perform the Launch or should the Launch Period
fall beyond the period of coverage provided in Subparagraph B)
above, ARIANESPACE shall refund such amount within THIRTY (30)
days of receipt by Customer of the corresponding written notice
from ARIANESPACE with consequent cancellation of the option
exercised.
8.1.3. A) For Firm Launch #1 and for Optional Launches #1 and #2 if
Customer has selected a mass of 3450 kg:
Up to L-12 months of the Launch, Customer may increase or
decrease the Satellite mass referred to under Paragraph 8.1.1. by
up to one hundred fifty kilograms (150 kg.). Customer undertakes
to inform ARIANESPACE as soon as possible of any Satellite mass
increase or decrease from the Satellite mass stated in Paragraph
8.1.1. hereabove.
31
Any increase or decrease in mass, as provided for in this
Paragraph A) above shall be subject to a price variation in the
remuneration stated above in Subparagraph 8.1.1., up or down
depending on whether it is an increase or decrease or mass, as
follows:
i) from 0 kilogram to 50 kilograms: [**************]
ii) from 51 kilograms to 150 kilograms: [*************
*********]
iii) Notwithstanding subparagraphs i) and ii), if the Launch
is performed by way of a dedicated Ariane 4 Launch
Vehicle, ARIANESPACE shall notify Customer at L-3
months of any available extra mass on the Launch
Vehicle concerned in excess of the contractual mass
defined under the terms of this Article 8 at such time.
Customer shall then have the right within ten days of
such notification to increase the Satellite mass by
such available extra mass [**************************]
Failing response during such period, Customer shall be
deemed to have refused this additional mass.
iv) Notwithstanding subparagraphs i) and ii), if the Launch
is performed by way of an Ariane 5 Launch Vehicle or a
Shared Ariane 4 Launch Vehicle, ARIANESPACE shall
notify Customer at L-3 months of any available extra
mass on the Launch Vehicle concerned. Such available
extra mass shall be shared with the Third Party
Customer(s) of ARIANESPACE on a pro rata basis of the
of the respective masses of the Satellite and the
satellite(s) of the Third Party Customer(s) of
ARIANESPACE. Customer shall then have the right within
ten days of such notification to increase the Satellite
mass by such available extra mass for the Satellite
[**************************]. Failing response during
such period, Customer shall be deemed to have refused
this additional mass.
The above prices are firm and fixed prices and apply for each
additional kilogram or fraction of a kilogram the Satellite mass
is increased or decreased.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
32
B) For Firm Launch #2, and for Optional Launches #1 and #2 only if Customer has
selected a mass of 4500 kg for the relevant Launch:
Up to L-12 months of the Launch, Customer may increase or decrease the
Satellite mass referred to under Paragraph 8.1.1. by up to two hundred
kilograms (200 kg.). Customer undertakes to inform ARIANESPACE as soon
as possible of any Satellite mass increase or decrease from the
Satellite mass stated in Paragraph 8.1.1. hereabove.
Any increase in mass, as provided for in this Paragraph B) shall be
subject to a price increase in the remuneration stated above in
Subparagraph 8.1.1., as follows:
i) from 0 kilogram to 50 kilograms: [*****************]
ii) from 51 kilograms to 200 kilograms: [********************]
iii) Notwithstanding subparagraphs i) and ii), if the Launch is
performed by way of a dedicated Ariane 4 Launch Vehicle,
ARIANESPACE shall notify Customer at L-3 months of any available
extra mass on the Launch Vehicle concerned in excess of the
contractual mass defined under the terms of this Article 8 at
such time. Customer shall then have the right within ten days of
such notification to increase the Satellite mass by such
available extra mass [************************]. Failing response
during such period, Customer shall be deemed to have refused this
additional mass.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
33
iv) Notwithstanding subparagraphs i) and ii), if the Launch is
performed by way of an Ariane 5 Launch Vehicle or a Shared Ariane
4 Launch Vehicle, ARIANESPACE shall notify Customer at L-3 months
of any available extra mass on the Launch Vehicle concerned. Such
available extra mass shall be shared with the Third Party
Customer(s) of ARIANESPACE on a pro rata basis of the of the
respective masses of the Satellite and the satellite(s) of the
Third Party Customer(s) of ARIANESPACE. Customer shall then have
the right within ten days of such notification to increase the
Satellite mass by such available extra mass for the Satellite
[************************]. Failing response during such period,
Customer shall be deemed to have refused this additional mass.
Any decrease in mass, as provided for in this Paragraph B) shall be
subject to a price decrease in the remuneration stated above in
Subparagraph 8.1.1. as follows:
i) from 0 kilogram to 50 kilograms: [*******************]
ii) from 51 kilograms to 200 kilograms:
a) [********************] if the Launch is performed by way of an
Ariane 5 Launch Vehicle or if the Launch is performed by way of a
dedicated Ariane 44 LP Launch Vehicle, or
b) [****************] if the Launch is performed by way of a
dedicated 44L Launch Vehicle.
The above prices are firm and fixed prices and apply for each
additional kilogram or fraction of a kilogram the Satellite mass is
increased or decreased and will be paid or credited in the manner set
forth under Paragraph 10.1.3.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
34
8.1.4. For the provision of Associated Services not included in the
Launch Services Price and ordered by Customer after the date
of execution of this Agreement and Associated Services which
will have to be reperformed due to a postponement requested by
Customer, the Catalogue price for the applicable year of the
relevant Launch will be applied (Firm Fixed prices).
8.2. In consideration of the options offered to Customer under this
Agreement, Customer has paid to ARIANESPACE a one time Option Fee
of [***********************************] at the date of execution
of this Agreement. The Option Credit(s) under Paragraph 10.1.1.B)
(if any) credited from this Option Fee will be considered as part
of the Launch Services Price that has been paid for the Launch
considered.
8.3. Prices, expenses, and charges mentioned in the present Agreement
are free of any and all French taxes and other duties. Customer
will not be charged for any taxes or duties.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
35
ARTICLE 9 PRICE ESCALATION FORMULA
9.1. The amount of
A) any Launch Services Price subject to escalation under Paragraph
8.1.1.C)i) and ii), and
B) each payment subject to escalation under Paragraph 13.2.2. or
will be escalated according to the following escalation formulae :
Index
PA = PAo --------
(Index)o
WHERE:
A) For the purpose of Paragraph 8.1.1.C)i) and ii)
PA is the escalated launch services price under Paragraph
10.1.1C)ii) in US Dollars.
PA is [**********************************************]
Index is the US Department of Labor, Bureau of Labor Statistics index
for the "Private Business Sector, All Persons, Productivity,
Hourly Compensation, Unit Labor Costs and Price Seasonally
adjusted, Table 1" a) 1 October 1996 value for the application of
Paragraph 8.1.1.C)i) and b) 1 October 1997 value for the
application of Paragraph 8.1.1.C)ii).
Index is the same index as defined above with official value valid for
the month corresponding to L-18 months of the Optional Launch as
determined at the date of exercise of the relevant Launch Option.
This index being published on a quarterly basis, its value is defined as
follows :
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
36
(i) The index corresponding to the first month of a quarter is the index
published for the previous quarter.
Example : January 85 index is the one issued for the last quarter of
84 (IV-84).
(ii) The index corresponding to the second or the third month of a quarter
is calculated by linear interpolation.
Example : February 85 index is equal to January 85 index (IV-84) plus
one third of (April 85 index (I-85) minus January 85 (IV-84) index).
B) For the purpose of Paragraph 00.0.0.:
PA is the escalated payment amount in US Dollars.
PA is the unescalated payment amount in US Dollars.
Index is the US Department of Labor, Bureau of Labor Statistics index for
the "Private Business Sector, All Persons, Productivity, Hourly
Compensation, Unit Labor Costs and Price Seasonally adjusted, Table
1" November 1995 value.
Index is the same index as defined above with official value valid for the
month corresponding to the month in which the payment is due.
This index being published on a quarterly basis, its value is defined as
follows :
(i) The index corresponding to the first month of a quarter is the index
published for the previous quarter.
Example : January 85 index is the one issued for the last quarter of
84 (IV-84).
37
(ii) The index corresponding to the second or the third month of a quarter
is calculated by linear interpolation.
Example : February 85 index is equal to January 85 index (IV-84) plus
one third of (April 85 index (I-85) minus January 85 (IV-84) index).
9.2. Should one or several indices used in the escalation formula cease to be
issued by the relevant Authority(ies), the index (indices) intended for
substitution will be proposed by ARIANESPACE for agreement by Customer,
unless the index (indices) is (are) imposed or recommended by the
Authority(ies), in which case the imposed or recommended index (indices)
shall apply.
38
Article 10 Payment SCHEDULE
10.1. Payment of the remunerations under Paragraph 8.1. of Article 8 of this
Agreement shall be made in accordance with the following payment schedules
:
10.1.1.
For the price referred to under the relevant Subparagraph of Paragraph
0.0.0.:
A) For the Firm Launch #1
--------------------------- --------------------------------------------------
DATE Percentage of the portion of the Launch Services
Price referred to in Subparagraph 8.1.1.A) of
Article 8 of this Agreement
--------------------------- --------------------------------------------------
[***********] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
39
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
[****] [************]
--------------------------- --------------------------------------------------
Where
* Pr means the price reduction calculated under Subparagraph 8.1.1.D).The
Parties agree that, at the date hereof, this price reduction for the Launch
Services Price under Paragraph 8.1.1.A), equals [****************]
[*************************]
[*********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
**********************************************************************
*******************************************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
40
B) For the Firm Launch #2
--------------------------- --------------------------------------------------
DATE Percentage of the portion of the Launch
Services Price referred to in Subparagraph
8.1.1.B) of Article 8 of this Agreement
--------------------------- --------------------------------------------------
[***********] [******************************
*****************************]
--------------------------- --------------------------------------------------
[****************] [*******************
********************************]
--------------------------- --------------------------------------------------
[************************] [************************]
************]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[**********] [**********]
--------------------------- --------------------------------------------------
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
41
Where
* Pr means the price reduction under Subparagraph 8.1.1.D).The Parties
agree that, at the date hereof, this price reduction for the Launch
Services Price under Paragraph 8.1.1.B), equals [**********]
C) For Optional Launches #1 and #2:
i) If Customer selects a baseline mass of 3450 kg, for the prices
referred to in Paragraph 8.1.1.C)i) :
--------------------------- --------------------------------------------------
DATE Percentage of the portion of the relevant
Launch Services Price referred to in
Subparagraphs 8.1.1. C)i) of Article 8 of this
Agreement
--------------------------- --------------------------------------------------
[**********] [***************************]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
42
--------------------------- --------------------------------------------------
[************] [*****]
--------------------------- --------------------------------------------------
Where:
*the Option Credit means:
For Optional Launch #1: [*********]
For Optional Launch #2 : [*********]
** Pr means the applicable price reduction under Subparagraph 8.1.1.
D) If the Price Reduction concerned exceeds the value of this payment,
the excess Price Reduction shall be equally aportioned between the
payments due at L-10 months and L-8 months.
*** [***********************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
43
ii) If Customer selects a baseline mass of 4500 kg, for the
prices referred to in Paragraph 8.1.1.C)ii) :
--------------------------- --------------------------------------------------
DATE Percentage of the portion of the Launch Services
Price referred to in Subparagraph 8.1.1.C)ii)
of Article 8 of this Agreement
--------------------------- --------------------------------------------------
[**********] [***************]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[**********] [*****]
--------------------------- --------------------------------------------------
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
44
Where
*the Option Credit means:
For Optional Launch #1: [**********]
For Optional Launch #2 : [**********]
** Pr means the price reduction calculated under Subparagraph 8.1.1.
D) If the Price Reduction concerned exceeds the value of this payment,
the excess Price Reduction shall be equally aportioned between the
payments due at L-10 months and L-8 months.
10.1.2. The price of the Relaunch Credit Option or the Cash Option shall be
paid in accordance with the following payment schedule:
--------------------------- --------------------------------------------------
DATE Percentage of the price of the applicable option
referred to in Sub-paragraph 8.1.2. of Article 8
of this Agreement
--------------------------- --------------------------------------------------
Date of exercise [***]
L minus 3 months [***]
--------------------------- --------------------------------------------------
10.1.3. The price increase or decrease under Paragraph 8.1.2. for variation
of the Satellite mass shall be due or, in the event of a price
decrease, credited by ARIANESPACE at the date of the next payment
due under Paragraph 10.1.1. immediately following notification to
ARIANESPACE by Customer under Paragraph 8.1.2.A) or B). If no such
payment remains due under the relevant payment schedule, the price
increase or decrease, shall be due at the applicable date referred
to above under this Paragraph 10.1.2. and payable thirty days
thereafter, or, notwithstanding Paragraphs 10.3.1. and 10.3.2.
shall be payable five days before the Launch Day whichever is the
earlier.
10.1.4. The Option Fee under Subparagraph 8.2. has been paid at the date of
execution of this Agreement.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
45
10.2. Payment for Associated Service(s)
Associated Services referred to in Paragraph 8.1.3. of this Agreement shall
be paid against ARIANESPACE invoice presented upon completion of the
corresponding service(s). Associated Services included in the Launch
Services Price which are not actually used by Customer are not subject to a
reimbursement by ARIANESPACE to Customer.
10.3. Terms and conditions of payment/ARIANESPACE's invoices
10.3.1. In all cases where this Agreement establishes a precise payment
date, payment shall be made on such date, or within thirty (30)
days of Customer's receipt of the corresponding ARIANESPACE
invoice, whichever is later, except for the first payment provided
for in Paragraph 10.1. of this Article and for the Option Fee under
Subparagraph 8.2. , for which invoice(s) will be presented and paid
upon execution of this Agreement.
10.3.2. In all cases where this Agreement does not establish a precise
payment date, payment shall be made on the date that payment
becomes due, or within thirty (30) days of Customer's receipt of
the corresponding ARIANESPACE invoice, whichever is later.
10.3.3. ARIANESPACE invoices may contain, if applicable, the provisional
application of the escalation formula set forth in Article 9 of
this Agreement, using the most recent indices available on the date
of said invoice.
10.3.4. A complementary ARIANESPACE invoice, showing the definitive
total(s) after application of the escalation formula set forth in
Article 9 of this Agreement, shall be prepared following
publication of the indices applicable on the due date for payment.
10.3.5. Any and all ARIANESPACE invoices shall be drawn up in two copies
(one original and one copy) and sent to :
46
PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXX
Attention: Comptroller
The method for calculating the amount of each such invoice shall
be shown clearly.
10.3.6. Payments shall be made, to the account(s) designated on the
relevant invoice, by telegraphic bank transfer, free of charge
for ARIANESPACE, with telex notice from the issuing bank to the
receiving bank. ARIANESPACE shall be responsible for telex
expenses. The notice shall clearly state the value date to be
applied and the bank through which the funds will be made
available to the receiving bank or its correspondent.
Payment shall be effective as of the date on which the amount of
the ARIANESPACE invoice is received by ARIANESPACE's bank.
10.3.7. Customer's payment(s) shall be in the amount(s) invoiced by
ARIANESPACE, and shall be made net, free and clear of any and all
taxes, duties, or withholdings that may be imposed in the Country
from which they are paid so that ARIANESPACE receives each such
payment in its entirety as if no such tax, duty, or withholding
had been made.
47
10.4. Late Payment
10.4.1. In the event of late payment, Customer shall pay ARIANESPACE during
the delay interest equal to the average Base Rate increased by one
(1) point. The computation of interest for late payments shall be
based on a year of 360 days.
In the event that such late payment has not been cured by Customer
at latest fifteen (15) days after written notice to that effect by
ARIANESPACE, ARIANESPACE shall be entitled to suspend any and all
of its activities in preparation for the Launches during any such
period of non-payment and to reschedule the Launches under
Subparagraph 11.3.1. of Article 11 of this Agreement.
10.5. Waiver of Deferral, Withholding or Set-off
Customer irrevocably waives any right to defer, withhold or set-off by
counterclaims or otherwise all or any part of any payment under this
Agreement for any reason whatsoever. All payments due under this Agreement
shall be made in their entirety and on the dates set out under this
Agreement.
48
ARTICLE 11 LAUNCH POSTPONEMENTS/ACCELERATION
11.1. Each postponement of the Launch Period, the Launch Slot, the Launch Day or
the Launch Time, for whatever reason, shall be governed by the following
conditions, and any right of the Parties which is not mentioned in this
Agreement shall be expressly excluded.
11.2. Postponements requested by Customer
11.2.1. Postponement of Launch Period or Launch Slot
11.2.1.1. Customer shall have the right for any reason whatsoever to
postpone either the Launch Period of the Launch or the
Launch Slot once determined, in which case it will propose
by notifying in writing to ARIANESPACE the new requested
Launch Period or, as the case may be, a new requested Launch
Slot.
11.2.1.2. Within two weeks of receipt of Customer's written request,
ARIANESPACE shall inform Customer whether a Launch
Opportunity exists within the Launch Period, or within the
Launch Slot requested, or will propose a new Launch Period
or Launch Slot. Customer shall have a thirty (30) day period
following receipt of ARIANESPACE's proposition to give its
written consent or to propose an alternative Launch Period
in which case the procedure stated in Paragraph 11.2.1.1.
hereabove shall apply.
11.2.1.3. Should for a Launch under this Agreement, the aggregate
duration of all postponements other than the duration of any
postponement under Paragraph 11.2.1.5. requested by Customer
under this Agreement exceed a total of twelve (12) months
(to the exclusion of postponements due to Force Majeure
Events up to a cumulative maximum of six months per Launch),
the Launch Services Price of the relevant Launch shall be
adjusted as if the Launch had been postponed under the
provisions of Paragraph 11.2.1.5..
49
11.2.1.4. [***********************************************************
***********************************]
11.2.1.5 Notwithstanding the foregoing, Customer shall have the right
to postpone the nominal Launch Period of Optional Launches
#1 and #2 by written notice received by ARIANESPACE prior to
the exercise of a Launch Option and no later than L-18
months of the Optional Launch concerned. Postponement of an
Optional Launch under the conditions of this Paragraph shall
postpone the date of exercise of the Optional Launch
correlatively and shall cause an adjustment of the Launch
Services Price under the conditions of Paragraphs 8.1.1.C)
and the applicable payment schedule shall be suspended under
the conditions of Paragraph 11.4. provided that, in
accordance with Paragraph 4.4., in no event may Customer
exercise its right under this Paragraph 11.2.1.5. to
postpone a Launch beyond a six month Launch Period starting:
(2)i) for Optional Launch #1: 1 January 2001, and
ii) for Optional Launch #2: 1 July2001.
11.2.2. Postponement of the Launch Day and/or Launch Time within
Launch Slot
11.2.2.1. Customer shall have the right, upon written request, to
postpone the Launch Day within the Launch Slot, for any
reason whatsoever. The choice of a new Launch Day shall
be made by mutual agreement of the Parties taking into
account the technical needs and interests of Customer
and the Third Party Customer(s) of ARIANESPACE, the
time necessary for the revalidation of the Launch
System, and the meteorological forecasts.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
50
11.2.2.2. Each such postponement shall be subject to the
following postponement fees to be paid by Customer:
Date Postponement fees per effective day of
of request Postponement for a
for Postponement Launch in 1997
[***************** [*****]
*****]
[***************] [**********]
[***************] [**********]
[***************] [**********]
[***************] [**********]
[***************] [**********]
[***************] [**********]
Where
D = Launch Day within the Launch Slot.
* = First and last day included
11.2.2.3. Postponement requests, received by ARIANESPACE, once the filling
of the cryogenic stage has been started or has already been
achieved, shall be subject to an additional payment of [**
***********************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
51
11.2.2.4. The amounts set forth in Paragraphs 11.2.2.2. and 11.2.2.3. are
valid for a Launch to occur in calendar year 1997. For a Launch
taking place after calendar year 1997, these amounts will vary in
the same proportion as the price of Associated Services, such
increase being in any case limited to 10% per year. Said amounts
are due for payment as of the date of said postponement request.
11.2.2.5. Should postponement of the Launch Day finally lead to
postponement beyond the Launch Slot, Paragraph 11.2.1. of Article
11 of this Agreement, shall govern.
11.2.2.6. Postponements by Customer of the Launch Time within the Launch
Window may only be requested during the countdown period. If,
after Customer has requested such postponement, technical
reasons, including those linked with the Third Party Customer(s)
of ARIANESPACE, or meteorological reasons prevent ARIANESPACE
from performing the Launch in the Launch Window opening during
the Launch Day, this postponement shall be considered as a
postponement of the Launch Day, and Sub-paragraphs 11.2.2.2. and
11.2.2.3. of Article 11 of this Agreement, shall govern.
11.2.3. Notwithstanding the foregoing, no postponement fees shall be payable to
ARIANESPACE for postponements as a result of:
(i) an Event of Force Majeure up to a cumulative period of six (6)
months, and/or
(ii) any damage(s) to the Property of Customer and/or the property of its
Associates when caused by ARIANESPACE and/or Third Party Customer(s)
of ARIANESPACE and/or other customers of ARIANESPACE and/or their
Associates, and/or
52
(iii) any damage(s) for bodily harm sustained by Customer and/or its
Associates when caused by ARIANESPACE and/or Third Party Customer(s)
of ARIANESPACE and/or other customers of ARIANESPACE and/or its or
their Associates.
11.2.4. The postponement by Customer of the Launch Day, Launch Window or
Launch Time shall not be subject to the payment of postponement
fees when it is due to ARIANESPACE's non-fulfillment of its
obligations. In this event, provided that ARIANESPACE has not cured
such non-fulfillment within ten days of a notice to that effect by
Customer and subject to such failure making the Launch impossible
within the Launch Period, Launch Slot or during Launch Window of
the Launch Day, or at the Launch Time, the terms of Paragraph 11.3.
of Article 11 of this Agreement shall govern.
Such postponement shall be deemed to have been requested by
ARIANESPACE at the date of Customer's request for a postponement of
the Launch.
11.2.5. In no event shall the aggregate liability of Customer which shall
be due to ARIANESPACE under this Paragraph 11.2. exceed for a
Launch under this Agreement [******************************
**********************]
11.3. Launch postponement requested by ARIANESPACE
11.3.1. ARIANESPACE shall have the right to postpone the Launch, for the
following reasons :
11.3.1.1. Postponement of Launch Period and of Launch Slot.
a) ARIANESPACE or its Associates encounter adverse
technical problems preventing the Launch from taking
place under satisfactory conditions of safety or
reliability.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
53
b) ARIANESPACE cannot perform the Launch as a Double
Launch for any reason whatsoever.
c) ARIANESPACE is requested to perform replacement
launch(es), or to launch scientific satellite(s) whose
mission(s) may be degraded in the event of
postponement.
d) ARIANESPACE reschedules the launch(es) due to
postponement(s) by ARIANESPACE of satellite(s) having
an earlier Launch Period or Slot than Customer's
Satellite(s).
11.3.1.2. Postponement of Launch Day within the Launch Slot and/or Launch
Time within the Launch Window.
a) For any of the reasons listed in Subparagraph 11.3.1.1.
a) b) c) and d) above, and
b) If ARIANESPACE cannot perform the Launch as a Shared
Launch for any reason whatsoever.
11.3.2. The Parties shall determine by mutual agreement a new Launch
Period and/or a new Launch Slot as near as possible to the
postponed one in accordance with the following criteria :
- the availability of a Launch Possibility;
- Launch Rank of Customer's Satellite ;
- date of signature of this Agreement.
The Launch Day and the Launch Window within the new Launch Slot
shall be determined by ARIANESPACE according to the technical
constraints of ARIANESPACE, Customer and the Third Party
Customer(s) of ARIANESPACE, and their respective interests.
54
In the event that ARIANESPACE shall be obliged to postpone the
launch of a satellite of another client of ARIANESPACE ("Third
Party Launch") in order to make available a Launch Possibility
for Customer's Satellite, then , in determining which satellite
to retain on such Third Party Launch, ARIANESPACE shall retain
the satellite which is compatible in size with Customer's
Satellite or, if two or more satellites on such Third Party
Launch are compatible in size and in class with Customer'
Satellite, ARIANESPACE shall apply the criteria numbered (1) to
(3) inclusive in, and in the order which is set out in
Sub-paragraph 11.3.2. of this Article 11.
11.3.3. The postponement by ARIANESPACE of the Launch Period, Launch Slot,
Launch Day, Launch Window, or Launch Time is not subject to the
payment of postponement fees by Customer, unless it is due to
Customer's non-fulfillment of its obligations under this Agreement.
In this event, provided that Customer has not cured such
non-fulfillment within ten days of a notice to that effect from
ARIANESPACE and subject to such failure making the Launch
impossible within the Launch Period, Launch Slot, or during Launch
Window of the Launch Day, or at the Launch Time :
- The terms of Sub-paragraph 11.2.1. of Article 11 of this
Agreement shall govern if ARIANESPACE decides to postpone
the Launch Period or the Launch Slot ;
- The terms of Sub-paragraph 11.2.2. of Article 11 of this
Agreement shall govern if ARIANESPACE decides to postpone
the Launch Day.
Such a postponement shall be considered as requested by Customer as
of the date of Customer's non-fulfillment of its obligations.
11.3.4. Postponements of Launches by ARIANESPACE shall not be subject to
the payment of liquidated damages by Customer.
11.4. Any Launch postponement provided for in Article 11 of this Agreement shall
not modify the progress payment schedule set forth in Paragraph 10.1. of
Article 10 of this Agreement. Notwithstanding the foregoing:
55
i) Should a Launch be postponed one or more times by ARIANESPACE in
accordance with Sub-paragraph 11.3.1. or 11.2.4., then Customer shall be
allowed, for the Launch, [*************************************************
***************************************************************************
***************************************************************************
***************************************************************************
***************************************************************************
***************************************************************************
***************************************************************************
***************************************************************************
***************************************************************************
**********************************]
ii) if Customer postpones an Optional Launch under the provisions of
Paragraph 11.2.1.5., the payments due after the date of such postponement
under the payment plan of Paragraph 8.1.1B) shall be suspended and then
resumed and shifted forward by the duration of the Customer postponement
under Paragraph 11.2.1.5.
11.5. Acceleration of a Launch Period or of a Launch Slot
11.5.1. ARIANESPACE undertakes to inform Customer of any LaunchOpportunity
which may appear during the period included between:
(i) the first day of the concerned initial Period and the first day
of the Launch Period or of the Launch Slot allocated to the
Launch concerned under Subparagraph 11.3.2., in the case of
Customer not having requested a postponement earlier; or
(ii) the first day of the last Launch Period or of the last Launch
Slot requested by Customer under Subparagraph 11.2.1.1., and the
actual Launch date of the Launch concerned, in the case of
Customer already having requested postponement of the Launch
concerned.
Within a period of fifteen (15) days from notification by ARIANESPACE,
Customer may take advantage of its first right of refusal to accelerate a
Launch to any Launch Opportunity so indicated by ARIANESPACE. If it has not
replied within that time, it will be considered that Customer has declined
the offer for an advancement.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
56
11.5.2. In addition, Customer may, at any time, request that ARIANESPACE
accelerate a given Launch Period or Slot to a date which Customer
will designate. As quickly as possible, and at the latest within
thirty days following receipt of this request, ARIANESPACE will let
Customer know if there is a Launch Opportunity within the requested
period and will make every effort to allocate to the Launch in
question the Launch Opportunity nearest to the date requested by
Customer.
11.5.3. For the purposes of application of Paragraph 11.3.4. of this
Article 11, the number of days by which the Launch under this
Agreement has been accelerated under this Paragraph 11.5. will be
deducted from the number of days for which ARIANESPACE must pay
Customer liquidated damages for the Launch.
11.5.4. In the case of the Launch Period or the Launch Slot of the Launch
being accelerated as stipulated in this Paragraph, the payments
remaining due at the date to which such Launch has been accelerated
will be advanced by a period equal to that of the acceleration of
such Launch and the net present value of the applicable Launch
Services price shall be restored using the Base Rate as rate of
return. Such adjustment shall be due by Customer to ARIANESPACE as
of the date of the decision of acceleration is made.
57
ARTICLE 12 RIGHT OF OWNERSHIP AND CUSTODY
12.1. The obligations of ARIANESPACE under this Agreement being strictly limited
to the Services set forth in this Agreement, Customer acknowledges that at
no time shall it have any right of ownership of, or any other right in, or
title to, the Property of ARIANESPACE. Said Property shall at all times be
considered to be the absolute property of ARIANESPACE.
12.2. On the other hand, ARIANESPACE acknowledges that at no time during the
implementation of this Agreement shall it have any right of ownership, or
any other right in, or title to, the Property of Customer. Said Property
shall at all times be considered to be the absolute property of Customer.
12.3. At all times during the implementation of this Agreement, each Party shall
be deemed to have full custody and possession of the Property it is deemed
to own.
12.4. ARIANESPACE is hereby authorized to destroy, without indemnity or damages
being payable to Customer, the Launch Vehicle and the Satellite in the
event that, following ignition of the Launch Vehicle, such action shall
prove necessary to avoid damage to persons or property. The foregoing
shall not be deemed to waive Customer's rights for the Launch under
Paragraph 4.4 of this Agreement.
58
ARTICLE 13 REPLACEMENT LAUNCH
13.1. Terms
13.1.1. Customer is entitled to request a Replacement Launch from
ARIANESPACE in the event that, following the Launch, either the
Launch Mission or the Satellite Mission has not been accomplished
for any reason whatsoever. Replacement Launch Services are subject
to the conditions set forth in Article 13 of this Agreement. Any
and all other rights and remedies of Customer are excluded whatever
their nature.
13.1.2. Customer shall be entitled to have a Replacement Launch Slot
allocated to it by ARIANESPACE within [**************************
*******] following the calendar month within which a written
Replacement Launch request has been received by ARIANESPACE or
within such longer period as may be indicated by Customer in said
request up to a maximum of twenty six calendar months after the
date of Customer's request.
13.1.3. The written Replacement Launch request must:
-have been received by ARIANESPACE no later than the second
calendar month following the month in which the cause of the
failure of either the Launch Vehicle Mission or the Satellite
Mission has been established, except that such Satellite Mission
failure must have occurred within the twenty-seven (27) calendar
month period following the Launch Slot of the initial Launch.
Notwithstanding the foregoing, if Customer is entitled to a
Reflight, such written request shall be received by ARIANESPACE
within the ninety (90) day period following the date when the
Parties have agreed on a Launch Failure.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
59
-indicate the Launch Period requested by Customer within the period
under Paragraph 13.1.2. of Article 13 of this Agreement. It is
understood that the replacement Satellite and its Ancillary
Equipment shall be placed at ARIANESPACE's disposal pursuant to the
schedule of Annex 3 to this Agreement, L being the first day of the
Launch Period desired by Customer.
13.1.4. ARIANESPACE shall inform Customer, within the calendar month
following receipt of said request, if a Launch Opportunity exists
within the requested Launch Period and, in any event, shall
allocate a Launch Period (and if reasonably practicable a Launch
Slot) to Customer, whose first day shall be earlier than the
expiration of the period specified in Paragraph 13.1.2. of Article
13 of this Agreement by postponing if necessary the launch of
another customer of ARIANESPACE other than a replacement launch
requested prior to Customer's order of the Replacement Launch under
this Paragraph. The Launch Slot allocated shall not begin earlier
than the beginning of the Launch Period requested by Customer.
13.1.5. The replacement Satellite shall be in accordance with the interface
control file (DCI) governing the initial payload.
Notwithstanding the foregoing, if Customer is entitled to a
Replacement Launch, the replacement satellite may differ from the
DCI and need not have the same satellite mission (i.e. it may be
another satellite in Customer's fleet of satellites awaiting
launch). In such a case, the Parties agree to adjust consequently
this Agreement, including the technical annexes and ARIANESPACE
shall allocate to Customer the nearest Launch Opportunity.
13.2. Conditions
13.2.1 Except for a Reflight, remuneration for Replacement Launch Services
shall be the then applicable price for a satellite of a mass
similar to that of the replacement Satellite under the ARIANESPACE
pricing policy for a Launch at the date of the Replacement Launch,
adjusted for the costs of refinancing due to the shorter payment
schedule, as well as any charges for modification of equipment with
respect to the Launch Vehicle designated for the Replacement
Launch, that ARIANESPACE shall have incurred.
60
13.2.2. A) Notwithstanding Sub-paragraph 13.2.1. hereabove, the Launch
Services Price for a Replacement Launch which is not a Reflight
taking place at the latest by:
i) twenty four (24) months after the actual date of the Launch if
said Launch has resulted in a Launch Failure, or
ii) in all other cases, 31 December 2003.
shall be a fixed price of:
a) [****************************************************************
*********] for an individual mass of 3450 kg, or
The above prices is, subject to reduction under Paragraph 8.1.1.D)
and is based on: i) November 1995 economic conditions and ii) the
following payment schedule:
--------------------------- ----------------------------------------------------
DATE Pertcentage of the portion of the Launch
Services Price referred to in this Subparagraph
13.2.2.A)
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
61
The price referred to in this Paragraph 13.2.2.A)i) shall be adjusted
as appropriate using a) the Base Rate against the shortened payment
schedule in order to restore the net present value in all cases where
the date of request of the Replacement Launch does not permit to
respect the above payment schedule and b) the escalation formula
contained in Article 9 of this Agreement from November 1995 up to and
including the due date of each progress payment.
b) the price set forth under Paragraph 8.1.1.C)ii) for an individual
mass of 4500 kg and payable as per the payment plan under
Paragraph 10.1.1.C).
The price referred to in this Paragraph 13.2.2.A) shall be adjusted as
appropriate using the Base Rate against the shortened payment schedule
in order to restore the net present value in all cases where the date
of request of the Replacement Launch does not permit to respect the
above payment schedule.
B) At the time of order of the Replacement Launch, Customer may increase
or decrease the Satellite mass referred to under Paragraph 13.2.2. A):
i) under the conditions stated under Paragraph 8.1.3.A) if Customer
has selected an individual mass of 3450 kg, or
ii) under the conditions stated under Paragraph 8.1.3.B) if Customer
has selected an individual mass of 4500 kg.
Except that in both cases, the applicable price shall be due at the
date of order of the Replacement Launch.
62
C) Furthermore for Launches with an initial Launch Period starting on or
after 1 January 2001, the prices set forth in Paragraphs 13.2.2.A) and
B) shall only be valid if at the date of order of the Replacement
Launch, the fixing rate published by the Paris Stock Exchange for the
exchange rate between the French Franc/U.S. Dollar is equal to or
higher than [*****************] Should the U.S. Dollar fall under the
above stated value at said date, the prices shall be adjusted
accordingly.
13.2.3. The remuneration for Associated Service(s) shall be the applicable
price for a Launch to take place within the calendar year of the
Replacement Launch.
13.2.4. The price set forth in Paragraphs 13.2.1. of Article 13 of this
Agreement shall be escalated in accordance with Article 9 of this
Agreement on the basis of economic conditions prevailing on the
date that said price is determined.
13.2.5. The payment schedule shall enable the payment of the entire price
for Replacement Launch Services prior to said Replacement Launch.
13.2.6. Except for a Reflight, any Replacement Launch shall form the
subject of a separate launch services agreement drafted in
accordance with the principles set forth in this Agreement.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
63
ARTICLE 14 ALLOCATION OF POTENTIAL LIABILITIES AND RISKS
14.1. Allocation of damages and risks caused by one of the Parties and/or its
Associates to the other Party and/or its Associates.
14.1.1. Due to the special character of Services, the Parties have agreed
that any liability of ARIANESPACE or of Customer arising from the
defective, late, or non-performance of ARIANESPACE's Services and
Customer's technical obligations under this Agreement shall, in all
circumstances, including termination of this Agreement, be strictly
limited to the liability expressly provided for in this Agreement,
to the exclusion of any other remedies or claims for damages or
indemnities.
14.1.2. Each Party shall bear any and all loss of or damage to property and
any bodily harm (including death) and all consequences, whether
direct or indirect, of such loss, damage or bodily harm (including
death), and/or of a Launch Mission failure and/or of a Satellite
Mission failure, which it or its Associates may sustain that arises
in any way in connection with this Agreement or the performance of
this Agreement. Each Party irrevocably agrees to a no-fault,
no-subrogation, inter-party waiver of liability, and waives the
right to make any claims or to initiate any proceedings whether
judicial, arbitral, or administrative on this account against the
other Party or that other Party's Associates for any reason
whatsoever.
Each Party agrees to bear the financial and any other consequences
of such loss, damage or bodily harm (including death) and/or of a
Launch Mission failure and/or a Satellite Mission failure which it
or its Associates may sustain, without recourse against the other
Party or the other Party's Associates.
64
14.1.3 In the event that one or more Associates of a Party shall proceed
against the other Party and/or that Party's Associates as a result
of such loss, damage or bodily harm (including death) and/or Launch
Mission failure and/or Satellite Mission failure, the first Party
shall indemnify, hold harmless, dispose of any claim, and defend,
when not contrary to the governing rules of procedure, the other
Party and/or its Associates, as the case may be, from any liability
or expense, including attorneys' fees, on account of such loss,
damage or bodily harm (including death) and/or Launch Mission
failure and/or Satellite Mission failure and shall pay all expenses
and satisfy all judgments and awards which may be incurred by or
rendered against that other Party and or its Associates.
14.2. Loss or damage or bodily harm caused or sustained by Third Party
Customer(s) of ARIANESPACE or its (their) Associates
14.2.1 Each Party shall bear any and all loss or damage to property and
any bodily harm (including death) and all consequences, whether
direct or indirect, of such loss, damage or bodily harm (including
death) and/or Launch Mission failure and/or Satellite Mission
failure, which it or its Associates may sustain, that is caused, in
any way, by (a) Third Party Customer(s) of ARIANESPACE or its
(their) Associates in connection with or by the performance of this
Agreement and/or the agreement signed by ARIANESPACE with such
Third Party Customer(s) of ARIANESPACE.
14.2.2 Customer hereby irrevocably agrees to a no-fault, no-subrogation,
inter-party waiver of liability and waives the right to make any
claims or to initiate any proceedings whether judicial, arbitral,
administrative or otherwise on account of any such loss, damage or
bodily harm (including death) and/or Launch Mission failure and/or
Satellite Mission failure against Third Party Customer(s) of
ARIANESPACE, and/or ARIANESPACE and/or their respective Associates
for any reason whatsoever.
Customer agrees to bear the financial and any other consequences of
such loss, damage or bodily harm (including death) and/or Launch
Mission failure and/or Satellite Mission failure caused in any way
by (a) Third Party Customer(s) of ARIANESPACE or its (their)
Associates without recourse against the Third Party Customer(s) of
ARIANESPACE and/or ARIANESPACE and/or their respective Associates.
65
In the event that one or more of Customer's Associate(s) proceed
against the Third Party Customer(s) of ARIANESPACE and/or
ARIANESPACE and/or their respective Associates as a result of such
loss, damage or bodily harm (including death) and/or Launch Mission
failure and/or Satellite Mission failure caused in any way to it by
such Third Party Customer(s) of ARIANESPACE or its (their)
Associates, Customer shall indemnify, hold harmless, dispose of any
claim and defend, when not contrary to the governing rules of
procedure, such Third Party Customer(s) of ARIANESPACE, and/or
ARIANESPACE and/or their respective Associates from any liability
or expense, including attorneys' fees, on account of such loss,
damage or bodily harm (including death) and/or Launch Mission
failure and/or Satellite Mission failure, and shall pay all
expenses and satisfy all judgments and awards which may be incurred
by or rendered against the Third Party Customer of ARIANESPACE
and/or ARIANESPACE, and/or their respective Associates.
14.2.3 In the event that (a) Third Party Customer(s) of ARIANESPACE and/or
its (their) Associates proceed against Customer and/or its
Associates as a result of loss, damage or bodily harm (including
death) and/or launch mission failure and/or satellite mission
failure caused in any way to it and/or its (their) Associates in
connection \with or by the performance of this Agreement and/or the
agreement signed by ARIANESPACE with such Third Party Customer(s)
of ARIANESPACE, ARIANESPACE shall indemnify, hold harmless, dispose
of any claim and defend, when not contrary to the governing rules
of procedure, Customer and/or its Associates from any liability or
expense, including attorney's fees, on account of such loss, damage
or bodily harm (including death), and/or Launch Mission failure
and/or Satellite Mission failure, and shall pay expenses and
satisfy all judgments and awards which may be incurred by or
rendered against Customer and/or its Associates.
14.3 Indemnification
Each Party obligates itself to take all necessary and reasonable steps to
foreclose claims for loss, damage or bodily harm (including death) by any
participant in the Launch activity. Each Party shall require its
Associate(s) to agree to a no-fault, no-subrogation, inter-party waiver of
liability and indemnity for loss, damage or bodily harm (including death)
its Associates sustain identical to the Parties respective undertakings
under this Article 14 of this Agreement. Furthermore, ARIANESPACE shall
require all Third Party Customer(s) of ARIANESPACE entering into launch
services agreement with ARIANESPACE to agree to the inter-party waiver and
indemnities as set forth in this Article 14 of this Agreement.
66
14.4. Liability for damages suffered by Third Parties
14.4.1. Each Party shall be solely and entirely liable for loss, damage or
bodily harm (including death), in any case whether direct or
indirect, which it or its Associates shall cause to be sustained
whether directly or indirectly by a Third Party in the performance
of this Agreement.
14.4.2. In the event of any proceeding, whether judicial, arbitral,
administrative or otherwise, by a Third Party against one of the
Parties, or its Associates on account of loss or damage or bodily
harm (including death) caused whether directly or indirectly by the
other Party, its Property or its Associates, the latter Party shall
indemnify and hold harmless the former Party and/or the former
Party's Associates, as the case may be, and shall advance any funds
necessary to defend their interests.
14.5. Infringement of Industrial property rights of third parties
14.5.1. ARIANESPACE undertakes to indemnify and hold Customer harmless with
respect to any injury, cost, and expenditure resulting from an
infringement or claim of infringement of patent rights or any other
industrial or intellectual property rights of a third party which
may arise from Customer's use of ARIANESPACE's Services, including
without limitation the use of any and all products, processes,
articles of manufacture, supporting equipment, facilities, and
services by ARIANESPACE in connection with said Services unless the
infringement of rights set forth above shall have been mainly
caused by an infringement of a right of a third party for which
Customer is liable pursuant to Paragraph 14.5.2. of Article 14 of
this Agreement.
67
14.5.2. Customer undertakes to indemnify and hold ARIANESPACE harmless with
respect to any injury, cost, and expenditure resulting from an
infringement or claim of infringement of the patent rights or any
other industrial or intellectual property rights of a third party
which shall have been caused by Customer with respect to the design
or manufacture of the Satellite, or by ARIANESPACE's compliance
with specifications furnished by Customer with respect to the
Launch Mission and the Satellite Mission unless such infringement
of rights set forth hereabove shall have been mainly caused by an
infringement of a right of a third party for which ARIANESPACE is
liable pursuant to Paragraph 14.5.1. of this Agreement.
14.5.3. The rights to indemnification provided hereunder shall be subject
to the observance of the following conditions:
14.5.3.1. The Party seeking indemnification shall promptly advise the
other Party of the filing of any suit, or of any written or
oral claim, alleging an infringement of the third party's
rights, which it may receive in relation to the execution of
this Agreement.
14.5.3.2. The Party sued or against whom the claim is otherwise made
shall take no steps in the dispute with the third party, nor
shall it reach a compromise, without the prior written
approval of the other Party, which approval shall not be
unreasonably withheld or delayed.
14.5.4. The Party required to hold the other harmless shall assist and
assume, when not contrary to the governing rules of procedure, the
defense of any claim or suit and/or settlement thereof, shall take
all other steps which it may reasonably be expected to take, given
the circumstances on the one hand, and on the other hand the
obligations incurred by it under the preceding provisions, to
avoid, settle, or otherwise terminate the dispute under Article 14
of this Agreement on the other hand, and shall pay all litigation
and administrative costs and expenses incurred in connection with
the defense of any such suit, shall satisfy any judgments rendered
by a court of competent jurisdiction in such suits, and shall make
all settlement payments.
68
14.5.5. In the event that ARIANESPACE, with respect to the Launch, and
Customer, with respect to the Satellite, shall be the subject of
the same court action or the same proceedings based on alleged
infringements of patent rights or any other industrial or
intellectual property rights of a third party pursuant to both
Sub-paragraphs 14.5.1. and 14.5.2. of Article 14 of this Agreement,
ARIANESPACE and Customer shall jointly undertake the defense and
shall bear the damages, costs and expenditures pro rata according
to their respective liabilities. In the event that the pro rata
calculation of this Sub-paragraph 14.5.5. is applicable but should
cause a problem, the Parties undertake in good faith to resolve the
problem by means of negotiation.
14.5.6. It is expressly understood that neither Party's entry into this
Agreement, and either Party's performance of acts required by this
Agreement, grants any rights to or under any of either Party's
respective patents, proprietary information, and/or data, to each
other or to any third party, unless such grant is expressly recited
in a separate written document duly executed by or on behalf of the
granting Party.
69
ARTICLE 15 INSURANCE
15.1. ARIANESPACE shall, for the Launch, take out an occurrence basis type
insurance policy at no cost to Customer, to protect itself and Customer
against liability for property and bodily harm which Third Parties may
sustain and which are caused by the Combined Space Vehicle or part
thereof. In said insurance policy the natural and corporate bodies
hereafter shall be named as assured :
1. The Government of France.
2. The Centre National d'Etudes Spatiales "C.N.E.S." and any state
of launch as per Convention of March 29, 1972 related to the
international liability for damages caused by spacecraft.
3. The auxiliaries of any kind, whom ARIANESPACE and/or the C.N.E.S.
would call for in view of the preparation and the execution of
the launching operations.
4. The European Space Agency "E.S.A." but only in its capacity as
owner of certain facility and/or outfits located at the Centre
Spatial Guyanais in Kourou and made available to ARIANESPACE
and/or to the C.N.E.S. for the purpose of the preparation and the
execution of the launches.
5. The firms, who have participated in the design and/or in the
execution and/or who have provided the components of the Launch
Vehicle, of its support equipment's including propellants and
other products either liquid or gaseous necessary for the
functioning of the said Launch Vehicle, their contractors,
sub-contractors and suppliers.
6. Customer and Third Party Customer(s) of ARIANESPACE on whose
behalf ARIANESPACE executes the launch services as well as their
co-contractors and sub-contractors.
70
7. When they act in the scope of their activities, the Officers and
Directors, the legal representatives, the Managing Director, the
employees, agents as well as the interim staff employed by
ARIANESPACE or by the ASSURED mentioned in hereabove Paragraphs
from 1 to 6 (included).
15.2. Said insurance coverage shall come into effect as of the day of the
Launch, and shall be maintained for twelve (12) months or for so long as
all or any part of the Combined Space Vehicle remains in orbit, whichever
period is shorter.
15.3. This insurance policy shall be taken out in the amount of 400,000,000
French Francs (four hundred million French Francs). During the period
provided for in Paragraph 15.2. of this Article 15, ARIANESPACE undertakes
to settle all liabilities, indemnify and hold Customer harmless for
property damages and bodily harm caused to Third Parties by the Combined
Space Vehicle or part thereof which shall exceed the amount covered by
said insurance policy. At the expiration of the validity of said insurance
policy in accordance with Paragraph 15.2. of this Article 15, Customer
shall settle all liabilities for property damages and bodily harm caused
to third parties by the Satellite or part thereof.
71
ARTICLE 16 OWNERSHIP OF DOCUMENTS AND WRITTEN INFORMATION
CONFIDENTIALITY/PUBLIC STATEMENTS
16.1. Title to all documents and written information furnished to Customer by
ARIANESPACE or its Associates during the implementation of this Agreement
shall remain exclusively with ARIANESPACE.
16.2. Title to all documents and written information furnished to ARIANESPACE by
Customer or its Associates during the implementation of this Agreement
shall remain exclusively with Customer or with said Associates as to their
respective documents and written information.
16.3. Each Party shall use the documents and written information supplied to it
by the other Party or the other Party's Associates solely to implement and
perform this Agreement and related activities.
16.4. To the extent necessary for the implementation of this Agreement, each
Party shall be entitled to divulge to its own Associates, attorneys and
technical consultants and actual and proposed lenders, investors, insurers
and successors in interest the documents and written information received
from the other Party or from the other Party's Associates, provided that
such receiving Parties have first agreed to be bound by nondisclosure and
use restrictions that are comparable to those set forth in this Agreement.
16.5. Subject to the provisions of Paragraph 16.4. of Article 16 of this
Agreement, each Party shall not divulge any and all documents and written
information which it receives from the other Party or the other Party's
Associates, but shall protect all such documents and written information
which is marked with an appropriate and valid proprietary legend from
unauthorized disclosure except as provided herein, in the same manner as
the receiving Party protects its own confidential information, provided,
however, that each Party shall, that each Party shall have the right to
use and duplicate such documents and written information for any Party
purpose subject to the nondisclosure requirements and use restrictions
provided herein.
72
If the information disclosed by one Party to the other Party or by or to
their respective Associates is deemed confidential by the disclosing Party
or Associate and is verbal, not written, such verbal confidential
information shall be identified prior to disclosure as confidential and,
after acceptance by and disclosure to the receiving Party, shall be
reduced to writing promptly, labeled confidential, but in no event later
than twenty (20) days thereafter, and delivered to the receiving Party in
accordance with this paragraph.
16.6. The obligation of the Parties to keep secret and confidential the
documents and written information shall not apply to those documents and
written information that :
- are invalidity marked ;
- are in the public domain or use ;
- shall become in public use, by publication or otherwise, and due
to no
fault of the receiving Party ;
- the receiving Party can demonstrate were legally in its
possession at the
time of receipt ;
- are rightfully acquired by the receiving Party from third parties
;
- are commonly disclosed by ARIANESPACE and/or its Associates ;
- are inherently disclosed by any product or service marketed by
ARIANESPACE or its Associates ;
- are independently developed by the receiving Party ;
- are approved for release by the written authorization of the
disclosing
Party ; or
- are required, but only to the extent necessary, to be disclosed
pursuant to
governmental or judicial order, in which event the Party
concerned shall
notify the other Party of any such requirement and the
information
required to be disclosed prior to such disclosure.
16.7. The provisions of this Article shall remain valid after the term of this
Agreement for whatever reason until said documents and written information
become part of the public domain.
73
Each Party shall however be entitled to destroy documents and written
information received from the other Party, or to return these documents or
such written information to the other Party, at any time after Launch (or
after Replacement Launch, if any).
16.8. The present Agreement and each part thereof shall be considered to be
confidential by both Parties. Any disclosure of the same by one Party
shall require the prior written approval of the other Party, which
approval shall not be unreasonably withheld or delayed.
Except for manifest publications, either Party shall obtain the prior
written approval of the other Party only through such Party's authorized
representative concerning the content and timing of news releases,
articles, brochures, advertisements, speeches, and other information
releases concerning the work performed or to be performed hereunder by
ARIANESPACE and its Associates. Each Party agrees to give the other Party
reasonable advance time for review of any material submitted to the other
Party for approval under this paragraph.
74
ARTICLE 17 PERMITS AND AUTHORIZATIONS - GROUND STATIONS
17.1. The obligations of ARIANESPACE being limited to those provided for in
Article 4 above, Customer shall be required to obtain all permits,
authorizations, or notices of non-opposition from all national or
international, public or private authorities having jurisdiction over the
Satellite Mission.
17.2. Customer shall also obtain all government permits and authorizations
regarding the transfer of the Satellite and its Ancillary Equipment from
the country of origin to the Launch Base, and the availability of
Satellite's ground stations.
17.3. ARIANESPACE agrees to assist and support Customer and its Associates, free
of charge, with any administrative matters related to the importation into
French Guiana of the Satellite and its Ancillary Equipment, and related to
their preservation and possible repatriation, as well as to the entry,
stay, and departure of Customer and its Associates.
75
ARTICLE 18 TERMINATION BY CUSTOMER
18.1. Customer shall be entitled to terminate any Launch under this Agreement at
any time prior to Launch. Customer's right is not subject to any
condition, and shall cover termination situations for reasons of
convenience as well as those of delay or impossibility in which one of the
Parties may find themselves. Notice of termination shall be given by
registered letter with acknowledgment of receipt, and shall take effect
upon receipt of such letter by ARIANESPACE or by way of telecopy with copy
by registered letter with acknowledgment of receipt and shall take effect
upon receipt of the telecopy by ARIANESPACE.
18.2. Whatever the reason for termination of a Launch other than a Reflight
under this Article 18.0, ARIANESPACE shall be entitled to termination fees
equal to the aggregate of the following:
18.2.1. A basic termination fee as follows:
--------------------------- ----------------------------------------------------
Effective Date of Termination Fees expressed in % of Launch Services
Termination Price (LSP)
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********]
******] [***]
--------------------------- ----------------------------------------------------
[*********
******] [***]
--------------------------- ----------------------------------------------------
[*********
******] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
where:
LSP means the Launch Services Price excluding any price increase
resulting from the exercise of option(s) under Paragraph 8.1.2. and
any mass increase.
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
76
C means the date obtained by i) adding to the first day of the
initial Launch
Period (or, for Optional Launch #1 and Optional Launch #2, if
applicable, the initial three month Launch Period defined within
such Launch Period) for the Launch concerned the aggregate
duration of Launch Period or Launch Slot postponement(s)
requested by ARIANESPACE for such Launch pursuant to
Sub-paragraph 11.3.1. of Article 11 AND ii) deducting the
aggregate duration of acceleration(s) under Paragraph 11.5 of
this Agreement.
18.2.2. Plus i) any other amount(s) beyond the L.S.P. paid or due
(including postponement fees - late payment interest) for the
Launch at the effective date of termination, and ii) the price of
those Associated Services, ordered by the Customer after the
signature of this Agreement for the Launch concerned and performed
at the date of termination.
18.3. Notwithstanding the provisions of Paragraph 18.2. hereabove, Customer
shall have the following termination rights:
18.3.1. If Customer decides irrevocably not to proceed to the launch of one
or more of the PanAmSat Satellites covered by this Agreement, on
any launch vehicle whatsoever and consequently Customer terminates
this Agreement as to such Satellite(s), ARIANESPACE shall be
entitled to termination fees equal to the aggregate of the
following:
18.3.1.1. A basic termination fee as follows:
--------------------------- ----------------------------------------------------
Effective Date of Termination Fees expressed in % of
Termination Launch Services Price (LSP)
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[**********
***] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
where:
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
77
LSP means the Launch Services Price excluding any price
increase resulting from the exercise of options under
Paragraph 8.1.2. and any mass increase.
C means the date obtained by i) adding to the first day
of the initial Launch Period: a) the aggregate duration
of Launch Period or Launch Slot postponement(s)
requested by ARIANESPACE for such Launch pursuant to
Sub-paragraph 11.3.1. of Article 11 and b) the
aggregate duration of postponements requested by
Customer under Paragraph 11.2.1.5. AND ii) deducting
the aggregate duration of acceleration(s) under
Paragraph 11.5 of this Agreement. .
18.3.1.2. Plus i) any other amount(s) beyond the L.S.P. paid or due
(including postponement fees - late payment interest) for
the Launch at the effective date of termination, and ii) the
price of those Associated Services, ordered by the Customer
after the signature of this Agreement for the Launch
concerned and performed at the date of termination.
18.3.1.3. In the event of termination by Customer under the present
Paragraph 18.3.1., if Customer decides within five years of
such termination to proceed to the launch of the Satellite
the Launch of which was terminated under this Paragraph
18.3.1., the relevant Launch shall be reinstated
automatically under this Agreement and the Parties undertake
to negotiate in good faith necessary adjustments to be made
to this Agreement and the payment terms contained therein in
view of maintaining the net present value of the Launch
Services Price.
78
18.3.2. If the Launch concerned is a Reflight, ARIANESPACE shall be
entitled to termination fees equal to the aggregate of the
following:
18.3.2.1. A basic termination fee as follows:
--------------------------- ----------------------------------------------------
Effective Date of Termination Fees expressed in % of Guarantee Amount
Termination
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
[*********
******] [***]
--------------------------- ----------------------------------------------------
[*********] [***]
--------------------------- ----------------------------------------------------
where:
C means the date obtained by i) adding to the first day of
the initial Launch Period or Launch Slot as determined
pursuant to Article 13 of this Agreement of the Reflight: a)
the aggregate duration of Launch Period or Launch Slot
postponement(s) requested by ARIANESPACE for such Launch
pursuant to Sub-paragraph 11.3.1. of Article 11 and b) the
aggregate duration of postponements requested by Customer
under Paragraph 11.2.1.5. AND ii) deducting the aggregate
duration of acceleration(s) under Paragraph 11.5 of this
Agreement.
* Notwithstanding the foregoing, if Customer terminates the
Reflight no later than thirty days after the later of i) the
date of order of said Reflight or ii) thirty days after the
establishment of the cause of the Launch Failure and the
scheduling of the resumption of launches of the Ariane 5
launch vehicle as notified by ARIANESPACE to Customer, the
termination fee under this Paragraph 18.3.2.1. shall,
independently of the initial Launch Period of said Reflight,
be limited to [*********************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
79
18.3.2.2. Plus i) any other amount(s) paid or due (including
postponement fees - late payment interest) for the
Launch at the effective date of termination and ii) the
price of those Associated Services, ordered by the Customer
after the signature of this Agreement for the Launch
concerned and performed at the date of termination.
18.3.3. Notwithstanding the fo3regoing, if a Reflight performed by an
Ariane 5 Launch Vehicle results in a Launch Failure, Customer shall
have the right, within the later of i) ninety (90) days of the day
the Parties have agreed on the Launch Failure or ii) thirty days
after the establishment of the cause of the Launch Failure and the
scheduling of the resumption of launches of the Ariane 5 Launch
Vehicle as notified by ARIANESPACE to Customer to terminate the
Reflight of the Reflight under this Paragraph 18.3.3. In this case,
the Parties agree that ARIANESPACE shall reimburse to Customer an
amount equal to [**************************************************
*******************************************************************
*********************************************]
18.4. Termination fees are due by the Customer to ARIANESPACE as of the
effective date of termination and payable within thirty (30) days of the
receipt by the Customer of the corresponding invoice. Any amount paid by
the Customer for the Launch concerned (including, if applicable, any
Option Credit) in excess of the termination fees shall be refunded by
ARIANESPACE to the Customer within thirty (30) days of the effective date
of termination. For the purpose of this Paragraph 18.4., in the case of a
Reflight, the Guarantee Amount shall be deemed to be a payment and the
sole payment made by the Customer.
[*************************************************************************
**************************************************************************
**************************************************************************
**************************************************************************
**************************************************************************
**************************************************************************
***********************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
80
18.5. Notwithstanding the foregoing, in the event that the aggregate of all
postponements for a given Launch (other than postponement due to Events of
Force Majeure up to a period of six months for each Launch as provided
under Paragraph 11.3.5. of Article 11 of this Agreement) requested by
ARIANESPACE under Paragraph 11.3. of Article 11 of this Agreement should
result in ARIANESPACE delaying a Launch under this Agreement by more than
twelve (12) months, excluding delays due to Events of Force Majeure and
after deduction of the aggregate duration of acceleration(s) under
Paragraph 11.5 of this Agreement, Customer shall have the right, within
ninety (90) days of the receipt of the corresponding ARIANESPACE notice
for postponement or if no such notice is given, at the date at which the
aggregate of ARIANESPACE postponements for the forthcoming Launch exceeds
twelve months, to terminate the relevant Launch. ARIANESPACE shall
promptly refund to Customer all payments made by Customer for said Launch.
In such an event, Customer shall be liable only for the payment of
Associated Service(s) performed prior to the date of termination. For the
purpose of this Paragraph 18.5., in the case of a Reflight, the Guarantee
Amount shall be deemed to have been a payment and the sole payment made by
Customer.
18.6. If Customer does not exercise Optional Launch #1 by 30 June 1999 and/or
Optional Launch #2 by 31 December 1999, ARIANESPACE shall reimburse to
Customer the Option Price which was not the object of an applied Option
Credit under Paragraph 10.1.1.B) or C).
For the avoidance of doubt, except for any portion of the Option Fee that
may not be the object of a refund to Customer under the terms of this
Agreement, Customer shall have no termination liability vis-a-vis any
Optional Launch for which an Option is not exercised.
81
ARTICLE 19 TERMINATION BY ARIANESPACE
19.1. In the event that Customer fails to comply with its payment obligations
pursuant to the payment schedule and other payment dates set forth in this
Agreement, and does not pay within thirty (30) days of the receipt of a
notice to that effect, ARIANESPACE shall be entitled to terminate the
Launch concerned by registered letter with acknowledgment of receipt.
19.2. In the event of termination pursuant to the provisions of this Article 19,
the provisions of Paragraph 18.2. of Article 18 of this Agreement shall be
applicable.
82
ARTICLE 20 MISCELLANEOUS
20.1. Working language
Any communication by one Party to the other shall be made in English.
All communications between Customer and its Associates on the Launch Base,
as well as all communications between ARIANESPACE or its Associates on the
Launch Base with Customer's personnel and/or that of its Associates, shall
be made in English.
20.2. Notices
Unless expressly provided otherwise under this Agreement, all
communications and notices to be given by one Party to the other in
connection with this Agreement shall be in writing and in the language(s)
of this Agreement and shall be sent by registered mail, or transmitted by
telex telegram or facsimile and confirmed by registered letter.
The following addresses have been designated :
ARIANESPACE :
Immeuble Xxxxxx
Xxxxxxxxx xx x'Xxxxxx
00000 Xxxx
XXXXXX
83
Customer :
PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx, 00000
X.X.X.
Attention: Xx. Xxxxxxxxx XXXXXXX, President and CEO
or such other address or other persons attention as either Party may
modify in accordance with this Paragraph.
20.3. Waiver
Waiver on the part of either ARIANESPACE or Customer of any term,
provision, or condition of this Agreement shall only be valid if made in
writing and accepted by the other Party. Said acceptance shall not
obligate the Party in question to waive its rights in connection with any
other previous or subsequent breaches of this Agreement.
20.4. Headings
The headings and sub-headings used in this Agreement are provided solely
for convenience of reference, and shall not prevail over the content of
the Articles of this Agreement.
84
20.5. Assignment
Customer shall not be entitled to assign all or part of its rights and
obligations under this Agreement without the prior written consent of
ARIANESPACE which shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, ARIANESPACE's consent shall not be
required for any assignment of this Agreement by Customer to a reorganized
entity (which may include additional investors) to which all or
substantially all of the assets of the Customer are also assigned.
Customer shall promptly notify ARIANESPACE of any such assignment.
In addition, launch rights may be purchased hereunder by Customer's
subsidiary, PanAmSat International (formerly the "Customer" hereunder) for
its own account.
Such purchase shall be treated the same way as Customer's purchases
hereunder, counting both toward the number of available options hereunder
and for and for multilaunch purposes discounts, the only difference being
that the rights to particular launches purchased by PanAmSat International
and the obligations to make payment for such launches shall reside solely
with PanAmSat International.
With respect to the foregoing it is agreed that "Customer's" rights and
obligations to "Firm Launch #1" belong to PanAmSat International and the
rights and obligations to Firm Launch #2 remain with Customer.
85
20.6. Entire Agreement and Modifications
The Contractual Documents as amended at the date hereof comprise the
entire understanding between the Parties with respect to the subject of
this Agreement, superseding all prior and contemporaneous discussions
between them. Neither Party shall be bound by the conditions, warranties,
definitions, statements, or documents previous to the execution of this
Agreement, unless this Agreement makes express reference thereto. Any
undertakings subsequent to the execution of this Agreement shall be made
in writing and signed by duly authorized representatives of each of the
Parties and shall expressly state that it is such an amendment or
modification.
20.7. Registration of Customer's Satellite
In accordance with the Convention on Registration of Objects Launched into
Outer Space of U.N.O., Customer:
i) if a state or consortium of states, shall register the Satellite, or
ii) if not a state or consortium of states, shall obtain registration of
the Satellite through the state or a state which has jurisdiction over
Customer.
86
ARTICLE 21 APPLICABLE LAW
This Agreement shall govern the relationship between the Parties as to the
subject of this Agreement. To the extent the Parties have failed to address any
question arising hereunder, or in the event of the need for any interpretation
of any term of this Agreement, French law shall be applied, unless it is
contrary to the explicit terms or the underlying common intentions of the
Parties to this Agreement.
87
ARTICLE 22 ARBITRATION
In the event of disputes arising in connection with this Agreement, the Parties
undertake to use their best efforts to reach an amicable settlement. If an
amicable settlement cannot be achieved, the dispute shall be referred to the
President of ARIANESPACE and of Customer, who will use their best efforts to
reach an agreement acceptable to both Parties. Should an amicable settlement
prove impossible, the dispute(s) shall be finally settled under the rules of
Conciliation and Arbitration of the international Chamber of Commerce (I.C.C.)
in Geneva, Switzerland by three arbitrators appointed in accordance with the
then existing rules. The Arbitration shall be conducted in the English language.
The award of the Arbitrators shall be final and binding, and execution thereof
may be entered in any court having jurisdiction.
88
ARTICLE 23 EFFECTIVE DATE
This Agreement shall take effect after signature by the two Parties.
Executed
On , 1998.
In 2 originals
ARIANESPACE CUSTOMER
---------------------------- ----------------------------
89
P A R T II
A N N E X E S
90
ANNEX 4
E.S.A./ARIANESPACE Convention (Extract)
Certain European Governments, members of the European Space Agency, (hereinafter
referred to as "the Participants") have committed themselves to using the Ariane
Launcher, developed within the framework of the European Space Agency programs.
Arianespace must provide the European Space Agency and the Participants, as a
priority, with the services and launch slots necessary for their programs.
Arianespace must also make sure that in the event of a shift in the launch slots
caused by the launcher system and/or any of the technical equipment which has to
be used for the launch, the payload concerned of the Agency or Participant
retains its position in the launch schedule. In addition, in the event of the
failure of an Agency or Participant mission, the Agency or Participant may ask
Arianespace to provide them, for a new launch, with the first or failing that
the second launch slot compatible with the availability of the replacement
payload if the failure was due to the launch system and/or any of the technical
equipment used for the launch, and the first compatible slot or failing that the
first slot scheduled at the latest 10 months after the written relaunch request
if the failure was due to the payload itself. Finally, Arianespace has committed
itself to the Agency and to the Participants to pay particular attention to the
specific requirements imposed by scientific missions.
91
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