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Exhibit 10.1
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24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
CONTRACT
BETWEEN
SATÉLITES MEXICANOS, S.A. de C.V.
AND
SPACE SYSTEMS/LORAL, INC.
FOR THE
SATMEX 8 SATELLITE PROGRAM
This Contract and information contained therein are subject to the confidentiality and
nondisclosure terms as set forth in this Contract.
nondisclosure terms as set forth in this Contract.
[Use or disclosure of the data contained on this page is subject to the
restriction set forth on the cover page.]
restriction set forth on the cover page.]
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FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
TABLE OF CONTENTS
| Section | Page | |||
PREAMBLE |
1 | |||
RECITALS |
2 | |||
ARTICLE 1 - DEFINITIONS |
4 | |||
ARTICLE 2 - SCOPE OF WORK |
14 | |||
ARTICLE 3 - DELIVERABLE ITEMS AND DELIVERY SCHEDULE |
16 | |||
ARTICLE 4 - PRICE |
19 | |||
ARTICLE 5 - PAYMENTS |
23 | |||
ARTICLE 6 - PURCHASER-FURNISHED ITEMS |
27 | |||
ARTICLE 7 - COMPLIANCE WITH U.S. EXPORT LAWS AND DIRECTIVES |
32 | |||
ARTICLE 8 - ACCESS TO WORK IN PROCESS |
34 | |||
ARTICLE 9 - SATMEX 8 SATELLITE PRE-SHIPMENT REVIEW (SPSR) |
37 | |||
ARTICLE 10 - SATMEX 8 SATELLITE ACCEPTANCE AND IN-ORBIT TEST |
41 | |||
ARTICLE 11 - ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER THAN THE SATMEX 8 SATELLITE |
46 | |||
ARTICLE 12 - DELIVERY, TITLE AND RISK OF LOSS |
49 | |||
ARTICLE 13 - ORBITAL PERFORMANCE INCENTIVES |
52 | |||
ARTICLE 14 - WARRANTY |
58 | |||
ARTICLE 15 - CHANGES |
62 | |||
ARTICLE 16 - FORCE MAJEURE |
64 | |||
ARTICLE 17 - PATENT INDEMNITY |
65 | |||
ARTICLE 18 - INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE |
67 | |||
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EXECUTION VERSION
| Section | Page | |||
ARTICLE 19 - TERMINATION FOR CONVENIENCE |
70 | |||
ARTICLE 20 - LATE DELIVERY AND DELAYS |
74 | |||
ARTICLE 21 - DEFAULT |
76 | |||
ARTICLE 22 - DISPUTES |
81 | |||
ARTICLE 23 - INTER-PARTY WAIVER OF LIABILITY FOR A LAUNCH |
82 | |||
ARTICLE 24 - REPRESENTATIONS AND WARRANTIES |
84 | |||
ARTICLE 25 LIMITATION OF LIABILITY |
86 | |||
ARTICLE 26 - DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION |
88 | |||
ARTICLE 27 - RIGHTS IN DELIVERABLE DATA |
91 | |||
ARTICLE 28 - PUBLIC RELEASE OF INFORMATION |
92 | |||
ARTICLE 29 - NOTICES |
93 | |||
ARTICLE 30 - REPLACEMENT SATELLITE |
94 | |||
ARTICLE 31 - CORRECTIVE MEASURES IN SATELLITE |
95 | |||
ARTICLE 32 - STORAGE |
96 | |||
ARTICLE 33 - ORDER OF PRECEDENCE |
98 | |||
ARTICLE 34 - GENERAL |
99 | |||
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EXECUTION VERSION
Schedule 1 - SATMEX 8 Milestone Payment Plan for Firm Fixed Price and Termination Liability
Schedule
Exhibit A - SATMEX 8 Program Statement of Work |
||||
Exhibit B - SATMEX 8 Satellite Technical Specification |
||||
Exhibit C - Mission Assurance Plan |
||||
Exhibit D - SATMEX 8 Satellite Test Plan |
||||
Exhibit E - SATMEX 8 Dynamic Satellite Simulator Specification |
||||
Exhibit F - GCE Upgrade Statement of Work |
||||
Exhibit G - iTACS Technical Requirements Specification |
||||
Exhibit H - APS Technical Requirements Specification |
||||
Exhibit I - GCE Upgrade Product Assurance Plan |
||||
Exhibit J - Ground Control Equipment Upgrade Test Plan |
||||
Exhibit K - Upgrade Training Plan and Technical Assistance |
||||
Exhibit L - SATMEX 8 Program Satellite and DSS Training Plan |
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EXECUTION VERSION
PREAMBLE
This Contract is entered into effective as of April 1st, 2010 (the “Effective Date of
Contract” or “EDC”), by and between Satélites Mexicanos, S.A. de C.V., a corporation organized and
existing under the laws of Mexico, having an office and place of business at Xxxxxxx Xxxxx xx xx
Xxxxxxx 000, 00xx Xxxxx, Xxx. Xxxxxx, Delegación Xxxxxxxxxx CP 06600, México, D.F.
(hereinafter referred to as “Purchaser”), and Space Systems/Loral, Inc., a corporation organized
and existing under the laws of the state of Delaware, having an office and place of business at
0000 Xxxxxx Xxx, Xxxx Xxxx, XX 00000-0000 (hereinafter referred to as “Contractor”, and Purchaser
and Contractor are hereinafter referred to collectively as the “Parties” or individually as a
“Party”), regarding the SATMEX 8 Satellite program.
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EXECUTION VERSION
RECITALS
WHEREAS, Purchaser wishes to procure, and Contractor is willing to furnish, a communications
satellite (the “SATMEX 8 Satellite”), two (2) Dynamic Satellite Simulators (DSSs), Ground Control
Equipment Upgrades, Launch Support Services, Mission Operations Support Services, In Orbit Testing,
Training services, On-site Support, In-plant Participation, Technical Support over the Mission
Life, and to furnish other items and services (all as defined herein) to the extent and subject to
the terms and conditions set forth herein, in consideration of the Firm Fixed Price and other valid
consideration.
WHEREAS, as of November 30, 2006, Purchaser and Contractor agreed upon and acknowledged the Right
of First Offer Letter, as amended (the “ROFO”), pursuant to which Contractor has a right of first
offer with respect to the construction of Purchaser’s next satellite to be placed into one of
Purchaser’s existing orbital locations (the “Next Satellite”), and from and after EDC, the SATMEX 8
Satellite is considered to be such Next Satellite;
WHEREAS, Contractor and Purchaser have executed an Authorization to Proceed (the “ATP”) for the
SATMEX 8 Satellite program dated as of April 1st, 2010, pursuant to which Contractor
agreed to initiate work on the SATMEX 8 Satellite program in consideration of the payment of 2.0
million U.S. dollars (US $2,000,000.00) (the “ATP Price”) by Purchaser, which is superseded in its
entirety as of EDC as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and
intending to be legally bound, the Parties agree as follows:
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EXECUTION VERSION
ARTICLE 1 — DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the following meanings:
| 1.1 | “Acceptance” (i) with respect to the SATMEX 8 Satellite shall be as provided for in Article
10, and (ii) with respect to any Deliverable Item other than the SATMEX 8 Satellite shall be
as provided for in Article 11. |
| 1.2 | “Affiliate” means, with respect to an entity, any other entity, directly or indirectly,
Controlling or Controlled by or under common Control with such first named entity. For
purposes of this definition, “Control” and its derivatives mean, with respect to an entity,
(i) the legal, beneficial, or equitable ownership, directly or indirectly, of fifty percent
(50%) or more of the capital stock (or other ownership interest if not a corporation) of such
entity ordinarily having voting rights, or (ii) the power to direct, directly or indirectly,
the management policies of such entity, whether through the ownership of voting stock, by
contract, or otherwise. |
| 1.3 | “ATP” shall have the meaning set forth in the Recitals. |
| 1.4 | “ATP Price” shall have the meaning set forth in the Recitals. |
| 1.5 | “Candidate Launch Vehicles” shall have the meaning set forth in Paragraph 5.2.2 of Exhibit B,
Satellite Performance Specifications. |
| 1.6 | “Contract” means the articles of this executed Contract and its Exhibits as such Contract or
any Exhibit may be amended from time to time in accordance with the terms hereof. |
| 1.7 | “Contract Document Requirements Lists” or “CDRLs” means the applicable contract document
requirements lists as set forth in Exhibit A SOW, Annex 1 and Exhibit F, Section 6.1. |
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EXECUTION VERSION
| 1.8 | “Controlled Items” means any hardware, software, Deliverable Data, other technical
information or technical/defense services to be provided by Contractor hereunder that is
subject to controls under Export Control Laws. |
| 1.9 | “Daily Rate” shall have the meaning set forth in Article 13.2. |
| 1.10 | “Deliverable Data” means the data and documentation required to be delivered to Purchaser as
specified in the Contract Document Requirements Lists, which shall be amended and/or updated
by the Parties to include all documentation required to be delivered by Contractor in the
Exhibits. |
| 1.11 | “Deliverable Item” means any of the items listed in Article 3.1 and, collectively, the
“Deliverable Items”. |
| 1.12 | “Delivery” (i) with respect to the SATMEX 8 Satellite shall be as provided for in Article
3.2, and (ii) with respect to any Deliverable Item other than the SATMEX 8 Satellite shall be
as provided for in Article 3.2. |
| 1.13 | “Dynamic Satellite Simulators” or “DSSs” is as described in Exhibit E. |
| 1.14 | “Effective Date of Contract” or “EDC” means the effective date of this Contract as specified
in the preamble. |
| 1.15 | “Effective Failure Date” means, for purposes of determining losses of Transponder [***]
Orbital Performance Incentives, either: (i) the date that the event causing the loss of OPI
occurs, provided that Purchaser provides Contractor with notification of such loss event
within thirty (30) days of the occurrence thereof; or (ii) the date that Purchaser provides
Contractor with notification of such loss event, if such notification occurs more than thirty
(30) days after the occurrence of such loss event. |
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EXECUTION VERSION
| 1.16 | “Exhibits” means the exhibits identified in Article 2.1 and attached hereto, as may be
amended from time to time in accordance with the terms hereof. |
| 1.17 | “Export Control Laws” means U.S. Government export control and security laws, regulations,
policies and license conditions applicable to Contractor’s performance of this Contract
(including, but not necessarily limited to, the Arms Export Control Act, the Export
Administration Act, the International Traffic in Arms Regulations, and the Export
Administration Regulations). |
| 1.18 | “Failed Transponder” or “Transponder Failure” means, at any time after Launch, the permanent
failure (including permanently intermittent failure) of a Transponder to meet the requirements
of the SATMEX 8 Satellite Performance Specification, provided that, (i) the Transponder cannot
be used for its intended communications purposes or (ii) consistent with telemetry data, IOT
or other evidence which manifests itself after Launch, the Transponder is expected to fail to
be usable for its intended communications purposes before the end of the SATMEX 8 Satellite
Stated Life and in which event it shall be a Failed Transponder from and after the time it
becomes such a failure. Within sixty (60) days following the Effective Failure Date, all
available redundant and/or spare components on the SATMEX 8 Satellite applicable to the
Transponder must be used or cease to be available and all reasonable technical alternatives
for correcting the failure must be examined before a Transponder is considered to be a Failed
Transponder. In the event that after all reasonable technical alternatives for correcting the
failure have been performed, but nevertheless the failure still continues from and after sixty
(60) days following the Effective Failure Date, the Transponder shall be declared as a “Failed
Transponder” retroactive to the Effective Failure Date. For purposes of this definition,
without limitation as to other circumstances of permanent intermittent failure that also may
qualify as a “permanent failure” for purposes hereof, a Transponder “permanent intermittent
failure” that qualifies for treatment as a “permanent failure” for purposes hereof, will be
deemed to have occurred from and after such time as such Transponder
has been a Non-Operational Transponder for three (3) separate thirty (30)
consecutive day periods. |
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EXECUTION VERSION
| 1.19 | “Firm Fixed Price” is the amount(s) set forth in Article 4. |
| 1.20 | “Force Majeure” means any event beyond the control of a Party or its suppliers and
subcontractors provided that such event could not have been prevented by the Party affected
acting and having acted in a reasonable and prudent manner, and shall include, but not be
limited to: (1) acts of God; (2) acts of a public enemy; (3) acts of a government in its
sovereign capacity (including any action or inaction affecting the import or export of items,
other than due to a lack of due diligence, wrongful or negligent act or an omission of
Contractor); (4) war and warlike events; (5) catastrophic weather conditions such as
hurricanes, tornadoes and typhoons; (6) fire, earthquake, floods, epidemics, quarantine
restrictions, strikes, lockouts and other industrial disputes, sabotage, riot and embargoes,
and) (7) other unforeseen and extraordinary events, which in every case are beyond the
reasonable control and without the fault of the Party affected or its suppliers and
subcontractors. |
| 1.21 | “Foreign Person” shall be as defined in the U.S. International Traffic in Arms Regulations,
22 C.F.R. §120.16. |
| 1.22 | [***] |
| 1.23 | “Ground Control Equipment Upgrade” or “GCE Upgrade” is as described in Exhibit F. |
| 1.24 | “Handover Date” shall have the meaning set forth in Article 10.2 of this Contract. |
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EXECUTION VERSION
| 1.25 | “In Orbit Testing” or “IOT” means the testing of the SATMEX 8 Satellite on-orbit in
accordance with Exhibit D, SATMEX 8 Satellite Test Plan. |
| 1.26 | “In-plant Participation” shall have the meaning set forth in Exhibit A. |
| 1.27 | “Intellectual Property” means all designs, techniques, analyses, methods, concepts, formulae,
layouts, software, inventions (whether or not patented or patentable), discoveries,
improvements, processes, ideas, technical data and documentation, technical information,
engineering, manufacturing and other drawings, specifications and similar matter in which an
Intellectual Property Right subsists, regardless of whether any of the foregoing has been
reduced to writing or practice. |
| 1.28 | “Intellectual Property Right” means all common law and statutory proprietary rights with
respect to Intellectual Property, including patent, patent application, copyright, trademark,
service xxxx, trade secret, mask work rights, data rights, moral rights, and similar rights
existing from time to time under the intellectual property laws of the United States, any
state or foreign jurisdiction, or international treaty regime, regardless of whether such
rights exist as of the date hereof or arise or are required at any time in the future. |
| 1.29 | “Intentional Ignition” means, with respect to the Satellite, the start of the ignition
process of the Launch Vehicle for the purpose of Launch, which is the time at which the
command signal is sent to the Launch Vehicle. This definition shall be modified, with effect
as of the date notified by the Party entering into the LSA, to reflect the definition of
“intentional ignition” in the Launch Services Agreement applicable to Launch of the Satellite. |
| 1.30 | “IOT Complete Date” shall have the meaning set forth in Article 10.2. |
| 1.31 | [***] |
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EXECUTION VERSION
| 1.32 | “Launch” means, with respect to the SATMEX 8 Satellite, Intentional Ignition followed by a
lift off. This definition shall be modified to incorporate the definition of “launch”
from the Launch Services Agreement applicable to the Launch of the Satellite. |
| 1.33 | “Launch Agency” means the provider responsible for conducting the Launch Services for the
SATMEX 8 Satellite. |
| 1.34 | “Launch and In-Orbit Insurance” shall have the meaning set forth in Article 6.6. |
| 1.35 | “Launch Date” means the date for the Launch of the Satellite established pursuant to the LSA. |
| 1.36 | “Launch Services” means those services provided by the Launch Agency pursuant to the Launch
Services Agreement. |
| 1.37 | “Launch Services Agreement” or “LSA” means the contract between the Purchaser and the Launch
Agency which provides for Launch Services for the SATMEX 8 Satellite. |
| 1.38 | “Launch Site” means the location that will be used by the Launch Agency for purposes of
launching the SATMEX 8 Satellite. |
| 1.39 | “Launch Support” or “Launch Support Services” means those services specified in the SOW,
Exhibit A, to be provided by Contractor in support of Launch Services. |
| 1.40 | “Launch Vehicle” means the launch vehicle selected by Purchaser and used for Launch Services
for the SATMEX 8 Satellite. |
| 1.41 | “Losses” shall have the meaning set forth in Article 18.1. |
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EXECUTION VERSION
| 1.42 | “Mission Operations Support Services” means the orbit-raising, IOT and related services
specified in Exhibit A to be performed by Contractor for the SATMEX 8 Satellite. |
| 1.43 | “Non-Operational Transponder” means failure of a Transponder on the SATMEX 8
Satellite to meet the requirements of the SATMEX 8 Satellite Performance Specification,
in excess of ten (10) consecutive minutes per day for three (3) consecutive days, or five
(5) non-consecutive days in any thirty (30) day period, during the SATMEX 8 Satellite
Stated Life, that is not attributable to the operation, directly or indirectly, of the
SATMEX 8 Satellite by Purchaser (each such Transponder on each such day is deemed
individually, a “Non-Operational Transponder”), as set forth in Article 13.6. |
| 1.44 | “NSP” means not separately priced. |
|
| 1.45 | “On-site Support” shall have the meaning set forth in Exhibit A. |
| 1.46 | “Operational Transponder” means a Transponder that is capable of providing communications
services, and is operating in accordance with the Satellite Performance Specification, Exhibit
B, including any waivers approved in accordance with Article 9.4 of this Contract. |
| 1.47 | “Orbital Performance Incentive Period” or “OPIP” means, with respect to the Satellite, the
period commencing on the day following the Handover Date for such Satellite and ending on the
last day of the Satellite Stated Life, not to exceed 5,475 days. |
| 1.48 | “Orbital Performance Incentives” or “OPI” means, with respect to the SATMEX 8 Satellite, the
amount specified in Article 13, which may be earned by Contractor based on on-orbit
performance of such SATMEX 8 Satellite, as may be adjusted pursuant to other provisions
therein. |
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EXECUTION VERSION
1.49 “Orbital Storage” shall have the meaning set forth in Article 13.5.
| 1.50 | “Partial Loss” means, with respect to the Satellite on or after [***], any loss of
operational capacity, but the Satellite is not a Total Loss. If Purchaser obtains a policy of
Launch and In-Orbit Insurance, this definition shall be modified, with effect as of the date
notified by Purchaser to Contractor, to reflect the definition of “Partial Loss” in the Launch and In-Orbit
Insurance policy covering loss of or damage to the SATMEX 8 Satellite. |
| 1.51 | “Party” or “Parties” means Purchaser, Contractor or both, as the context requires. |
| 1.52 | “Payment Plan” means the payment plan for the work performed under the Contract, as set forth
in Schedule 1 hereto. |
| 1.53 | “Performance Specification” means the applicable performance specification (Exhibit B, E, G
or H) for the SATMEX 8 Satellite or other Deliverable Item as appropriate in the context of
the applicable clause. |
| 1.54 | “PMO” means Purchaser’s Program Management Office(s) |
| 1.55 | “Mission Assurance Plan” or “MAP” means the applicable mission/product assurance plan
(Exhibit C or Exhibit I) for the SATMEX 8 Satellite or other Deliverable Item as appropriate
in the context of the applicable clause. |
| 1.56 | “Proprietary Information” shall have the meaning set forth in Article 26. |
| 1.57 | “Redundancy” means the use of a spare unit or equipment of the SATMEX 8 Satellite to fix an
anomaly experienced in a subsystem or system to re-establish or maintain operation of the
Satellite. |
| 1.58 | [***] |
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EXECUTION VERSION
| 1.59 | [***] |
|
| 1.60 | “Replacement Satellite” shall have the meaning set forth in Article 30. |
| 1.61 | “Replacement Satellite Exercise Period” shall have the meaning set forth in Article 30. |
| 1.62 | “Satellite Storage Plan” shall have the meaning set forth in Article 32. |
| 1.63 | “SATMEX 8 Satellite” or “Satellite” means the communications satellite that is to be
manufactured by Contractor pursuant to this Contract. |
| 1.64 | “SATMEX 8 Satellite Anomaly” means, with respect to the SATMEX 8 Satellite, any on-orbit
condition or occurrence that has a material adverse impact on the SATMEX 8 Satellite Stated
Life, or the health or performance of the SATMEX 8 Satellite. |
| 1.65 | “SATMEX 8 Satellite Technical Specification” means the SATMEX 8 Satellite performance
specification attached as Exhibit B. |
| 1.66 | “SATMEX 8 Satellite Test Plan” means the SATMEX 8 Satellite test plan attached as Exhibit D. |
| 1.67 | “SATMEX 8 Satellite Stated Life” means, with respect to the SATMEX 8 Satellite, the predicted
operational life for such SATMEX 8 Satellite measured in years (and any portion thereof of
less than one (1) year) less the time between Launch and the Purchaser’s Acceptance of the
SATMEX 8 Satellite pursuant to Article 10, based on the worst case pre-Launch three (3) sigma
fuel budget for the Launch Vehicle and the SATMEX 8 Satellite, for which the SATMEX 8
Satellite is expected to be operated in accordance with the applicable provisions of the
SATMEX 8 Satellite Performance Specification, provided that, in no event shall the SATMEX 8
Satellite Stated Life be less than fifteen (15) years plus one (1) year of propellant margin. |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 1.68 | “Statement of Work” or “SOW” means the applicable statement of work (Exhibit A or Exhibit F)
for the SATMEX 8 Satellite or other Deliverable Item as appropriate in the context of the
applicable clause. |
| 1.69 | “Storage” shall have the meaning set forth in Article 32. |
| 1.70 | “Technical Support over the Mission Life” shall have the meaning set forth in Exhibit A. |
| 1.71 | “Terminated Ignition” means that following Intentional Ignition, Launch does not occur and
launch pad is declared safe by the launch agency, and the Satellite is not a Total Loss. This
definition shall be modified, with effect as of the date notified by the Party to the LSA, to
incorporate the definition of “Terminated Ignition” from the Launch Service Agreement
applicable to the Launch of the Satellite. |
| 1.72 | “TT&C” means telemetry, tracking and control. |
| 1.73 | “Total Loss” means with respect to the SATMEX 8 Satellite (i) the complete loss, destruction
or failure of such SATMEX 8 Satellite, or (ii) [***] or more of the required number of
Operational Transponders hereunder become Failed Transponders. If Purchaser procures a policy
of Launch and In-Orbit Insurance, this definition shall be modified, with effect as of the
date notified by Purchaser to Contractor, to reflect the definition of “Total Loss” and/or
“Constructive Total Loss” in the Launch and In-Orbit Insurance policy covering loss of or
damage to the SATMEX 8 Satellite or if the Partial Loss definition has been amended according
to its terms. |
| 1.74 | “Training” shall have the meaning set forth in Exhibit K and Exhibit L, as applicable. |
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EXECUTION VERSION
| 1.75 | “Transponder” means individually those sets of equipment within the communications subsystem
of the SATMEX 8 Satellite that provide a path to receive communications signals from earth,
translate and amplify such signals and transmit them to earth. A Transponder shall mean any
one of the twenty four (24) C-Band and forty (40) Ku-Band transponders. |
| 1.76 | “Transponder Penalty” shall have the meaning set forth in [***]. |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 2 — SCOPE OF WORK
| 2.1 | Provision of Services and Materials |
Contractor shall provide the necessary personnel, expertise, material, services, and
facilities to: design, manufacture, test, and deliver to Purchaser for Acceptance, one (1)
SATMEX 8 Satellite together with all other Deliverable Items referred to in Article 3.1, in
accordance with the following Exhibits, which are attached hereto and made a part hereof:
| 2.1.1 | Exhibit A — SATMEX 8 Satellite Statement of Work, dated 3/12/ 2010 |
||
| 2.1.2 | Exhibit B — SATMEX 8 Satellite Technical Specification, dated 5/7/2010 |
||
| 2.1.3 | Exhibit C — Mission Assurance Plan, Rev. 1, dated 9/22/2006 |
||
| 2.1.4 | Exhibit D — SATMEX 8 Satellite Test Plan, dated 5/7/2010 |
| 2.1.5 | Exhibit E — SATMEX 8 Dynamic Satellite Simulator Specification, dated
3/12/2010 |
| 2.1.6 | Exhibit F — GCE Upgrade Statement of Work, dated 3/19/2010 |
||
| 2.1.7 | Exhibit G — iTACS Technical Requirements Specification, dated 3/12/ 2010 |
||
| 2.1.8 | Exhibit H — APS Technical Requirements Specification, dated 2/10/2010 |
| 2.1.9 | Exhibit I — SATMEX 8 Satellite Ground control Equipment and Software Product
Upgrade Assurance Plan, dated 2/10/2010 |
| 2.1.10 | Exhibit J — Ground Control Equipment Upgrade Test Plan, dated 2/22/2010 |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 2.1.11 | Exhibit K — Ground Control Equipment Upgrade Training Plan and Technical Assistance,
dated 3/12/2010 |
2.1.12 Exhibit L — SATMEX 8 Program Satellite and DSS Training Plan, dated 3/12/2010
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 3 — DELIVERABLE ITEMS AND DELIVERY SCHEDULE
| 3.1 | Deliverable Items |
Subject to all other terms and conditions of this Contract, the items to be delivered under
this Contract are specified in the table below and the corresponding delivery schedules and
locations are as follows:
| Delivery | ||||||
| Item | Description | Delivery Schedule | Location | |||
1.
|
SATMEX 8 Satellite | EDC + 27 months (shipment to the Launch Site) | Contractor’s facility | |||
2.
|
Deliverable Data | Per CDRLs | Purchaser’s PMO | |||
3.
|
Training | Per Training Plans, Exhibits K and L | Per Training Plans Exhibits K and L | |||
4.
|
On-site Support | Per Training Plans, Exhibits A sec. 2.5.1.8, F secs. 6.2.1 and 8.1, and K sec. 1.5 | Purchaser’s facilities in Iztapalapa, México City and Xxxxxxxxxx, Xxxxxx, Xxxxxx | |||
0.
|
In-plant Participation | Per Training Plans, Exhibits A, E and F | Contractor’s facility | |||
6.
|
Technical Support over the Mission Life |
Throughout the SATMEX 8 Satellite operational life |
Per SOW, Sec. 2.5.8 | |||
7.
|
Two (2) Dynamic Satellite Simulators (DSSs) | Interim software and hardware DSSs: Launch Date minus [***] months; | Per SOW | |||
| DSSs Software update: at Launch Date minus [***] months; | ||||||
| Final DSSs update: |
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EXECUTION VERSION
| Delivery | ||||||
| Item | Description | Delivery Schedule | Location | |||
| Launch Date minus [***] weeks; and | ||||||
| DSS computer hardware and software update: [***] years after Acceptance of the Satellite. | ||||||
8.
|
Ground Control Equipment upgrades |
EDC plus [***] months | Purchaser’s facilities in Iztapalapa, Mexico City and Hermosillo, Sonora, México per Exhibit F | |||
9.
|
Launch Support Services (For the selected Launch Vehicle) |
Launch Campaign per Exhibit A sec. 2.5.6.2 | Launch Site | |||
10.
|
Mission Operations Support Services |
During orbit-raising and IOT phases per Exhibit A secs. 2.5.6.3 and 2.5.6.4 | Contractor’s and Purchaser’s facilities |
| 3.2 | Delivery |
Delivery of each Deliverable Item, except the Satellite, shall occur upon Acceptance of such
Deliverable Item in accordance with Article 11. In the case of the Satellite, Delivery shall
occur upon shipment of the Satellite to the Launch Site after completion of the SPSR
pursuant to Article 9. Provided that Purchaser has made the Launch Site available for
receipt of the Satellite, Contractor shall ship the Satellite to the Launch Site within
twenty-seven (27) months from EDC.
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EXECUTION VERSION
| 3.3 | Procurement of Launch Services |
Purchaser shall be responsible for the procurement of Launch Services for the SATMEX 8
Satellite. Contractor shall provide engineering and other customary services to maintain
compatibility of the Satellite for Launch with the list of Candidate Launch Vehicles set
forth in Exhibit B (as of EDC, Ariane 5, Proton M, Sea Launch and Atlas V). On or before
[***] month prior to the Delivery date of the Satellite set forth in Article 3.1 (as such
date may be extended as provided under this Contract), Purchaser shall notify Contractor in
writing of its final selection of a Launch Vehicle for the Launch of the Satellite from the
list of Candidate Launch Vehicles, and shall use reasonable commercial efforts to select a
Launch Date compatible with Contractor’s then-currently scheduled Satellite Delivery date.
Failure to notify Contractor of Launch Vehicle selection by the respective date set forth in
the immediately preceding sentence shall be a Purchaser delay of Work subject to Article 6.7
and, once selected as provided above, any change to the Launch Vehicle selection shall be
subject to Article 15.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 4 — PRICE
| 4.1 | Firm Fixed Price |
The price to be paid by Purchaser to Contractor for the Deliverable Items 1 through 10 set
forth in Article 3.1 and Mission Operations Support Services, in each case, within the scope
of work detailed in the SOW, Orbital Performance Incentives and shipment of Deliverable
Items, including shipping insurance and customs and duties associated with shipment of the
Satellite to the designated Launch Site and all in accordance with the terms and conditions
of this Contract, as specified herein, shall be a firm fixed price of [***] (the “Firm Fixed
Price”), which shall be paid in accordance with Schedule 1 hereto, entitled “SATMEX 8
Milestone Payment Plan for Firm Fixed Price”. The Firm Fixed Price includes the ATP Price
paid by Purchaser to Contractor under the ATP, which shall be credited against the initial
payment set forth in Schedule 1 hereto, but does not include the [***] interest cost
calculated based on the Orbital Performance Incentives amount as described in Article 13.
The itemization of the Firm Fixed Price is as follows:
| Item | Description | Amount | ||||
| 1. | SATMEX 8 Satellite *
|
[***] | ||||
| 2. | Deliverable Data
|
NSP | ||||
| 3. | Training
|
NSP | ||||
| 4. | On-Site Support
|
NSP | ||||
| 5. | In-Plant Participation
|
NSP | ||||
| 6. | Technical Support over the Mission Life
|
NSP | ||||
| 7. | Two (2) Dynamic Satellite Simulators (DSSs)
|
[***] | ||||
| 8. | Ground Control Equipment Upgrades
|
[***] | ||||
| 9. | Launch Support Services (launch base operations)
|
NSP* | ||||
| 10 | Mission Operations Support Services
|
NSP | ||||
Total Firm Fixed Price*
|
[***] | |||||
| * | The Firm Fixed Price assumes the Launch will be on an Ariane 5 Launch Vehicle; in the event
that Purchaser selects a Launch Vehicle other than the Ariane 5, the Firm Fixed Price is
subject to adjustment pursuant to Article 4.4 below. |
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EXECUTION VERSION
The Firm Fixed Price includes all applicable taxes, duties and similar liabilities imposed
by the United States Government or any political subdivision thereof, in connection with
Contractor’s performance under this Contract other than taxes imposed on Purchaser as a
result of Purchaser accepting title, ownership or possession of any Deliverable Items under
this Contract. The Firm Fixed Price includes any applicable taxes, duties and similar
liabilities imposed upon Contractor’s acquisition of items and services from subcontractors
and suppliers in performance of its obligations hereunder.
| 4.2 | Effect of Payment |
Payments made under this Contract shall neither relieve Contractor from the performance of
any of its obligations under this Contract, nor constitute a waiver of any of Purchaser’s
rights and remedies hereunder.
| 4.3 | Tax Responsibilities |
| 4.3.1 | Purchaser shall be responsible for all taxes, duties, fees, levies, business,
property and sales taxes imposed after or in connection with the transfer of title of
the SATMEX 8 Satellite or other Deliverable Items to Purchaser, withholding or value
added taxes, bonds, charges, contributions or any other fiscal burden related
to the delivery, acceptance or use of Deliverable Items under this Contract,
including but not limited to all financial liabilities imposed by the Mexican
Government. Purchaser shall not be liable for any taxes imposed on Contractor
pursuant to Article 4.1 above. Notwithstanding the above, Contractor shall be
responsible for any net U.S. income taxes imposed on Contractor for its performance
under this Contract. |
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EXECUTION VERSION
| 4.4 | Launch Support Services |
Depending upon Purchaser’s selection of the Launch Vehicle for the Launch of the Satellite,
the Firm Fixed Price of this Contract shall be increased or decreased in the following
applicable amount to reflect the Launch Support Services associated with the selected Launch
Vehicle:
| Price of Launch Support | ||
| Candidate Launch Vehicles | Services | |
Proton
|
$[***] | |
Sea Launch
|
$[***] | |
Atlas
|
$[***] | |
Ariane
|
$0 (Baseline) |
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EXECUTION VERSION
The Parties agree that in the event that the Launch Vehicle selected by Purchaser is other
than Ariane, the Schedule 1, SATMEX 8 Milestone Payment Plan for Firm Fixed Price will be
adjusted accordingly and such adjustment shall be reflected in the SPSR completion milestone
under the Schedule 1, SATMEX 8 Milestone Payment Plan for Firm Fixed Price.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 5 — PAYMENTS
| 5.1 | Payment Plan |
Payments by Purchaser to Contractor of the Firm Fixed Price set forth in Article 4 shall be
made in accordance with the Payment Plan set forth in Schedule 1, SATMEX 8 Milestone Payment
Plan for Firm Fixed Price, hereto.
| 5.2 | Payment Conditions |
| 5.2.1 | Milestone Payments. For any milestone listed on Schedule 1, SATMEX 8
Milestone Payment Plan for Firm Fixed Price, Contractor shall submit an invoice for
the associated milestone payment, upon completion of such milestone in accordance with
the milestone completion criteria contained in Schedule 1, SATMEX 8 Milestone Payment
Plan for Firm Fixed Price. All payments due from Purchaser upon the completion of a
milestone described in the Payment Plan shall be invoiced by Contractor and shall also
include Contractor’s certification that the milestone has been satisfactorily
completed. |
| 5.2.2 | Orbital Performance Incentives. The Orbital Performance Incentives
payments due from Purchaser pursuant to Article 13 with respect to the SATMEX 8
Satellite shall be due and payable as specified for such payments in Article 13. |
| 5.2.3 | Non-Warranty Payments. All amounts payable to Contractor with
respect to non-warranty work performed pursuant to Article 14.4 shall be paid no later
than thirty (30) days after receipt of an invoice from Contractor certifying that such
non-warranty work has been satisfactorily completed. |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 5.2.4 | Obligation to Pay. Except for the milestone payment entitled “Full
Start Payment” on Schedule 1, SATMEX 8 Milestone Payment Plan for Firm Fixed Price,
payment of which is a condition to the occurrence of EDC of this Contract, and
except for the provision set forth in Article 5.2.6, all payments due from Purchaser
shall be payable [***] days after receipt of Contractor’s invoice and subject to
Article 5.2.2. Other than as provided immediately above, elsewhere in the Contract
or as may be mutually agreed, in no event shall Purchaser be obligated to make a
milestone payment prior to [***] days after Purchaser’s receipt of the corresponding
invoice therefor. For purposes of calculating the time for payments under this
Article 5, invoices sent by electronic means (facsimile or by electronic mail)
promptly followed by issuance of an original invoice shall be deemed received upon
confirmation of successful transmission or reception of the electronic mail,
otherwise the time for payment shall be calculated from Purchaser’s receipt of an
original invoice. |
| 5.2.5 | Disputed Amounts. If the event covered by a Contractor milestone
payment invoice has not been substantially completed in accordance with the
requirements of this Contract, Purchaser shall so notify Contractor in writing within
[***] days of receipt of the invoice. Such notification shall state in reasonable
detail the Contract requirements associated with the applicable milestone event that
have not been met. Upon correction of the noted discrepancy(ies) (so that the
milestone is completed to the original invoice and milestone completion
requirements), the milestone invoice shall be reinstated for payment to be received
within thirty (30) days after correction of such discrepancy(ies). |
| 5.2.6 | [***] |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 5.3 | Late Payment |
In the event that any payment to Contractor is not made when due hereunder, without
prejudice to Contractor’s other rights and remedies under this Contract, at law or in
equity, Purchaser shall pay Contractor interest at the rate of [***]% compounded annually on
the unpaid balance thereof from the date such payment is due hereunder until such time as
payment is made. [***].
| 5.4 | Invoices |
Invoices required to be delivered by Contractor hereunder shall be emailed or faxed to
Purchaser and followed by original plus one (1) copy at the following address:
Satélites Mexicanos, S.A. de C.V.
[***]
[***]
Attention: Xx. Xxxxxxxx X. Xxx Xxxxxx
Phone: [***]
Facsimile:[***]
Phone: [***]
Facsimile:[***]
or to such other address as Purchaser may specify in writing to Contractor. A copy of the
invoice shall be sent to [***], phone [***], facsimile [***], email address: [***]; and
[***], phone [***], facsimile [***], email address: [***].
The invoice shall contain the following mailing address:
[***]
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 5.5 | Payment Bank |
All payments made to Contractor hereunder shall be in U.S. currency and shall be made by
electronic funds transfer to the following account:
SPACE SYSTEMS/LORAL, INC.
[***]
[***]
or such other account or accounts as Contractor may specify in writing to Purchaser thirty
(30) days before the corresponding payment date.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 6 — PURCHASER-FURNISHED ITEMS
| 6.1 | Purchaser-Furnished Support |
To enable Contractor to install and complete Acceptance inspection of any SATMEX 8 Ground
Control Equipment upgrades and the DSSs and, during the period which Contractor is
performing Launch Support and Mission Operations Support Services up to and including the
time of completion of In-Orbit Testing for the SATMEX 8 Satellite and Acceptance, Purchaser
shall timely make available to Contractor, certain Purchaser-furnished equipment, facilities
and services described in the SOWs. Such equipment, facilities and services shall be in good
working condition and adequate for the required purposes and, for the Launch of the SATMEX 8
Satellite hereunder, shall be made available free of charge for Contractor’s use during the
period commencing six (6) months prior to such Launch and continuing through completion of
In-Orbit Testing and Acceptance for such SATMEX 8 Satellite. Purchaser and Contractor will
conduct interface meetings in accordance with Exhibit A prior to such Launch to confirm the
availability and adequacy of Purchaser-furnished equipment, facilities and services.
| 6.2 | Authorizations |
Each Party shall be responsible, at its cost and expense, for preparing, coordinating and
filing all applications, registrations, reports, licenses, permits and authorizations that
such Party is legally responsible for obtaining from any national governmental agencies
having jurisdiction over such Party, for their respective obligations related to the
construction, launch and operation of the SATMEX 8 Satellite.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 6.3 | Radio Frequency Coordination |
Contractor shall not be responsible for the preparation and submission of any filings
required by the International Telecommunication Union (or any successor agency
thereto) or any relevant domestic communications regulatory authorities regarding radio
frequency and orbital position coordination. Such filings shall be made in accordance with
the Radio Regulations of the International Telecommunication Union (or any successor agency)
and the laws and regulations of all domestic communications regulatory authorities having
jurisdiction over Purchaser. Subject to Article 7, Contractor shall give Purchaser all the
necessary and appropriate technical documentation of Contractor to allow Purchaser to
prepare and submit the coordination filings with the International Telecommunication Union
(or any successor agency) in connection with the coordination of radio frequencies for the
SATMEX 8 Satellite.
| 6.4 | SATMEX 8 Satellite Performance Data |
In the event of a SATMEX 8 Satellite Anomaly occurring during and after Launch and
throughout the SATMEX 8 Satellite Stated Life, Purchaser shall timely provide Contractor
with or give Contractor access to any data Contractor may reasonably require to investigate
and/or correct such SATMEX 8 Satellite Anomaly pursuant and subject to Article 14.2 and/or
support Purchaser in preparing, presenting and settling any claims for insurance recovery
relating to such SATMEX 8 Satellite Anomaly. Such reports shall be considered as
confidential information, regardless of markings, pursuant to Article 26 hereof.
| 6.5 | Contractor and Purchaser Assistance |
Contractor and Purchaser shall provide such reasonable assistance and cooperation to each
other and to the relevant government authorities as may be necessary or useful to secure
necessary governmental licenses and other approvals to implement this Contract.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 6.6 | Launch and In-Orbit Insurance |
Purchaser shall be responsible for obtaining Launch and In-Orbit Insurance, if any, covering
the risks associated with the launch and initial in-orbit operation of the SATMEX 8
Satellite from and after Launch (the “Launch and In-Orbit Insurance”). Contractor shall
provide, at no additional cost, all necessary and customary support and assistance to
Purchaser in obtaining such Launch and In-Orbit Insurance and any subsequent in-orbit
insurance that may be obtained for the SATMEX 8 Satellite following placement of the Launch
and In-Orbit Insurance. Contractor’s support and assistance in this regard shall include
preparing an information package on the SATMEX 8 Satellite suitable for presentations to
space insurance brokers and underwriters, assisting Purchaser with all necessary
presentations (oral, written or otherwise) to space insurance brokers and underwriters,
participating in any such presentations, as may be requested by Purchaser, providing all
appropriate technical information and responding to all underwriter inquiries during the
insurance procurement process and thereafter for maintenance of coverage and claim
settlement. Subject to applicable Export Control Laws, Contractor will also provide the
following documentation as and to the extent explicitly required under Purchaser’s Launch
and In-Orbit Insurance policy: (a) written confirmation that the Satellite and all other
Deliverable Items delivered hereunder have passed all applicable qualification and
acceptance tests, including the flight readiness review, and have fully met the requirements
of the applicable Satellite Performance Specifications or a written waiver has been issued;
and (b) written confirmation that all known anomalies and/or non-nominal behaviors observed
on other satellites manufactured by Contractor, whether on ground or in-orbit have been
investigated and corrected, as far as applicable to the subject matter of the policy, in
accordance with the Contractor’s applicable quality procedures. In the applications it
submits for U.S. Government export licenses pursuant to Article 7, Contractor shall include
its obligations under this section for coverage under such licenses. Purchaser shall be
responsible for negotiating and
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
concluding the terms, conditions and exclusions of the
Launch and
In-Orbit Insurance and for the payment of all premium due under such insurance. Contractor
shall have no obligation or liability associated with the Launch and In-Orbit Insurance,
including with respect to the payment of premium or the failure of Purchaser for any reason
to obtain such insurance. Purchaser shall use reasonable commercial efforts to obtain from
the insurers under the Launch and In-Orbit Insurance (and any in-orbit insurance that may be
obtained following the Launch and In-Orbit Insurance) an express waiver of such insurers’
rights of subrogation with respect to any and all claims Purchaser may have against
Contractor hereunder.
| 6.7 | Late Delivery of Purchaser-Furnished Items or Services |
The late delivery of Purchaser-furnished items or services, and/or unauthorized Purchaser
actions or inactions that delay Contractor’s performance hereunder, including any delay
which causes an impact to the delivery schedules set forth in Article 3.1 hereof, shall be
considered an event beyond the reasonable control and without the fault of Contractor. To
the extent of such late delivery of Purchaser-furnished items or services or unauthorized
actions or inactions, Contractor shall be excused from performing its obligations hereunder,
but only to the extent directly related to such late delivery, actions, inactions or delay,
and, subject to Article 16, this Contract shall be modified accordingly, including an
equitable adjustment in the price, schedule and other affected terms and conditions of this
Contract in order to compensate Contractor for its reasonable and documented costs
associated with such delay.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 6.8 | Customs Clearance |
Contractor shall, subject to applicable export restrictions, provide all standard, ordinary
and customary information and shall provide additional, reasonable support to Purchaser on
an as requested basis for the purpose of customs clearance. Purchaser shall be responsible,
at its cost and expense:
| (i) | to handle all customs clearance in Mexico of any Deliverable Items delivered by
Contractor under this Contract to Mexico; |
| (ii) | for payment of all customs duties and value added tax levied under Mexican law
on the imported value of any Deliverable Items if applicable imported into Mexico; and |
| (iii) | for inland transportation of any deliverable items if any from Mexico City
International Airport and/or from Hermosillo International Airport to Purchaser’s
designated sites. |
| 6.9 | Shipping Documents |
For the shipment to Purchaser of the Deliverable Data, Contractor will generate its
customary shipping documentation. If, for the purpose of customs clearance and local
handling in Mexico, specific shipping information, i.e., separate listings of hardware and
software, xxxx of lading details, value/price information, etc. are required by the Mexican
customs authorities, Purchaser shall provide such requirements to Contractor sufficiently in
advance of the actual shipment. Compliance by Contractor with the preparation of shipping as
provided in Article 6.8 and this Article 6.9 shall be subject to compliance with Export
Control Laws pursuant to Article 7.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 7 — COMPLIANCE WITH U.S. EXPORT LAWS AND DIRECTIVES
| 7.1 | Compliance with Export Control Laws |
The Parties acknowledge and agree that any obligation of Contractor hereunder to provide to
Purchaser and its personnel and/or its representatives with Controlled Items shall be
subject to the requirements of Export Control Laws, as construed by Contractor. The Parties
shall work cooperatively and in good faith to implement this Contract in compliance with
Export Control Laws. To that end, Purchaser and its personnel and/or representatives shall
enter into such U.S. Government-approved agreement(s), separate from this Contract,
governing Contractor’s provision of Controlled Items, as may be reasonably required in order
for Contractor to perform its obligations under this Contract.
| 7.2 | Licenses and Other Approvals |
Contractor shall apply for and, once issued, maintain U.S. Government export licenses,
agreements and other approvals that are required for Foreign Person personnel and/or
representatives of Purchaser to have access to Contractor facilities, and/or obtain
Controlled Items in connection with the performance of this Contract. As early as
practicable, and in no event later than fifteen (15) days after EDC, Purchaser shall provide
Contractor with a list of countries (if other than the United States of America) of which
Foreign Person personnel and/or representatives of Purchaser are citizens or nationals, if
such personnel and/or representatives will or may have access to Contractor’s facilities
and/or Controlled Items under this Contract. Both Parties shall provide the cooperation and
support necessary for the other Party to apply for and maintain such required U.S. export
licenses, agreements and other approvals, and shall promptly notify the other of any
occurrence or change in circumstances of which it becomes aware that is relevant to or
affects such export licenses, agreements and approvals. Contractor shall include Purchaser
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
(and related entities involved with the
procurement) as a named party in any application to the U.S. Government for approval of such
export licenses, agreements and other approvals so as to permit Purchaser to be present
during any discussion with or meetings where Purchaser’s foreign subsidiaries/related
entities, or insurance providers, may receive from, or discuss with, Contractor any
export-controlled items and/or services. Contractor shall provide the parties to such export
licenses, agreements and other approvals copies of the export licenses, agreements and other
approvals, including provision of details of any U.S. Government provisos related to same.
In no event shall Contractor be obligated under this Contract to provide access to
Contractor or subcontractor facilities; provide access to or furnish Controlled Items to any
person except in compliance with applicable Export Control Laws, as construed by Contractor.
| 7.3 | No Unauthorized Exports or Re-transfers |
Purchaser understands and warrants that it shall not re-export, re-transfer or divert to any
third party any Controlled Item exported to Purchaser under or in connection with this
Contract, except as expressly authorized by the U.S. government in accordance with the
export licenses, agreements or other approvals referenced in Article 7.1 and 7.2 or as
otherwise expressly authorized under Export Control Laws. In the event that Purchaser has a
requirement to transfer any information to a third party which requires a license hereunder,
Contractor shall provide reasonable support to Purchaser and shall prepare and submit, on
Purchaser’s behalf, the appropriate license applications to the U. S. Government.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 8 — ACCESS TO WORK IN PROCESS
| 8.1 | Work-in-Process at Contractor’s Plant |
Subject to Article 7 and Article 8.4 and subject further to compliance with Contractor’s
safety and security regulations, Purchaser’s personnel (and/or Purchaser’s duly appointed
consultants and designees) shall be allowed access to work being performed at Contractor’s
facility (at the subsystem level and above) for the SATMEX 8 Satellite and other Deliverable
Items, for the purpose of observing the progress of such work and for such other activities
as contained in the SOWs. Such access shall be upon reasonable prior notice to Contractor
and shall occur during normal working hours or at such other hours as Contractor may agree.
| 8.2 | Work-in-Process at Subcontractors’ Plant |
Subject to Article 7 and Article 8.4, to the extent permitted by Contractor’s subcontractors
supplying services or goods valued in excess of [***] in connection with the Contract and
subject to each such subcontractor’s safety and security regulations, Contractor shall allow
Purchaser’s personnel (and/or Purchaser’s duly appointed consultants and designees) access
to work being performed with respect to the Contract in each such subcontractor’s plants for
the purpose of observing the progress of such work, subject to the right of Contractor to
accompany Purchaser on any such visit to a subcontractor’s plant. Contractor will use all
its reasonable commercial efforts to obtain permission for such access to subcontractor’s
facilities.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 8.3 | On-Site Facilities for Purchaser’s Personnel |
Subject to Article 7 and Article 8.4, for the purpose of monitoring the progress of the work
to be performed by Contractor hereunder, Contractor shall provide, at its expense, office
facilities at Contractor’s plant for up to six (6) resident Purchaser personnel (or
Purchaser’s duly appointed consultants and designees) through Acceptance of the SATMEX 8
Satellite. The office facilities to be provided shall include office space to accommodate
one office for the Program Manager, one office for the payload and bus specialists and one
office for up to three consultants, office furniture, local, national and international
telephone services, access to copy machines, personal computers, office supplies, internet
connections and facsimile machines, to the extent necessary, or as reasonably requested by
Purchaser, to enable Purchaser personnel to monitor the progress of work under this
Contract.
| 8.4 | Purchaser Representatives as Competitors/Foreign Persons |
Purchaser shall use reasonable commercial efforts to verify that Purchaser’s consultants and
agents used in connection with this Contract are not in direct competition with or currently
employed by companies or entities that are in direct competition with Contractor. [***]
Purchaser shall notify Contractor in writing of the name, title or function, business
relationship, employer, citizenship/nationality status under Export Control Laws and such
other information as may be reasonably requested by Contractor, with respect to each of its
intended consultants and agents, and cause each such consultant and agent (except for
attorneys and other professionals who are already bound by obligations of confidentiality)
to (1) execute a confidentiality agreement directly with Contractor in form and substance
satisfactory to Contractor and containing terms substantially the same as those set forth in
Article 26 and Article 27 and (2) pursuant to Article 7, execute a Technical Assistance
Agreement or other agreement to ensure compliance with applicable Export Control Laws.
Contractor may in its reasonable discretion deny, based on non-compliance with the
foregoing, or on Export Control Laws, or on failure to execute and deliver a confidentiality
agreement, any consultant or agent of Purchaser access to Contractor facilities, products or
information, it being understood that any consultant or agent of Purchaser that is a U.S.
citizen or legal
resident of the U.S. and who is in compliance with Export Control Laws shall not be denied
access based on Export Control Laws.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 8.5 | Interference with Operations |
Purchaser shall exercise its rights under this Article 8 in a manner that does not
unreasonably interfere with Contractor’s or its subcontractors’ normal business operations
or Contractor’s performance of its obligations under this Contract or any agreement between
Contractor and its subcontractors.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 9 — SATMEX 8 SATELLITE PRE-SHIPMENT REVIEW (SPSR)
| 9.1 | Contractor to Review SATMEX 8 Satellite Prior to Shipment |
Contractor shall conduct a Satellite Pre-Ship Review of the SATMEX 8 Satellite prior to
Contractor’s shipment of such SATMEX 8 Satellite to the Launch Site. This review shall be in
accordance with the terms of this Article 9 and the Exhibit A SOW.
| 9.2 | Time, Place and Notice of Satellite Pre-Ship Review (SPSR) |
The SPSR shall take place at Contractor’s facility. Contractor shall notify Purchaser in
writing at least [***] days prior to the date that the SATMEX 8 Satellite shall be available
for SPSR, which shall be the scheduled date for commencement of such SPSR. If Purchaser
cannot attend such SPSR on such scheduled date, Contractor shall use its reasonable
commercial efforts to accommodate Purchaser’s scheduling requirements. If Purchaser shall
fail to attend the scheduled SPSR with respect to the SATMEX 8 Satellite, Purchaser shall be
deemed to have notified Contractor pursuant to Article 9.6 hereof that the SPSR for the
SATMEX 8 Satellite has been completed.
| 9.3 | Conduct and Purpose of SPSR |
The SPSR shall be conducted in accordance with Section 2.4.5 of the Exhibit A SOW. The
purpose of the SPSR shall be to review test data and analyses for the subject SATMEX 8
Satellite to determine whether such SATMEX 8 Satellite meets applicable SATMEX 8 Satellite
Performance Specification requirements without non-conformances (provided that any waivers
and deviations approved pursuant to Article 9.4 shall not be considered non-conformances)
and is therefore ready for shipment to the Launch Site.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 9.4 | Waivers or Pending Waivers |
At the earliest possible time, but no less than [***] business days before the commencement
of the SPSR for the SATMEX 8 Satellite or the Acceptance inspection for any other
Deliverable Item pursuant to Article 11, to the extent known by Contractor at that time,
Contractor may submit to Purchaser any request for a waiver of, or deviation from,
provisions(s) of the Performance Specification applicable to the SATMEX 8 Satellite or
applicable Deliverable Item identified by Contractor as of such time. Each such waiver or
deviation approved by Purchaser shall be deemed an amendment to the Performance
Specification for the SATMEX 8 Satellite or applicable Deliverable Item, permitting such
waiver thereof, or deviation therefrom, effective on or after the date of such approval for
such SATMEX 8 Satellite or applicable Deliverable Item. Purchaser shall, in keeping with
customary industry practice, consider each waiver or deviation request in good faith, taking
into account the overall performance of the Satellite, and shall not unreasonably withhold
its approval thereof.
| 9.5 | Purchaser’s Inspection Agents |
Purchaser may, subject to prior written notice to Contractor, cause any agent designated by
Purchaser to observe the SPSR pursuant to this Article 9; provided, however, that the
provisions of Article 7 and Article 8.4 shall apply to any such agent.
| 9.6 | SPSR Results |
Within [***] after the completion of the SPSR meeting for the SATMEX 8 Satellite, Contractor
shall notify Purchaser in writing of the results of the SPSR pursuant to this Article 9 and
Purchaser shall within [***] notify Contractor in writing of its concurrence with results or
its exceptions thereto. In the event that such SPSR demonstrates conformity of the SATMEX 8
Satellite to the applicable requirements of the SATMEX 8 Satellite Performance Specification
(including any waivers or
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
deviations approved by Purchaser pursuant to Article 9.4) and
Purchaser confirms in writing such demonstrated
conformity, Purchaser shall direct that the SATMEX 8 Satellite shall either be prepared and
shipped by Contractor to the Launch Site for Launch or that it be placed in Storage pursuant
to Article 32 and the SPSR shall be deemed completed (if the provisions thereof apply). In
the event that such SPSR discloses any non-conformance of such SATMEX 8 Satellite to the
requirements of the SATMEX 8 Satellite Performance Specification not the subject of any
waivers or deviations approved by Purchaser pursuant to Article 9.4, Purchaser’s notice
shall state each such non-conformance (with reference to the applicable requirement of the
SATMEX 8 Satellite Performance Specification deemed not met), and Contractor shall, at its
own cost and expense and in a timely manner, correct or repair each such non-conformance and
resubmit the SATMEX 8 Satellite for SPSR in accordance with this Article 9 as to each
corrected or repaired element. If Purchaser fails to provide either conformance or
non-conformance notice within the [***] period referred to in the first sentence hereof, the
SPSR shall be deemed to have been completed with respect to the Satellite and Purchaser
shall be deemed to have directed Contractor to place the Satellite into Storage pursuant to
Article 32.
| 9.7 | Inspection Costs Borne by Purchaser |
Except as may be provided by Contractor under Article 8.3, all costs and expenses incurred
by Purchaser and its agents in the performance of this Article 9, including travel and
living expenses, shall be borne solely by Purchaser, except for such support as provided by
Contractor pursuant to Article 8.3.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 9.8 | Correction of Deficiencies after SPSR |
If at any time following SPSR completion and prior to [***], the SATMEX 8 Satellite fails,
for reasons not attributable to Purchaser, to meet the requirements of Exhibit B, Satellite
Performance Specification, as they may be modified as of such time pursuant to Article 9.4,
and provided that the SATMEX 8 Satellite has not suffered a total loss or
total destruction under Article 12.3, Contractor shall (1) in the event of a Terminated
Ignition, proceed according to Article 12.1.1 hereof, and (2) in other cases, promptly
correct such deficiency/ies prior to [***].
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 10 — SATMEX 8 SATELLITE ACCEPTANCE AND IN-ORBIT TEST
| 10.1 | SATMEX 8 Satellite Acceptance |
Acceptance of the SATMEX 8 Satellite by Purchaser shall occur finally and irrevocably for
all purposes hereunder upon the earlier to occur of: (i) the Handover Date (as defined in
Article 10.2. below); or (ii) the instant immediately prior to an event on or after [***]
resulting in the Total Loss of the SATMEX 8 Satellite (or the SATMEX 8 Satellite being
reasonably determined to be a Total Loss.
| 10.2 | SATMEX 8 Satellite Acceptance Procedure |
Following the completion of the SPSR for the SATMEX 8 Satellite pursuant to Article 9,
Contractor shall transport such SATMEX 8 Satellite, in accordance with Contractor’s standard
commercial practices, to the Launch Site and proceed with the Launch Support Services.
[***] days prior to the then-scheduled Launch of the SATMEX 8 Satellite, Contractor shall
notify Purchaser of the IOT schedule with respect to the SATMEX 8 Satellite. Purchaser,
including, without limitation, its contractors and agents, may observe such IOT at
Purchaser’s or Contractor’s location, at Purchaser’s election, subject to Article 7 and
Article 8.4 and applicable U.S. Government and Contractor security restrictions.
Except in the event of a Total Loss of the SATMEX 8 Satellite or the Satellite has been
reasonably determined to be a Total Loss, as provided in Article 10.1 above, following the
Launch and injection of the Satellite into 114.9°WL, or 116.8°WL or any other
orbital geostationary position as Purchaser may notify in writing to Contractor at least
[***] days prior to Launch, Contractor shall conduct IOT. When IOT has been completed for
the SATMEX 8 Satellite in accordance with Exhibit D, SATMEX 8 Satellite Test Plan,
Contractor shall submit and certify the required IOT results to
Purchaser. Within [***] hours
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
of the time that Contractor provides the required IOT results to Purchaser with
respect to the SATMEX 8 Satellite, Contractor and Purchaser shall hold a SATMEX 8 Satellite
IOT review as defined in Section 2.4.10 of the Exhibit A SOW (with a summary and a detailed
IOT report and the Satellite Acceptance Certificate (as defined in Exhibit A, Statement of
Work) being submitted at least [***] hours before conducting the IOT review). Purchaser
shall cooperate in good faith in the conduct of such review and, upon completion thereof
(the “IOT Complete Date”), the IOT review shall be deemed to be completed (as described in
Section 2.4.10 of Exhibit A, SOW). Thereafter, Contractor may or may not be entitled to earn
Orbital Performance Incentives as and to the extent set forth in Article 13.
The SATMEX 8 Satellite Acceptance Certificate shall certify that: (i) the SATMEX 8 Satellite
meets all the applicable requirements of the Exhibit B, Satellite Performance Specification;
or (ii) that the SATMEX 8 Satellite does not meet all the applicable requirements of Exhibit
B, Satellite Performance Specification, but is not a Total Loss; or (iii) that the Satellite
is a Total Loss.
Within [***] hours of the time that Contractor provides the required IOT results and
Satellite Acceptance Certificate to Purchaser with respect to the SATMEX 8 Satellite,
Contractor and Purchaser shall hold a SATMEX 8 Satellite IOT review as defined in Section
2.4.10 of the SOW and shall cooperate in good faith in the conduct of such review. No later
than [***] days after completion of such review, Purchaser shall notify Contractor either:
(i) of its concurrence with Contractor’s Acceptance Certificate for the SATMEX 8 Satellite
in writing in accordance with Article 10.2.1, 10.2.2 or 10.2.3 as applicable, or (ii) that
Purchaser does not concur with Contractor’s Acceptance Certificate, specifically identifying
the reasons therefore, including the requirements of the Contract upon which Purchaser is
basing its non-concurrence. In the event that Purchaser does not concur
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
with Contractor’s
Acceptance Certificate, Purchaser’s notice of
non-concurrence shall also set forth Purchaser’s determination of the basis for Acceptance
(pursuant to either Article 10.2.1, 10.2.3 and 10.2.4), and the Parties shall thereafter
resolve their dispute on the basis for Acceptance in accordance with Article 22, provided
that if Purchaser places the Satellite into service pending resolution of the dispute,
Contractor shall be entitled to earn and be paid its Orbital Performance Incentives in
accordance with Article 13 hereof to the extent undisputed or to the extent that Purchaser
operates the Satellite, whichever is greater. If, at completion of the IOT review, the
SATMEX 8 Satellite is at the 114.9°W orbital position, Contractor shall move the
SATMEX 8 Satellite to 116.8°W orbital position and, upon placement of the SATMEX 8
Satellite into the 116.8°W orbital position, the full operation of such SATMEX 8
Satellite shall pass to Purchaser in accordance with the SOW Exhibit A; if, at completion of
the IOT review, the SATMEX 8 Satellite is already located at the 116.8°W orbital
position, the full operation of such SATMEX 8 Satellite shall pass to Purchaser in
accordance with the SOW Exhibit A (in either case, the date when full operation of such
SATMEX 8 Satellite passes to Purchaser, the “Handover Date”). If the condition of the
accepted Satellite is disputed, Purchaser may request and Contractor shall perform such
tests on the SATMEX 8 Satellite at the Geostationary Orbital Position as may be mutually
agreed for the purpose of endeavoring to resolve such dispute. The Parties agree that the
time from the Launch Date to the Handover Date during which Contractor is conducting IOT
testing in accordance with section 5.2.4.2 of the Exhibit B and Exhibit D, shall not exceed
[***] days, unless there is an anomaly and/or non-conformance that requires adjustments
and/or additional testing, in which case the Parties shall mutually agree on the adjustments
and/or additional testing required as well as the new Handover Date.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 10.2.1 | In the event that, the IOT results show to the reasonable satisfaction of Purchaser
that the SATMEX 8 Satellite has met all the applicable requirements of Exhibit B,
Contractor shall be entitled to begin earning the Orbital Performance Incentives per
the applicable provisions of Article 13. |
||
| 10.2.2 | In the event that the IOT results show to the reasonable satisfaction of Purchaser
that the SATMEX 8 Satellite has not met all the applicable requirements of Exhibit B,
but is not a Total Loss, Contractor shall be entitled to begin earning Orbital
Performance Incentives, subject to adjustment (and refund of any pre-paid Orbital
Performance Incentives [***] for any Failed Transponders or [***] existing as of the
Handover Date, with such losses being deemed to have occurred on the first day of the
Orbital Performance Incentive Period) pursuant to Article 13, according to its terms.
Contractor shall have no obligation to provide a replacement satellite, and shall not
be responsible for the refund of payments or loss of future payments, except to the
extent that Orbital Performance Incentives are lost due to operation of this Article,
and except to provide a loss investigation report, and any other documentation or
support as may be necessary for the processing and settling of any claim made under
Purchaser’s Launch and In-Orbit Insurance |
||
| 10.2.3 | In the event that after Intentional Ignition but prior to or at the completion of
IOT, the SATMEX 8 Satellite is or becomes a Total Loss, as Purchaser’s sole remedy in
the event of such Acceptance, Contractor shall not be entitled to earn or be paid
Orbital Performance Incentives for such Total Loss Satellite in the event and to the
extent that such Orbital Performance Incentives would have been lost pursuant to the
operation of Article 13 if such Total Loss occurred on the first day of the Orbital
Performance Incentive Period. In the event that such lost Orbital Performance
Incentives has been pre-paid, Contractor shall reimburse to Purchaser this amount plus
interest at an annual compound interest rate of [***] from the |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
date of pre-payment of
such Orbital Performance Incentives. In the event
of a Total Loss, Contractor shall have no further obligation to perform with respect
to the SATMEX 8 Satellite, shall have no obligation to provide a replacement
satellite, and shall not be responsible for the refund of payments or loss of future
payments, except to the extent that Orbital Performance Incentives are lost due to
operation of this Article, and Contractor shall provide a loss investigation report,
and any other documentation or support as reasonably may be necessary for the
processing and settling of any claim made under Purchaser’s Launch and In-Orbit
Insurance.
| 10.3 | Eclipse Test |
In the event there is no eclipse season during the SATMEX 8 Satellite IOT period, then
Contractor shall conduct the IOT eclipse test, as set forth in the applicable parts of
section 7.7 of Exhibit D, SATMEX 8 Satellite Test Plan, with respect to the SATMEX 8
Satellite during the first eclipse season after IOT is otherwise completed. [***].
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 11 — ACCEPTANCE INSPECTION FOR DELIVERABLE ITEMS OTHER THAN THE SATMEX 8 SATELLITE
| 11.1 | Deliverable Data |
Purchaser shall, within [***] days after receipt by Purchaser from Contractor of the
Deliverable Data requiring Purchaser approval pursuant to the applicable Contract Documents
Requirements List, notify Contractor in writing, including by means of facsimile, that such
Deliverable Data has been accepted in accordance with the applicable SOW (“Acceptance” with
respect to each such item of Deliverable Data), or advise Contractor in writing, including
by means of facsimile, that such Deliverable Data does not comply with the applicable
requirements of the applicable SOW, identifying each particular of such non-compliance.
Purchaser’s failure to deliver either acceptance or non-conformance notice within the stated
time shall be deemed Acceptance of such Deliverable Data. Contractor shall promptly and, at
its own cost and expense, correct any non-compliant aspect of such Deliverable Data
described in such notice from Purchaser, and re-submit it to Purchaser for inspection
pursuant to this Article 11.1. Deliverable Data that does not require approval of Purchaser
pursuant to the SOWs shall be deemed accepted upon delivery by Contractor to the location
designated in Article 3.1 (“Acceptance” with respect to each such item of Deliverable Data).
| 11.2 | Training |
Acceptance of training as specified in Article 3.1 and Exhibits K and L hereto shall be
deemed to occur upon completion of such training in accordance with such Exhibits, as
applicable.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 11.3 | Dynamic Satellite Simulators (DSSs) and Ground Control Equipment (GCE) |
| 11.3.1 | Inspection. With respect to the final DSSs and GCE, Purchaser shall perform
acceptance inspection within [***] days after completion of Site Acceptance Test,
according to Exhibits E and F. The purpose of the acceptance inspection shall be to
determine whether the final DSSs and GCE meet applicable requirements of Exhibits E
and F, as such requirements may have been modified pursuant to Article 11.5. |
| 11.3.2 | Acceptance Inspection Results. Within [***] days after completion of
acceptance inspection pursuant to Article 11.3.1, Purchaser shall notify Contractor in
writing of the results of such acceptance inspection. In the event that such acceptance
inspection demonstrates conformity of the final DSSs and GCE to the applicable
requirements of Exhibits E, F, G and H, such final DSSs and GCE shall be irrevocably
accepted by Purchaser for all purposes hereunder (“Acceptance” with respect to the
final DSSs and GCE), and Purchaser’s notice shall so state. In the event that such
acceptance inspection discloses any non-conformance of the DSSs and/or GCE to the
applicable requirements of Exhibits E, G and H, Purchaser’s notice shall identify each
such non-conformance (with reference to the specific provision of Exhibits E, G and H
deemed not met), and Contractor shall provide to Purchaser a recovery plan with the
corresponding schedules in accordance with Exhibits E and F and shall correct or repair
such non-conformance and resubmit the final DSSs and/or GCE, as applicable, for a
supplemental acceptance inspection in accordance with the provisions of this Article
11.3. Such supplemental acceptance inspection shall be conducted by Purchaser to the
extent necessary to verify that the final DSSs and/or GCE, as applicable, conform to
the applicable requirements of Exhibits E, G and H. If Purchaser fails to provide
either acceptance or non-conformance notice within the time specified, Acceptance shall
be deemed to have occurred with respect to the final DSSs and GCE. |
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 11.4 | Purchaser’s Inspection Agents |
Purchaser may, upon giving prior written notice to Contractor, cause any Purchaser
consultant or agent designated by Purchaser to observe or conduct the acceptance inspection
pursuant to this Article 11 in whole or in part; provided, however, that the provisions of
Article 7 and Article 8.4 shall apply to any such consultant or agent and such consultant or
agent shall comply with Contractor’s normal and customary safety and security regulations
provided to Purchaser in writing in advance of such inspection.
| 11.5 | Waivers and Deviations |
Waivers of or deviations from the Performance Specification applicable to any Deliverable
Item subject to acceptance inspection pursuant to this Article 11 shall be addressed as set
forth in Article 9.4.
| 11.6 | Inspection Costs Borne by Purchaser |
Except as may be provided by Contractor under Article 8.3, all costs and expenses incurred
by Purchaser or its consultants or agents in the performance of its inspection rights under
this Article 11, including travel and living expenses, shall be borne solely by Purchaser.
| 11.7 | Warranty Obligations |
In no event shall Contractor be released from any of its warranty obligations applicable to
any Deliverable Item other than the SATMEX 8 Satellite as set forth in Article 14 as a
result of such Deliverable Item having been accepted as set forth in this Article 11.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 12 — DELIVERY, TITLE AND RISK OF LOSS
| 12.1 | SATMEX 8 Satellite |
Title to and risk of loss or damage for the SATMEX 8 Satellite shall pass from
Contractor to Purchaser at the time of [***].
| 12.1.1 | Terminated Ignition. In the event of a Terminated Ignition, title to,
and risk of loss or damage for, the Satellite shall revert to Contractor upon
the Contractor securing the Satellite after the Launch Agency declares the
Launch pad safe, provided that, if the Satellite is, or is reasonably
determined to be, a Total Loss, title to, and risk of loss or damage for, the
Satellite shall remain with Purchaser. If Contractor re-acquires title and risk
of loss or damage as set forth in the immediately preceding sentence, title to,
and risk of loss or damage for, the Satellite shall again pass to Purchaser
[***]. |
| 12.1.2 | Responsibility for Repair/Storage. In the event of an Intentional
Ignition followed by a Terminated Ignition where Contractor re-acquires title
and risk of loss or damage, Contractor shall inspect the SATMEX 8 Satellite and
provide Purchaser with a report on the condition of such Satellite along with a
recommendation for repair or replacement, if any is required, as well as an
estimated new Delivery schedule in the event the Satellite is removed from the
Launch Vehicle or the Launch Site. Purchaser shall, within [***] days following
receipt of such report, direct Contractor pursuant to Article 15 as to how to
proceed with any required or desired repairs and/or Storage and the schedules
and other affected provisions of the Contract shall be equitably adjusted, and
the costs of repairs or
replacement, including any transportation costs, of the Satellite as a
result of loss of or damage to the Satellite [***]. If, following a
Terminated Ignition, Purchaser directs Contractor to store the SATMEX 8
Satellite or otherwise does not schedule a replacement Launch at a time
compatible with the new Delivery schedule for the Satellite, Purchaser shall
be responsible for costs of Storage. |
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 12.2 | [***] |
| 12.3 | Contractor shall maintain insurance subject to normal and customary exclusions, including
customary deductibles, with financially sound and reputable insurance carriers, at no cost to
Purchaser against risk of loss of or damage to the SATMEX 8 Satellite and to any and all
components and subsystems purchased for and intended to be integrated into the SATMEX 8
Satellite up to the moment of [***], including while in transit, in an amount not less than
the aggregate of all milestone payments paid by Purchaser under Article 5 with respect to the
SATMEX 8 Satellite and its components and subsystems. Upon request by Purchaser, Contractor
shall provide to Purchaser certificates evidencing the insurance Contractor is required to
secure and maintain under this Article 12.3. |
In the event of the total loss or total destruction, of the SATMEX 8 Satellite before [***]
(as such events are defined in the applicable insurance policy maintained by Contractor), in
addition to the other rights, remedies and relief provided to the Parties hereunder,
Purchaser shall have the option, to be exercised in writing within thirty (30) days after
such total loss or total destruction of the SATMEX 8 Satellite, (1) to obtain the applicable
insurance proceeds in the amount specified in the first paragraph of this Article 12.3 paid
to (or to be paid to) Contractor for such total loss or total destruction of the SATMEX 8
Satellite, in which case neither Party shall have any further obligation to the other Party
hereunder, except for such obligations as
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
expressly survive the termination of this
Contract, or (2) to have Contractor proceed to re-build the Satellite (the “Re-Build
Satellite”) with the same configuration, Satellite Performance Specifications and applicable
terms and conditions of this Agreement and its Exhibits, except that Contractor shall not
have to re-perform any work done, or replace any other Deliverable Items provided, hereunder
prior to the total loss or destruction of the SATMEX 8 Satellite, except to the extent of
any updates or modifications reasonably necessitated by such re-build. If Purchaser elects
to have Contractor provide the Re-Build Satellite: (1) the Satellite price (which shall
include the provision of the Re-Build Satellite) and the Firm Fixed Price set forth in
Article 4.1 shall remain unchanged, and all amounts already paid by Purchaser under this
Contract shall remain credited against the price of such Re-Build Satellite and the Firm
Fixed Price, and (2) in all cases, the Delivery schedule and other affected terms of this
Contract (other than such Satellite price as provided in (1) immediately above) shall be
equitably adjusted to enable Contractor to manufacture and complete Delivery of the Re-Build
Satellite. If Purchaser elects to make changes to the configuration and/or Satellite
Performance Specifications and/or applicable terms and conditions of this Agreement and its
Exhibits for such Re-build Satellite, such changes shall be made pursuant to Article 15.
| 12.4 | Deliverable Items of Hardware (other than the SATMEX 8 Satellite), Deliverable Data Items
and Training |
Title to and risk of loss or damage for the DSSs and GCE shall pass from Contractor to
Purchaser upon Acceptance thereof pursuant to Article 11. Purchaser’s rights in and to
Deliverable Data (including, without exception, Deliverable Items of software and software
integrated into hardware) are as set forth in Article 27.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 13 — ORBITAL PERFORMANCE INCENTIVES
| 13.1 | General |
Contractor shall earn the Orbital Performance Incentives for the Satellite over the Orbital
Performance Incentive Period in accordance with this Article 13. As used herein, “Orbital
Performance Incentives” or “OPI” means an amount equal to [***], consisting of: (i) the
amount of [***] which may be earned by Contractor based upon Operational Transponders as set
forth in Article 13.2, utilizing the Daily Rate Formula (the “Transponder OPI”); and (ii)
the amount of [***] which may be earned by Contractor based upon the Satellite maintaining
certain critical [***] as set forth in [***]. All measurements, computations and analyses
made pursuant to this Article 13 shall be made in accordance with good engineering practice
applying standards generally applicable in the satellite industry.
| 13.1.1 | The entire amount of the Transponder OPI [***] shall be prepaid by Purchaser to
Contractor prior to Launch of the Satellite as provided in Schedule 1, SATMEX 8
Milestone Payment Plan for Firm Fixed Price. Any Transponder OPI paid in advance and
not subsequently earned by Contractor pursuant to Article 13.2 shall be paid-back to
Purchaser as an Incentive Payback in accordance with Article 13.8. |
| 13.1.2 | In the event that the Satellite is delivered on or before [***] days after the date
set forth for Delivery of the Satellite in Article 3.1, the entire amount of [***] will
be prepaid by Purchaser to Contractor at the same time as Purchaser prepays the
Transponder OPI as provided in Schedule 1, SATMEX 8 Milestone Payment Plan for Firm
Fixed Price. Any [***] paid in advance and not subsequently earned by Contractor
pursuant to [***] shall be paid-back to Purchaser as an Incentive Payback in accordance
with Article 13.8. In the event that the Satellite is
delivered later than [***] days after the date set forth for Delivery of the
Satellite in Article 3.1, the Purchaser shall have no obligation to prepay such
[***], but shall pay Contractor the [***] as earned by Contractor pursuant to [***]. |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 13.1.3 | Notwithstanding the foregoing, if at the time the Transponder OPI and, if applicable,
[***] pre-payment is due, Purchaser can provide assurances of payment reasonably
acceptable to Contractor (not to be unreasonably withheld), the OPI pre-payment may be
post-postponed until Satellite IOT completion. Assurances to be provided by Purchaser
may be by means of Purchaser’s financial statements or by other means sufficient to
demonstrate the ability to make the requisite payment at the time such assurance is to
be provided. |
| 13.2 | Transponder OPI; Daily Rate Calculation |
Contractor shall earn the Transponder OPI over the Orbital Performance Incentive Period at a
daily rate of [***] (the “Daily Rate”) per Transponder for each day that such Transponder is
not a Failed Transponder or Non-Operational Transponder. The Daily Rate is calculated based
on [***]. Any prepaid Orbital Performance Incentives not subsequently earned by Contractor
as provided in this Article 13 shall be returned to Purchaser as an Incentive Payback in
accordance with Article 13.8.
| 13.2.1 | In the event that any Failed or Non-Operational Transponder later resumes being an
Operational Transponder, Contractor shall resume earning Transponder OPI for such
Transponder at the Daily Rate beginning on the day following the last day that such
Transponder was considered as a Failed or Non-Operational Transponder and continuing
thereafter for each such day in the Orbital Performance Incentive Period that such
Transponder is not a Failed or Non-Operational Transponder. |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 13.2.2 | On-board redundancy shall be taken into consideration to maintain service on the
Satellite or any Transponder thereon, and such use shall be deemed normal operating
procedure for purposes of this Article 13. |
[***]
| 13.4 | Orbital Storage and Loss of Remaining Orbitals |
| 13.4.1 | If Purchaser places the Satellite in Orbital Storage (other than due to the inability
to operate for unexcused causes attributable to Contractor), Contractor shall continue
to earn OPI [***] at the same rate as Contractor would be earning if the Satellite was
in service. Notwithstanding the foregoing, in the event that Purchaser has pre-paid any
OPI, if a Failed or Non-Operational Transponder [***] Losses are identified while the
Satellite is in Orbital Storage and Purchaser notifies Contractor of such Failed or
Non-Operational Transponder [***] Losses during such period of Orbital Storage,
Contractor shall be deemed to have not earned the corresponding amount of pre-paid OPI
associated with such Failed or Non-Operational Transponder [***] Losses and shall
pay-back to Purchaser the amount of any such unearned OPI pursuant to Article 13.8.
Orbital Storage means any period of time of intentional non-use by Purchaser of the
SATMEX 8 Satellite, provided that the SATMEX 8 Satellite has been placed into orbit and
is capable of providing commercial communications services. |
| 13.4.2 | Contractor shall lose all remaining unearned Orbital Performance Incentives [***]
from and after such time that more than [***] of the required number of Operational
Transponder (64) become Failed Transponders. [***]. |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
13.5 Total Loss or Partial Loss prior to the Handover Date Not Attributable to Contractor
| 13.5.1 | If, on or after Intentional Ignition and prior to the Handover Date, the Satellite
is, or is reasonably determined to be, a Total Loss, or if a Partial Loss has occurred
(unless and to the extent of a Terminated Ignition as provided in Article 12.1.1(a))
and, in either case, due to causes not attributable to Contractor, Contractor shall be
deemed to have earned the corresponding amount of its Orbital Performance Incentives
that would otherwise be lost pursuant to this Article 13, which, to the extent not
previously prepaid as provided in Article 13.1, shall be paid to Contractor thirty (30)
days after Purchaser receives from the insurance company the corresponding payment for
Total Loss or Partial Loss. Purchaser shall purchase Launch and In-Orbit Insurance as
defined in Article 6.6 to comply with this Section 13.4. |
| 13.5.2 | If, on or after Launch and prior to the Handover Date, the Satellite is, or is
reasonably determined to be, a Total Loss, or if a Partial Loss has occurred (unless
and to the extent of a Terminated Ignition as provided in Article 12.1.1(b)) and, in
either case, due to causes attributable to Contractor, Contractor shall pay back to
Purchaser, within thirty (30) days from the occurrence of the Total Loss or Partial
Loss, the entire amount of pre-paid OPI prior to Launch plus interest as provided in
Article 13.8. |
| 13.6 | Purchaser Operation of the Satellite |
If, as a result of any act or omission on the part of Purchaser or Purchaser’s
representatives, consultants or subcontractors in the operation of, testing of, or
communication with, the Satellite, such Satellite operates in a manner that is not in
accordance with any requirements of Exhibit B, Satellite Performance Specification,
Contractor shall continue to earn and, if applicable, be paid OPI [***] at the same rate
that applied prior to the act or omission resulting in degraded performance (subject to
later adjustments pursuant to Article[***] 13.2 [***] not resulting from any such act or
omission on the part of Purchaser or Purchaser’s representatives, consultants or
subcontractors).
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
The preceding paragraph of this Article 13.6 shall not apply to the extent that the
Satellite operates in a manner that is not in accordance with any requirement of Exhibit B
as a result of errors in the Satellite operation procedures delivered by Contractor or as a
result of Purchaser not receiving timely Contractor support as and when required in
accordance with this Contract.
| 13.7 | Access to In-Orbit Data and Measurements |
During the Orbital Performance Incentive Period, in addition to the information to be
provided by Purchaser in accordance with Article 6.5, Contractor shall have timely access to
the data records of the SATMEX 8 Satellite reasonably necessary to enable Contractor,
together with Purchaser, to determine the entitlement of Contractor to Orbital Performance
Incentives hereunder. All measurements, computations and analyses performed to determine
whether the Orbital Performance Incentives are earned by Contractor shall take into account
the tolerances for measurement accuracy of the measurement equipment used.
| 13.8 | Pre-Paid Incentive Pay-Back |
For any amount of In Orbit Performance Incentives pre-paid by Purchaser as provided in
Article 13.1 that Contractor fails to earn pursuant to Articles 13.2, [***], 13.4.2 or 13.4,
Contractor shall, upon invoice from Purchaser, refund the amount of such unearned pre-paid
OPI, plus interest calculated thereon at an annual compound interest rate of [***] from the
date of pre-payment by Purchaser until the date of payment, provided that Purchaser notifies
Contractor within thirty (30) days after the
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
event
causing the failure. Notwithstanding the foregoing, if Purchaser fails to give notice within thirty (30) days to
Contractor, no interest shall be assessed for the period from the date of the occurrence of
the failure until the date upon which Contractor receives notice of such failure. Any
unearned pre-paid OPI shall be paid back by Contractor to Purchaser on a quarterly basis,
within thirty (30) days following receipt of a valid invoice which is issued by Purchaser no
earlier than the last day of the corresponding quarter.
| 13.9 | On-Ground Storage. |
If after the Satellite Pre-Shipment Review, Purchaser places the Satellite in on-ground
storage (other than due to causes substantially attributable to Contractor), on the
thirty-first (31st) day after the commencement of Storage, if Storage still
continues, Purchaser shall pre-pay to Contractor the maximum amount of Orbital Performance
Incentives pursuant to Article 32.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE
14 — WARRANTY
| 14.1 | Terms and Period of Warranty |
| 14.1.1 | SATMEX 8 Satellite. Contractor warrants that the SATMEX 8 Satellite to be
delivered under this Contract shall be free from any defect in materials and
workmanship and shall be manufactured in conformity with the requirements of the
Contract (as may be waived only pursuant to Article 9.4). This warranty shall end at
[***] (or, in the event of a Terminated Ignition, shall reattach in the event that
Contractor reacquires title and risk of loss for the Satellite as provided in Article
12.1 (but shall not apply as to any repair or replacement that is the responsibility of
Purchaser under Article 12.1.2) and then shall end upon any subsequent [***]. |
||
| 14.1.2 | [***] |
| 14.1.3 | Disclaimer. EXCEPT AND TO THE EXTENT PROVIDED IN ARTICLE 14.1.1, ARTICLE 14.3
AND ARTICLE 14.4 (AND WITHOUT PREJUDICE TO PURCHASER’S RIGHTS UNDER ARTICLE 14.2),
CONTRACTOR HAS NOT MADE NOR DOES IT HEREBY MAKE ANY REPRESENTATION OR WARRANTY, WHETHER
WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
DESIGN, OPERATION, CONDITION, QUALITY, SUITABILITY OR MERCHANTABILITY OR FITNESS FOR
USE OR FOR A PARTICULAR PURPOSE, ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, WITH REGARD TO THE SATMEX 8 SATELLITE OR ANY OTHER DELIVERABLE ITEM.
CONTRACTOR MAKES NO WARRANTY WITH RESPECT TO THE PERFORMANCE OF THE LAUNCH VEHICLE. |
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 14.2 | SATMEX 8 Satellite Anomalies |
| 14.2.1 | Anomaly Investigation. Contractor shall investigate any SATMEX 8 Satellite
Anomaly occurring in the Satellite during the in-orbit life of such Satellite and known
to it or as notified in writing by Purchaser, and shall undertake SATMEX 8 Satellite
Anomaly resolution support services in accordance with Paragraph 2.5.8.4 of Exhibit A,
Statement of Work. If for any reason any such SATMEX 8 Satellite Anomaly cannot be or
is not corrected as set forth in the immediately preceding sentence, and as a result
thereof, such Satellite suffers any loss, including a Partial Loss, or becomes a Total
Loss, Purchaser shall look solely to its Launch and In-Orbit Insurance Policy and any
subsequent insurance policy for the Satellite procured by Purchaser, to compensate it
for its loss and any consequences therefrom, and Contractor shall have no liability or
obligation to Purchaser or any other person in respect of such loss, except as set
forth in Article 13, subject to the conditions and limitations of such Article and in
all cases subject to the limitation of liability stated in Article 14.1 above and
Article 25. Contractor shall support and assist, at its sole cost and expense,
Purchaser in providing all appropriate technical information, subject to applicable
Export Control Laws, in connection with the preparation, presentation and settlement of
any claim for loss under any Launch and In-Orbit Insurance and any subsequent insurance
policy for the Satellite procured by Purchaser. [***] |
||
| 14.2.2 | [***] |
| 14.3 | Warranty for Training and Services |
Contractor warrants that the training and other services it provides to Purchaser pursuant
to this Contract will conform to the applicable best industry standards at the time such
training or other services are provided. In the event Contractor breaches this warranty, as
Purchaser’s sole remedy, Contractor shall correct the deficiencies in the provision of such
training and services, and provide any necessary re-training of Purchaser’s personnel as
mutually agreed between the Parties.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 14.4 | Warranty for Dynamic Satellite Simulators (DSSs) and GCE |
| 14.4.1 | DSSs and GCE. Contractor warrants that the DSSs and GCE delivered under this
Contract shall be manufactured in conformity with the applicable requirements of
Exhibits, E, F, G and H (as modified by any waiver and/or deviation pursuant to Article
11.5) and will be free from defects in materials and workmanship during the period
commencing on the respective dates of Acceptance of such DSSs and GCE pursuant to
Article 11 and ending on the first anniversary thereof for the DSS and the second
anniversary thereof for the GCE. |
The computer hardware warranty of the DSSs and GCE shall be transferred to the
corresponding manufacturer in Mexico, if applicable.
During the warranty period specified above, as Purchaser’s sole and exclusive remedy
for any non-conformance or defect in such DSSs or GCE which Purchaser notifies to
Contractor in writing, such non-conformance or defect shall be remedied by
Contractor at Contractor’s expense by repair or replacement of the defective
component (at Contractor’s election). For any such non-conformance, Contractor shall
determine if repair or replacement is required to be performed at Contractor’s
plant. If required, Purchaser shall ship the DSSs and/or GCE, as applicable, to
Contractor’s designated facility. Contractor shall be responsible for the cost of
shipment (including transportation, transit insurance, taxes and/or duties), and the
cost of return shipment (including transportation, transit insurance, taxes and
duties) to Purchaser at the location designated in Article 3.1
or any other location in Mexico as may be designated in writing by Purchaser. Risk
of loss for the DSSs and/or GCE, as applicable, shall transfer to Contractor upon
delivery of the DSSs and/or GCE, as applicable, to the shipping carrier by
Purchaser, and risk of loss to the DSSs and/or GCE, as applicable, shall transfer
again to Purchaser once such DSSs and/or GCE, as applicable, is repaired or replaced
pursuant to this Article 15.1.2 and accepted in accordance with Article 11.3, upon
receipt thereof by Purchaser at the location designated therefor in Article 3.1.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 14.4.2 | Use Conditions Not Covered by Warranty. With respect to the DSSs and/or GCE,
the warranty under this Article 14 shall not apply if adjustment, repair or parts
replacement is required as a result, directly or indirectly, of accident, unusual
physical or electrical stress, misuse, failure of environmental control prescribed in
operations and maintenance manuals, repair or alterations by any party other than
Contractor, or by causes other than normal and ordinary use. The warranty provided
pursuant to this Article 14 is conditioned upon Contractor being given access, if
required, to the DSSs and/or GCE, as applicable, delivered at Purchaser’s facility in
order to effect any repair or replacement thereof. |
If the defect repaired or remedied by Contractor is not covered by the warranty
provided pursuant to this Article 14, Purchaser shall pay Contractor the cost of
such repair or replacement, transportation charges, and a reasonable profit as
determined in good faith by the Parties, and that in no case shall exceed a [***] of
the cost of such repair or replacement. Such repair costs shall be invoiced to
Purchaser pursuant to the provisions of Article 5.2.4.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 15 — CHANGES
| 15.1 | General |
|
Purchaser may, in writing, request a change within the general scope of this Contract to: |
| a) | Order work in addition to the work provided for herein; |
||
| b) | Modify the whole or any part of the work provided for herein; |
||
| c) | [***] |
||
| d) | [***] |
| 15.2 | Changes [***] |
If such change request causes an increase or decrease in the cost, or the time required for
completion, of the work to be provided herein, or otherwise affects any other provision of this
Contract, Contractor shall provide Purchaser with a reasonable non-binding preliminary estimate of
the impact of the change request on the Contract price (including costs associated with processing
of the change request), Delivery schedules and other provisions of this Contract. If Purchaser
desires to proceed with the change after receipt of Contractor’s preliminary estimate, Purchaser
and Contractor shall, if appropriate, negotiate and agree in a timely manner to equitable
adjustments in Contract price, Delivery schedules and other affected provisions of this Contract,
and this Contract shall be amended in writing accordingly. Contractor shall have no obligation to
proceed pursuant to a change request prior to execution of such amendment, and Purchaser may decide
not to proceed with the requested changes, at any moment before the execution of such amendment.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 15.3 | [***] |
|
| 15.4 | [***] |
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 16 — FORCE MAJEURE
Neither Party shall be responsible for late Delivery or delay of the final completion date or
nonperformance of its contractual obligations due to Force Majeure. The Party claiming Force
Majeure shall provide written notice to the other Party of a Force Majeure event promptly, but in
no event later than five (5) days after such Party shall have first learned of the occurrence
giving rise to such event and again upon termination of such Force Majeure event. The other Party
shall be excused from performing its obligations under this Contract during the duration of the
Force Majeure event, provided that, if Purchaser claims Force Majeure, Contractor shall be entitled
immediately to stop Work if Purchaser fails to make payments due hereunder to Contractor. The Party
claiming Force Majeure shall use reasonable commercial efforts to avoid, minimize or work-around
any Force Majeure events, provided, however, that if such event shall exceed [***] days
continuously or in the cumulative aggregate, the other Party shall have the right to terminate this
Contract [***]. Force Majeure shall not include events resulting from the willful misconduct or
intentional breach of this Contract by the Party claiming Force Majeure.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 17 — PATENT INDEMNITY
| 17.1 | Indemnification |
Contractor, at its own expense, hereby agrees to defend or, at Contractor’s sole option, to
settle, and to indemnify and hold harmless Purchaser, and its respective shareholders,
officers, directors and employees from and against any claim or suit based on an allegation
that the manufacture of any Deliverable Item or any part thereof or the normal intended use,
lease or sale of any Deliverable Item or any part thereof infringes any third party’s
Intellectual Property Right (“Intellectual Property Claim”), and shall pay any royalties and
other liabilities adjudicated (or provided in settlement of the matter) to be owing to the
third party claimant as well as costs and expenses incurred in defending or settling such
Intellectual Property Claim. Contractor’s obligations under this Article 17.1 shall be
subject to the conditions to indemnification set forth in Article 18.3.
Purchaser’s failure to so notify Contractor shall not relieve Contractor from any obligation
that Contractor would otherwise have pursuant to this indemnity except to the extent that
Contractor has been materially prejudiced by such failure to notify. Contractor shall have
control of the defense and settlement of such Intellectual Property Claim, except that
Contractor shall not enter into any agreement, settlement, consent judgment, or the like
that is binding on Purchaser and which compromises any rights of Purchaser hereunder,
without Purchaser’s prior written consent, which shall not be unreasonably withheld, delayed
or conditioned. Notwithstanding Contractor’s assumption of the defense and indemnification
regarding an Intellectual Property Claim, Purchaser shall have the right to employ separate
counsel and participate in the defense and investigation of such Intellectual Property Claim
at its sole cost as provided in Article 18.3.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 17.2 | Infringing Equipment |
If the manufacture of any Deliverable Item or the normal intended use, lease or sale of any
Deliverable Item under this Contract is enjoined as a result of an Intellectual Property
Claim or is otherwise prohibited, Contractor shall, [***].
| 17.3 | Combinations and Modifications |
Contractor shall have no liability under this Article 17 for any Intellectual Property Claim
arising from (i) use of any Deliverable Item in combination with other items not provided,
recommended, or approved by Contractor, or (ii) modifications of any Deliverable Item after
Delivery by a person or entity other than Contractor unless authorized by written directive
or instructions furnished by Contractor to Purchaser under this Contract or (iii) the
manufacture, delivery or use of any Deliverable Item in compliance with the design,
specification or instructions of Purchaser.
| 17.4 | Sole Remedies |
The remedies set forth in this Article 17 are Purchaser’s sole and exclusive remedies for,
or related to, any Intellectual Property Claim.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 18 — INDEMNITY FOR BODILY INJURY AND PROPERTY DAMAGE
| 18.1 | Contractor’s Indemnity of Purchaser |
Except to the extent of the applicability of the interparty waiver required pursuant to
Article 23, Contractor, at its own expense, shall defend, indemnify and hold harmless
Purchaser and its respective shareholders, directors, officers, agents and employees, from
and against any losses, damages, and other liabilities, adjudicated (or provided for in
settlement of the matter) to be owing to a third party claimant as well as costs and
expenses, including court costs and reasonable attorneys’ fees (collectively, “Losses”), for
bodily injury to or property damage of such third party, but only if such Losses were caused
by, or resulted from, a negligent act or omission or willful misconduct of Contractor or its
employees or representatives. For the avoidance of doubt, the Satellite in any stage of
manufacture or operation shall not be considered as property subject to indemnification
under this Article 18.1.
| 18.2 | Purchaser’s Indemnity |
Except to the extent of the applicability of the interparty waiver required pursuant to
Article 23, Purchaser, at its own expense, shall defend, indemnify and hold harmless
Contractor, and its respective directors, officers, agents and employees from and against
any Losses for bodily injury to or property damage of a third party claimant, but only if
such Losses were caused by, or resulted from, a negligent act or omission or willful
misconduct of Purchaser or its employees or representatives, in the performance of this
Contract.
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 18.3 | Conditions to Indemnification |
The right to any indemnity specified in Articles 18.1 and 18.2 shall be subject to the
following conditions:
| (i) | The Party seeking indemnification shall promptly advise the other Party in
writing of the filing of any suit or of any written or oral claim for indemnification
upon receipt thereof and shall provide the other Party, at its request, with copies of
all documentation relevant to such suit or claim. |
| (ii) | The Party seeking indemnification shall not make any admission nor shall it
reach a compromise or settlement without the prior written approval of the other Party,
which approval shall be provided in a timely manner, and not be unreasonably withheld. |
| (iii) | The indemnifying Party shall assist and shall have the right to assume, when
not contrary to the governing rules of procedure, the defense of any claim or suit in
settlement thereof and shall satisfy any judgments rendered by a court of competent
jurisdiction in such suits and shall make all settlement payments. The Party seeking
indemnification may participate in any defense at its own expense, using counsel
reasonably acceptable to the indemnifying Party, provided there is no conflict of
interest and that such participation would not adversely affect the conduct of the
proceedings. |
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REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 18.4 | General Liability Insurance |
Each Party shall procure at its own expense and maintain in place comprehensive general
liability insurance with such limits and on such terms and conditions with insurers of
recognized reputation in order to provide for the payment of claims arising from the
liabilities for which such Party has agreed to indemnify against under this Article 18. Each
Party shall obtain a waiver of subrogation and release of any right of recovery against the
other Party and its contractors and subcontractors at any tier (including suppliers of any
kind) and the respective directors, officers, employees, shareholders and agents of each of
the foregoing, that are involved in the performance of this Contract
from any insurer providing coverage for the risks such Party has agreed to indemnify against
under this Article 18. Each Party shall further procure at its own expense and maintain in
place worker’s compensation insurance (or equivalent, if any, in the case Purchaser is a
non-U.S. entity) for such Party’s employees involved in the performance of this Contract.
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 19 — TERMINATION FOR CONVENIENCE
| 19.1 | Reimbursement of Contractor |
Purchaser may terminate this Contract at its sole discretion and without cause, in whole or
in part, by giving Contractor written notice thirty (30) days prior to the date of such
termination. Upon receipt by Contractor of Purchaser’s notice of termination for
convenience, Contractor shall: (i) immediately stop work under this Contract as directed in
the termination notice; (ii) place no further orders or subcontracts for materials, services
or facilities; (iii) terminate orders and subcontracts to the extent that they are related
to the performance of the work hereunder; and (iv) settle all outstanding liabilities and
all claims arising out of such termination of orders and subcontracts. Contractor shall
submit its claim for the work performed in connection with the terminated Contract, and for
its termination costs plus a reasonable profit as provided in items (a) through (e) of this
Article 19.1. If Purchaser terminates this Contract in whole or in part pursuant to this
Article 19.1, Purchaser shall pay to Contractor the sum of (a) through (e) below, less any
amounts previously paid with respect to completed and/or terminated Deliverable Items and,
in no event, in excess of the cumulative maximum termination liability amount corresponding
to the date of termination as reflected in the applicable Schedule 1 SATMEX 8 Milestone
Payment Plan for Firm Fixed Price and Termination Liability Schedule, as the same may be
modified in accordance with the terms of this Contract:
| (a) | The price set forth in Article 4 for Deliverable Items completed prior to such
termination, whether or not Delivery has occurred with respect to such Deliverable Item
and whether or not this Contract has been terminated pursuant to this Article 19.1 with
respect to such Deliverable Item. |
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THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| (b) | Actual out-of-pocket costs (which include indirect costs, such as burdens and
general and administrative expenses) reasonably incurred by Contractor in
performance of work on Deliverable Items for which this Contract has been terminated
pursuant to this Article 19.1, that have not been completed prior to such
termination. |
| (c) | Actual out-of-pocket costs incurred by Contractor in completing the termination
process with respect to the Deliverable Items for which this Contract has been
terminated pursuant to this Article 19.1. |
| (d) | Actual out-of-pocket costs reasonably incurred by Contractor in settling claims
of subcontractors and other suppliers and vendors in connection with such termination;
provided that Contractor shall use reasonable commercial efforts to minimize such
costs. |
||
| (e) | A ten percent (10%) profit on items (b) and (c) above. |
| 19.2 | Partial Termination |
If the termination by Purchaser is partial, the price for the non-terminated portion of this
Contract shall be, subject to adjustment (negotiated in good faith by the Parties) by an
amount equal to the additional costs, if any, which must be borne by such portion because of
the partial termination, plus a ten percent (10%) profit on such additional costs.
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CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 19.3 | Settlement Meeting |
In the event of a termination pursuant to this Article 19, a termination settlement meeting
shall be held at a mutually agreed time and place no later than thirty (30) days or such
later date as the Parties may agree, after submission of a claim by Contractor pursuant to
Article 19.1. At or prior to the date of such termination settlement meeting, Contractor
shall provide Purchaser with such documentation of the costs set forth in Articles 19.1 and
19.2 as Purchaser may reasonably request including a detailed invoice of claimed
costs. Contractor shall permit Purchaser, at Purchaser’s sole cost, to retain an audit firm
acceptable to Contractor, which acceptance shall not be unreasonably withheld or delayed, to
audit at a reasonable time, Contractor’s termination claim. Contractor shall have the right
to redact from any audit report any detailed rate information, and such report shall be
considered as Contractor Confidential Information and shall be protected pursuant to Article
26, regardless of how marked. Upon completion of the termination settlement meeting,
Contractor may submit an invoice to Purchaser for payment in accordance with the terms of
Article 5.2, for any amounts determined to be due from Purchaser pursuant to Article 10.1.
Upon receipt of the termination payment, title to, and risk of loss of, all Deliverable
Items referred to in Article 19.1(a), and all other partially completed or incomplete
Deliverable Items for which Contractor is to be paid under this Article 19 shall transfer to
Purchaser and Contractor shall deliver to Purchaser all Deliverable Items within thirty (30)
days from the date of Contractor’s receipt of such payment, except for such Deliverable
Items not desired by Purchaser as notified by Purchaser to Contractor. Purchaser may direct
Contractor to undertake to sell or reallocate to other uses items subject to termination
under this Article 19 for the purpose of receiving a price refund or offset against
Contractor’s termination claim. Upon receipt of such direction, Contractor shall use
reasonable commercial efforts to sell or reallocate the items and provide a refund to
Purchaser or an offset against Contractor’s termination claim, less any reasonable selling
expenses.
| 19.4 | Minimize Termination Costs |
In the event of termination pursuant to this Article 19, Contractor shall take all actions
necessary to reduce the termination costs due from Purchaser, including without limitation
the immediate discontinuance of the terminated work under this Contract and the placing of
no further orders for labor, materials or services required under the terminated portion of
this Contract. Contractor agrees to take such action as may be
necessary or as Purchaser may direct for protection of property in Contractor’s possession
in which Purchaser may have acquired an interest.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 19.5 | Continued Efforts |
Contractor shall continue performance of the portion of this Contract not terminated.
Purchaser shall have no obligations to Contractor with respect to the terminated portion of
this Contract except as set forth in this Article 19.
| 19.6 | Settlements |
Contractor agrees to inform Purchaser in writing of all proposed settlements with vendors in
excess of [***] in the event of termination under this Article 19, and Contractor further
agrees not to enter into any binding settlements until Purchaser has approved the proposed
settlement or thirty (30) days have elapsed from the date Purchaser was first notified of
such proposed settlement.
| 19.7 | Measurement of Costs |
Costs shall be determined in accordance with generally accepted accounting principles and
verified by an independent certified accounting firm of international reputation mutually
acceptable to Purchaser and Contractor with costs therefore to be borne by Purchaser,
provided always that should the audit show a discrepancy such that the amount claimed by
Contractor is greater than [***] of the amount determined by the audit then the cost of the
audit shall be borne by Contractor. Contractor’s detailed rate information shall not be
shared with Purchaser and all such information shall be redacted from any report provided by
the certified accounting firm.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 20 — LATE DELIVERY AND DELAYS
| 20.1 | Liquidated Damages |
The Parties acknowledge and agree that failure to meet the Satellite’s Delivery schedule
specified in Article 3.1 plus [***] calendar days, may cause substantial financial loss to
Purchaser. The Parties further acknowledge and agree that the following liquidated damages
are believed to represent a genuine and reasonable estimate of all losses that would be
suffered by Purchaser by reason of any such delay (which losses would be difficult or
impossible to calculate with certainty).
If, as of the Satellite Delivery date specified in Article 3.1 plus [***] calendar days (as
such date may be extended as provided in this Contract), the Launch Vehicle is unavailable
for reasons that are not solely or substantially attributable to Contractor, such that
Purchaser is not materially harmed or prejudiced by a delay in Satellite Delivery, then the
assessment of liquidated damages shall be suspended on a day-to day basis commensurate with
the period of unavailability of the Launch Vehicle, and no payment by Contractor will be
required for such period.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
If Delivery of the Satellite does not occur on or before the date specified in Article 3.1
plus [***] calendar days, for Delivery (as such date may be extended as provided in this
Contract) then Contractor shall pay Purchaser an amount not to exceed [***] as specified
below, as liquidated damages and not as a penalty for Contractor’s late Delivery
| Days Late (starting the first | ||||
| day after the Scheduled | ||||
| Delivery Date) | Amount per day ($US) | Cumulative amount ($US) | ||
| [***] | [***] | [***] | ||
| [***] | [***] | [***] | ||
| [***] | [***] | [***] | ||
| [***] | [***] | [***] | ||
| [***] | [***] | [***] |
Any amounts due in accordance with this Article 20 shall be, at Purchaser’s election, either
(i) credited to Purchaser against any outstanding or future invoices hereunder or (ii) paid
by Contractor to Purchaser within thirty (30) days of issuance of an invoice from Purchaser.
Notwithstanding the foregoing, the liquidated damages specified in this Article 20 shall not
be applicable to a Satellite that is delivered for purposes of storage, unless such storage
was required substantially by Contractor’s unexcused delay.
| 20.2 | Remedy |
Such liquidated damages shall be Purchaser’s sole and exclusive remedy and compensation for
Contractor delays with respect to late Delivery of Deliverable Items; provided, however,
Purchaser retains all rights and remedies under Article 19 regarding termination for
convenience and Article 21, regarding to termination for default, pursuant to their
respective terms.
| 20.3 | [***] |
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE
21 — DEFAULT
| 21.1 | Termination by Purchaser |
| 21.1.1 | Right to Terminate. Unless Contractor is excused pursuant to Article 6.7 or
Article 16 (for up to the period specified therein) and subject to Article 21.1.4
below, Purchaser may terminate this Contract, in whole or in part by written notice to
Contractor if: (i) Contractor fails to Deliver the Satellite within the time specified
therefor in Article 3.1 (as such date may be extended in accordance with the terms of
this Contract, including but not limited to extensions pursuant to Article 6.7) plus
180 days (or such longer time as may be agreed to in writing by Purchaser); (ii)
Contractor fails to make progress (including due to failure to meet specification
requirements) so as to endanger performance of this Contract such that it is
reasonably certain Contractor will fail to Deliver the Satellite within the time
period set forth in subclause (i) immediately above, and fails, within sixty (60) days
(or such longer period as may be agreed to in writing by Purchaser) after receipt from
Purchaser of written notice thereof, to cure such breach or correct such failure; or
(iii) other than for failures covered by items (i) and (ii) above, Contractor fails to
perform any material provision of this Contract and does not correct such failure
within a period of ninety (90) days (or such longer period as Purchaser may authorize
in writing) after receipt of notice from Purchaser specifying such failure. |
| 21.1.2 | Termination Liability. [***]. Contractor shall pay the foregoing amounts no
later than thirty (30) days after Contractor’s receipt of Purchaser’s written notice
requesting such amounts pursuant to subclause (i) above. Payment of such amounts, or
transfer of work as set forth in Article 21.1.3, shall be Purchaser’s
sole and exclusive remedy for Contractor’s default and/or breach of this Contract
on account of such event of termination. |
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 21.1.3 | Contractor’s Reimbursement for Terminated Work. In the event Purchaser
terminates this Contract pursuant to this Article 21.1, Purchaser shall have the
option to obtain title to the Deliverable Items (for which title would otherwise
transfer pursuant to the terms hereof if this Contract were completed) provided for
under this Contract or associated work-in-process subject to payment: (i) at the price
set forth in this Contract for items for which an itemized price is set forth herein
and (ii) at the actual cost incurred by Contractor, [***] of such cost, for (a) such
items for which no itemized price is set forth herein and (b) partially completed
items or services and work-in-process. This sum shall be offset by amounts paid by
Purchaser and received by Contractor for Deliverable Items and work-in-process
retained by Purchaser. Purchaser shall pay amounts due hereunder no later than [***]
days after issuance of its written notice pursuant to Article 21.1.2. Following
settlement and payment of amounts due hereunder, Contractor, subject to applicable
Export Control Laws, shall promptly, at Contractor’s or subcontractor’s facility,
transfer title and risk of loss to Purchaser for the applicable Deliverable Items and
work-in-process. |
| 21.1.4 | Special Provision Limiting Purchaser’s Remedies. Purchaser’s sole and
exclusive remedy with respect to delays in Delivery shall be as specified in Article
20 and this Article 21.1. Purchaser shall have no right to terminate this Contract
pursuant to Article 21.1 above: (i) after Delivery of the Satellite; and (ii) for any
reason associated with the Launch Services, the unavailability of the Launch Vehicle,
the unavailability of the Launch Site or the failure of performance of the Launch
Services by the Launch Agency. |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 21.1.5 | Disposition of the Work. Except for items retained and paid for by Purchaser
as set forth in Article 21.1.3, Contractor shall retain title to any and all work,
work-in-process, parts or other material, inventories, and any associated warranties,
and any subcontracted items Contractor has specifically produced, acquired or
subcontracted for in accordance with this Contract. |
| 21.1.6 | Invalid Default Termination. If, after termination pursuant to this Article
21.1, it is finally determined pursuant to Article 22 or written agreement of
Purchaser that Contractor was not in default under Article 21.1.1, or that the default
was excusable under the Contract, the rights and obligations of the Parties shall be
the same as if the termination had occurred under Article 19; except that Contractor
shall also be entitled to recover its additional out-of-pocket costs that would not
have been incurred but for such invalid default termination. |
| 21.2 | Termination by Contractor |
| 21.2.1 | Right to Terminate. Contractor may terminate this Contract upon written
notice given to Purchaser sixty (60) days before its intention to so terminate if
Purchaser: (i) fails to make any payment required under this Contract when due; or
(ii) commits a material breach of its obligations hereunder, and Purchaser shall fail
to cure any such default within sixty (60) days after receiving written notice thereof
from Contractor (or such longer period as may be agreed to in writing by Contractor). |
| 21.2.2 | Termination Liability. In the event of termination pursuant to this Article
21.2, Contractor shall be paid as if such termination were for convenience pursuant to
Article 19. Further, if Purchaser’s failure to perform is a failure to pay Contractor
invoiced amounts when due, Contractor shall be entitled to late payment interest
pursuant to Article 5.3. Payment of the total amounts payable by Purchaser pursuant to this Article 21.2.2 shall constitute a total discharge of
Purchaser’s liabilities to Contractor for termination pursuant to this Article
21.2. |
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 21.2.3 | Disposition of the Work. Contractor may elect immediately upon termination
to take over all Deliverable Items and work-in-process and use or dispose of the same
in any manner Contractor may elect. In such case, the fair market value of any
Deliverable Items or work-in-process retained or disposed of by Contractor shall be
set-off against Purchaser’s termination liability under this Article 21.2. Upon
completion of all payments to Contractor in accordance with this Article 21.2,
Purchaser may, subject to Article 7 hereof, require Contractor to transfer to
Purchaser in the manner and to the extent directed by Purchaser, title to and
possession of any items comprising all or any part of the work terminated (including
all work-in-process, but not including Deliverable Data or any other portion of the
work to which Contractor would not have otherwise been obligated to transfer title
hereunder had the Contract been completed) not used or disposed of by Contractor
pursuant to the foregoing sentence. Contractor shall, upon direction of Purchaser,
protect and preserve such items at Purchaser’s expense in the possession of Contractor
or its subcontractors and shall facilitate access to and possession by Purchaser of
items comprising all or part of the work terminated. Alternatively, Purchaser may
request Contractor to make a reasonable, good faith effort to sell such items and to
remit any sales proceeds to Purchaser less a deduction for actual costs of disposition
reasonably incurred by Contractor for such efforts. |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 21.2.4 | Invalid Default Termination. If, after termination pursuant to this Article
21.2, it is finally determined pursuant to Article 22 or written agreement of
Contractor that Purchaser was not in default under Article 21.2.1, Contractor shall be
liable to Purchaser for direct damages (plus an additional [***] of such direct
damages) resulting from such termination of this Contract (in no event exceeding
amounts payable to Purchaser pursuant to Article 21.1, and subject to the
limitation of liability set forth in Article 25. |
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 22 DISPUTES
In case of any controversy arising regarding the rights and obligations hereunder, the Parties
shall first attempt to cooperatively resolve such controversy between themselves through
negotiation, including escalating the matter to its executive management. After the Parties have
made reasonable attempts to resolve the controversy through such cooperative negotiation efforts
(not to exceed thirty (30) days), if either Party believes that such controversy cannot be resolved
by negotiation between the Parties, then such Party may initiate a law suit thereon, provided that
it provides a prior thirty (30) day written notice to the other Party of its intention to initiate
such legal action. Thereafter, the Parties shall submit to the jurisdiction and competence of the
Courts of the State of New York, except that Purchaser shall not be obligated to violate its
obligations under its Concession License from the Mexican Government, thus waiving their right to
the jurisdiction that might correspond to them due to their present or future address or for any
other reason. The official language for these purposes shall be English.
If a dispute or disagreement arises as to whether or not a Party has committed or acted with [***],
that issue alone shall be resolved by a state court in the Southern District of New York without a
jury, and the court shall resolve such issue by applying the laws of the state of New York without
regard to its conflict of law rules. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO A JURY IN
CONNECTION WITH SUCH DISPUTE OR DISAGREEMENT. The Parties hereby consent to the jurisdiction of
such court with respect to such disagreements or disputes.
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 23 — INTER-PARTY WAIVER OF LIABILITY FOR A LAUNCH
| 23.1 | Launch Services Agreement Inter-Party Waiver of Liability |
| 23.1.1 | Inter-Party Waiver. Each Party hereby agrees to be bound by the no-fault,
no-subrogation inter-party waiver of liability and related indemnity provisions
required by the Launch Services Agreement with respect to the Launch and to cause
their respective contractors and subcontractors at any tier (including suppliers of
any kind) that are involved in the performance of this Contract and any other person
having an interest in the Satellite or any Transponder thereon (including customers of
Purchaser), as required by the Launch Services Agreement, to accede to such waiver and
indemnity. The Parties shall execute and deliver any instrument that may be reasonably
required by the Launch Agency to evidence their respective agreements to be bound by
such waivers. |
| 23.1.2 | Waiver of Subrogation. The Parties shall use reasonable commercial efforts
to obtain from their respective insurers, and shall require their respective
contractors and subcontractors at any tier (including suppliers of any kind) that are
involved in the performance of this Contract and any other person having an interest
in the Satellite or any Transponder thereon, to use reasonable commercial efforts to
obtain from their respective insurers, an express waiver of such insurers’ rights of
subrogation with respect to any and all claims that have been waived pursuant to this
Article 23. |
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 23.2 | Indemnity Related to the Inter-Party Waiver of Liability |
Each Party shall indemnify and hold harmless the other Party and/or its contractors and
subcontractors at any tier (including suppliers of any kind) that are involved in the
performance of this Contract, from and against any claim made by the indemnifying Party
and/or any of its contractors and subcontractors (including suppliers of any kind)
that are involved in the performance of the Contract, or by any person having an interest in
the Satellite or Transponder thereon (including customers of Purchaser), or by insurer(s)
identified in Article 23.1, resulting from the failure of the indemnifying Party to waive
any liability against, or to cause any other person the indemnifying Party is obligated to
cause to waive any liability against, the Launch Agency, the other Party or either of their
contractors and subcontractors at any tier (including suppliers of any kind) involved in the
performance of this Contract. The Parties shall execute and deliver any instrument that may
be reasonably required by the Launch Agency to evidence their respective agreements to be
bound by such indemnifications.
| 23.3 | Survival of Obligations |
The waiver, indemnification and hold harmless obligations provided in this Article 23 shall
survive and remain in full force and effect, notwithstanding the expiration or termination
of this Contract.
| 23.4 | Third Party Claims Coverage |
Contractor or Purchaser, depending on which is party to the Launch Services
Agreement, shall use reasonable commercial efforts to require the Launch Agency to
include the other Party (and any other party or entity as such Party may request) as
an additional named insured under the third party liability insurance (or any other
program of third party claims coverage, including coverage provided by agencies of
any government) that is provided or required to be provided by or through the Launch
Agency.
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 24 — REPRESENTATIONS AND WARRANTIES
| 24.1 | Contractor represents and warrants to Purchaser as follows: |
| a) | Contractor is a corporation duly formed, validly existing in good standing, and
solvent, under the laws of the jurisdiction of its incorporation, and Contractor has
qualified under all laws necessary to engage in the business and has full power and
authority to own its property and to carry on its business as now conducted. |
| b) | Contractor possesses full power and authority to execute this Contract and to
carry out its obligations under this Contract. The execution and performance of this
Contract and the consummation of the transactions contemplated by this Contract have
been duly authorized by all requisite action on its part. This Contract constitutes a
valid and legally binding obligation of Contractor, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws now or hereafter in
effect relating to creditors’ rights generally. Its representative executing this
Contract has sufficient authority to sign this Contract in its name and on its behalf,
and that authority has not been limited or revoked. |
| c) | Contractor’s execution and performance of this Contract and the transactions
contemplated hereby do not constitute a breach of any term or provision of, or a
default under, (A) any contract or agreement to which it or any of its Affiliates is a
party or by which it or any of its Affiliates or its or their property is bound, (B)
its organizational documents or (C) any laws, regulations or judicial orders having
applicability to it, which breach would have a material adverse affect on its ability
to perform its obligations hereunder. |
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| d) | Contractor has the requisite expertise, professional qualifications, skills,
personnel, technology, experience and technical resources to perform its obligations
hereunder. |
| 24.2 | Purchaser represents and warrants to Contractor as follows: |
| a) | Purchaser is a corporation duly formed and validly existing under the laws of
its jurisdiction of incorporation. It has full power and authority to own its property
and to carry on its business as now conducted. |
| b) | Purchaser possesses full power and authority to execute this Contract and to
carry out its obligations under this Contract. The execution and performance of this
Contract and the consummation of the transactions contemplated by this Contract have
been duly authorized by all requisite action on its part. This Contract constitutes a
valid and legally binding obligation of Purchaser, enforceable against it in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws now or hereafter in effect relating
to creditors’ rights generally. Its representative executing this Contract has
sufficient authority to sign this Contract in its name and on its behalf, and that
authority has not been limited or revoked. |
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 25 LIMITATION OF LIABILITY
| 25.1 | GENERAL LIMITATION OF LIABILITY |
NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER PARTY, TO THE OTHER
PARTY’S SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS AT ANY
TIER (INCLUDING SUPPLIERS OF ANY KIND), AGENTS OR CUSTOMERS, TO ITS PERMITTED ASSIGNEES OR
SUCCESSOR OWNERS OF THE SATMEX 8 SATELLITE OR OTHER DELIVERABLE ITEM OR TO ANY OTHER PERSON
CLAIMING BY OR THROUGH THE OTHER PARTY FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF
BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES,
INCLUDING WITHOUT LIMITATION COSTS OF EFFECTING COVER, LOST PROFITS, LOST REVENUES OR COSTS
OF RECOVERING THE SATMEX 8 SATELLITE, ARISING FROM OR RELATING TO THE PERFORMANCE OR
NONPERFORMANCE OF THIS CONTRACT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO
THE USE OF ANY ITEMS DELIVERED OR SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF SUCH
LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE
OR OTHER LEGAL OR EQUITABLE THEORY, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO
THE CONTRARY, [***]. THE PARTIES SHALL INDEMNIFY EACH OTHER AND HOLD EACH OTHER HARMLESS FOR
AND AGAINST ANY CLAIM ASSERTED DIRECTLY OR INDIRECTLY AGAINST EACH OTHER THAT IS WITHIN THE
SCOPE OF THE FOREGOING LIMITATION OF LIABILITY AND
DISCLAIMER. [***]. THIS ARTICLE 25 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
CONTRACT FOR WHATEVER CAUSE.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 25.2 | [***] |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 26 — DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION
| 26.1 | Definition of Proprietary Information |
For the purpose of this Contract, “Proprietary Information” means all information (other
than Deliverable Data, which is subject to the provisions of Article 27), in whatever form
transmitted, that is disclosed by such Party (hereinafter referred to as the “disclosing
party”) to the other Party hereto (hereinafter referred to as the “receiving party”)
relating to the performance by the disclosing party of this Contract and: (i) is identified
as proprietary by means of a written legend thereon, or (ii) if disclosed orally, is
identified as proprietary at the time of initial disclosure and then summarized in a written
document, with the Proprietary Information specifically identified, that is supplied to the
receiving party within ten (10) days of initial disclosure. Proprietary Information shall
not include any information disclosed by a Party that (i) is already known to the receiving
party at the time of its disclosure, as evidenced by written records of the receiving party,
without an obligation of confidentiality at the time of disclosure; (ii) is or becomes
publicly known through no wrongful act of the receiving party; (iii) is independently
developed by the receiving party as evidenced by written records of the receiving party;
(iv) such Party is legally compelled to disclose; or (v) lawfully obtained from a third
party without restriction and without breach of this Contract.
| 26.2 | Terms for Handling and Use of Proprietary Information |
For a period of ten (10) years after receipt of any Proprietary Information (or until such
time as such Proprietary Information becomes publicly known as provided in Article 26.1),
the receiving party shall not disclose Proprietary Information that it obtains from the
disclosing party to any person or entity except its Board of Directors, parent company,
employees, employees, contractors and subcontractors at any tier (including suppliers of any
kind), consultants and agents who have a need to know and who have been informed of and have
agreed to abide by the receiving party’s obligations under this Article 26 and who are
authorized pursuant to applicable Export Control Laws to receive such information. The
receiving party shall use not less than the same degree of care to avoid disclosure of such
Proprietary Information as it uses for its own Proprietary Information of like importance;
but in no event less than a reasonable degree of care. Proprietary Information shall be used
only for the purpose of performing the obligations under this Contract, or as the disclosing
party otherwise authorizes in writing.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
In no event shall either Party disclose or transfer SATMEX 8 Satellite controlled technical
information or provide technical services whether or not constituting Proprietary
Information to insurance brokers, underwriters or other third persons or entities without,
where required, prior approval of the U.S. Department of State.
| 26.3 | Legally Required Disclosures |
Notwithstanding the foregoing, in the event that the receiving party becomes legally
compelled to disclose Proprietary Information of the disclosing party, including this
Contract or other supporting document(s), the receiving party shall, to the extent
practicable under the circumstances, provide the disclosing party with written notice
thereof so that the disclosing party may seek a protective order or other appropriate
remedy, or to allow the disclosing party to redact such portions of the Proprietary
Information as the disclosing party deems appropriate. In any such event, the receiving
party will disclose only such information as is legally required, and will cooperate with
the disclosing party (at the disclosing party’s expense) to obtain proprietary treatment for
any Proprietary Information being disclosed.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 26.4 | Disclosure of Contract Terms |
Notwithstanding anything to the contrary in this Article 26, and subject to applicable
Export Control Laws, the terms and conditions of this Contract may not be disclosed by
either Party to any person, other than to Contractor’s or Purchaser’s respective members of
their Board of Directors, employees, consultants, and agents, except with the prior written
consent of the other Party which shall not be unreasonably withheld, provided, in each case,
that the recipient of such information agrees to treat such information as confidential and
executes and delivers a confidentiality agreement or is otherwise subject to confidentiality
obligations providing for confidential treatment thereof which in all cases shall be
consistent with the confidentiality obligations contained herein; provided, further, that
either Party shall have the right to disclose such information as is required under
applicable law or the binding order of a court or government agency (subject to Article 26.3
above); provided, further, that Purchaser shall have the right to disclose any or all of the
terms and conditions of this Contract to its insurance brokers and underwriters as Purchaser
deems necessary in its sole judgment; and provided, further, that Purchaser shall have the
right to disclose any or all of the terms and conditions of this Contract if required to do
so pursuant to the terms of Purchaser’s financing agreements, stock purchase agreements or
processes, or restructuring processes; provided in all cases contemplated above, that (i)
the disclosure of such information shall be made in compliance with all applicable Export
Control Laws, and (ii) the recipient of such information agrees to treat such information as
confidential and executes and delivers a confidentiality agreement or is otherwise subject
to confidentiality obligations providing
for confidential treatment thereof which in all cases shall be consistent with the
confidentiality obligations contained herein.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 27 — RIGHTS IN DELIVERABLE DATA
Contractor shall retain title to all Deliverable Data utilized or developed by Contractor during
the performance of this Contract. Subject to Export Control Laws, Purchaser’s officers, directors,
employees, agents, consultants and representatives shall have the non-exclusive right to obtain and
use the Deliverable Data for the sole purpose of testing, operating and maintaining, the SATMEX 8
Satellite. Purchaser’s officers, directors, employees, consultants and representatives shall not
disclose Deliverable Data to other companies, organizations or persons without the express prior
written consent of Contractor. Purchaser shall have no rights in Deliverable Data other than as
expressly stated in this Contract, and title to Deliverable Data shall not pass to Purchaser or any
other entity pursuant to the terms hereof.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 28 — PUBLIC RELEASE OF INFORMATION
| 28.1 | Restrictions on Public Release of Information |
Either Party intending to disclose publicly whether through the issuance of news releases,
articles, brochures, advertisements, prepared speeches or other information, releases
concerning this Contract or the transactions contemplated herein shall obtain the prior
written approval of the other Party with respect to the content and timing of such issuance,
A Party’s approval under this Article 28 shall not be unreasonably delayed or denied.
Provided that Purchaser may also share this information with any potential purchaser under
any stock purchase agreement or with any holder of Purchaser’s outstanding First Priority
Senior Secured Notes due 2011 or Second Priority Senior Secured Notes due 2013, or any
representative thereof, under comparable conditions of confidentiality as stated herein.
| 28.2 | Exceptions |
The obligations set forth in Article 28.1 shall not apply to the following:
| a. | information that is publicly available from any governmental agency or that is
or otherwise becomes publicly available without breach of this Contract; |
| b. | internal publications or releases which are clearly marked as not intended for
the public at large; and |
| c. | disclosure required by applicable law or regulation, including without
limitation, disclosure required by the Securities and Exchange Commission or the Nasdaq
Stock Market or any other securities exchange on which the securities of a Party or its
Affiliate are then trading |
| d. | if the disclosure is solely the announcement of the signature and subject
matter of this Contract and the identification of the Parties. |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 29 NOTICES
| 29.1 | Written Notification |
Each notice or correspondence required or permitted to be given or made hereunder shall be
in writing (except where oral notice is specifically authorized) to the respective
addresses, facsimile, e-mail and telephone numbers and to the attention of the individuals
set forth below, and any such notice shall be deemed given on the earlier to occur of (i)
actual receipt, irrespective of whether sent by post, facsimile transmission (followed by
mailing of the original copy), overnight courier, e-mail0 or other method, and (ii) seven
(7) days after mailing by registered or certified mail, return receipt requested, postage
prepaid.
In the case of Purchaser:
[***]
With a separately delivered copy to:
[***]
In the case of Contractor:
[***]
| 29.2 | Change of Address |
Either Party may from time to time change its notice address or the persons to be notified
by giving the other Party prior written notice (as provided above) of such new information
and the date upon which such change shall become effective.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 30 — REPLACEMENT SATELLITE
Contractor hereby grants to Purchaser an option to purchase one (1) replacement satellite identical
to the SATMEX 8 Satellite (the “Replacement Satellite”). The price for such Replacement Satellite
shall be [***] of which [***] constitutes the maximum [***] Contractor may earn with respect to the
Replacement Satellite. Delivery of the Replacement Satellite shall be no later than the later to
occur of: (i) [***] months after execution of the second contract or Contract amendment identified
below and (ii) [***] months after Delivery of the SATMEX 8 Satellite). Commencing upon the date of
execution of such second contract or Contract amendment, Contractor shall immediately proceed with
all work necessary to manufacture such Replacement Satellite. The option shall remain valid until
one (1) year after the Launch of the Satellite (the “Replacement Satellite Exercise Period”),
provided that Purchaser may require Contractor to extend the validity of the option and/or change
the design and/or specifications of the Replacement Satellite under a change order pursuant to
Article 15. If Purchaser wishes to exercise such option, it may do so by providing notice to
Contractor at any time prior to the expiration of the Replacement Satellite Exercise Period. In
such event, the Parties shall document Purchaser’s agreement to purchase the Replacement Satellite
and Contractor’s agreement to manufacture and deliver such satellite by entering into either, at
Purchaser’s option, an amendment to this Contract or a second contract that has terms and
conditions identical in all relevant material respects to this Contract except for such differences
as are reasonably necessary or appropriate to indicate that the second contract applies to the
Replacement Satellite. Only upon execution of such second contract or Contract amendment shall
Purchaser be financially obligated to Contractor with respect to the Replacement Satellite and
shall Contractor be obligated to perform with respect thereto.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 31 — CORRECTIVE MEASURES IN SATELLITE
If the data available from any satellite manufactured by Contractor (whether in-orbit or on the
ground) shows that the performance of such satellite may deviate or deviates materially during the
life thereof from that specified in the applicable performance specification for such satellite
and/or a generic failure is discovered in other satellites manufactured by Contractor, Contractor
shall (i) provide Purchaser, or its representatives, as directed by Purchaser, prompt written
notice thereof, including any recommended corrective action plans, procedures and testing plans,
provided Contractor shall not be required to disclose to Purchaser information that is confidential
to a customer of Contractor and (ii) at Contractor’s sole cost, take appropriate corrective
measures, including additional testing as applicable, if any, with the unlaunched Satellite
(including Satellite in Storage and the Replacement Satellite) so as to eliminate therefrom the
causes of such material deviation or potential deviation. Corrective actions must also be performed
by Contractor at no cost to Purchaser for any parts recall or GIDEP (Government-Industry Data
Exchange Program) alert if applicable.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 32 — STORAGE
Purchaser, at its option to be exercised no later than [***] before Delivery of the Satellite, may
direct Contractor to store the Satellite, after Delivery of the Satellite, for a period of one (1)
month up to thirty-six (36) months (“Storage”), and to provide certain services associated with
storage of the Spacecraft. If the Purchaser exercises this Option, upon completion of SPSR: i) the
Satellite shall be deemed to be Delivered and Acceptance to have occurred, ii) the warranty
pursuant to Article 14.0, shall commence on the date the Spacecraft enters into storage and
continue until the earlier to occur of [***] and thirty-six (36) months after placement in Storage
and, iii) [***], if Storage is then continuing. Title to, and risk of loss or damage to, the
Spacecraft shall remain with the Contractor during the Storage period including transit to and from
the Storage location and shall transfer to Purchaser in accordance with Article 12.
| 32.1 | [***] |
|
| 32.2 | [***] |
|
| 32.3 | Notification of Intention to Launch a Previously Stored Satellite. |
Purchaser shall notify Contractor in writing that the Satellite in storage should be removed
from storage and shipped to the Launch Site. This notification must be received by
Contractor not less than [***] months before the new date established by mutual agreement
between Purchaser and Contractor (subject to approval by the Launch Agency and consistent
with any required Export Control Laws) for Launch. Upon Purchaser’s direction to Contractor
to remove the Satellite from Storage, Contractor shall, (i) conduct the post-storage
verification tests as set forth in Exhibit D, SATMEX 8 Satellite Test Plan, (ii) refurbish
and retest the refurbishment as needed due to Storage and (iii) take appropriate corrective
measures pursuant to Article 31. In the event such tests
demonstrate conformity of the SATMEX 8 Satellite to the applicable requirements of the
SATMEX 8 Satellite Performance Specification and Purchaser confirms in writing such
demonstrated conformity (not to be unreasonably withheld), Purchaser shall direct that the
SATMEX 8 Satellite be prepared and shipped by Contractor to the Launch Site (or any other
location as Purchaser may direct).
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 32.4 | Delivery to Purchaser other than for Launch. |
Purchaser shall have the right, at any time, to require Contractor to deliver to Purchaser
the Satellite from Storage. Upon written request from Purchaser, Contractor shall, at its
own cost, and subject to Export Control Laws, deliver the Satellite to its loading dock and
assist Purchaser in the transport of the Satellite from Contractor’s facilities. Contractor
shall also provide Purchaser with an inventory of the Satellite and such other related
documentation as Purchaser may reasonably request. Title to the Satellite and risk of loss
thereto shall transfer to Purchaser upon Contractor’s delivery of the Satellite to its
loading dock and Purchaser shall be responsible for payment of any taxes that may be imposed
upon such transfer. Thereafter, neither Party shall have any further obligation to the other
Party hereunder, except for such obligations as expressly survive the termination of this
Contract, including the obligation of Purchaser to make any payments remaining to be made
under this Contract.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 33 — ORDER OF PRECEDENCE
In the event of conflict among the terms of the Preamble and Articles 1 to 34 of this Contract and
the Exhibits, the following order of decreasing precedence shall apply:
| • | This Contract (Preamble and Articles 1 through 34) | |||||
| • | Schedule 1 | SATMEX 8 Milestone Payment Plan for Firm Fixed Price | ||||
| • | Exhibit A | SATMEX 8 Program Statement of Work | ||||
| • | Exhibit B | SATMEX 8 Satellite Performance Specification | ||||
| • | Exhibit C | Mission Assurance Plan | ||||
| • | Exhibit D | SATMEX 8 Satellite Test Plan | ||||
| • | Exhibit E | SATMEX 8 Dynamic Satellite Simulation Specification | ||||
| • | Exhibit F | GCE Upgrade Statement of Work | ||||
| • | Exhibit G | iTACS Technical Requirements Specification | ||||
| • | Exhibit H | APS Technical Requirements Specification | ||||
| • | Exhibit I | GCE Upgrade Product Assurance Plan | ||||
| • | Exhibit J | Ground Control Equipment Upgrade Test Plan | ||||
| • | Exhibit K | Ground Control Equipment Upgrade Training Plan | ||||
| • | Exhibit L | SATMEX 8 Program Satellite and DSS Training Plan | ||||
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
ARTICLE 34 — GENERAL
| 34.1 | Binding Effect; Assignment |
This Contract shall be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns. Assignment of this Contract shall not relieve
the assigning Party of any of its obligations nor confer upon the assigning Party any rights
except as provided in this Contract.
| 34.2 | Assignment |
| 34.2.1 | General. This Contract may not be assigned, either in whole or in part, by
either Party without the express written approval of the other Party, not to be
unreasonably withheld or delayed. |
| 34.2.2 | By Purchaser. Notwithstanding the foregoing, Purchaser may assign or
transfer this Contract or all its rights, duties, or obligations hereunder (i) to an
Affiliate, provided that such Affiliate has sufficient financial resources to fulfill
Purchaser’s obligations under this Contract, (ii) in connection with obtaining
financing for the payment of Contractor’s invoices and any and all other fees, charges
or expenses payable under this Contract under any financing agreement; (iii) to a
strategic partner in a joint venture or a special purpose vehicle in connection with a
sale/leaseback, capacity sale or similar transaction involving such a joint venture or
strategic partnership, and (iv) any person in connection with the sale, transfer,
merger, assignment or other reorganization affecting Purchaser or all (or
substantially all) of Purchaser assets or capital stock, whether by way of merger,
consolidation, or otherwise, in all of the above instances provided the assignee,
transferee, or successor to Purchaser has expressly assumed all the obligations of
Purchaser and all terms and conditions applicable to Purchaser under this Contract. |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 34.2.3 | By Contractor. Notwithstanding the foregoing, Contractor may assign or
transfer this Contract or all of its rights, duties, or obligations hereunder to: (i)
any Affiliate of Contractor, provided that such Affiliate has sufficient financial and
technical resources to fulfill Contractor’s obligations under this Contract, or (ii)
any person in connection with the sale, transfer, merger, assignment or other
reorganization affecting Contractor or all (or substantially all) of Contractor’s
assets or capital stock, whether by way of merger, consolidation, or otherwise,
provided that the assignee, transferee, or successor to Contractor has expressly
assumed all the obligations of Contractor and all terms and conditions applicable to
Contractor under this Contract. |
| 34.2.4 | Security Interests. Either Party, may grant security interests in its rights
hereunder to lenders that provide financing for the performance by such Party of its
obligations under this Contract or for the subject matter hereof, or assign its rights
to any payments hereunder. In the event that either Party is sold to or merged into
another entity, its responsibilities under this Contract shall not be altered and the
successor organization shall be liable for performance of such Party’s obligations
under this Contract. |
| 34.3 | Severability |
If any provision of this Contract is declared or found to be illegal, unenforceable or void,
the Parties shall negotiate in good faith to agree upon a substitute provision that is legal
and enforceable and is as nearly as possible consistent with the intentions underlying the
original provision. If the remainder of this Contract is not materially affected by such
declaration or finding and is capable of substantial performance, then the remainder shall
be enforced to the extent permitted by law.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 34.4 | Captions |
The captions contained herein are for purposes of convenience only and shall not affect the
construction of this Contract.
| 34.5 | Relationships of the Parties |
It is expressly understood that Contractor and Purchaser intend by this Contract to
establish the relationship of independent contractors only, and do not intend to undertake
the relationship of principal and agent or to create a joint venture or partnership or any
other relationship, other than that of independent contractors, between them or their
respective successors in interests. Neither Contractor nor Purchaser shall have any
authority to create or assume, in the name or on behalf of the other Party, any obligation,
expressed or implied, or to act or purport to act as the agent or the legally empowered
representative of the other Party, for any purpose whatsoever.
| 34.6 | Entire Agreement |
This Contract, including all Exhibits and the Attachments hereto, represents the entire
understanding and agreement between the Parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations and agreements with respect to the subject
matter hereof, including, without limitation, the ATP, provided that any work performed
under the ATP shall be deemed performed under this Contract, and shall not be modified
except by written instrument of subsequent date signed by authorized representatives of both
Parties.
| 34.7 | Standard of Conduct |
Both Parties agree that all their actions in carrying out the provisions of this Contract
shall be in good faith and in compliance with applicable United States and Mexican laws
and regulations and neither Party will pay or accept bribes, kickbacks or other illegal
payments, or engage in unlawful conduct.
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 34.8 | Construction |
This Contract, the Exhibits and the Attachment hereto have been drafted jointly by the
Parties and in the event of any ambiguities in the language hereof, there shall be no
inference drawn in favor of or against either Party.
| 34.9 | Applicable Law |
The applicable law shall be New York State law without regard to its conflict of laws rules,
except that Purchaser shall not be obligated to violate its obligations under its Concession
License from the Mexican Government.
| 34.10 | Survival |
Termination or expiration of this Contract for any reason shall not release either Party
from any liabilities or obligations set forth in this Contract that (i) the Parties have
expressly agreed shall survive any such termination or expiration or (ii) remain to be
performed or by their nature would be intended to be applicable following any such
termination or expiration.
| 34.11 | U.N. Convention on the International Sales of Goods |
The U.N. Convention on the International Sales of Goods shall, except to the extent
consistent with Mexican law, not apply or otherwise have any legal effect with respect to
this Contract.
| 34.12 | [***] |
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
| 34.13 | Interpretation |
Wherever the Contract provides for a decision to be made by either Party (including, without
limitation, any consent, approval, acceptance, instruction, notice, opinion or direction),
both Parties undertake that such decisions shall not be unreasonably made, withheld or
delayed. Both Parties agree that when making any claim against the other, they will use all
reasonable endeavors to mitigate losses arising from the same.
34.14 No Third-Party Beneficiaries
This Contract is entered into solely between Purchaser and Contractor, and may be enforced
only by Purchaser and Contractor and their permitted assigns, and is not intended to confer
any further benefits or rights beyond those expressly given. This Contract shall not be
deemed to create any rights in, or liabilities to, third parties, including suppliers,
customers and owners of a Party, or to create any obligations of a Party to any such third
parties, none of which may enforce any provision in this Contract, without limitation.
Contractor and Purchaser expressly reserve the right to modify, amend, terminate or
otherwise modify any provision in this Contract, without the consent of, or notice to, any
third party.
| 34.15 | ROFO Termination and ATP Supersession |
The Parties agree that upon the EDC of this Contract, the ROFO is terminated and ceases to
have any further force and effect, and the SATMEX 8 Satellite is considered as the
Purchaser’s “Next Satellite” in accordance with the terms and conditions set forth in the
ROFO. From and after the EDC, this Contract supersedes, in its entirety, the ATP. Any
actions taken or payments made thereunder are deemed actions taken and payments made under
this Contract.
[INTENTIONALLY LEFT BLANK, SIGNATURE PAGE FOLLOWS]
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
-103-
FOIA CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION IN THIS
AGREEMENT. THIS INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***]. COPIES OF THE EXHIBIT
CONTAINING THE REDACTED PORTIONS HAVE BEEN FILED SEPARATELY WITH THE COMMISSION SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 UNDER
THE SECURITIES EXCHANGE ACT.
EXECUTION VERSION
IN WITNESS THEREOF, the Parties have executed this Contract, which execution may be in separate
counterparts, by their duly authorized officers, as of April 1st, 2010 as set forth in
the Preamble.
| SPACE SYSTEMS/LORAL, INC. | SATÉLITES MEXICANOS, S.A. DE C.V. | |||||||
By:
|
/s/ Xxx Xxxxx
|
By: | /s/ Xxxxxxxx Northland
|
|||||
| Title: CFO | Title: CEO | |||||||
[Use or disclosure of the data contained on this page is subject to the restriction set forth in Article 26.]
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