EXHIBIT 4.19
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AsiaSat 5
ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED
AND
SPACE SYSTEMS/LORAL, INC.
ASIASAT 5 CONTRACT FOR ONE SPACECRAFT DELIVERED ON-GROUND
AND ASSOCIATED EQUIPMENT AND SERVICES
This document contains information that is proprietary to Asia Satellite
Telecommunications Company Limited and Space Systems/Loral, Inc. All
information contained herein and in the exhibits and appendices hereto is
deemed to be Proprietary Information (as such term is defined in Clause 33.1
below) of both Parties, and disclosure thereof is governed by Clause 33.
TABLE OF CONTENTS PAGE
1. DEFINITIONS.............................................................5
2. SCOPE OF WORK..........................................................13
3. EQUIPMENT AND SERVICES TO BE FURNISHED AND PRICES......................15
4. COMPLETION SCHEDULE....................................................16
5. PAYMENT................................................................18
6. GOVERNMENT REGULATIONS, WHERE APPLICABLE...............................20
7. INSURANCE..............................................................21
8. LIQUIDATED DAMAGES FOR LATE COMPLETION.................................22
9. ASIASAT'S RIGHT OF ACCESS..............................................23
10. TITLE AND RISK OF LOSS OR DAMAGE.......................................24
11. INSPECTION AND FINAL ACCEPTANCE........................................26
12. SUBCONTRACTS...........................................................29
13. TERMINATION FOR CONVENIENCE............................................30
14. TAXES..................................................................31
15. EXCUSABLE DELAYS.......................................................32
16. TERMINATION FOR CAUSE..................................................33
17. DISPUTES AND ARBITRATION...............................................36
18. TECHNICAL DATA AND INFORMATION.........................................38
19. PATENT RIGHTS..........................................................40
20. CHANGES REQUESTED BY CONTRACTOR OR ASIASAT.............................41
21. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES...........................43
22. PUBLIC RELEASE OF INFORMATION..........................................44
23. INDEMNITY AND INTERPARTY WAIVER OF LIABILITY...........................45
24. EFFECTIVE DATE .......................................................47
25. ASSIGNMENT.............................................................48
26. KEY PERSONNEL..........................................................50
27. INTELLECTUAL PROPERTY INDEMNIFICATION..................................51
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28. WARRANTY...............................................................53
29. NOTICES AND REPORTS....................................................55
30. STORAGE................................................................56
31. APPLICABLE LAW.........................................................57
32. ASIASAT FURNISHED INFORMATION, PROPERTY AND RESPONSIBILITIES...........58
33. CONFIDENTIALITY........................................................61
34. GENERAL................................................................64
35. LANGUAGE...............................................................66
36. LIMITATION OF LIABILITY................................................67
37. PERFORMANCE INCENTIVE PAYMENTS.........................................68
38. LAUNCH VEHICLE DELAYS..................................................71
39. SECURITY INTEREST......................................................78
40. ENTIRE AGREEMENT.......................................................75
APPENDIX A - PAYMENT SCHEDULE AND BILLING MILESTONES FOR ASIASAT 5...........77
APPENDIX B - TERMINATION COST TABLE..........................................86
APPENDIX C - PAYMENT SCHEDULE AND BILLING MILESTONES FOR THE
OPTION SATELLITE................................................87
APPENDIX D - TERMINATION COST TABLE FOR THE OPTION SATELLITE.................89
EXHIBIT A - ASIASAT 5 STATEMENT OF WORK
EXHIBIT B - ASIASAT 5 PERFORMANCE SPECIFICATIONS
EXHIBIT C - ASIASAT 5 TEST PLAN
EXHIBIT D - ASIASAT 5 PRODUCT ASSURANCE PLAN
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This Contract is entered into effective as of 28 April, 2006, by and between
Asia Satellite Telecommunications Company Limited, a company incorporated in
Hong Kong with its registered office and place of business at 17/F, The Xxx
Gardens, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxx, Xxxx Xxxx (hereafter referred to as
"AsiaSat"), and Space Systems/Loral, Inc., a corporation organised and existing
under the laws of the State of Delaware, U.S.A. with its headquarters and place
of business at 0000 Xxxxxx Xxx, Xxxx Xxxx, XX 00000-0000, California, U.S.A.
(hereafter referred to as "Contractor", and AsiaSat and Contractor are
hereafter referred to collectively as the "Parties" or individually as a
"Party"), regarding the AsiaSat 5 Satellite program.
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1. DEFINITIONS
1.1 In this Contract, unless the context otherwise requires, the
following terms shall have the meanings set forth below:
a) "Airborne Support Equipment" or "ASE" consists of the hardware
which while providing the required interfaces between the
Spacecraft and the Launch Vehicle remains attached to the
Launch Vehicle after separation of the Spacecraft.
b) "Affiliate" means, with respect to a Party, any entity that is
controlled by, controlling, or under the common control with,
such Party.
c) "Associate" means any individuals or legal entities organized
under public or private law, who shall act directly or
indirectly on behalf of or at the direction of either Party to
this Contract to fulfill the obligations undertaken by such
Party in this Contract, such as the Subcontractors,
consultants, employees, officers, directors, or agents of each
of the Parties and the term shall mean any of them.
d) "AsiaSat Purposes" means any purpose connected with the
design, development, construction, establishment, maintenance,
and operation of equipment and components for use in
connection with (i) the Spacecraft procured from the
Contractor, and (ii) the tracking, telemetry, command,
control, monitoring and related facilities and equipment
required to support operation of the Spacecraft and its
Transponders.
e) "AsiaSat 5" shall mean the Spacecraft purchased herein as
identified by the Statement of Work or SOW, Exhibit A.
f) "Authorized Representative" means the Chief Executive Officer
of AsiaSat or the person designated by him/her in writing as
Authorized Representative for the purpose of this Contract or
any part hereof or any function hereunder.
g) "Available for Shipment" means that the Satellite has
successfully passed all in-plant acceptance tests, has
undergone a Pre-Shipment Review and all outstanding action
items in the Pre-Shipment Review have been completed or agreed
by the Parties that such items will be resolved prior to
Launch.
h) "Bankruptcy Event" means (a) Contractor shall file a petition
or commence a proceeding seeking relief under the United
States Bankruptcy Code or another law relating to bankruptcy
or insolvency or seeking the appointment of a receiver or
other similar official for it or for all or any substantial
part of its assets, or (b) there shall be commenced against
Contractor any proceeding or other action referred to in
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clause (a) above which remains undismissed or undischagred for
a period of sixty (60) days.
i) "Banks" means those various financing institutions which are
creditors of AsiaSat and which, as such, have a secured
financial interest in the Spacecraft.
j) "Beneficial Access" means, with respect to:
1) the Designated Launch Site, that all things which AsiaSat
is required to do have been done, and the site is ready
in all respects on a 24-hour per day (with proper
notification) basis, to permit the Contractor to commence
the Satellite Launch campaign as defined in Exhibit A,
Statement of Work;
2) the AsiaSat satellite control facility, that all things
which AsiaSat is required to do have been done, and the
site is ready in all respects on a 24-hour per day (with
proper notification) basis, to permit the Contractor to
commence Satellite tracking, and/or in-orbit testing as
the case may be, as defined in Exhibit A, Statement of
Work.
k) "Baseband Equipment" means the baseband equipment as described
in Exhibit A, Statement of Work.
l) "Business Day" means a day on which both AsiaSat and
Contractor are open for business.
m) "Completion Schedule" means the timetable for completion of
the Contract Items as set forth in Clause 4.2.
n) "Contract" means and includes this AsiaSat 5 Contract and all
amendments, appendices, annexes, exhibits and schedules to it.
o) "Competitor" means, with respect to:
1) Contractor, any third party which competes, with
Contractor in the field of satellite construction;
2) AsiaSat, any third party which competes, with AsiaSat in
the field of satellite communication.
p) "Contract Items" include the Deliverable Equipment and
Deliverable Data and Services required to be delivered under
this Contract.
q) "Contract Price" means the total amount expressed in Clause
3.2.
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r) "Contractor Program Manager" means the person described in
Clause 26.1.
s) "Country of Origin" means the country, from which any Contract
Item is transported.
t) "Deliverable Data" means all Information required to be
delivered by the Contractor for the purpose of the Work
including, without limitation, data and other information
contained in reports, documents, computer programs (including
source codes when commercially available from the vendor and
part of the vendor's standard software delivery), diagrams,
drawings and graphs.
u) "Deliverable Equipment" means the Spacecraft and all other
equipment, models, devices, the physical or tangible form on
which Deliverable Data is delivered or stored and any other
item which is to be delivered by the Contractor under this
Contract other than Deliverable Data or Services.
v) "Designated Launch Site" means the Launch facility provided by
the Launch Services Contractor.
w) "Dynamic Satellite Simulator" or "DSS" means the dynamic
satellite simulator as described in Exhibit A, Statement of
Work.
x) "Effective Date of Contract" or "EDC" shall have the meaning
described in Clause 24.1.
y) "Information" means all data and information, including,
without limitation, data and information of a technical nature
which has been documented or recorded in, or being capable of
reducing into, any physical or tangible form, including,
without limitation, writings, drawings, sound recordings,
computer programs, pictorial representations and graphs.
z) "Intellectual Property" shall have the meaning described in
Clause 33.9.
aa) "Intentional Ignition" means the definition of Intentional
Ignition set forth in the Launch Contract.
bb) "Invoice" means an invoice, issued by the Contractor to
AsiaSat after completion of the relevant Milestone Event.
cc) "Launch" means the definition of Launch set forth in the
Launch Contract.
dd) "Launch Contract" means the contract to be signed by AsiaSat
and the Launch Services Contractor for Launch services of the
Satellite.
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ee) "Launch Date" means the date on which the Launch occurs, such
date shall be scheduled no earlier than thirty days after the
Completion Schedule for the Spacecraft unless the selected
Launch Vehicle is Sea Launch, in which case the Launch Date
shall be scheduled no earlier than forty-five days after the
Completion Schedule for the Spacecraft.
ff) "Launch Failure Holdback Amount" means [o].
gg) "Launch Readiness Review or "LRR" shall mean the review that
verifies that the Designated Launch Site Satellite testing and
checkout as described in the AsiaSat 5 Test Plan (Exhibit C)
has been completed and the Satellite is ready for propellant
loading by the Contractor and subsequently to be turned over
to the Launch Services Contractor for integration with the
Launch Vehicle.
hh) "Launch Risk Insurance" has the meaning specified in Clause 7.
ii) "Launch Services Contractor" means the entity providing the
Launch Vehicle pursuant to a contract with AsiaSat.
jj) "Launch Support Services" means the services to be provided by
the Contractor in accordance with Exhibit A section 11.
kk) "Launch Vehicle" means the launch vehicle, which AsiaSat is
responsible for procuring and which is intended for the Launch
of the Satellite.
ll) "LIBOR" means the monthly rate at which deposits in United
States dollars are offered to prime banks in the London
Inter-Bank market on the due date for payment as published by
the Wall Street Journal (or such other rate as may be
substituted therefore by mutual agreement).
mm) "Milestone Event" means an individual performance event or
calendar event included in Appendix A, Payment Schedule and
Billing Milestones for AsiaSat 5.
nn) "Month" means a calendar month except for schedule (including
Appendix A -Payment Schedule and Billing Milestones) purposes.
For schedule purposes, "Month" shall mean a month long period
beginning with the day after EDC. As an example, for a EDC
established as 14 April 2006, "Month 1" is defined as the
period beginning on 15 April 2006 and ending on 14 May 2006,
"Month 2" is defined as the period beginning on 15 May 2006
and ending on 14 June 2006, and so on.
oo) "Operational Lifetime" means the five thousand four hundred
seventy-five (5,475) day projected lifetime of the Spacecraft
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with such lifetime commencing on the earlier of: (i) the day
when the Spacecraft is positioned at its Specified Orbit
Location and in-orbit testing has been completed in accordance
with Exhibit A; or (ii) forty-five (45) days after Launch.
pp) "Other Data" has the meaning specified in Clause 18.1.
qq) "Party" or "Parties" means the Contractor and/or AsiaSat who
are the parties to this Contract, and both the Contractor and
AsiaSat shall include their successors and permitted assigns.
rr) "Patent" means a patent for an invention or a similar form of
protection for intellectual property including utility models,
trademarks or registered designs.
ss) "Payment Schedule" means the schedule of payments attached as
Appendix A.
tt) "Performance Incentive Payments" has the meaning specified in
Clause 37.1.
uu) "Pre-Shipment Review" has the meaning as described in Exhibit
A, paragraph 8.4.
vv) "Proprietary Information" has the meaning specified in Clause
33.1.
ww) "Product Assurance Plan" means the product assurance plan
incorporated herein and made a part of this Contract and is
set out in Exhibit D.
xx) "Properly Operated Satellite" means a Satellite which is being
monitored and commanded in accordance with the necessary and
required material written or electronic media directives and
instructions in the recommended Spacecraft operating
procedures and any applicable service notes for the Satellite,
such having been furnished under this Contract.
yy) "Property" means a tangible asset over which a Party has legal
title, which definition shall include the Satellite and the
Satellite Control Equipment.
zz) "Satellite" means the Spacecraft.
aaa) "Satellite Control Equipment" (SCE) means AsiaSat's ground
hardware, and software to support telemetry, tracking, command
and monitoring, and the up-link and traffic monitoring
equipment.
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bbb) "Services" or "Deliverable Services" means all professional
services and labour required to be provided hereunder by the
Contractor and its Subcontractors including, but without
limitation, studies, development, research, design, analysis,
manufacture, product assurance, product integration,
transportation and testing and includes the services set forth
in Clause 3.2 (Training, Launch Support Services for the
Launch Vehicle and Mission Operations Services).
ccc) "Spacecraft" means the AsiaSat 5 satellite as described in
Exhibit B. Unless otherwise stated, the terms "Spacecraft" and
"Satellite" shall have the same meaning and are
interchangeable when used herein or in any of the Exhibits
listed in Clause 2.1 hereto.
ddd) "Specified Orbit Location" means, with respect to the
Satellite, the geostationary orbit location specified in
accordance with Clause 32.2.
eee) "Statement of Work" (SOW) means the statement of work
incorporated herein and made a part of this Contract and is
set out in Exhibit A.
fff) "Subcontract" means a subcontract by which the Contractor
contracts with a Subcontractor for the performance of any
service or the provision of any goods or otherwise in relation
to the Work.
ggg) "Subcontractor" means a person, firm, corporation, consultant
or business entity, which has been awarded a Subcontract by
Contractor to provide a portion of the Work covered by this
Contract.
hhh) "Successfully Launched Satellite" means that:
1) The elements of the transfer orbit established by the
Launch Vehicle and the spin axis orientation and time of
separation are within three (3) sigma limits of the
Launch Vehicle performance as established by Contractor
in the interface control document or equivalent; and
2) the Spacecraft has not suffered damage caused by any
failure or malfunction of the Launch Vehicle.
iii) "Successfully Operating Transponder" means a Transponder in
the Satellite which meets any one of the following criteria:
1) The Transponder is performing in compliance with the
communications requirements of Exhibit B.
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2) The Transponder, while not performing in compliance with
Exhibit B, is performing in compliance with the material
specifications in Exhibit B relevant to the Transponder's
intended use and is capable of generating revenue from
such intended use at substantially the same level of
revenues as if it were operating as specified in Exhibit
B.
3) The Transponder is not performing in compliance with
Exhibit B due to the Satellite not being a Properly
Operated Satellite.
4) The Transponder is turned off but would otherwise be
capable of meeting one of the above three criteria.
5) The Transponder is on the Satellite which is placed in a
storage orbit, rather than being placed at the Specified
Orbital Location, at the request of or by AsiaSat,
provided that Contractor does not otherwise know that the
Transponder is not a Successfully Operating Transponder
and provided further that the placement of the Satellite
in an orbital location other than the Specified Orbital
Location solely for the purpose of testing the Satellite
in accordance with the IOT as defined in the test plan
shall not be considered placement in a storage orbit.
Any failure of a Transponder which is corrected by
switching to a redundancy in the system immediately after
the failure is discovered shall not be deemed as
nonconformance to Exhibit B, and shall not cause the
Transponder to be considered anything other than a
Successfully Operating Transponder.
jjj) "Systemic Failure" means component failures on the Satellite
and either the resulting investigations or investigations
undergone previously on similar failures on other satellites
of the Contractor reveal a design, parts or construction
problem leading to a conclusion that such failure is not
random, but systemic.
kkk) "Terminated Ignition" means the definition of Terminated
Ignition (which is sometimes referred to as "Launch
Termination") set forth in the Launch Contract.
lll) "Test Equipment" consists of all test and handling hardware,
mechanical and electrical ground support equipment and test
software.
mmm) "Test Plan" means the test plan incorporated herein and made a
part of this Contract and is set out in Exhibit C.
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nnn) "Training" means the training services to be provided by
Contract hereunder in accordance with Exhibit A, Statement of
Work.
ooo) "Transponder" means the devices on the Spacecraft that create
a communications signal path utilized in the provision of a
channel for a communication service in which signals
transmitted or re-transmitted by space stations are intended
for reception by the intended earth terminals.
ppp) "USD" means United States dollars.
qqq) "Work" means the design, construction, assembly, testing,
production and delivery of all Contract Items and the
provision of all Services to be provided by the Contractor to
AsiaSat under this Contract.
1.2 Clause headings are for convenience only and shall not be considered
in interpreting this Contract. Words shall be interpreted to be
consistent with the context in which they are written. Therefore,
words in the singular include the plural and vice versa and words
importing the masculine gender include the feminine and neuter
genders where the context so requires. References to Clauses,
Appendices, and Exhibits are to clauses of, appendices to, or
exhibits to this Contract.
1.3 In all cases when the Contractor or AsiaSat is to provide data,
hardware, software, services or to impart information, it is
understood that it will be done in accordance with the applicable
laws and regulations of the respective jurisdictions that the
Parties are subject to.
1.4 Any and all dates and times specified in and applied pursuant to
this Contract shall be according to Palo Alto, CA local time, except
as otherwise agreed by the Parties in writing.
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2. SCOPE OF WORK
2.1 The Contractor will, and shall ensure that its Subcontractors will,
provide all necessary personnel, material, equipment, services and
facilities to perform the Work specified in this Contract, which
includes each of the Exhibits and Appendices listed below and
attached hereto, which are an integral part of this Contract, and to
deliver to AsiaSat those items listed in Clause 3 in accordance with
the Completion Schedule:
a) Exhibit A - AsiaSat 5 Statement of Work, dated March 2006 and
initialed by the Parties
b) Exhibit B - AsiaSat 5 Performance Specifications, dated March
2006 and initialed by the Parties
c) Exhibit C - AsiaSat 5 Test Plan, dated March 2006 and
initialed by the Parties
d) Exhibit D - AsiaSat 5 Product Assurance Plan, dated 31 March
2006 and initialed by the Parties
e) Appendix A - Payment Schedule and Billing Milestones for
AsiaSat 5
f) Appendix B - Termination Cost Table
g) Appendix C - Payment Schedule and Billing Milestones for the
Option Satellite
h) Appendix D - Termination Cost Table for the Option Satellite
2.2 In the event of any conflict or inconsistency between this Contract
and any Appendices and/or Exhibits, such conflict or inconsistency
shall be resolved by giving precedence in the order set forth below:
a) This Contract
b) Payment Schedule and Billing Milestones for AsiaSat 5
(Appendix A)
c) Termination Cost Table (Appendix B)
d) The Statement of Work (Exhibit A)
e) The Performance Specifications (Exhibit B)
f) The Test Plan (Exhibit C)
g) The Product Assurance Plan (Exhibit D)
h) Payment Schedule and Billing Milestones for the Option
Satellite (Appendix C)
i) Termination Cost Table for the Option Satellite (Appendix D)
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2.3 Unless otherwise approved in writing by AsiaSat, Contractor shall
only incorporate components, subassemblies and/or assemblies into
Deliverable Equipment that have been newly acquired for the AsiaSat
5 program or are available from Contractor's current equipment
inventory stores.
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3. EQUIPMENT AND SERVICES TO BE FURNISHED AND PRICES
3.1 The aggregate of the amounts specified in Clause 3.2 include all
taxes and duties, transportation charges, insurance premium (except
premium for Launch Insurance and/or any insurance related to
Satellite operation from and after Launch) and other costs and
charges associated with the provision of the Work.
3.2 The total firm fixed price for the Work as specified in this
Contract (the "Contract Price") for AsiaSat 5 is ([o]). Without
affecting the fact that the Contract Price is a fixed and total
amount, the following are the elements from which the Contract Price
is derived:
ITEM CONTRACT PRICE
---- --------------
1. Spacecraft
USD$[o]
2. Training Not separately priced
3. DSS and Baseband Equipment USD$[o]
4. Launch Support Services for
the Launch Vehicle Not separately priced
5. Mission Operations Services USD$[o]
6. Deliverable Data Not separately priced
The Contract Price USD$[o]
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4. COMPLETION SCHEDULE
4.1 Contractor recognizes the importance to AsiaSat of meeting the
timetable for completion as listed in the Completion Schedule in
Clause 4.2 and undertakes to effect such completion in accordance
with the Completion Schedule.
4.2 The Contract Items shall be provided by the Contractor to AsiaSat in
accordance with the following Completion Schedule:
ITEM QUANTITY DESCRIPTION COMPLETION TIMETABLE
---- -------- ----------- --------------------
1 1 The Spacecraft for all purposes in Available for Shipment [o] EDC.
this Contract, the "completed"
Spacecraft is one that is
completed in accordance with
Exhibits A and B applicable to the
Spacecraft through Available for
Shipment.
2 1 Lot Training per Exhibit A. Per Statement of Work.
3 1 Lot DSS and Baseband Equipment as set Per Statement of Work.
forth in Exhibit A to be delivered
to AsiaSat's Tai Po control center.
4 1 Lot Launch Support Services per At Launch.
Exhibit A.
5 1 Lot Mission Operations Services per Thirty (30) days after Launch.
Exhibit A and Exhibit C.
6 1 Lot Deliverable Data per Exhibits A Per Exhibits A and C.
and C.
Deliverable Data or any subset thereof shall be delivered to
AsiaSat's U.S. Government approved consultant in lieu of AsiaSat if
U.S. Government regulations or license provisos delay timely
delivery to AsiaSat. Delivery to the consultant in this case would
satisfy the requirement to deliver to AsiaSat.
4.3 [o]. The elements referenced in the previous sentence are: Baseband
Equipment and the associated baseband control software, command and
telemetry databases, Satellite On-orbit Operating Handbook (all as
defined in the SOW), and Training.
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4.4 Packing and shipping will be in accordance with Contractor's
standard commercial practice. For the Spacecraft, this will be as
defined in the applicable Exhibits listed in Clause 2.1.
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5. PAYMENT
5.1 With respect to each Invoice sent by Contractor to AsiaSat
hereunder, AsiaSat shall pay Contractor within 30 days of AsiaSat's
receipt of a electronic copy of the invoice and all documentation
required to be submitted by Contractor with such Invoice, provided
that the original Invoice and original documentation are received by
AsiaSat not later than ten days after AsiaSat's receipt of said
electronic copy, otherwise within 30 days of receipt of the original
Invoice and original documentation.
5.2 AsiaSat shall be required to make payments to Contractor only to the
extent that such payments are properly due hereunder and properly
invoiced pursuant to Clause 5.1. All payments made by AsiaSat
pursuant to this Contract shall be in United States dollars and
shall be remitted by electronic funds transfer to:
[o]
AsiaSat shall notify Contractor of the remittance date for each
electronic funds transfer.
5.3 Each Invoice shall include the information, and be accompanied by
the documentation, set forth in this Clause 5.3, as follows:
(i) The payment number, as set forth in the first column of the
Appendix A Payment Schedule;
(ii) The Milestone Events, identified by number and description,
for which payment is being requested in the Invoice;
(iii) As to each Milestone Event, a certificate of completion signed
by the Contractor Program Manager and the Authorized
Representative who has inspected or witnessed the Work related
to the Milestone Event, provided, however, that if the
Authorized Representative is not available for such inspection
or witnessing on a Business Day when Contractor believes the
presence of the Authorized Representative is necessary for
execution of the certificate of completion, Contractor shall
give AsiaSat notice of such non-availability; if AsiaSat has
not made an Authorized Representative available within five
Business Days of AsiaSat's receipt of such notice from
Contractor, Contractor may submit the relevant certificate of
completion without any signature of an Authorized
Representative, and such certificate shall be treated, for
payment purposes only, as if the certificate had been signed
by an Authorized Representative.
5.4 In the event that the Authorized Representative refuses to sign a
certificate of completion that Contractor believes has been
appropriately presented after completion of a Milestone Event,
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Contractor may submit to AsiaSat such certificate together with an
Invoice, separate from the Milestone Invoice, for the amount in
dispute, with such Invoice prominently labeled as being for an
amount in dispute. In such event, AsiaSat shall nonetheless pay the
amount in dispute, on or before the due date of the relevant Invoice
pursuant to Clause 5.1, but such payment by AsiaSat shall be into an
escrow account established by Contractor (with the account number
and wire instructions being given by Contractor to AsiaSat by
notice) at a U.S. commercial bank other than the bank specified in
Clause 5.2. The Parties shall thereafter seek to resolve the
dispute, using the procedures in Clause 17 as necessary or
desirable. Upon such resolution, the Party entitled to the amount in
escrow shall receive such amount. Interest earned on such amount in
escrow shall be received by the Party who wins the dispute and the
other Party shall pay all costs and fees associated with such escrow
account.
5.5 In the event that Contractor completes any Milestone Event in
advance of the time for completion of such Milestone Event set forth
in Appendix A, Contractor may include the amount associated with
such Milestone Event in the Invoice next following such completion,
accompanied by the appropriate certificate of completion, provided
that the total of such Invoice and all previous Invoices does not
exceed the total amount shown to be due from AsiaSat to Contractor
on the Payment Schedule up to (and including) such Invoice.
5.6 [o]
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6. GOVERNMENT REGULATIONS, WHERE APPLICABLE
6.1 Except as stated in Clause 6.4, the Contractor shall be responsible
for obtaining all governmental consents and authorizations required
for the Work and export of the Spacecraft and the Contract Items.
All costs associated with obtaining any such consents or
authorizations are to be borne by the Contractor.
6.2 AsiaSat shall be consulted with respect to any such application
provided doing so does not unduly interfere with the expeditious
obtaining of any such consent or authority and AsiaSat shall be kept
regularly informed by the Contractor of the progress of any such
application. Copies of all licenses, consents and authorizations
obtained by the Contractor shall be provided to AsiaSat subject to
limitations imposed by the U.S. Government. AsiaSat will provide any
documents required by U.S. law or regulation including information
from the Satellite operator, if not AsiaSat, or the Government of
Hong Kong in support of export license application or claim for
license exemption.
6.3 Reserved
6.4 Except for licenses and permits required by the U.S. Government
necessary to perform the Work hereunder, and any other licenses and
permits that Contractor is required to obtain under this Contract,
AsiaSat is responsible for obtaining all licenses, permits, consents
and authorizations including those required by the Hong Kong Special
Administrative Region ("HKSAR") and the People's Republic of China,
and further including those which may be required for Contractor to
perform in compliance with the law of AsiaSat's home jurisdiction,
including import license(s) to Hong Kong for Satellite Control
Equipment and other related items.
6.5 The obligations contained in this Clause 6 shall survive expiration
or termination of this Contract for whatever cause.
6.6 The Parties shall comply with applicable U.S. laws and regulations
and license requirements relating to the export of Spacecraft,
technical data, and other equipment and Services being furnished
pursuant to, or to be utilized in connection with, this Contract.
AsiaSat shall not re-export or transfer to any "foreign person" any
items furnished by Contractor hereunder, except as expressly
authorized pursuant to U.S. export laws and regulations.
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7. INSURANCE
7.1 AsiaSat will obtain insurance covering the risks of Launch of the
Satellite, and the first 365 days after completion of in-orbit
testing, under a standard form of policy including standard space
industry coverage, provisions and exclusions (the "Launch Risk
Insurance"). The coverage provided by the Launch Risk Insurance
shall be for no less than an amount which is sufficient to cover any
of AsiaSat's outstanding financial obligations related to the
Satellite, including the outstanding payments owed or to be owed to
the Contractor as indicated in Appendix A less the Launch Failure
Holdback Amount. The Contractor shall not insure its interest in the
Performance Incentive Payments after the Satellite becomes a
Successfully Launched Satellite.
7.2 Contractor will provide reasonable assistance in aiding AsiaSat in
procuring Launch Risk Insurance. Contractor shall not place any form
of insurance (Launch Risk Insurance or otherwise) for its interest
in the Spacecraft on or after Launch, until the Launch Risk
Insurance for the Spacecraft has been successfully placed.
7.3 Risk of loss or damage to the Spacecraft will pass to AsiaSat at
Launch. Passage of title and risk of loss or damage shall not affect
Contractor's post Launch obligations hereunder. Contractor
represents that it has in place and will at all times maintain from
EDC to the moment of Launch, insurance against all risks of loss or
damage to the Spacecraft, and with respect to any and all components
purchased for and intended to be integrated into the Spacecraft, in
an amount not less than the greater of: (i) the replacement cost of;
or (ii) the amounts paid by AsiaSat with respect to the Spacecraft
and its components. Contractor shall provide a certificate of
insurance of such insurance coverage to AsiaSat at AsiaSat's
request.
7.4 The Launch Risk Insurance shall contain a waiver of subrogation,
which waives all rights of subrogation against the Contractor or the
Contractor's Affiliates/Associates (as such terms are defined in
Clause 1.1 hereof) for any insured loss related to either the
Satellite or Launch Vehicle.
7.5 Prior to the encapsulation of the Spacecraft in preparation for
Launch, and at the request of the Contractor, AsiaSat shall furnish
a certificate of insurance to the Contractor setting out the terms
of the Launch Risk Insurance.
21
8. LIQUIDATED DAMAGES FOR LATE COMPLETION
8.1 In the event that the Satellite is not completed in accordance with
the Completion Schedule in Clause 4.2, taking into account the
number of days of excusable delay, if any, under Clause 15.1, or
delays attributable to AsiaSat, if any, the Contract price shall be
reduced by up to a cumulative maximum of [o] as follows:
[o] per day for each day of delay for days [o] and [o] per day for
each day of delay for days [o].
8.2 In the event of a postponement or delay of the Launch Date due to
the fault of the Contractor or Subcontractor and such delay or
postponement results in postponement fees or other liquidated
damages paid by AsiaSat to the Launch Services Contractor, the
Contractor shall pay to AsiaSat such fees or liquidated damages up
to a cumulative maximum of [o].
8.3 In the event of a delay described above, the Parties shall equitably
adjust the final payment by the amount of the aggregate price
reduction(s). If the amount of the aggregate price reduction(s)
exceed the amount of the final payment, the Contractor shall refund
the difference to AsiaSat on or prior to the due date of the final
payment.
8.4 Clause 15 of this Contract provides that the acts of a government in
its sovereign capacity, including action or inaction in its
licensing capacity, is an excusable delay; however, Contractor is
obligated to exercise its reasonable best efforts to minimize the
period of excusable delay, and notwithstanding anything to the
contrary contained herein and for the purposes of this Clause 8
only, the inability of the Contractor to obtain key licenses shall
not constitute an excusable delay.
8.5 For purposes of adjustments for late completion, the price reduction
specified in Clause 8.1 above shall be applicable to the Satellite
to be completed hereunder and shall be in lieu of all damages,
actual or consequential, [o].
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9. ASIASAT'S RIGHT OF ACCESS
9.1 AsiaSat and its representatives shall be allowed access at all
times, subject to Contractor security and safety regulations and
U.S. Government restrictions, to all Work, technical meetings,
program reviews, and data and information regarding this Contract,
for the performance of the Work, and for purposes of observation,
inspection, examination and evaluation, subject to Clauses 9.4 and
9.5.
9.2 The Contractor shall use its reasonable best efforts to provide
AsiaSat identical rights of access to its Subcontractors subject to
Contractor, at its option, accompanying AsiaSat and/or its
authorized representative.
9.3 Such access shall be granted provided that it does not unreasonably
interfere with the Work, and access to the Work is coordinated with
the Contractor Program Manager or his/her designated personnel.
9.4 Contractor or any Subcontractor may, at its reasonable discretion,
deny access to any person whose business affiliation is deemed by
Contractor or such Subcontractor to be a Competitor or directly
competitive with a business of the Contractor or such Subcontractor
relating to the manufacture of satellites or components thereof. In
such event, Contractor will provide a written statement of the
reasons for denying access to such person, and AsiaSat may, if it
disagrees with such denial of access, contest such denial through
the dispute resolution procedure of Clause 17.
9.5 AsiaSat will not remove any documents, materials or other items from
any facility of Contractor or its Subcontractors without the express
written consent of Contractor Program Manager.
23
10. TITLE AND RISK OF LOSS OR DAMAGE
10.1 Until risk of loss passes to AsiaSat and unless otherwise provided
in this Contract, the Contractor shall bear all risks of loss or
damage to the Spacecraft and any Contract Item to be delivered under
this Contract.
10.2 Unless otherwise provided in this Contract, title and risk of loss
or damage to the Spacecraft shall pass to AsiaSat at Launch. Title
and risk of loss or damage to all other Contract Items (other than
Deliverable Data, to which AsiaSat shall obtain licenses in
accordance with Clause 18 and Services) shall pass to AsiaSat upon
final acceptance by AsiaSat in accordance with Clause 11.
10.3 The Contractor represents and warrants to AsiaSat and undertakes
that title to the Spacecraft and to all Contract Items shall be
good, marketable and rightfully conveyed, and shall be delivered to
AsiaSat free and clear of all liens, encumbrances, pledges and other
interests whatsoever, except those incurred by AsiaSat. The
Contractor shall execute and deliver all such instruments as may be
reasonably required by AsiaSat, in its sole discretion, to perfect
or evidence such title.
10.4 In the event that Intentional Ignition occurs, but there is a
subsequent Terminated Ignition:
(a) Once the Launch pad has been declared safe and the Launch
Services Contractor authorizes the start of the demating
operations, Contractor shall, unless AsiaSat exercises its
rights under Clause 10.4(b), if applicable, promptly take all
necessary actions to prepare the Satellite for a relaunch,
including but not limited to: (i) supporting the Launch
Services Contractor in demating the Satellite from the Launch
Vehicle and conducting defueling operations; (ii) directly
performing inspection and testing, refurbishment, storage,
repair and replacement of damaged component(s), and
transportation of the Satellite to and from the Launch site;
and (iii) providing additional Launch Support Services for the
subsequent Launch attempt of the Satellite. Upon a Terminated
Ignition, the Launch Date shall be extended as required
without penalty to Contractor, and Contractor shall have no
liability related to the Terminated Ignition other than as
stated in this Clause 10.4.
(b) In the event of physical destruction of the Spacecraft
(including that Contractor determines that the Satellite is so
significantly damaged that it cannot reasonably be refurbished
as provided in Clause 10.4(a) above), Contractor will, at
AsiaSat's option, either (i) proceed to provide a replacement
Satellite, and the Parties shall establish a new Completion
Timetable for the replacement Satellite and shall adjust such
24
other Contract terms and conditions accordingly or (ii) refund
to AsiaSat any amounts previously paid by AsiaSat under this
Contract (thereby terminating all responsibilities and
obligations of the Parties, except as to any liabilities or
obligations set forth in this Contract that (i) the Parties
have expressly agreed shall survive any 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).
(c) Any damage sustained by the affected Satellite and caused by
events occurring during the period encompassing Intentional
Ignition up to and including the point in time when the Launch
pad has been declared safe and Contractor has secured the
Satellite, shall be the sole responsibility of Contractor.
10.5 [o]
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11. INSPECTION AND FINAL ACCEPTANCE
11.1 (a) Inspections of all Work and all Contract Items may be made by
AsiaSat or its designated representative at the Contractor's
or a Subcontractor's plant. All such inspections shall be made
in the presence of a representative of the Contractor. AsiaSat
shall inform the Contractor in writing of those particulars in
which the Work performed under the Contract does not meet the
requirements of the Contract, and the Contractor shall use its
reasonable best efforts to remedy such defects.
(b) [o]
11.2 Prior to the shipment of the Satellite, the Contractor shall conduct
a Pre- Shipment Review in accordance with the Test Plan at the
Contractor's plant. The Pre-Shipment Review shall consist of
reviewing Satellite test results in accordance with the Test Plan.
The Contractor shall provide AsiaSat at least fifteen (15) Business
Days advance notice of the Pre-Shipment Review. AsiaSat shall have
the right to witness such review and the right to either concur or
not concur that the Spacecraft meets the requirements of this
Contract and is ready for shipment. Requests for correction of
non-conforming conditions in the Satellite must be submitted in
writing within five (5) Business Days thereafter, and must identify
the specific Contract requirement(s) deemed not met. If AsiaSat does
not respond within the five (5) Business Days, or intentionally
fails to attend the Pre-Shipment Review, the Spacecraft shall be
deemed to have met the requirements of the Contract and be Available
for Shipment, unless Contractor knows that the Spacecraft is not in
fact ready for shipment.
11.3 Prior to integration of the Satellite with the Launch Vehicle at the
Designated Launch Site, an LRR shall be jointly conducted by the
Contractor and AsiaSat. The Contractor shall give AsiaSat five (5)
Business Days written notice of the LRR. The purpose of the LRR is
to confirm the Satellite is ready for propellant loading and
subsequent Launch. Any defects or non-conformances as may remain
from the PSR (which AsiaSat has agreed may be corrected at the
Designated Launch Site), or resulting from shipment or otherwise
discovered during Satellite Launch preparations shall have been
corrected or dispositioned. Upon successful completion of the LRR,
AsiaSat shall so notify the Contractor and the Satellite shall be
released by AsiaSat for Satellite propellant loading and Launch
Vehicle integration. If the LRR contains non-conformances which
require correction, at the review, AsiaSat shall identify the
non-conformances to the Contract requirement(s) and request
correction of non-conforming conditions affecting the Satellite in
writing ("LRR Correction Notice"). The Contractor shall correct the
non-conforming conditions referred to therein and, following such
correction, shall notify AsiaSat that the corrections have taken
place and shall invite AsiaSat to send representatives to attend an
inspection at which they will be entitled to verify that such
26
corrections have been satisfactorily made. The above provisions
shall thereafter apply similarly to that inspection as if that
inspection was the original LRR. If the LRR demonstrates compliance
save for minor non-conformances that have not been corrected or
dispositioned, which the Contractor demonstrates at the review to
AsiaSat's reasonable satisfaction to have no adverse effect upon the
capability of the Satellite to perform its on-orbit mission
throughout its Operational Lifetime, AsiaSat shall so notify the
Contractor at the conclusion of the LRR.
11.4 Upon arrival of the Satellite at the orbital location as specified
by AsiaSat for testing, Contractor shall commence, in consultation
with AsiaSat, in-orbit testing in accordance with the Test Plan. The
Contractor shall seek to remedy, in consultation with AsiaSat and in
accordance with the Contractor's standard satellite procedures, any
anomalous conditions that may become apparent as a result of such
testing, and shall retest as necessary subsequent to taking remedial
action (if any). Regarding an anomalous condition or failure of the
Satellite or any Transponder to meet the specifications and other
requirements set forth in Exhibits A and B, the Parties intend to
address any such condition(s) or failure(s) through the provisions
of this Contract dealing with Launch Risk Insurance and Performance
Incentive Payments. At the conclusion of the in-orbit testing, the
Contractor will provide AsiaSat with either (a) a certificate that
the Spacecraft is a Successfully Launched Satellite, or (b) a
written explanation of why the Contractor believes the Spacecraft is
not a Successfully Launched Satellite.
11.5 Final and irrevocable acceptance of the Satellite shall arise upon
Launch.
11.6 For purposes of this Clause 11, any Contract Item found to be
defective under this Contract prior to acceptance thereof shall, at
AsiaSat's request and without charge to AsiaSat, be promptly
retested by the Contractor after the Contractor has remedied such
defects. The remedy and amount of retest required shall be as agreed
by AsiaSat and the Contractor. Remedy of any defective Contract Item
shall be made by the Contractor promptly, and at its expense upon
receipt of notice of any such defect. Upon remedy of any defective
Contract Item in accordance with the Contract requirements, the
Contract Item in question shall be accepted by AsiaSat.
Notwithstanding anything herein, Contractor may submit to AsiaSat
any request for a waiver of, or deviation from, provisions(s) of the
performance specification applicable to the Satellite or other
Deliverable Item. A request for waiver or deviation shall be deemed
granted only if it has been approved in writing by a duly authorized
representative of AsiaSat. Each such waiver or deviation approved by
AsiaSat shall be deemed an amendment to the performance
specification for such Satellite or Deliverable Item, permitting
such waiver thereof, or deviation therefrom, effective on or after
the date of such approval for such Satellite or Deliverable Item.
27
11.7 Notwithstanding final acceptance of the Satellite as described in
Clause 11.5, the Contractor is not relieved from any outstanding
obligations under this Contract.
11.8 Final acceptance of the DSS and Baseband Equipment shall occur as
follows: Contractor shall ship and install the DSS and Baseband
Equipment at the location designated in Clause 4.2. Upon completion
of installation, Contractor shall perform a site acceptance test on
the DSS and Broadband Equipment and upon conclusion of such test,
will conduct a site acceptance test review with AsiaSat. Within
three (3) Business Days of completion of the site acceptance test
review, AsiaSat shall, by written notice to Contractor, either: (i)
in the event that the site acceptance test review demonstrates
conformity of the DSS and Baseband Equipment to the applicable
requirements of Exhibit A, the DSS and Baseband Equipment shall be
irrevocably accepted by AsiaSat for all purposes hereunder, and
AsiaSat's notice shall so state; or (ii)in the event that such site
acceptance test review discloses any non-conformance of the DSS
and/or Baseband Equipment to the applicable requirements of Exhibit
A, AsiaSat's notice shall identify each such non-conformance (with
reference to the applicable requirement of Exhibit A deemed not
met), and Contractor shall correct or repair such non-conformance
and resubmit such DSS and/or Baseband Equipment for a subsequent
site acceptance test review, or applicable portion thereof, in
accordance with the provisions of this Clause 11.8. If AsiaSat fails
to provide written notice within the time specified, acceptance
shall be deemed to have irrevocably occurred with respect to such
DSS and Baseband Equipment.
11.9 Acceptance of Deliverable Services, or any part thereof, shall be
deemed to occur upon Contractor furnishing such Services, or such
part thereof, to AsiaSat in accordance with the Completion Schedule
set forth in Clause 4.2 and the standard set forth in Clause 28.5.
In the event that, due to any non-compliance, timely notified by
AsiaSat, re-performance of Services is required and practicable,
such re-performance is subject to the provisions of Clause 28.5.
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12. SUBCONTRACTS
12.1 Not later than 60 days after EDC the Contractor shall provide
AsiaSat with a list of the name of each Subcontractor with a
Subcontract having a unit value in relation to the Satellite in
excess of [o] or whose subcontracted items are on the "critical
path" for completion and shall identify the Work to be performed
under each such Subcontract.
12.2 The Contractor shall use its reasonable best efforts to ensure that
all Subcontracts are awarded to the Subcontractor offering the best
combination of reliability, quality, price and delivery time.
12.3 The Contractor shall make available to AsiaSat, any of Contractor's
Subcontractor information relating to the Satellite construction
schedule.
12.4 Nothing in this Clause 12 or in any Subcontract shall be deemed to
relieve the Contractor from any obligation under this Contract.
12.5 Subcontractors identified in Clause 12.1 shall be required by the
terms of their Subcontracts, if issued after EDC, to submit copies
of written progress and status reports (including test data) to the
Contractor for incorporation in the Contractor's reports to AsiaSat.
29
13. TERMINATION FOR CONVENIENCE
13.1 (a) AsiaSat may at any time prior to Launch of the
Satellite, by written notice given to the
Contractor, terminate this Contract in whole,
whereupon the Contractor shall cease Work.
(b) Following receipt of notice of termination under
Clause 13.1(a), the Contractor shall invoice AsiaSat
the appropriate termination cost as determined by
the Termination Cost Table in Appendix B (less
amounts previously paid), and AsiaSat shall remit
payment of the invoiced amount within 90 days of
receipt of invoice.
13.2 In the event of termination under Clause 13.1 (a), the Contractor
will make reasonable efforts upon AsiaSat's request, to sell, use,
or transfer the Satellite hardware. Any sums recovered by the
Contractor, after allowing for the Contractor's costs, shall be
credited to AsiaSat (less amounts attributable to handling and
modifications). The Contractor's costs shall include all costs
directly attributable to this Contract including, but not limited to
labour, material, overhead, and general and administrative expenses.
The timeframe for such planned or completed sales, use or transfers
is 24 months after notice of termination is received by the
Contractor.
13.3 In the event of termination under this Clause 13 after EDC, each
Contract Item terminated pursuant to this Clause, subject to U.S.
Government approval as may be required and subject to the provisions
of Clause 33.9, shall become the property of AsiaSat if AsiaSat
elects, by written notice to the Contractor, within 30 days after
the later to occur of: (ii) notice to the Contractor of AsiaSat's
determination to retain such Contract Item; and (ii) U.S. Government
approval of the transfer of title and possession to AsiaSat.
30
14. TAXES
14.1 The Contractor shall be responsible for the payment of, and shall
indemnify and hold harmless AsiaSat from and against all taxes,
imposts and duties, present or future, which are directly related to
the Work and which may be imposed under the laws of the Country of
Origin. The Contractor shall comply with all requirements, present
and future, of taxation laws in force including the payment of any
interest or penalties related to or arising from such taxes and
duties. Notwithstanding the foregoing, the Contractor shall not be
responsible for the Launch-related taxes, imposts, or duties of the
country of Launch. In all events AsiaSat shall be responsible for
the taxes imposed by Hong Kong or the People's Republic of China
with respect to the DSS and Baseband Equipment.
14.2 The Contractor shall be responsible for the payment of and shall
indemnify and hold harmless AsiaSat from and against all taxes,
imposts and duties imposed by the country of Launch that are
directly related to the Satellite or the Work (i.e. not related to
the Launch, the Launch Services, the Launch Services Contractor or
AsiaSat's responsibilities or participation) and which are the
responsibility of Contractor hereunder.
31
15. EXCUSABLE DELAYS
15.1 Delays in completion of the Spacecraft or any other Contract Item
resulting from acts of God, civil disorders, wars, acts of a
government in its sovereign capacity (except to the extent that such
act of government arises out of the willful misconduct or a
negligent act or negligent failure to act by Contractor), strikes,
fires, floods, earthquakes, epidemics, quarantine restrictions and
freight embargoes or any other circumstance beyond the reasonable
control and without the fault or negligence of the Contractor, shall
constitute excusable delays provided a written claim therefor
together with information sufficient to support such claim is
received by AsiaSat within ten Business Days after Contractor
becomes aware of an impact due to such act or occurrence (except
that such notice shall be provided as soon as practicable in times
where AsiaSat has actual notice of the event, such as a major
earthquake). The Contractor shall promptly advise AsiaSat in writing
of the end of the circumstance giving rise to the delay. The
Completion Schedule for the relevant Contract Item provided in
Clause 4.2 shall be extended by the length of such period of
excusable delay. Contractor shall exercise reasonable best efforts
to minimize the period of excusable delay and to expedite its
activities to make up for any time lost as a result of such
excusable delay. For the avoidance of doubt, Contractor's failure to
obtain all necessary U.S. Government consents as described in Clause
16.1(a) is not considered an excusable delay hereunder.
15.2 Unless the Parties otherwise agree and once EDC has occurred, if the
period of excusable delay exceeds 100 days (or if the Parties agree
that the period of excusable delay will exceed 100 days), then
AsiaSat shall have the right to terminate this Contract, and pay the
Contractor up to the Milestone Event completed by the Contractor as
at the date of termination. In such event, at AsiaSat's discretion,
the Contractor shall proceed with the procedure set out in Clause
13.2 with respect to the terminated Contract Items
32
16. TERMINATION FOR CAUSE
16A TERMINATION FOR CONTRACTOR'S DEFAULT
16.1 AsiaSat may, by written notice issued by AsiaSat's Authorized
Representative, terminate this Contract at any time after the
occurrence of any of the following:
(a) except if due to an event covered by Clause 15, or due to an
AsiaSat caused delay, if the Contractor does not complete the
following event(s) by the date(s) indicated below:
EVENT DATE
----- ----
[o] [o]
(b) if, after EDC, the Contractor is dissolved, or the Contractor
admits in writing its inability to pay its debts as they
become due, or if Contractor presents a petition for the
winding up of its affairs or business or any other steps are
taken by Contractor for winding up other than for the purposes
of a reconstruction or reorganization , or becomes or is
declared insolvent under U.S. Bankruptcy Law or is otherwise
the subject of a Bankruptcy Event (unless Contractor has
agreed to assume this Contract and perform hereunder), or a
receiver is appointed over all or a substantial part of the
Contractor's assets and the appointment is not discharged
within sixty (60) days, or the Contractor makes an assignment
for the benefit of its creditors generally, or the Contractor
sells, transfers or otherwise disposes of all or substantially
all of its assets (other than for full consideration and the
acquirer has assumed this Contract and provided AsiaSat with
reasonable assurance of future performance).
(c) if the Contractor fails to perform any of the material
provisions of this Contract (other than schedule or export
control related provisions which are covered in Clause
16.1(a)), and in each case fails to remedy such failure within
90 days after receipt of written notice from AsiaSat of such
failure.
16.2 In the event AsiaSat terminates this Contract as provided in Clause
16.1, AsiaSat shall be entitled, at its option, to either:
(a) (i) subject to compliance with Clause 6, the terminated
Work existing on the date of termination provided that,
as determined by Contractor, AsiaSat's acquisition of
such terminated items will not result in the disclosure
or transfer to any Competitor of any information, data,
or technology that may be considered by the Contractor
as proprietary; and
33
(ii) all reasonable excess re-procurement costs, up to a
maximum amount of [o]; or
(b) (i) a refund of all payments previously made to Contractor;
and
(ii) all reasonable excess re-procurement costs, up to a
maximum of [o].
16.3 In the event AsiaSat chooses to take possession of the terminated
Work in accordance with Clause 16.2(a), the Contractor shall:
(i) be paid the outstanding amount for any items delivered to and
finally accepted by AsiaSat;
(ii) be paid the outstanding amount for any Work in progress which
is taken over by AsiaSat;
(iii) protect and preserve property in the possession of the
Contractor in which AsiaSat has an interest;
(iv) seek such U.S. Government approval as is required for AsiaSat
to take title and possession of the terminated Work and
provide such title and possession to the terminated Work to
AsiaSat only if such approval is granted by the U.S.
Government.
16.4 In the event AsiaSat chooses refund of payments in accordance with
Clause 16.2(b), then Contractor shall be entitled to retain title to
any and all Work, work in progress, parts or other material,
together with any associated warranties, and any subcontracted items
which Contractor has specifically produced or acquired or entered
into in accordance with this Contract.
16.5 AsiaSat shall have no right to terminate this Contract pursuant to
Clause 16.1 after Launch.
16B TERMINATION FOR ASIASAT'S DEFAULT
16.6 Contractor may terminate this Contract upon written notice to
AsiaSat at any time after the occurrence of any of the following:
(a) failure of AsiaSat to make any payment due to Contractor
hereunder when due, provided such failure is not cured within
a period of thirty (30) days following receipt of notice
thereof from Contractor; or
(b) AsiaSat is dissolved, or admits in writing its inability to
pay its debts as they become due, or is presented with a
petition for the winding up or any other steps are taken for
winding up other than for the purposes of a reconstruction, or
AsiaSat becomes or is declared insolvent, or a receiver is
appointed over all or a substantial part of AsiaSat's assets
34
and the appointment is not discharged within sixty (60) days,
or AsiaSat makes an assignment for the benefit of its
creditors generally, or AsiaSat sells, transfers, or otherwise
disposes of all or the greater part of its assets (other than
for full consideration).
16.7 If a termination occurs under Clause 16.6 above, Contractor shall
have the following rights:
(a) Any amounts invoiced and unpaid by AsiaSat under
this Contract shall continue to be due and owing.
AsiaSat shall pay to Contractor the termination cost
specified in Appendix B at the time of termination
and Clause 13.2 shall apply.
(b) Contractor shall have the right to immediately stop
work on any Work, the delivery of which has not been
completed.
16.8 Neither Party shall have any liability in contract or in tort for a
termination under this Clause 16 other than as expressly provided in
this Clause 16, these termination rights and remedies shall be
exclusive and in lieu of any other rights and remedies provided by
law except for AsiaSat's rights to liquidated damages under Clause 8
and except for either Party's ability to obtain equitable relief to
enforce its rights under this Contract.
16.9 This Clause 16 shall survive the termination of this Contract for
either Contractor's or AsiaSat's termination for cause.
35
17. DISPUTES AND ARBITRATION
17.1 DISPUTES
(a) If, during the course of Work in progress, either Party has
cause to believe that the other Party's performance, or plan
for performance, is such that the obligations of the other
Party, as stated in this Contract, are not being met, the
Party shall give written notice of its objections and the
reasons therefor and may recommend corrective action by the
other Party. The Contractor Program Manager shall consult with
the AsiaSat Authorized Representative in an effort to reach an
agreement to overcome the objections (first instance) within
ten (10) Business Days.
(b) In the event that agreement cannot be reached in the first
instance then either Party may request that the dispute be
escalated and the respective positions of the Parties shall be
forwarded to the Contractor's President and AsiaSat's Chief
Executive Officer, and an attempt shall be made to reach
agreement to overcome each Party's objections within ten (10)
Business Days of such request. If agreement cannot be reached
by the end of such period, either Party may invoke Clause
17.2(a).
17.2 ARBITRATION
(a) Any dispute or disagreement between AsiaSat and the Contractor
in connection with any interpretation of any provision of this
Contract, or the compliance or non-compliance therewith, or
the validity or enforceability thereof, which is not settled
to the mutual satisfaction of AsiaSat and the Contractor
within twenty (20) Business Days (or such shorter or longer
period as may be mutually agreed upon) from the date that
either Party informs the other that such dispute or
disagreement exists, shall be finally settled by arbitration
in accordance with the UNCITRAL Arbitration Rules (the
"Arbitration Rules"). The appointing authority shall be the
Hong Kong International Arbitration Centre (HKIAC) and the
place of arbitration shall be conducted in Hong Kong in the
English language. The arbitration award shall be final and
binding upon the Parties and judgment may be entered thereon,
upon the application of either Party, by any court having
jurisdiction. Each Party shall bear the cost of preparing and
presenting its case and the cost of arbitration, including the
fees and expenses of the arbitrators, with the costs of the
third arbitrator to be shared equally by the Parties unless
the award otherwise provides.
(b) The relief that may be awarded by the arbitrators under any
arbitration arising from this Contract may not exceed the
36
actual compensatory damages, and shall not be in any amount or
on any theory of liability not expressly allowed in this
Contract.
(c) The following time limits shall be observed in respect to any
arbitration referred to in this Clause:
(i) Each Party shall appoint its arbitrator within ten (10)
days of the receipt of demand for arbitration.
(ii) The two (2) appointed arbitrators shall appoint a third
arbitrator within a further twenty (20) days from the
time stipulated in (i) above unless the two (2)
arbitrators agree to an extension not to exceed an
additional twenty (20) days. If the two (2) arbitrators
cannot agree on the third arbitrator, then upon
application by either Party an arbitrator shall be
named by the HKIAC.
(iii) Any decision by the arbitrators shall be made within
six (6) months from the date on which a Party demands
arbitration or within such extended period as the
arbitrators may allow.
(d) Notwithstanding the time limits set forth in Clause 17.2(c),
in the event either Party is seeking equitable relief
hereunder and identifies the matter as one requiring urgent
arbitration, the arbitration shall be conducted as
expeditiously as feasible under the circumstances, and with a
single arbitrator appointed by the XXXXX.
00
00. TECHNICAL DATA AND INFORMATION
18.1 Subject to the provisions of Clause 33, Confidentiality, AsiaSat
shall have the royalty-free, world-wide, non-exclusive,
nontransferable (except as set forth in Clause 18.4), paid-up
license to use, and allow its Affiliates and subcontractors to use
the Deliverable Data under the Contract, and any other data, which
is not Deliverable Data, but which is provided under the Contract
(hereinafter "Other Data"), solely for purposes of establishing,
maintaining, and operating the Spacecraft and, if mutually agreed by
the Parties in writing, other satellites of AsiaSat, which right
will not be unreasonably withheld or delayed.
18.2 AsiaSat, its Affiliates and subcontractors shall also have the right
to make copies of the Deliverable Data and the Other Data for the
purposes of establishing, maintaining, and operating the Spacecraft
and if mutually agreed by the Parties in writing, other satellites
of AsiaSat, which right will not be unreasonably withheld or
delayed. If any of the written Deliverable Data is copyrighted by
Contractor, Contractor agrees to and does hereby grant to AsiaSat,
its Affiliates and subcontractors the royalty-free, non-exclusive,
nontransferable, paid-up license under Contractor's copyrights to
make such copies. With respect to all Deliverable Data that contains
a notice of copyright, AsiaSat, its Affiliates and subcontractors
shall apply the appropriate copyright notice to all copies made
thereof.
18.3 Notwithstanding any other provision hereof, the ownership and title
to Deliverable Data, including copyrights in computer programs, and
related documentation, and Other Data, shall remain in Contractor or
its licenser. All rights to Deliverable Data and Other Data not
owned by Contractor are limited by the extent of Contractor's rights
and interests therein.
18.4 No licenses under Contractor's patents or copyrights other than
those necessary to use, operate, modify, or repair (for the purposes
stated in Clause 18.2) the Deliverable Equipment and software
supplied hereunder are granted or implied by providing Deliverable
Data or Other Data, or other information under this Contract.
AsiaSat understands and agrees that, if AsiaSat transfers any
Deliverable Equipment to a third party, AsiaSat shall not transfer
any Deliverable Data or Other Data provided hereunder or any other
information pertaining to such Deliverable Equipment to any such
third party without first obtaining the written permission of
Contractor. Such permission will not be unreasonably withheld or
delayed provided that the intended third party recipient legally
obligates itself to the same terms and conditions regarding the
confidentiality, patents and transfer restrictions which are recited
above. Upon the granting of such permission, all licenses relating
to the transferred Deliverable Equipment will transfer to the third
38
party recipient and shall terminate as to such transferred
Deliverable Equipment with respect to AsiaSat, its Affiliates and
its subcontractors.
For purposes of this Clause 18, subject to Clause 6 and applicable
limitations set forth elsewhere in this Clause 18 and Contract, the
term "use" means any and all use, disclosure, duplication,
publication, and other disposition of technical data, software, or
equipment. For the avoidance of doubt, the reference to AsiaSat
under this Clause 18 shall include its assignees under this
Contract, or any third party that AsiaSat may sell the Spacecraft
to.
39
19. PATENT RIGHTS
19.1 The Contractor agrees to grant to AsiaSat, an irrevocable,
worldwide, non-exclusive, nontransferable (except as provided in
Clause 18.4), paid-up license to use any invention covered by each
patent now or hereafter owned by the Contractor, or under which the
Contractor has or may acquire the right to grant such a license,
which invention is directly incorporated into a Contract Item or
generated during the course of any Work and necessary for the normal
intended use of any of the Contract Items, provided, however, that
such license shall be granted only to the extent that such license
is reasonably necessary to enable AsiaSat, its Affiliates and
Subcontractors to maintain, repair, operate or otherwise use any
Contract Items delivered under this Contract solely for AsiaSat
Purposes. This Clause shall not be construed as limiting any rights
under this Contract, including specifically the right to use, have
used, deliver, lease, sell, or otherwise dispose of to any third
party, any Contract Item or any part(s) thereof if provided under
this Contract. For the avoidance of doubt, the reference to AsiaSat
under this Clause 19 shall include its assignees under this
Contract, or any third party that AsiaSat may sell the Spacecraft
to.
19.2 [o]
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20. CHANGES REQUESTED BY CONTRACTOR OR ASIASAT
20.1 If the Contractor requests any change to the Spacecraft or any other
Contract Item at any time during the performance of this Contract,
within the general scope of this Contract, which will add or delete
any part of the Work, affect the design of the Spacecraft, change
the method of shipment or packing, or place or time of delivery, or
will affect any other requirement of this Contract, a proposal for
such change shall be submitted in writing to AsiaSat. If such change
causes an increase or decrease in the total Contract Price, or a
change in the Completion Schedule or any other term or condition
herein, the Contractor shall submit to AsiaSat, at the time the
requested change is submitted, or at such later date as may be
agreed with AsiaSat, the details of such cost, schedule, or other
impact. All claims for increased costs under Clause 20.1 shall be
submitted by the Contractor in the same format as that used for
submission of the Contractor's original price proposal. The
increased cost, if any, will be calculated in accordance with, and
certified by the Contractor to be in accordance with, the
Contractor's standard accounting system, and shall include a
complete labour and material cost breakdown.
20.2 AsiaSat shall notify the Contractor in writing within fifteen (15)
days after receipt of the requested change whether or not AsiaSat
accepts such change. If AsiaSat authorises the Contractor's
requested change, the Contractor shall proceed with the performance
of the Contract as changed and an amendment to the Contract
reflecting such change, and price, schedule adjustment, and/or any
other affected terms and conditions, if any, shall be issued. The
Contractor shall, within a reasonable time thereafter, provide an
updated master program schedule which reflects the final change. If
AsiaSat does not agree with such Contractor's requested change, the
Parties shall attempt to reach agreement on such change. In the
event the Parties are unable to reach agreement on another method to
achieve such change, the Contractor shall proceed with the
performance of the Contract, without change.
20.3 If AsiaSat requests any change to the Spacecraft or any other
Contract Item at any time during the performance of this Contract,
within the general scope of this Contract, which will add or delete
any part of Work, affect the design of the Spacecraft, change the
method of shipment or packing, or place or time of delivery, or will
affect any other requirement of this Contract, the Contractor shall
use its reasonable best efforts to respond to that request in
writing to AsiaSat within fifteen (15) days after such request.
Contractor's response shall be reasonable under the circumstances.
If a change requested by AsiaSat causes an increase or decrease in
the total Contract Price or a change in the Completion Schedule or
impacts any other term or condition, the Contractor shall submit to
AsiaSat, at the time of response to the requested changes, the
details of such cost or schedule or other impact. The format to be
used for submission of the price adjustment for these changes shall
be the same as referred to in Clause 20.1. AsiaSat shall notify the
41
Contractor in writing, within fifteen (15) days after receipt of the
Contractor's response, whether or not it agrees with and accepts the
Contractor's response. If AsiaSat agrees with and accepts the
Contractor's response, the Contractor shall proceed with the
performance of the Contract as changed and an amendment to the
Contract reflecting such change, and price or schedule adjustment or
other affected terms and conditions, if any, shall be issued. The
Contractor shall, within a reasonable time thereafter, provide an
updated master programme schedule which reflects the final change.
If AsiaSat does not agree with and accept the Contractor's response,
the Contractor shall proceed with the performance of the Contract,
without change.
20.4 The Parties agree that there may be circumstances that require an
expedited agreement related to a change requested by AsiaSat. In
these cases, the Contractor shall expeditiously and in good faith
propose, and the Parties shall expeditiously and in good faith
negotiate and agree upon the cost and schedule impact, if any, and
the claim format referred to in Clause 20.1 shall not be required.
If the Parties do not agree, the Contractor shall proceed with the
performance of the Contract, without change. The Contractor shall
not propose more time to execute the requested change than the
Contractor's reasonable estimate of the time required to execute the
requested change and any additional time to perform related and
impacted Work (i.e., the Contractor shall not attempt to
unreasonably improve its schedule through the process described in
this Clause 20.4).
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21. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES
21.1 Without limiting the obligations of the Contractor under other
provisions of this Contract, if any data or information available to
the Contractor from public or Contractor proprietary sources shows
that there is a material deficiency in the design or manufacture of
any satellite or item relevant to Satellite performance (whether or
not such satellites or items are manufactured by Contractor or used
in Contractor's satellites) which, in the opinion of the Contractor,
could adversely affect the Satellite performance such that it does
not meet the Spacecraft specification in Exhibit B, the Contractor
shall promptly notify AsiaSat of any such material deficiency coming
to the Contractor's attention. Promptly upon written request of
AsiaSat, the Contractor shall take appropriate corrective measures
to the Work, at the Contractor's own expense to satisfactorily
eliminate from the unlaunched Satellite any such material
deficiencies.
21.2 If there is a mutually agreed-to change in the natural environment
to which the unlaunched Satellite will be subjected in-orbit, the
Contractor shall take corrective measures according to Clause 21.1
or 20 as the parties reasonably agree.
21.3 If the Contractor, in accordance with this Clause, replaces any
equipment or any part which was determined to be deficient, such
deficient equipment or part shall remain or become the property of
the Contractor.
21.4 Nothing in this Clause requires the Contractor to disclose
proprietary data from satellites owned by others.
21.5 [o]
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22. PUBLIC RELEASE OF INFORMATION
22.1 No news releases, brochures, advertisements, prepared speeches or
other information releases to the public concerning the Work
performed or to be performed hereunder by the Contractor or any
Subcontractor shall be made without the prior consent in writing of
AsiaSat both as to the form and contents thereof. Such consent shall
not be unreasonably withheld, taking into consideration among other
things, AsiaSat's obligations under the Stock Exchanges that its
holding company is listed under.
44
23. INDEMNITY AND INTERPARTY WAIVER OF LIABILITY
23.1 Each Party shall indemnify and hold the other Party and/or their
Affiliates/Associates and/or their shareholders harmless, from any
loss, damage, liability or expense caused by any act or omission,
negligent or otherwise of the indemnifying Party that results in
damage to property or personal injury, including death, to any third
persons (not limited to employees of its Subcontractors). The
indemnifying Party shall defend, at its expense, any actions brought
by a third party, against the other Party and its
Affiliates/Associates and shareholders or any of them, in connection
therewith and shall satisfy all judgments which may be incurred by
or rendered. For the avoidance of doubt, Contractor shall have no
indemnity obligation under this Clause 23.1 for any loss, damage,
liability or expense associated with the condition, operation or use
of the Satellite after Launch, even if such losses, damage,
liability or expenses are attributable to an act or omission of
Contractor or its employees or Subcontractors prior to or after
Launch.
23.2 (a) Notwithstanding the foregoing AsiaSat and Contractor agree to
a no-fault, no-subrogation inter-party waiver of liability
under which each Party agrees to be responsible for any damage
which it sustains as a result of damage to its own property
and employees, including death, while involved in Launch
operations in or around the Designated Launch Site, which
damage is caused by Contractor, AsiaSat, its consultants, the
Launch Services Contractor or any other party involved in
Launch operations, whether such damage arises through
negligence or otherwise. It is the intent of the Parties that
this inter-party waiver of liability be construed broadly to
achieve the intended objectives.
(b) For purposes of Clause 23.2(a) only, both Parties further
agree that if they subcontract with a third party to provide
services which necessitate such subcontractor's presence on
the Designated Launch Site, then Contractor or AsiaSat as the
case may be acknowledge and agree that such third party shall
be required to agree to a no-fault, no-subrogation inter-party
waiver of liability and indemnity for damages it sustains,
identical to the Parties' respective undertakings under this
Clause.
(c) In the event that either AsiaSat or Contractor fails to obtain
the aforesaid inter-party waiver of liability and indemnity
from any of its respective subcontractors, then AsiaSat or
Contractor, as the case may be, shall indemnify and hold the
other Party, other users of Launch services of the Satellite,
and their respective contractors and subcontractors harmless
from claims brought by the indemnifying Party's subcontractor
that failed to execute the aforesaid inter-party waiver of
liability, for damage to such subcontractor's property or
45
injury to, or death of, such subcontractor's employees in
connection with Launch operations.
23.4 Notwithstanding the provisions in Clause 23.1 above, AsiaSat will
ensure that the Contractor is added as an additional insured under
the third party liability launch insurance for AsiaSat 5. Such
insurance shall provide coverage in accordance with generally
accepted industry practice.
46
24. EFFECTIVE DATE
24.1 The Effective Date of Contract or EDC shall be 28 April 2006.
47
25. ASSIGNMENT
25.1 Either Party shall have the right to assign their rights or transfer
their obligations (the "Transferor") under this Contract to any
person or entity (a "Transferee"), without the prior written consent
of the other Party, provided that the Transferor can, prior to the
assignment, or, as the context requires, transfer, demonstrate that:
(i) the proposed Transferee possesses the financial (in the case of
AsiaSat) or technological (in the case of the Contractor) capability
to fulfill the transferring Party's obligations under the Contract
(provided that, with respect to financial capability, no such
demonstration shall be necessary if the transferring Party agrees to
remain liable for the financial obligations imposed on AsiaSat
hereunder in accordance with the Payment Schedule in Appendix A),
and (ii) any such assignment or transfer shall not jeopardize either
Party's rights pursuant to Clauses 18, 19, and 33 hereunder or
violate laws related to export or technology transfer. If the
assigning Party cannot so demonstrate, the Parties agree to attempt
to negotiate in good faith suitable modifications and new provisions
to this Contract which would mitigate the above risks and/or bring
this Contract into conformance with applicable laws.
25.2 This Contract shall be binding upon the Parties hereto and their
successors and permitted assigns.
25.3 The parties acknowledge that due to U.S. Government export
regulations, the Exhibits are not assignable without the relevant
licenses granted by the U.S. Government. The Contractor, however,
agrees to use reasonable best endeavours to obtain such relevant
licenses if requested to do so by AsiaSat, such that the Exhibits
could be assigned to AsiaSat's proposed assignee(s).
25.4 The Contractor acknowledges that AsiaSat may be required to assign
this Contract to the Banks pursuant to certain loan arrangements.
Subject to compliance with Clause 6, the Contractor hereby consents
to such an assignment (the "Security Assignment") by AsiaSat to the
Banks and will do all things reasonably necessary to facilitate the
Security Assignment, including using its reasonable best endeavours
to obtain relevant licenses from the U.S. Government.
25.5 Notwithstanding Clause 25.1, the Contractor acknowledges that,
subject to Clause 6, the Banks may, at any time and pursuant to the
valid exercising of their rights under the loan arrangements and the
Security Assignment, assign their rights or transfer their
obligations under this Contract to any person or entity without the
prior written consent of the Contractor provided such
assignee/transferee is creditworthy. The Contractor shall, if
requested by the Banks, execute any reasonable and necessary
documents to give effect to such assignment or transfer, and use its
reasonable best endeavours to obtain the relevant licenses from the
48
U.S. Government which will enable the Bank's proposed assignee(s) to
own and operate the Spacecraft.
49
26. KEY PERSONNEL
26.1 It is agreed that the following employees of the Contractor are
important for the successful performance of this Contract :
Contractor Program Manager [o]
System Lead [o]
Payload Lead [o]
and shall not be reassigned from this Contract and in the case of
the Contractor Program Manager, shall not be assigned additional
program management duties (or other duties or functions sufficiently
demanding that the Program Manager's ability to provide adequate
supervision and management to the AsiaSat program would be
materially impacted) without the prior written consent of AsiaSat,
which consent shall not be unreasonably withheld.
26.2 In the event one or more of the above-named persons is no longer
available for the performance of this Contract, the Contractor
agrees to select, with the written approval of AsiaSat (which
approval shall not be unreasonably withheld), suitable replacement
personnel who possess a comparable level of experience,
qualifications and ability.
50
27. INTELLECTUAL PROPERTY INDEMNIFICATION
27.1 Contractor agrees to indemnify and defend at its own expense any
request for royalty payments or any claims, actions, or proceedings
or any claims for equitable relief or damages against AsiaSat, its
Affiliates, Subcontractors, and all its directors, officers,
employees, shareholders, agents and consultants based on an
allegation that the manufacture of any Contract Item under this
Contract or the use, lease, or sale thereof actually and directly
infringes any third party patent, trade xxxx, or copyright, or trade
secret, and to pay any royalties and other costs related to the
settlement of such request and to pay the costs and damages, finally
awarded as the result of any third party suit based on such claim,
provided that Contractor is given prompt written notice of such
request or claims by AsiaSat and given authority and such assistance
and information as is available to AsiaSat for resisting such
request or for the defense of such claim. Any such assistance or
information which is furnished by AsiaSat at the written request of
Contractor is to be at Contractor's expense.
27.2 In the event that, as a result of any such suit: a) prior to
delivery, the manufacture of any item is enjoined, or b) after
delivery, the use, lease, or sale thereof is enjoined, Contractor
agrees to utilize its reasonable best efforts to either: (1)
negotiate a license or other agreement with the plaintiff so that
such item is no longer infringing, or (2) modify such items suitably
or substitute a suitable item therefor, such modification or
substitute being acceptable to AsiaSat (such acceptance shall not be
unreasonably withheld by AsiaSat) and not subject to such
injunction, and as to which modified or substituted items the
provisions of this Clause 27 shall be extended. In the event that
Contractor notifies AsiaSat in writing that neither of the foregoing
alternatives can suitably be accomplished by Contractor, AsiaSat
shall have the right to:
(a) as to the Satellite prior to Launch, AsiaSat may terminate
this Contract and exercise its rights under Clause 16.2;
and/or
(b) as to any other Deliverable Item, AsiaSat shall return such
Deliverable Item to the Contractor, and as to any such
Deliverable Item that : (i) is essential to the control and
monitoring of the Satellite, the Contractor shall without
additional cost to AsiaSat, replace the Deliverable Item with
a suitable alternative; or (ii) is not essential to the
control and monitoring of the Satellite, AsiaSat may terminate
this Contract as to such Deliverable Item and receive a refund
of amounts paid hereunder for such terminated Deliverable Item
plus any excess reprocurement cost for such Deliverable Item
up to a maximum of 10% more of the cost charged by the
Contractor for such Deliverable Item.
27.3 Notwithstanding the foregoing, Contractor shall have no liability or
responsibility for any infringement resulting from Contractor
following the directions of or specifications provided by AsiaSat,
51
its Affiliates or Subcontractors, or from a modification or addition
by other than Contractor, its Subcontractors or consultants to a
Contract Item after delivery.
52
28. WARRANTY
28.1 The Contractor will provide at no additional cost to AsiaSat
lifetime support for the Operational Lifetime of the Satellite
consisting of investigation of any anomaly occurring in the
Satellite during the in-orbit life of such Satellite and known to it
or as notified in writing by AsiaSat and shall undertake Satellite
anomaly resolution support services in accordance with Section 13.4
of Exhibit A, Statement of Work. If for any reason any such
Satellite anomaly cannot be or is not corrected (after reasonable
efforts to effect a correction) as set forth in the immediately
preceding sentence and as a result thereof, such Satellite suffers
any loss, including loss of Transponders or becomes a total loss,
AsiaSat's sole and exclusive remedies with respect to such loss and
any consequences therefrom shall be those set forth in Clause 37,
subject to the limitation of liability stated in Clause 36. The
Contractor will also provide improvements and upgrades to the SCE
requested by AsiaSat in accordance with Clause 20.
28.2 Contractor warrants that the Satellite shall be free from material
defects in materials or workmanship ("the Warranty"). This Warranty
shall apply to the Satellite beginning upon the Available for
Shipment date and shall run for a period of three (3) years, or
until Launch, whichever is earlier.
Notwithstanding the foregoing, the Parties intend to address any
defects of the Spacecraft that arise or are detected after Launch
under the provisions of this Contract dealing with Launch Risk
Insurance, and Performance Incentive Payments.
28.3 Contractor warrants for a period of one (1) year commencing upon
final acceptance pursuant to Clause 11.8 (which one (1) year period
shall be extended on a day for day basis for each day of delay
incurred by Contractor under Clause 8.1), that the DSS and Baseband
Equipment delivered under this Contract, will be free from material
defects in material and workmanship.
28.4 AsiaSat shall have the right at any time during the respective
warranty periods under this Clause 28, to require that any Work not
conforming to the Exhibits to this Contract delivered hereunder be
promptly corrected, repaired or replaced (at Contractor's option and
expense). If Contractor fails to correct, repair or replace such
defective Work or equipment within a reasonable period after
notification from AsiaSat, AsiaSat may then require Contractor to
repay such portion of the Contract Price as is equitable under the
circumstances in lieu thereof.
28.5 Deliverable Services. Contractor warrants that the Deliverable
Services it provides to AsiaSat pursuant to this Contract will
conform to reasonable industry standards of practice for the
commercial satellite communications industry for work similar in
type, scope, and complexity to the Work at the time such Work is
53
provided. In the event Contractor breaches this warranty, as
AsiaSat's sole and exclusive remedy, Contractor shall re-perform
such Deliverable Services where it is practicable to do so (e.g.,
Contractor cannot correct deficiencies in, or re-perform, Launch
Support Services from and after Launch).
28.6 Deliverable Data. All Deliverable Data shall conform to the
requirements of this Contract. In the event the Contractor breaches
this warranty, as AsiaSat's sole and exclusive remedy, Contractor
shall correct the deficiencies in the Deliverable Data and resubmit
such Deliverable Data to XxxxXxx.
00
00. NOTICES AND REPORTS
29.1 All notices, requests and reports to be provided to AsiaSat or the
Contractor under this Contract shall be in writing and shall be sent
to AsiaSat or the Contractor at the following addresses (or such
address as either Party may notify to the other from time to time
hereunder):
AsiaSat : Asia Satellite Telecommunications Company Limited
17/F, Xxx Xxx Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Telephone : (000) 0000 0000
Facsimile No. : (000) 0000 0000
Attn : General Manager Finance
Email : [o]
Contractor : Space Systems/Loral, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000-0000, XXX
Telephone : (000) 000-0000
Facsimile No. : (000) 000-0000
Attn : [o]
Email : [o]
29.2 Any notice, request or report shall be deemed to have been served if
delivered by hand, when delivered, if sent by registered post, upon
seven (7) days after it has been put in to the post, and if sent by
facsimile, at the time of dispatch with confirmation of
transmission, and if by email, twenty (24) hours after dispatch.
55
30. STORAGE
30.1 [o]. The Contractor shall specify the conditions for storage, and
such storage may be at the Contractor's facilities. If this
notification is provided less than 90 days before the then-scheduled
commencement of the Pre-Shipment Review, it shall be deemed a change
pursuant to Clause 20, except that Contractor may promptly proceed
with actions required to store the Satellite and thereafter submit a
proposal for additional costs of performance due to the change. Such
proposal shall not include costs to store the Satellite or other
costs that would have been incurred had notice to store been given
to Contractor 90 or more days before commencement of the
Pre-Shipment Review.
30.2 Within forty-five (45) days of written notification from AsiaSat
that it desires to place the Satellite in storage for a period
longer than that described in Clause 30.1, the Contractor shall
submit a priced proposal to AsiaSat outlining a plan for storage.
The proposal shall include a description of the transportation, the
storage arrangements including periodic Satellite testing and
maintenance of batteries, insurance and other storage terms and
conditions. If the Satellite is required to be stored because of an
excusable delay event, the price for storage shall be shared equally
between the Contractor and AsiaSat.
Upon agreement between AsiaSat and the Contractor as to the
Contractor's proposal, the Contract shall be amended pursuant to
Clause 20.
30.3 [o]
30.4 [o]. Neither Party shall have any further obligations to the other
Party under this Contract, provided that AsiaSat has met its
obligations under this Contract, and AsiaSat shall have title to the
Satellite subject to U.S. Government approvals and provided that
there is no disclosure or transfer of Contractor's Proprietary
Information, data or technology to any Competitor. AsiaSat shall be
responsible for and shall pay all sales tax associated with the
transfer of title to the Satellite. The Contractor shall have no
liability in the event an export license is not issued for the
benefit of AsiaSat due to the delay or storage requested by AsiaSat
or otherwise for reasons that are not the fault of the Contractor.
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31. APPLICABLE LAW
31.1 This Contract shall be interpreted, construed and governed by the
laws of England; it is understood that the UN Convention on the
International Sale of Goods shall not be applicable. However, both
Parties agree that in carrying out their obligations under this
Contract, all actions, including those of their respective
employees, shall be in compliance with all applicable laws and
regulations, and they shall not engage in any transaction that is
illegal under the laws of the Hong Kong SAR or under the laws of the
United States, or any other country, state or jurisdiction, where
the Contract performance shall take place, including, but not
limited to, making unlawful payments to officials, employees or
representatives of any government or government agency.
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32. ASIASAT FURNISHED INFORMATION, PROPERTY AND RESPONSIBILITIES
32.1 The Contractor agrees, with respect to all Information and Property,
including but not limited to equipment, models and devices,
furnished by AsiaSat under this Contract:
a) that title to such Information and Property shall remain
exclusively in AsiaSat;
b) to assume all risk of loss or damage, reasonable wear and tear
excepted, to such Property while in the Contractor's
possession or control;
c) to ensure that such Information and Property are used solely
in the performance of the Contract;
d) to be responsible for payment of all taxes which become due by
reason of the Contractor's or any Subcontractor's possession,
control or use of such Information and Property, and to comply
with all requirements of any applicable laws, including making
payment of any interest or penalties related to or arising
from such taxes;
e) to ensure that no lien, encumbrance, pledge or other interest
whatsoever attaches to such Information and Property as a
result of the Contractor's or any Subcontractor's acts or
omissions; and
f) except as otherwise provided in this Contract, to return such
Information and Property (subject to reasonable wear and tear)
to AsiaSat at AsiaSat's request, upon completion of all Work
or termination of this Contract.
32.2 In order for the Contractor to perform the Work, AsiaSat shall:
a) provide access to its sites to the extent necessary to allow
Contractor to perform the Work;
b) obtain any Hong Kong licenses and permits necessary to test or
radiate the Satellite system. Contractor will provide
necessary information and reasonable support to assist AsiaSat
in obtaining such licenses and permits;
c) designate the orbital location for which the Satellite is
ultimately intended (this orbital location has been designated
by AsiaSat as 100.5(0)E for AsiaSat 5 as indicated in the
Statement of Work, Exhibit A);
58
d) supply the Launch Vehicle, from the list of candidate Launch
Vehicles contained in section 2.2 of the AsiaSat 5 Satellite
Performance Specifications and related services under the
Launch Contract including, but not limited to, Launch site
operations planning and processing, Designated Launch Site
transportation of the Launch Vehicle, together with all
support equipment pre-Launch and countdown procedures, flight
planning and operations support and post flight operations,
interface hardware and documentation necessary for integration
and test of the Satellite and Launch Vehicle and in accordance
with requirements stated in Exhibit B, Performance
Specifications, section 2.2. As promptly as practicable, and
in any event no later than three (3) months prior to the
Available for Shipment date, as set forth in Clause 4.2,
AsiaSat will designate in writing to the Contractor the Launch
Date and will notify the Contractor promptly in the event of
any changes in the Launch Date;
e) provide the Contractor and its Affiliates and Subcontractors
Beneficial Access to the Designated Launch Site and all
buildings and facilities thereon (including without limitation
testing and storage facilities), utilities (including without
limitation power, phone and data lines) and services
(including without limitation transportation at the Designated
Launch Site) necessary to permit the Contractor to: (i)
deliver the Satellite at the Designated Launch Site as soon as
required to support the Launch Date; (ii) conduct testing and
provide all Launch Support Services to be performed by the
Contractor hereunder; and (iii) conduct all other operations
at the Designated Launch Site necessary for fulfillment of the
Contractor's obligations under this Contract;
f) provide Beneficial Access to the Contractor and its Affiliates
and Subcontractors at each Satellite Control Facility, on a
timely basis, as necessary to permit the Contractor to perform
its obligations under this Contract; and
g) as required by the Contractor's Government, provide written
notification to the Contractor as early as practicable as to
the identity/nationality of their employees and Associates and
any subsequent changes, if any.
Other AsiaSat responsibilities are more fully described in Exhibit
A, Statement of Work
32.3 If AsiaSat fails to provide Beneficial Access to the Contractor as
described in Clause 32.2(f), AsiaSat shall be responsible for the
reasonable and substantiated associated expenses of the Contractor
59
resulting from any delay or failure to provide Beneficial Access.
Completion Schedule dates for the Contract Items set forth in Clause
4.2 shall be extended pursuant to Clause 15.
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33. CONFIDENTIALITY
33.1 The Parties may transfer or exchange Proprietary Information
(including this Contract) during the performance of the Work, in
oral or written form, which may include specifications, drawings,
sketches, models, samples, computer programs, reports, data,
techniques, designs, codes, documentation, and financial,
statistical or other technical information essential to the
objectives of this Contract. All disclosures of such information
will be treated as proprietary if in a tangible form and marked as
"Proprietary" or "Confidential", or the like, by the Party making
the disclosure (hereinafter "Proprietary Information"). Any
information which is disclosed in other than tangible form, shall be
protected hereunder as Proprietary Information, provided that it is
identified as proprietary at the time of disclosure and then
summarized in tangible form, marked, as provided above, by the Party
making the summary and provided to the receiving Party within thirty
(30) days of original disclosure.
The Contractor shall not assert that (a) the general properties of
the Spacecraft and/or (b) all communication and performance
parameters constitute Proprietary Information.
33.2 Except as either Party may otherwise consent in writing, or as
otherwise provided herein, each Party shall not disclose at any time
to any third party, any Proprietary Information which may be
disclosed to it or any of its officers, agents, employees, or
Subcontractors in connection with this Contract.
33.3 Each Party may disclose such Proprietary Information of the other
Party to persons employed or engaged by that Party, whether under
subcontract or otherwise, and may use such Proprietary Information
solely for purposes relating to this Contract. Whenever a Party
makes copies of such Proprietary Information for performance of Work
covered by this Contract, the Party shall reproduce the proprietary
legend on each such copy. Any disclosure of Proprietary Information
subsequent to the initial disclosure shall be made under the same
conditions that apply to the initial disclosure and shall extend
only so far as may be necessary for the purposes of this Contract.
Any such disclosure to a person other than an employee of the Party
or a person having a professional duty of confidentiality with
respect to such Party (e.g., attorneys, accountants) shall be made
pursuant to a written confidential disclosure agreement or with
prior written approval of the originating Party.
33.4 The obligations and restrictions imposed by this Clause shall not
apply to the following:
a) Proprietary Information that is or at any time becomes
available to the public from a source other than the receiving
Party, and without breach of this Contract;
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b) Proprietary Information that is authorized for release in
writing by the disclosing Party;
c) Proprietary Information that is lawfully obtained by the
receiving Party from a third party who obtained the
Proprietary Information lawfully and without restriction on
further disclosure;
d) Proprietary Information that is known by the receiving Party
prior to such disclosure as demonstrated by written records;
or
e) Proprietary Information that is, at any time, developed by the
receiving Party completely independently of any disclosure or
disclosures from the disclosing Party as demonstrated by
written records.
33.5 Neither Party shall be liable for the unauthorized disclosure or use
of such Proprietary Information marked as proprietary if such
disclosure or use occurs despite such Party exercising reasonable
best efforts to preserve and safeguard such Proprietary Information.
33.6 (a) Neither Party shall be liable for the disclosure of any
Proprietary Information of the other Party pursuant to any
legally enforceable requirement of any governmental authority,
provided that the Party making such disclosure has (i)
notified in advance the Party owning such Proprietary
Information (the "affected Party"); (ii) at the request and
expense of the affected Party, contested such disclosure to
the full extent permitted by the relevant laws; and (iii)
sought confidential treatment for any Proprietary Information
required to be disclosed.
(b) In the case of AsiaSat, disclosure of this Contract is
permitted to the extent necessary as may be required by or to
enable AsiaSat to make disclosure to its shareholders or any
regulatory, administrative or governmental body or office or
other organisation, including but without limitation, the Hong
Kong Securities and Futures Commission, the Hong Kong Stock
Exchange and the United States Securities and Exchange
Commission subject to compliance with all applicable laws and
regulations, the Contractor being allowed to make reasonable
and necessary redactions.
33.7 No license, under any patents or copyrights or other intellectual
property rights, is granted or implied by merely disclosing data or
information under this Contract.
33.8 The obligation of this Clause 33 shall be effective for a period of
five (5) years from the date of delivery of the last Contract Item,
notwithstanding any prior termination or expiration of this
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Contract. The Contractor shall provide a written notice to AsiaSat
not later than 14 days of the delivery of the last Contract Item.
Such notice shall identify the start of the five (5) year obligation
period described in this Clause 33.8.
33.9 The Parties acknowledge that the disclosing Party would be
irreparably harmed if any Competitor were to acquire access to the
disclosing Party's intellectual property, Proprietary Information,
or other technology (including hardware resulting from the
technology), data or inventions, (collectively referred to as
"Intellectual Property") regardless of whether such Competitor has
an ownership or affiliate interest in the receiving Party.
Accordingly, the receiving Party agrees that no Competitor shall be
given access to any of the disclosing Party's Intellectual Property,
and that should such Competitor gain control of the receiving Party,
or otherwise be an assignee or transferee of the receiving Party
with regard to the Contract, the disclosing Party may take all
reasonable steps to safeguard and protect its Intellectual Property,
and the receiving Party shall cooperate to the extent practicable
with any and all such measures.
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34. GENERAL
34.1 Unless stated otherwise herein, all rights and remedies hereunder
shall be cumulative and may be exercised singly or concurrently.
Failure by either Party to enforce any of its rights shall not be
deemed a waiver of future enforcement of such rights or any other
rights. If any provision of this Contract is found to be invalid or
unenforceable, it shall not affect any other provision of this
Contract and the invalid or unenforceable provision shall be
replaced with a provision consistent with the original intent of the
Parties.
34.2 It is expressly understood that Contractor and AsiaSat 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 AsiaSat 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.
34.3 AsiaSat shall have the option, to be exercised in writing at any
time after EDC and up to ninety (90) days after Launch, to order an
additional satellite (the "Option Satellite", substantially similar
to the Satellite to be Available for Shipment twenty-two (22) months
from the date of option exercise (but in no event earlier that four
(4) months after the Satellite Available for Shipment Date). The
base price ("Base Price") for this Option Satellite is [o]
(including a performance incentive amount of [o]% of the price paid
for the Option Satellite) as of EDC subject to adjustment to date of
exercise (the "Adjusted Option Satellite Price) according to the
following:
(a) [o]
34.4 AsiaSat shall have the option, to be exercised in writing on or
before EDC plus sixty (60) days to have Contractor incorporate two
(2) additional Ku-band traveling wave tube assemblies (TWTA's) into
the Satellite. The price for this option is [o] and the mass of the
Satellite will increase by 6.6 kg. Upon exercise of this option, the
Parties shall amend this Contract accordingly.
34.5 AsiaSat shall have the option, to be exercised in writing on or
before ninety (90) days prior to the Satellite Available for
Shipment date set forth in Clause 4.2, to reduce the Option
Satellite schedule by up to ninety (90) days. Any payment required
for this schedule reduction option shall be credited against the
Adjusted Option Satellite Price at the time of the exercise of the
Option Satellite.
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In the event that AsiaSat exercises the schedule reduction option,
the Parties shall discuss in good faith the reduction schedule for
the Option Satellite, including payment terms. If the Parties fail
to reach agreement on the Option Satellite reduction schedule within
thirty (30) days of the option exercise date by AsiaSat, the option
shall lapse.
In the event that the schedule reduction option is exercised but
AsiaSat does not exercise the Option Satellite, Contractor shall
provide a refund of a mutually agreed amount paid by AsiaSat for the
schedule reduction option. The Parties agree that Contractor shall
use reasonable best efforts to re-use or re-sell the work associated
with the exercised schedule reduction option and shall refund to
AsiaSat any additional amounts (in excess of the mutually agreed
refund amount derived in accordance with the preceding sentence)
obtained from the re-use or re-sale of such work, less the
reasonable amount for re-use or re-sale. In the event of any refund
pursuant to the operation of this Clause 34.5, AsiaSat may verify
such refund by an audit, at its expense, using an independent
auditor, which shall be subject to the Contractor's approval, which
shall not be unreasonably withheld (however, Contractor detailed
labour rate information shall be redacted from any audit report
provided to AsiaSat, subject to the auditor's approval, if
necessary). Thereafter, Contractor shall have no obligation to
AsiaSat with regard to any option exercised pursuant to this Clause
34.5. Upon exercise of this option, the Parties shall amend this
Contract accordingly.
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35. LANGUAGE
35.1 The official language of this Contract is English and all notices
and information required hereunder shall be provided in the English
language.
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36. LIMITATION OF LIABILITY
36.1 The Contractor makes no warranty, express or implied to any person
or entity other than AsiaSat or its permitted assignee concerning
the Satellite or any other Deliverable Item.
36.2 (a) The warranties of Contractor expressly provided in Clauses 10.3,
28.1 through 28.6, the obligations and liabilities of the Parties
and the remedies against the Parties which are expressly set out in
this Contract are exclusive.
(b) Except as provided in Clause 36.2(a), all other representations,
warranties, conditions and assurances, express or implied, written
or oral, including without limitation any warranty by Contractor of
design, operation, condition, quality, suitability or
merchantability or fitness for use or for a particular purpose,
absence of latent or other defects, whether or not discoverable,
with regard to the Satellite or other Deliverable Item, are hereby
expressly excluded (save for any liability for fraudulent
misrepresentation). Contractor makes no warranty with respect to the
condition, use or performance of any Launch Vehicle.
36.3 [o]
36.4 The provisions of this Clause 36 shall survive the termination or
expiration of this Contract for whatever reason or cause.
36.5 Nothing herein shall limit either Party's ability to obtain
equitable relief to enforce its rights under this Contract.
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37. PERFORMANCE INCENTIVE PAYMENTS
37.1 Over the Satellite Operational Lifetime, Contractor shall be
entitled to earn the Performance Incentive Payments for the
Satellite in accordance with this Clause 37. As used herein,
"Performance Incentive Payments" means a maximum amount equal to
[o], which shall be paid in advance by AsiaSat in accordance with
Appendix A, Payment Schedule and Billing Milestones for AsiaSat 5
(the "Advance Payment"), subject to the following adjustment in the
event that at the start of the Satellite Operational Lifetime, the
Satellite is reasonably determined by Contractor to have any
permanently Failed Transponders (as defined below) which failure is
not attributable in whole or part to AsiaSat or AsiaSat's
representatives, consultants or subcontractors as set forth in
Clause 37.2.(g):
[o]
Any Performance Incentive Payments paid in advance and not
subsequently earned by Contractor pursuant to the operation of this
Clause 37, shall be returned to AsiaSat (an "Incentive Payback") in
accordance with Clause 37.3. All measurements, computations and
analyses made pursuant to this Clause 37 shall be made in accordance
with good engineering practice applying standards generally
applicable in the satellite industry.
37.2 (a) For each Transponder on the Satellite (not counting redundant
Transponders), Contractor shall earn a daily rate equal to [o]
("Daily Rate") for each day that such Transponder is not a
Failed Transponder (as defined below).
(b) On-board redundancy and/or spare components 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 Clause 37.
(c) If, during the Satellite Operational Lifetime, AsiaSat takes
the Satellite out of service (other than due to the inability
to operate for unexcused causes attributable to Contractor),
Contractor shall earn the Performance Incentive Payments at
the same Daily Rate as Contractor would be earning such
Payments if the Satellite were in service.
(d) Contractor shall earn the Daily Rate for each Transponder on
the Satellite for each day such Transponder does not
experience a Transponder Failure (as defined below).
Contractor shall forfeit the Daily Rate for any day that any
Transponder on the Satellite experiences a Transponder Failure
(as defined below) during the Satellite Operational Lifetime
that is not attributable to AsiaSat or AsiaSat's
representatives, consultants or subcontractors as set forth in
Clause 37.2(g) (each such Transponder on each such day, a
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"Failed Transponder"). In the event that any Failed
Transponder resumes operation in accordance with the
applicable criteria of Exhibit B, AsiaSat 5 Performance
Specifications, Contractor shall resume earning Performance
Incentive Payments at the Daily Rate for such Transponder,
beginning the day following the last day that such Transponder
is a Failed Transponder, and for each day that such
Transponder is not a Failed Transponder. For purposes of this
Clause, a "Transponder Failure" means, at any time after
Launch, the failure (including permanently intermittent
failures) of a Transponder to meet the applicable requirements
of Exhibit B, AsiaSat 5 Performance Specifications in excess
of 3 minutes in any day during the Satellite Operational
Lifetime. All available redundant and/or spare components on
the Satellite applicable to the Transponder must be used or
cease to be available before a Transponder is considered to be
a Transponder Failure.
(e) In the event that the Satellite becomes a Total Loss during
the Satellite Operational Lifetime (a "Total Loss" for
purposes of this Clause 37.2(e) shall occur at the point in
time that Contractor has lost, in the cumulative, more than
U.S$[o] of the Performance Incentive Payments pursuant to
operation of Clause 37.2, and such Total Loss is not
attributable in whole or part to AsiaSat or AsiaSat's
representatives, consultants or subcontractors as set forth in
Clause 37.2.(g)), Contractor shall not be entitled to earn any
further Performance Incentive Payments with respect to such
Satellite and shall have no further claim against AsiaSat
regarding such Performance Incentive Payments. Within thirty
(30) days of the Satellite becoming a Total Loss, Contractor
shall refund all remaining unearned portions of the Advance
Payment in accordance with Clause 37.3. Contractor shall not
lose (or have any obligation to refund) any Performance
Incentive Payments earned prior to time that the Satellite
becomes a Total Loss as provided above.
(f) If, after Launch and prior to the start of Satellite
Operational Lifetime, the Satellite is determined to have any
permanently Failed Transponders (as reasonably determined by
Contractor), due to causes not attributable to Contractor,
Contractor shall be deemed to have earned immediately the
corresponding amount of its Performance Incentive Payments
that would otherwise be lost pursuant to this Clause 37; if
more than 75% of the Transponders are determined to be
Permanently Failed Transponders (as reasonably determined by
Contractor), Contractor shall be deemed to have immediately
earned all Performance Incentive Payments.
(g) If, as a result of any act or omission on the part of AsiaSat
or AsiaSat's representatives, consultants or subcontractors
(including the Launch Services Contractor) in the Launch,
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operation of, testing of, or communication with, the
Satellite, such Satellite operates in a manner that a
Transponder Failure(s) occurs, Contractor shall earn
Performance Incentive Payments with respect to such Satellite
at the Daily Rate that would apply prior to the act or
omission resulting in the Transponder Failure(s) (subject to
later adjustments pursuant to Clauses 37.2(d), or 37.2(e), not
resulting from any such act or omission on the part of AsiaSat
or AsiaSat's representatives, consultants or subcontractors
(including the Launch Services Contractor)).
(h) During the Satellite Operational Life, Contractor shall have
access to the data records of the Satellite upon written
request to AsiaSat.
37.3 During the Satellite Operational Lifetime, AsiaSat may invoice
Contractor for any amounts of Performance Incentive Payments lost
pursuant to Clause 37.2 and not previously paid or lost. Incentive
Paybacks due AsiaSat pursuant to Clause 37.2 shall be paid no later
than the thirtieth (30th) day following receipt of an invoice from
AsiaSat. Contractor shall pay interest on the Incentive Payback
amount for the period commencing from the date of the Advance
Payment and ending on the date of repayment payment at an annual
interest rate equal to [o] percent ([o]%), compounded monthly. The
right of AsiaSat to any Incentive Payback shall terminate if AsiaSat
conceals or misrepresents, in writing or otherwise, any material
fact or circumstance concerning the operation or use of a Satellite
or Transponder thereon which, if not concealed or if correctly
represented, would not entitle AsiaSat to any such right.
37.4 [o]
37.5 In no event will the amount of Performance Incentive Payments lost
in accordance with this Clause 37 for all causes exceed [o] plus
interest calculated in accordance Article 37.3. Further, once
Performance Incentive Payments are earned by the Contractor pursuant
to this Clause 37, they will not be subject to refund for any cause.
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38. LAUNCH VEHICLE DELAYS
38.1 In the event of a postponement or delay of the Launch Date due to
the fault of the Contractor or its Subcontractors or Affiliates
under this Contract, the Contractor shall be responsible for its own
expenses as a result of such postponement or delay.
38.2 In the event of a postponement or delay of the Launch Date prior to
the shipment date of the Satellite, where such postponement or delay
is not due to the fault of the Contractor or its Subcontractors or
Affiliates under this Contract: [o].
38.3 In the event of a postponement or delay of the Launch after the
Satellite has been shipped to the Designated Launch Site where such
postponement or delay is not due to the fault of the Contractor or
its Subcontractors or Affiliates under this Contract: [o].
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39. SECURITY INTEREST
39.1 As collateral security for the performance and payment by Contractor
of the Secured Obligations, whether now existing or hereafter
arising, Contractor hereby pledges and grants to AsiaSat, as
hereinafter provided, a security interest (the "Security Interest")
in all of Contractor's right, title and interest in, to and under
the following property, whether now owned or hereafter acquired by
Contractor and whether now existing or hereafter coming into
existence (collectively, the "Collateral"): [o]
39.2 In furtherance of the grant of the Security Interest pursuant to
Clause 39.1, Contractor shall:
(a) Give, execute, deliver, file, record, obtain, and authorize
all financing statements and any other notices, instruments,
agreements and documents, and Contractor shall take such other
action as reasonably requested by AsiaSat to (i) create,
perfect, validate and preserve the Security Interest and the
priority thereof or (ii) to enable AsiaSat to exercise and
enforce its rights hereunder with respect to such pledge and
Security Interest; and
(b) to the extent consistent with and required by Contractor's
bookkeeping and accounting practices, indicate in its
corporate records the Security Interest that AsiaSat has in
the Collateral to the extent provided in this Clause 39.
39.3 Contractor represents and warrants that the Security Interest
granted to AsiaSat constitutes a legal, valid and enforceable
security interest therein and upon the filing of UCC-1 financing
statements in the office of the Secretary of State of Delaware will
be a perfected security interest in those items that can be
perfected by filing under the UCC subject to no other liens or
security interests.
39.4 Contractor shall not lend, rent, lease, transfer or otherwise
dispose of any portion of the Collateral or any right, title or
interest therein except to AsiaSat pursuant to the Contract and
Contractor shall keep the Collateral free from any security
interest, lien, encumbrance or claim.
39.5 [o]
39.6 AsiaSat shall have and be entitled to exercise all the rights and
remedies with respect to the Collateral of a secured party under the
UCC (whether or not the UCC is in effect in the jurisdiction where
AsiaSat asserts the rights and remedies), such additional rights and
remedies as provided in this Contract, and such additional rights
and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where AsiaSat may assert its rights and
remedies. [o]. Notwithstanding any provision of this Contract to the
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contrary, AsiaSat shall not be permitted to exercise any remedy as a
secured party in respect of the Security Interest granted hereunder
unless AsiaSat has terminated the Contract in whole pursuant to, and
within the time limits provided in, Clause 16A and Contractor has
failed to perform its obligations pursuant to such article (a
"Termination Default").
39.7 [o]
39.8 Except as otherwise herein expressly provided and except as provided
below in this Clause 39.8, the Proceeds of any collection, sale or
other realization of all or any part of the Collateral pursuant
hereto, and any other cash at the time held by AsiaSat shall be
applied in the following order: (i) first, to the payment of the
costs and expenses of such collection, sale or other realization;
(ii) second, to the payment in full of the amounts due to AsiaSat as
set forth in Clause 16.2(b), if AsiaSat has elected such remedy, or
to the payment of damages in respect of any breach of Contractor's
obligation under Clause 16.2(a), if AsiaSat has elected such remedy;
(iii) third, to the payment of all other Secured Obligations; and
(iv) fourth, to the payment to the Contractor, or its respective
successors or assigns, or as a court of competent jurisdiction may
direct, of any surplus then remaining. Notwithstanding anything to
the contrary in this Contract, the Proceeds from the sale,
disposition or other realization of the Collateral may be applied to
the payment of Secured Obligations only to the extent expressly set
forth in this Clause 39.8.
39.9 Without limiting any rights or powers granted by this Clause 39 to
AsiaSat while no Termination Default has occurred and is continuing,
upon the occurrence and during the continuance of any Termination
Default, AsiaSat is hereby appointed the attorney-in-fact of the
Contractor for the purpose of carrying out the provisions of this
Security Interest and taking any action and executing any
instruments that AsiaSat may deem necessary or advisable to
accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest.
39.10 Contractor agrees that, from time to time upon the written request
of AsiaSat, Contractor will execute and deliver such further
documents and do such other acts and things as AsiaSat may
reasonably request in order fully to effect the purposes of this
Clause 39.
39.11 For purposes of this Clause 39, the following definitions shall
apply:
(a) "COLLATERAL" has the meaning set forth in Clause 39.1.
(b) "COMPONENT" means every unit, system, subsystem, and piece of
equipment or hardware or software to be employed on the
Satellite.
(c) "PROCEEDS" shall have, for purposes of Clause 39, the meaning
ascribed to such term by the UCC.
(d) "SECURED OBLIGATIONS" means [o].
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(e) "UCC" means the Uniform Commercial Code as in effect in the
State of California, as it may be amended from time to time.
(f) "WORK" means [o].
(g) "WORK-IN-PROGRESS" means [o].
39.12 The Security Interest shall terminate upon a termination of this
Contract pursuant to Clause 13 or Clause 16(A) and AsiaSat has
received all amounts or Contract Items that are due to it.
Contractor is authorized on behalf of AsiaSat to file any documents
(including UCC termination statements) to effect a termination of
the Security Interest and any document filed or recorded to perfect
such Security Interest. AsiaSat shall execute and deliver and, if
appropriate, file with the applicable filing offices, such documents
and instruments as may be necessary or desirable to effect such
termination.
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40. ENTIRE AGREEMENT
40.1 This Contract : (i) consists of this document, and the Exhibits and
Appendices hereto; (ii) constitutes the entire agreement of the
Parties with respect to the subject matter hereof; and (iii)
supersedes all prior correspondence, representations, proposals,
negotiations, understandings, and agreements of the Parties, oral or
written, with respect to the subject matter hereof. No addition to,
deletion of, or deviation from the provisions of this Contract shall
be binding on either Party unless in writing and signed by the
Parties hereto.
Each Party acknowledges that it has read, understands and agrees to
be bound by the provisions of this Contract.
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IN WITNESS WHEREOF, the Parties have executed this Contract by their duly
authorized officers as of the date set forth in the Preamble.
SPACE SYSTEMS/LORAL, INC. ASIA SATELLITE
TELECOMMUNICATIONS COMPANY
LIMITED
By: /s/ Xxxxxxx XxXxxx By: /s/ Xxxxx Xxxxxxx
------------------- ----------------------------
Name: Xxxxxxx XxXxxx Name: Xxxxx Xxxxxxx
--------------- -----------------------
Title: President Title: Chief Executive Officer
--------------- -----------------------
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APPENDIX A
PAYMENT SCHEDULE AND BILLING MILESTONES FOR ASIASAT 5
(Dollars in Thousands)
[o]
77
APPENDIX B
TERMINATION COST TABLE
(Dollars in Thousands)
[o]
78
APPENDIX C
PAYMENT SCHEDULE AND BILLING MILESTONES FOR THE OPTION SATELLITE
(Dollars in Thousands)
[o]
79
APPENDIX D
TERMINATION COST TABLE FOR THE OPTION SATELLITE
(Dollars in Thousands)
[o]
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AsiaSat5
EXHIBIT A
ASIASAT 5
STATEMENT OF WORK
[o]
AsiaSat5
EXHIBIT B
ASIASAT 5
PERFORMANCE SPECIFICATION
[o]
AsiaSat5
EXHIBIT C
ASIASAT 5
TEST PLAN
[o]
AsiaSat5
EXHIBIT D
PRODUCT ASSURANCE PLAN ADDENDUM
[o]
