Exhibit 10.61
SEA LAUNCH AND PANAMSAT PROPRIETARY
CONTRACT
FOR
LAUNCH SERVICES
BETWEEN
SEA LAUNCH LIMITED PARTNERSHIP
AND
PANAMSAT CORPORATION
THIS CONTRACT DOCUMENT IS CONSIDERED PROPRIETARY INFORMATION OF SEA LAUNCH, LDC
AND PANAMSAT CORPORATION, AND SHALL NOT BE RELEASED, IN WHOLE OR IN PART, TO THE
PUBLIC OR ANY THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH SEA LAUNCH
COMPANY, LDC AND PANAMSAT CORPORATION
SEA LAUNCH AND PANAMSAT PROPRIETARY
TABLE OF CONTENTS
ARTICLE 1 -- DEFINITIONS......................................................4
ARTICLE 2 -- CONTRACTUAL DOCUMENTS............................................7
ARTICLE 3 -- SERVICES TO BE PROVIDED BY SEA LAUNCH............................8
ARTICLE 4 -- CONTRACT PRICE...................................................9
[***************] 9
ARTICLE 5 -- PAYMENTS.........................................................10
ARTICLE 6 -- LAUNCH SCHEDULE..................................................12
ARTICLE 7 -- LAUNCH POSTPONEMENTS.............................................13
ARTICLE 8 -- EXCUSABLE DELAYS.................................................15
ARTICLE 9 -- OBLIGATIONS BEFORE and AFTER LAUNCH..............................15
ARTICLE 10 -- COMMUNICATION and COORDINATION BETWEEN
SEA LAUNCH and PANAMSAT.......................................................16
ARTICLE 11 -- PERMITS AND APPROVALS...........................................17
ARTICLE 12 -- OPTION FOR REFLIGHT OR REFUND...................................18
ARTICLE 13 -- REPLACEMENT LAUNCH..............................................21
ARTICLE 14 -- TERMINATION.....................................................22
ARTICLE 15 -- RISK ALLOCATION.................................................25
ARTICLE 16 -- PROPRIETARY DATA................................................29
ARTICLE 17 -- RIGHTS TO INVENTIONS AND DATA...................................30
ARTICLE 18 -- CHANGES.........................................................31
ARTICLE 19 -- ASSIGNMENT......................................................31
19.1 The Parties agree not to assign their respective rights or obligations
under the Contract without the prior written consent of the other Party;
provided that PanAmSat may assign its rights and obligations regarding one or
more Launch Services to a PanAmSat Affiliate. Any such assignment shall be
mutually agreed to and consent to Assign shall not be unreasonably withheld by
the other Party. For purposes of this Article 19, "PanAmSat Affiliate" shall
include (i) any entity controlled by PanAmSat and (ii) any joint venture or
similar entity in which PanAmSat owns or agrees to acquire an equity
interest......................................................................32
ARTICLE 20 -- DISPUTE SETTLEMENT..............................................32
ARTICLE 21 - COOPERATION ON INSURANCE.........................................32
21.1 Sea Launch shall cooperate in good faith with PanAmSat's efforts to
obtain and maintain launch insurance for Spacecraft launched under this
Contract. Subject to U. S. Export Control laws and regulations, such
cooperation shall include (i)delivering information and data regarding the
Launch Vehicle to PanAmSat's insurers and brokers, (ii) conducting briefings
for such insurers and brokers, (iii) responding to inquiries from such
insurers and brokers, and (iv) exercising reasonable best efforts to obtain
in a timely manner and thereafter maintain any government licenses,
approvals or other authorizations required for such cooperation...............32
ARTICLE 22-- APPLICABLE LAW...................................................32
ARTICLE 23 -- SEVERABILITY....................................................32
ARTICLE 24 -- NO WAIVER.......................................................33
ARTICLE 25 -- ENTIRE AGREEMENT................................................33
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on the title page of this Contract Document.
[***] Filed separately with the Commission pursuant to a request for
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SEA LAUNCH AND PANAMSAT PROPRIETARY
CONTRACT FOR LAUNCH SERVICES
This Contract is made and entered into by and between Sea Launch Limited
Partnership, an exempted limited partnership organized under the laws of the
Cayman Islands acting through its General Partner, Sea Launch Company, LDC, a
Cayman Islands limited duration company (hereinafter referred to as "Sea
Launch"); and PanAmSat Corporation, (hereinafter referred to as "PanAmSat").
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on the title page of this Contract Document
SEA LAUNCH AND PANAMSAT PROPRIETARY
ARTICLE 1 -- DEFINITIONS
The terms used in the Contract shall have the meaning provided for in these
definitions:
1.1 Authorized Representatives means: (i) for PanAmSat, R. Xxxxxxx Xxxx,
Xxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxxxxx, and (ii) for Sea Launch,
Xxxxxx Xxxxxxx, X. X. Xxxxx, Xxxxx Xxxxxxx. A Party may change its
Authorized Representatives by written notification from an existing
Authorized Representative of such Party to the other Party.
1.2 Contract means this Contract as defined in Article 2.
1.3 Constructive Total Failure means that the operational capacity and/or
expected lifetime of the Spacecraft is reduced by more than 50% due to
the performance of the Launch Vehicle. The orbit and mass at liftoff
specified in the Statement of Work shall be used in the determination
of expected lifetime based on a three sigma Launch Vehicle performance
and a margin of a minimum of one (1) year. The Parties shall use the
Loss Formula to determine whether a Constructive Total Failure has
occurred.
1.4 Day means a calendar day unless otherwise indicated.
1.5 Effective Date means the date of last signature by an authorized
representative of Sea Launch or PanAmSat.
1.6 Home Port means the payload processing area and surrounding facilities
for the loading and unloading of the Launch Vehicle and Spacecraft on
the assembly and command ship and the launch platform.
1.7 Launch means the intentional ignition of the first stage engines of the
Launch Vehicle followed by the release of the hold-down restraints or
destruction of the Launch Vehicle.
1.8 Launch Base means the Sea Launch marine launch platform from which the
Launch will take place, as well as the assembly and command ship from
which Launch operations will be directed and monitored.
1.9 Launch Day means the calendar day within the Launch Slot established
for the Launch pursuant to the Contract.
1.10 Launch Opportunity means the availability of a position in the Sea
Launch manifest for the Launch of the Spacecraft, and is based upon
these criteria: 1) adequate time to make the necessary preparations for
the Launch; and 2) existing commitments to other Sea Launch customers.
1.11 Launch Period means a period of [********************] as established
in Article 6 during which the Launch will occur.
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SEA LAUNCH AND PANAMSAT PROPRIETARY
1.12 Launch Schedule means the then current Launch Period or the then
current Launch Slot or Launch Day, if established.
1.13 Launch Services means the services provided by Sea Launch as defined in
Article 3.
1.14 Launch Slot means a thirty (30) day period of time within the Launch
Period during which the Launch will occur.
1.15 Launch Vehicle means the expendable launch vehicle Zenit 3SL, utilized
by Sea Launch to perform the Launch of the Spacecraft.
1.16 Launch Vehicle Performance means:
1.16.1 The environmental conditions experienced by the Spacecraft as
measured and recorded by Sea Launch via telemetry. Sea Launch
uses the measurements to ascertain compliance with the
environments agreed to by the Parties in the "Sea Launch to
Spacecraft Interface Control Document (ICD)".
1.16.2 If applicable, the functional interface between the Launch
Vehicle and the Spacecraft as measured and recorded by Sea
Launch via telemetry. Sea Launch uses such measurements to
ascertain compliance with the functional interface
requirements agreed to by the Parties in the "Sea Launch to
Spacecraft Interface Control Document (ICD)".
1.16.3 The Spacecraft injection orbit parameters as measured and
recorded by Sea Launch via telemetry. Sea Launch uses the
measurements to ascertain compliance with the injection orbit
parameters as agreed to by the Parties in the "Sea Launch to
Spacecraft Interface Control Document (ICD)".
1.17 Launch Window means a specific daily time period or periods within each
of one or more potential Launch Days during which the Launch can occur
and meet mission requirements.
1.18 Loss Formula means the formula set forth below that calculates the Loss
Factor in order to determine whether a Constructive Total Failure or
Partial Failure has occurred, and in the case of Partial Failure, to
compute the amount of the refund payable if PanAmSat has exercised a
refund option [***************************************************
***********] The Loss Formula shall be provided by PanAmSat. PanAmSat
shall provide the Loss Formula from its Launch Insurance Policy no
later than six (6) months prior to Launch. Inclusion of the formula,
definitions, and terms shall be by mutual agreement of the Parties. It
is agreed that the formula will be amended to take into consideration
PanAmSat's desire to measure Spacecraft Expected Life to be based on
the maximum attainable lifetime using the XIPS drive and a nominal
Launch Vehicle Performance such that the Expected Life will exceed the
specified life contained in the PanAmSat Spacecraft procurement
contract. It is further agreed that this provision shall be subject to
(i) calculating the Expected Life so as to minimize any loss, and (ii)
including a margin of at least one year to measure the Spacecraft's
Expected Life with the actual margin to be agreed upon by Sea Launch,
its Insurers, and PanAmSat based on the increase in predicted Expected
Life.
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SEA LAUNCH AND PANAMSAT PROPRIETARY
1.19 New Spacecraft Type means any Spacecraft bus type that is not a Prior
Spacecraft Type as of the date that PanAmSat designates or selects a
Spacecraft type.
1.20 Option Launch means the ability of PanAmSat to order from Sea Launch an
additional Launch to be performed under the same provisions as the
Launch Services under this Contract.
1.21 Partial Failure means that the operational capacity and/or expected
lifetime of the Spacecraft is reduced by more than 20% but less than or
equal to 50% due to performance of the Launch Vehicle. The orbit and
mass at liftoff specified in the Statement of Work shall be used in the
determination of expected lifetime based on a three sigma Launch
Vehicle Performance and a margin of a minimum of one (1) year. The
Parties shall use the Loss Formula to determine whether a Partial
Failure has occurred, and to compute the amount of the refund payable
if PanAmSat has exercised a refund option [***************************
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1.22 [**********************************************************************
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1.23 Party or Parties means Sea Launch or PanAmSat or both depending on the
context.
1.24 Payload means the Spacecraft supplied by PanAmSat to be launched on the
Launch Vehicle.
1.25 Postlaunch Services means the reports and range services as defined in
the Statement of Work that are to be provided by Sea Launch to PanAmSat
after Launch.
1.26 Prior Spacecraft Type shall mean a Spacecraft bus type (e.g., HS-601
HP, HS-702, etc.) that has been previously integrated and launched by
Sea Launch or that, as of the date that PanAmSat designates or selects
a Spacecraft, is scheduled to be integrated and launched prior to the
applicable Option Launch.
1.27 Related Third Parties means any of the following parties:
1.27.1 employees, directors, officers or agents of Sea Launch or
PanAmSat.
1.27.2 customers of Sea Launch or PanAmSat and the employees of those
customers
1.27.3 Contractors and subcontractors at any tier of Sea Launch or
PanAmSat and the employees of those contractors and
subcontractors.
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SEA LAUNCH AND PANAMSAT PROPRIETARY
1.27.4 any party with a financial interest in Sea Launch, PanAmSat,
the Launch Vehicle, or the Payload
1.28 Spacecraft means a satellite supplied by PanAmSat for Launch by Sea
Launch pursuant to the Contract and which is compatible with the Launch
Vehicle.
1.29 Third Party means any individual or legal entity other than the Parties
or Related Third Parties.
1.30 Total Failure means that the Spacecraft was destroyed or lost,
subsequent to Launch but before separation, due to the performance of
the Launch Vehicle; or, the Spacecraft could not be separated from the
Launch Vehicle.
ARTICLE 2 -- CONTRACTUAL DOCUMENTS
2.1 This Contract shall consist of the following documents
2.1.1. General Provisions, Articles 1 through 25
2.1.2. Statement of Work
2.1.3 Interface Control Document ("ICD")
2.2 In the event of conflict the General Provisions shall have precedence
over the Statement of Work and the ICD.
2.3 The ICD shall be incorporated into this Contract upon its execution by
the Parties (or, in the case of Sea Launch, by Boeing Commercial Space
Company on behalf of Sea Launch) and by the manufacturer of the
Spacecraft. Upon such execution, the ICD shall have precedence over the
Interface Requirements Document included in the Statement of Work. Sea
Launch acknowledges that such Interface Requirements Document has been
delivered to Boeing Commercial Space Company in lieu of Sea Launch.
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on the title page of this Contract Document.
SEA LAUNCH AND PANAMSAT PROPRIETARY
ARTICLE 3 -- SERVICES TO BE PROVIDED BY SEA LAUNCH
3.1 Sea Launch shall provide Launch Services to PanAmSat in accordance with
the Statement of Work for the Launch of the Galaxy IIIC Spacecraft and
up to four (4) additional Option Launches for additional Spacecraft
provided by PanAmSat. Except for Postlaunch Services, Launch Services
provided under the Contract shall be deemed to have been completed upon
Launch.
3.2 Option Launch Services
3.2.1 Four (4) Option Launches are offered under this contract.
Option Launches shall be used for the Launch of a Prior
Spacecraft Type; provided, however, that PanAmSat shall be
entitled to designate a New Spacecraft Type for one or more
Option Launches, in which event PanAmSat shall pay to Sea
Launch, pro rata in accordance with the payment schedule in
Paragraph 5.1.2, the actual and reasonable costs of Sea Launch
for mission analysis, flight tracking and integration required
due to the differences between such New Spacecraft Type and
Prior Spacecraft Type.
3.2.2 At Contract award, PanAmSat shall pay to Sea Launch a
non-refundable deposit of [**********] for each Option Launch
that PanAmSat desires to reserve. This deposit shall
guarantee a firm Launch in the [******] period associated with
that Option Launch designated in the table in Paragraph 4.2.
PanAmSat shall not be required to exercise the Option Launches
in sequential numeric order (subject to the scheduling
requirements of Paragraphs 3.2.2 and 3.2.3), nor shall the
exercise of any Option Launch be a required condition for the
exercise of any other Option Launch. PanAmSat shall be
entitled to exercise any Option Launch for a Launch Period
other than that designated for such Option Launch in the table
in Paragraph 4.2, subject to (i) available Launch
Opportunities and (ii) price adjustment(whether increase or
decrease) equal to [***] per year, not compounded, based on
the difference between the first day of the applicable Launch
Period in Paragraph 4.2 and the new Launch Period.
3.2.3 In order to exercise an Option Launch PanAmSat shall provide
written notification to Sea Launch at least [***************]
prior to the first day of the Launch Period for that Option
Launch. On the date of Option Launch exercise by PanAmSat,
payments shall be made to Sea Launch in accordance with the
payment schedule described in Article 5 - Payments. The
initial payment made by PanAmSat to Sea Launch following
exercise of an Option Launch shall be reduced by the [*******]
deposit initially paid by PanAmSat at Contract award for that
Option Launch.
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on the title page of this Contract Document.
[***] Filed separately with the Commission pursuant to a request for
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SEA LAUNCH AND PANAMSAT PROPRIETARY
3.2.4 [************************************************************
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ARTICLE 4 -- CONTRACT PRICE
4.1 PanAmSat shall pay to Sea Launch, as consideration for the Galaxy IIIC
Launch Services only (no Option Launches exercised), a price of
[*************], subject to adjustment as provided elsewhere in this
Contract.
4.2 If, at the time of Contract award, PanAmSat reserves by payment of the
deposit referred to in Paragraph 3.2.2 above any of the Option Launches
offered under this Contract, the price for the Galaxy IIIC Launch
Services referred to in Paragraph 4.1 shall be adjusted as set forth in
the table below, depending upon the number of Option Launches reserved
by PanAmSat
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[***************]
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[*****] [*****] [*****] [*****] [*****]
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[*************]
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[******] [****] [****] [****] [****] [****]
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[*****************************]
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[***** [****** [****** [****] [****] [****] [****] [****]
*****] ******] [***] *****] [***]
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[***** [****** [****** [****] [****] [****] [****] [****]
*****] ******] [***] *****] [***]
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[***** [****** [****** [****] [****] [****] [****] [****]
*****] ******] [***] *****] [***]
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[***** [****** [****** [****] [****] [****] [****] [****]
*****] ******] [***] *****] [***]
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on the title page of this Contract Document.
[***] Filed separately with the Commission pursuant to a request for
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SEA LAUNCH AND PANAMSAT PROPRIETARY
4.3 The final price paid by PanAmSat for the Galaxy IIIC Launch Services
shall be determined in relation to the number of Option Launches that
are fully exercised by PanAmSat. Should PanAmSat exercise fewer Option
Launches than reserved by payment of a deposit at the time of Contract
award, the effective price for the Galaxy IIIC Launch Services will be
changed to reflect the total number of Option Launches exercised by
PanAmSat (see table above). Any deposit(s) made by PanAmSat for any
unexercised Option Launch may be applied to the final Galaxy IIIC
Launch Services price as determined by the number of Option Launches
actually exercised.
4.4 The discount on each Option Launch is also tied to the number of Option
Launches exercised by PanAmSat. If PanAmSat exercises fewer Option
Launches than reserved at the time of Contract award, the Option Launch
prices for the applicable Launch Periods shall revert to the prices
reflected in the table above for the applicable number of Option
Launches actually exercised.
4.5 All unexercised Option Launches shall expire on [***********].
4.6 The Launch Services prices set forth in Paragraphs 4.1 and 4.2 above
include all taxes, duties and other levies imposed by the U. S.
Government and/or any political subdivisions thereof, but exclude any
taxes, duties, or other levies that may be imposed on
PanAmSat-furnished Spacecraft, support equipment, or material used in
the transportation of PanAmSat-furnished Spacecraft or support
equipment[************************************************************
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********************] Any taxes, duties, or levies imposed on any
PanAmSat-furnished Spacecraft, support equipment, or material used
in the transportation of PanAmSat-furnished Spacecraft or support
equipment, other than those taxes, duties and other levies that may be
imposed on such Spacecraft, support equipment or material that Sea
Launch has agreed in the first sentence of this Paragraph 4.6 to pay
that become the obligation of Sea Launch to pay, shall be
reimbursed to Sea Launch by PanAmSat within thirty (30) days of receipt
by PanAmSat of Sea Launch's invoice for payment with appropriate
documentation.
ARTICLE 5 -- PAYMENTS
5.1 PanAmSat shall pay the Contract Price in U.S. dollars as follows:
5.1.1 PanAmSat shall make an initial payment of [***************] of
the Contract price for the firm Galaxy IIIC Launch as set
forth in Article 4, Contract Price, as adjusted by the number
of optional launch services for which a deposit payment is
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SEA LAUNCH AND PANAMSAT PROPRIETARY
made by PanAmSat. PanAmSat shall also pay a [*********]
deposit for each Option Launch reserved at the time of
Contract award. The sum of these two payment amounts shall be
due within thirty (30) days of the effective date of the
Contract.
5.1.2 PanAmSat shall make the balance of the payments of the
Contract price for the firm Galaxy IIIC Launch in
[****************************************
**********************************************************]
and in accordance with the following payment schedule:
[************] [********]
[*************]
------------------------------------------------------
[****************] [***]
[******************]
[***********] [***]
[***********] [***]
[***********] [***]
[***********] [***]
[***********] [***]
[***********] [***]
[********] [***]
5.2 For payment purposes under this Article 5, "L" is defined as the first
calendar day of the Launch Schedule in effect at the time the payment
is due, determined in accordance with Article 6, Launch Schedule, and
taking into account, in accordance with Paragraph 5.6, adjustments to
the Launch Schedule resulting from postponements made by Sea Launch.
Consistent with Paragraph 5.7, Launch Schedule for purposes of this
paragraph 5.2 shall not be adjusted as a result of postponements made
by PanAmSat.
5.3 Sea Launch shall submit invoices to PanAmSat thirty (30) days in
advance of the scheduled payment due date. If a payment due date falls
on a Saturday, Sunday, or legal bank holiday, such payment shall be due
on the following business day.
5.4 Payment shall be made by electronic bank transfer, free of charge, to
the payee, in the amount specified in the invoice and pursuant to the
instructions contained in the invoice. Payment shall be deemed to have
been made when credit for the payable amount has been established in
the payee's designated bank account.
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SEA LAUNCH AND PANAMSAT PROPRIETARY
5.5 Any past due payments owed by PanAmSat shall bear interest until paid
at a rate that is equal to [******************************************
*****************][***************************************************
**********************************]
5.6. In the event of postponements requested by Sea Launch pursuant to
Paragraph 7.3 of Article 7, Launch Postponement, including
postponements requested by Sea Launch for excusable delays, the payment
schedule shown in Paragraph 5.1.2 shall not be modified as to payments
already made and due, but shall be modified on a day for day basis
consistent with the revised Launch Schedule for all remaining payments.
5.7 In the event of postponements requested by PanAmSat pursuant to
Paragraph 7.2 of Article 7, Launch Postponements, including
postponements requested by PanAmSat for excusable delays, the payment
schedule shown in Paragraph 5.1.2 shall not be adjusted.
5.8 In the event that one Party has not paid the second Party any amount
that is due and payable to the second Party under this Contract, such
second Party shall have the right to set off such amount against any
payment(s) due and payable or to become due and payable to the first
Party, provided, however, any amount being disputed under Article 20 of
this Contract shall not be considered due and payable until the dispute
is finally resolved.
5.9 No payment made under this Contract shall relieve Sea Launch of any of
its obligations under this Contract.
ARTICLE 6 -- LAUNCH SCHEDULE
6.1 The Launch of the Spacecraft shall take place during the following
Launch Period(s):
Launch Launch Period
------ -------------
Galaxy IIIC May 2001
Option Launch 1 [*************]
Option Launch 2 [*************]
Option Launch 3 [*************]
Option Launch 4 [*************]
6.2 The Launch Slot shall be determined by mutual agreement of the Parties
at least [******] [******] prior to the first day of the established
Launch Period based on the availability of Launch Opportunities. Sea
Launch shall submit a proposed Launch Slot to PanAmSat at least
[************] prior to the first day of the established Launch Period.
6.3 The Launch Day shall be determined by mutual agreement of the Parties
at least [******* *********] prior to the first day of the Launch Slot
based on the availability of Launch
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SEA LAUNCH AND PANAMSAT PROPRIETARY
Opportunities. Sea Launch shall submit a proposed Launch Day to
PanAmSat at least [**************] prior to the first day of the
Launch Slot.
6.4 The Launch Window shall be determined by mutual agreement of the
Parties no later than forty five (45) days prior to the Launch Day
based on the availability of Launch Opportunities.
6.5 [******************]
[**********************************************************************
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6.5.1 [************************************************************
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6.5.1.1. [***************************************************
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6.5.2. [*************************************************************
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6.5.3. [*************************************************************
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ARTICLE 7 -- LAUNCH POSTPONEMENTS
7.1 Either party shall have the right to postpone the then current Launch
Schedule in accordance with the provisions of this Article 7. The
postponing Party shall provide due notice to the other Party. For
purposes of Paragraph 7.4 of this Article 7, Launch Postponements, and
Paragraphs 14.1.2 and 14.2.2 of Article 14, Termination, the length of
a postponement will be measured from the then current Launch Schedule
at the time of postponement to the Launch Schedule proposed in
conjunction with the initial request for a change to the Launch
Schedule. For Purposes of Paragraph 7.5 of this Article 7, the length
of postponement will be measured from the then current Launch Day at
the time of postponement to the Launch Day proposed in conjunction with
the initial request for a
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SEA LAUNCH AND PANAMSAT PROPRIETARY
change to the Launch Day. Postponements under this Article 7 do not
include excusable delays as defined under Article 8.
7.2 Postponements requested by PanAmSat. [*********] prior to Launch,
PanAmSat, by written notice to Sea Launch, may request a change to the
Launch Schedule for any reason. PanAmSat must request such a change as
soon as PanAmSat has reason to believe that it will not maintain the
then current Launch Schedule. At the time of the request for such
change, PanAmSat shall propose a new Launch Schedule that it is ready
and able to maintain. Within thirty (30) days of the receipt of
PanAmSat's written request for a Launch Schedule change, Sea Launch
shall inform PanAmSat in writing if a Launch Opportunity is available
as requested or shall propose an alternative Launch Schedule as close
as possible to the Launch Schedule requested by PanAmSat. If an
alternative Launch Schedule is proposed by Sea Launch, PanAmSat shall,
within thirty (30) days of receipt of Sea Launch's proposal, either
accept the alternative Launch Schedule proposed by Sea Launch, or
propose another Launch Schedule. [*******************************
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7.2.1 [************************************************************
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7.3 Postponements by Sea Launch. [***********] prior to Launch, Sea Launch,
by written notice to PanAmSat, may request a change to the Launch
Schedule for any reason. Sea Launch must request such a change as soon
as Sea Launch has reason to believe that it will not maintain the then
current Launch Schedule. At the time of the request for such change,
Sea Launch shall propose a new Launch Schedule that it is ready and
able to maintain. Within thirty (30) days of the receipt of Sea
Launch's written request for a Launch Schedule change, PanAmSat shall
inform Sea Launch in writing of its acceptance of the revised Launch
Schedule proposed by Sea Launch or propose a different revised Launch
Schedule.
7.4 For postponements which occur after a Launch Day has been agreed in
accordance with Article 6, Launch Schedule, postponement fees shall be
paid by the postponing Party as provided in this paragraph 7.4. [*****
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********************************************************] Postponement
fees shall be deemed as liquidated damages and not as a penalty.
Postponement fees shall be the sole remedy available to the
Parties for any and all impacts associated with a postponement or
cumulative postponement of the Launch Day that [***************
**************************] No Launch postponement fees
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SEA LAUNCH AND PANAMSAT PROPRIETARY
will be assessed for excusable delays as defined under Article 8 of
this Contract [*******************************************************
*********]
7.5 In the event of a Launch delay, the schedule for payments of the
Contract price shall be determined in accordance with Article 5,
Payments.
ARTICLE 8 -- EXCUSABLE DELAYS
8.1 Neither Party shall be held responsible for delays in the performance
of its obligations caused by excusable delay, and the date on which
those obligations are to be fulfilled shall be extended for the period
of time caused by the delay. For purposes of this Contract, excusable
delay shall include, but is not limited to: acts of God; fires;
interruptions of essential services such as electricity, natural gas,
fuels and water; adverse weather or launch safety conditions that do
not permit Launch, any condition which jeopardizes the safety of the
employees of Sea Launch or PanAmSat or their subcontractors; acts
(including delay or failure to act) of any governmental authority (de
jure or de facto) (provided that the Party claiming excusable delay
shall have exercised its reasonable best efforts to obtain in a timely
manner and thereafter maintain, and shall have complied in all other
respects with its obligations hereunder regarding, required licenses,
approvals or other authorizations from any governmental authority),
embargoes, strikes or labor stoppages; wars; riots; revolutions, and
hijacking, which is beyond the reasonable control of the Party claiming
excuse, including any such event affecting a subcontractor of said
Party. Each party shall promptly notify the other Party of a potential
excusable delay event.
8.2 The inability of Sea Launch to perform due to any export control
restrictions or delays caused by or arising from assignment of this
Contract in whole or in part by PanAmSat pursuant to Article 19 shall
be an excusable delay event, provided that Sea Launch has complied with
its obligations under Paragraph 11.3.
ARTICLE 9 -- OBLIGATIONS BEFORE and AFTER LAUNCH
9.1 Each Party shall provide to the other Party the data, hardware and
services identified in the Statement of Work according to the schedules
provided therein. The data, hardware and services will be received in a
condition suitable for their intended use as defined by the
requirements of the Statement of Work. In the event that the data,
hardware or services are not received according to their schedule or
requirements, and the non-availability will affect the Launch Schedule,
the following procedure shall apply.
9.2 The Party receiving or failing to receive the data, hardware or
services shall promptly provide written notification to the other Party
of the non-availability of the data, hardware or services, including a
statement of the discrepancy and recommended solutions. The Party
receiving the notification shall provide written direction to the other
Party on how to proceed,
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considering the recommendations of the other Party, within seven (7)
days of the receipt of notice.
9.3 The Party receiving or failing to receive the data, hardware or
services shall use its best efforts to continue its obligations under
the Contract without affecting the Launch Schedule. If, despite the
best efforts of the receiving Party, the Launch Schedule is affected as
a result of the failure of one Party to deliver the data, hardware or
services in accordance with the schedule or requirements of the
Statement of Work, a launch postponement shall be declared by the
receiving Party and such delay shall be considered a delay under the
appropriate provisions of Article 7, by the Party providing or failing
to provide the data, hardware or services.
9.4 The Parties recognize that Sea Launch has no ability to alter the
performance or in any way to correct any defect in the Launch Vehicle
after Launch. An agreement by PanAmSat to conduct the Launch, given at
the final Launch readiness review, shall constitute a waiver by
PanAmSat of any claim that the Launch Vehicle or Launch Services do not
meet the requirements of the Statement of Work, or that the Launch
Vehicle or Launch Services are not otherwise suitable for their
intended purpose. Except for Postlaunch Services, the sole liability or
obligation of Sea Launch for performance subsequent to Launch is to
provide a reflight or refund in accordance with Article 12, Option for
Reflight or Refund, if such election has been made by PanAmSat prior to
Launch, or to provide a replacement Launch in accordance with Article
13, Replacement Launch. [*********************************************
************************************************************]
ARTICLE 10 -- COMMUNICATION and COORDINATION BETWEEN SEA LAUNCH and PANAMSAT
10.1 All notices and communications between the Parties relating to
financial, contractual or administrative matters of the Contract that
are required or permitted under the Contract, in order to be given
effect, shall be in writing and shall be deemed received upon actual
receipt when delivered in person or by reputable overnight delivery
service or upon acknowledgement of receipt (electronically or
otherwise) if sent by facsimile (or, if acknowledged electronically
after normal business hours, then upon the next succeeding commencement
of normal business hours), addressed as listed below.
Notices to Sea Launch: Sea Launch Company, LDC
Windward I, Safehaven Corporate Center,
Xxxx Xxx Xxxx
X.X. Xxx 00000 XXX
Xxxxx Cayman
Cayman Islands, British West Indies
Fax (000) 000-0000
Attention: X. X. Xxxxx
Director of Contracts
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SEA LAUNCH AND PANAMSAT PROPRIETARY
Notices to PanAmSat: PanAmSat Corporation
0000 Xxxxxx Xxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Fax (000) 000-0000
Attention: Associate General Counsel
With a copy to: PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx
Vice President, Space Systems
10.2 Each Party shall designate a Mission Manager no later than one (1)
month after the effective date of the Contract. The task of the Mission
Managers shall be to supervise and coordinate the respective
responsibilities of the Parties. The Mission Managers are not
authorized to direct work contrary to the requirements of the Contract
or to make modifications to the Contract. Each Party may replace its
Mission Manager provided the other Party has received notification in
writing of such action. Sea Launch shall appoint as its Mission Manager
a "U.S. Person" (as such term is defined by 22 C.F.R. ss.120.15)
employed by Boeing Commercial Space Company. Subject to Paragraph 11.1,
PanAmSat shall deliver, or cause the manufacturer of the Spacecraft to
deliver, all technical information and data required under this
Contract to such Mission Manager appointed by Sea Launch.
10.3 All documentation, notices, reports and correspondence under the
Contract shall be submitted and maintained in the English language. All
communication at the Home Port and Launch Base between the Parties and
with Related Third Parties and between the personnel of the Parties or
Related Third Parties shall be in English. The Parties shall mutually
agree upon standards for transliteration and translation of non-English
information.
ARTICLE 11 -- PERMITS AND APPROVALS
11.1 Sea Launch shall be responsible for obtaining and maintaining all U.S.
governmental licenses or authorizations necessary for the performance
of the Launch Services, except that PanAmSat shall be responsible for
obtaining: (1) any license required for radio telecommunication with
the Spacecraft after separation from the Launch Vehicle and (2) any
license or approval required between PanAmSat and a foreign entity in
the event that PanAmSat chooses to procure a Spacecraft from a foreign
manufacturer for an Option Launch, including any agreement or approval
necessary to authorize the re-transfer of foreign-origin technical data
related to the Spacecraft to Boeing Commercial Space Company or Sea
Launch. PanAmSat also shall be responsible to obtain or ensure that its
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Spacecraft manufacturer has obtained all necessary licenses and
approvals required to import the Spacecraft into the United States, if
necessary, or export the Spacecraft to support a Launch in
international waters. It is understood between the Parties that no
license or approval is required for PanAmSat to provide U.S.-origin
technical data and assistance related to the Spacecraft as required by
the Statement of Work or ICD to Boeing Commercial Space Company, as
Mission Manager for Sea Launch under Paragraph 10.2. Each Party agrees
to assist and support the other Party to the extent practicable, in
obtaining such licenses, permits, approvals, and authorizations.
11.2 US GOVERNMENT EXPORT CONTROL: All requirements or obligations of Sea
Launch and PanAmSat under this Contract to provide information,
documentation, or other materials, or to respond to questions or
requests for information may be subject to US export control laws,
regulations and policies and US Government approvals. Inability of
either Party to obtain such approvals, or delays in the timely delivery
of any data or information required under this Contract due to the US
Government approval process, shall not affect either Party's rights
under this Contract, provided, in the case of a Party that is unable to
obtain such an approval, that such Party has complied with its
obligations under Paragraph 11.3.
11.3 Both Parties warrant that they will exercise reasonable best efforts to
obtain and maintain thereafter all necessary licenses/approvals in
order to comply with all requirements and obligations under this
Contract to provide such information or materials and respond to
questions or requests for information
ARTICLE 12 -- OPTION FOR REFLIGHT OR REFUND
12.1 The Launch Service Price provides for one Launch and does not obligate
Sea Launch to provide a reflight or refund in the event that the Launch
is a Total Failure, Constructive Total Failure or Partial Failure.
However, up to [**********] prior to the established Launch Day,
PanAmSat may, by written notice to Sea Launch, elect to purchase from
or through Sea Launch reflight or refund insurance coverage for any
Launch to be provided by Sea Launch. The reflight or refund coverage
applies only to the Launch for which such coverage is elected and is
not transferable to any other Launch. Reflight coverage is applicable
to a Total Failure or a Constructive Total Failure; [*****************
**********************************************************] refund
coverage is applicable to a Total Failure, Constructive Total Failure,
or a Partial Failure.
12.2 The following conditions will apply to the election of reflight or
refund coverage:
12.2.1 Rates for such coverage are [*****] of the Contract Price
provided for in Article 4 for reflight and [*****] of the
Contract Price provided for in Article 4 for refund.
12.2.1.1 PanAmSat may exercise the option for reflight or
refund coverage, at the firm rate stated in
Paragraph 12.2.1, by providing written notice to
Sea Launch no later than [************] prior to
the established Launch
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Day. PanAmSat is not required to pay Sea Launch
for reflight or refund insurance until PanAmSat
exercises this insurance option in accordance with
the terms of this Article.
12.2.1.2 Upon receipt by Sea Launch of written notice from
PanAmSat of its exercise of the optional reflight
or refund coverage, Sea Launch shall submit a
separate invoice to PanAmSat for the insurance
premium which shall be due and payable in
accordance with Article 5, Payments, Paragraph 5.3;
provided that PanAmSat shall be required to pay Sea
Launch no earlier than Sea Launch is required to
pay the premium for such coverage to its insurers.
12.2.2 If the reflight or refund coverage is exercised and the Launch
is declared a Total Failure or Constructive Total Failure, Sea
Launch shall provide to PanAmSat either: (i) one (1) reflight,
if PanAmSat elected reflight coverage, or (ii) a refund of the
full price of the Launch set forth in Article 4, Contract
Price, if PanAmSat elected refund coverage. If the Launch is
declared a Partial Failure, Sea Launch shall provide to
PanAmSat [*****************************************
********************] a refund based on the Loss Formula
multiplied by the refund amount, if PanAmSat elected refund
coverage.
12.2.3 Sea Launch shall provide a reflight [*********************] of
the receipt by Sea Launch of PanAmSat's request for a
reflight, subject to Paragraph 12.2.5 in the case of a New
Spacecraft Type. The Parties will negotiate in good faith a
mutually acceptable Launch Period for the reflight.
12.2.4 The reflight, if requested, will be governed by the terms and
conditions of the Contract, except that the provisions of this
Article, Article 4, Contract Price, and Article 5, Payment,
will not apply.
12.2.5 Spacecraft selected by PanAmSat for the reflight shall be a
Prior Spacecraft Type; provided, however, that PanAmSat shall
pay Sea Launch its actual and reasonable costs of performing
any mission analysis materially different from that for the
failed Spacecraft, [******************]; provided further,
that PanAmSat shall be entitled to designate a New Spacecraft
Type for a reflight, in which event (i) PanAmSat shall pay to
Sea Launch its actual and reasonable costs for interface and
integration of such New Spacecraft Type and the Launch Vehicle
and (ii) the Parties shall negotiate in good faith a Launch
Schedule for such reflight due to additional time required for
such interface and integration work. Any amounts payable by
PanAmSat under this Paragraph 12.2.5 shall be due and payable
pro rata in accordance with the payment schedule in Paragraph
5.1.2.
12.2.6 Coverage for either reflight or refund shall attach upon
Launch and will terminate upon either a Total Failure or
separation of the Spacecraft from the Launch Vehicle. Damage
to the Spacecraft caused by the Launch Vehicle following
separation shall be deemed to have occurred prior to
separation.
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12.2.7 PanAmSat will at all times act with due diligence and take all
actions practical and reasonable to avoid or minimize any loss
or degradation of lifetime or operational capacity of the
Spacecraft.
12.2.8 PanAmSat shall respond to any and all written inquiries and
requests by Sea Launch for information relating to Spacecraft
design, testing, or quality control. Prior to the Launch,
PanAmSat shall provide to Sea Launch all material information,
including but not limited to Spacecraft specifications,
operating conditions, and performance parameters. If, at any
time before Launch, a corporate officer of PanAmSat or
PanAmSat's Program Manager become aware of any changes thereto
made after award of the Contract that could materially affect
the risk of Total Failure, Constructive Total Failure, or
Partial Failure; PanAmSat shall promptly notify Sea Launch of
such change. Upon receipt of such notice, Sea Launch shall
have the right to review all of the terms and conditions of
this Article with PanAmSat, and to the extent the Parties
mutually agree in good faith that the change results in a
material change in risk of Total Failure, Constructive Total
Failure or Partial Failure, to renegotiate the affected terms
of this Article.
12.2.9 In the event that PanAmSat believes that the Spacecraft has
been destroyed, disabled, or impaired so as to constitute a
Total Failure, Constructive Total Failure, or Partial Failure
and that it is entitled to either a reflight,
[*****************] or refund, PanAmSat shall provide written
notice to Sea Launch as soon as possible, and in no event
later than thirty (30) days after PanAmSat has become aware of
such occurrence. Notwithstanding the foregoing, PanAmSat shall
submit a sworn proof of loss or impairment no later than
one-hundred-and-eighty (180) days following the Launch. If
PanAmSat does not provide Sea Launch with such proof of loss
or impairment within one hundred and eighty (180) days of
Launch, Sea Launch has no further obligation under this
Article 12. Refunds will be paid in U. S. currency
seventy-five (75) days after the proof of loss has been agreed
to by the Sea Launch Insurers. Sea Launch Insurers shall be
required to respond within thirty (30) days of receipt of
proof of loss.
12.2.10 In the event that a reflight, [*******************] or refund
is provided to PanAmSat and due to subsequent events, the
anticipated degradation of the lifetime or operational
capacity of the Spacecraft is reduced or eliminated, PanAmSat
will return to Sea Launch an amount equal to the reflight
amount [*** *****************************] or the Launch
Service Price for the failed Launch, or the amount equal to a
proportional refund. Reasonable sums expended by PanAmSat to
reduce the loss shall be deducted from the amount to be
returned to Sea Launch.
12.2.11 In the event the Launch is declared a Total Failure, or a
Constructive Total Failure, and a reflight or refund is
provided by Sea Launch, Sea Launch shall be entitled to share
in any proceeds realized from the operation of the impaired
Spacecraft or of any salvage value from the Spacecraft up to
the amount of the reflight or refund. In the event the Launch
is declared a Partial Failure and a [*****************] refund
is provided by Sea Launch, Sea Launch shall be entitled to
share in any proceeds from the portion of the affected
Spacecraft for which such [*******
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**********] refund was provided. Sea Launch's share of
proceeds under this Paragraph 12.2.11 shall be determined
after good faith negotiations between the Parties and shall be
capped at the amount of such reflight, [******************] or
refund.
12.3 This reflight/refund coverage does not apply to loss or damage caused
by or resulting from:
12.3.1 War, hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against
an actual, impending or expected attack by: (i) any government
or sovereign power (de jure or de facto); (ii) any authority
maintaining or using a military, naval, or air force; (iii) a
military, naval, or air force; (iv) any agent or any such
government, power authority or force.
12.3.2 Any anti-satellite device, or device employing atomic or
nuclear fission and/or fusion, or device employing laser or
directed energy beams.
12.3.3 Insurrection, strikes, riots, civil commotion, rebellion,
revolution, civil war, usurpation, or action taken by a
government authority in hindering, combating or defending
against such an occurrence, whether there be a declaration of
war or not.
12.3.4 Confiscation by order of any government or governmental
authority or agent (whether secret or otherwise) or public
authority.
12.3.5 Nuclear reaction, nuclear radiation, or radioactive
contamination of any nature, whether such loss or damage be
direct or indirect, except for radiation naturally occurring
in the space environment.
12.3.6 Willful or intentional acts of PanAmSat personnel (except for
the Range Safety Officer acting within the limits of his or
her responsibility) designed to cause loss or failure of a
Launch; however, this exclusion shall not apply to actions of
any PanAmSat employee while acting outside of his or her
authorized responsibilities.
12.4 The determination of whether a Total Failure, a Constructive Total
Failure, or a Partial Failure has occurred shall rest with the failure
review board.
12.4.1 The failure review board shall consist of people appointed by
Sea Launch who have sufficient technical expertise to assess
the alleged failure and its cause. PanAmSat may have
representation on the failure review board [*****************
*************************************************]
12.5. The remedies set forth in this Article 12, and in Article 13, if
applicable, shall constitute the sole and exclusive remedies of
PanAmSat for Total Failure, Constructive Total Failure, or Partial
Failure.
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ARTICLE 13 -- REPLACEMENT LAUNCH
13.1 PanAmSat may request a replacement launch in the event of a Total
Failure, Constructive Total Failure or Partial Failure.
13.2 A request by PanAmSat for a replacement launch shall be in writing and
received by Sea Launch [************************] after the
determination of a Total Failure, Constructive Total Failure or
Partial Failure. The request shall indicate the Launch Period desired
for the replacement launch.
13.3 Sea Launch shall inform PanAmSat, after receipt of PanAmSat's request,
if a Launch Opportunity exists as requested. If a Launch Opportunity
does not exist as requested, the Parties will negotiate in good faith a
mutually acceptable Launch Period. Sea Launch shall provide a
replacement launch within [****************] of the receipt of
PanAmSat's written request for a replacement launch, subject to
Paragraph 13.5 in the case of a New Spacecraft Type.
13.4 Any agreement reached by the Parties on a replacement launch shall be
in writing. The replacement launch shall be provided in accordance with
the terms and conditions of the Contract.
13.5 The Spacecraft selected by PanAmSat for the replacement launch shall be
a Prior Spacecraft Type; provided, however, that PanAmSat shall pay to
Sea Launch its actual and reasonable costs of performing any mission
analysis materially different from that for the failed Spacecraft,
[*******************] provided, further, that PanAmSat shall be
entitled to designate a New Spacecraft Type for a replacement launch,
in which event (i) PanAmSat shall pay to Sea Launch its actual and
reasonable costs for interface and integration of such New Spacecraft
Type and the Launch Vehicle, and (ii) the Parties shall negotiate in
good faith a Launch Schedule for such replacement launch due to
additional time required for such interface and integration work. Any
amounts payable by PanAmSat under this Paragraph 13.5 shall be due and
payable pro rata in accordance with the payment schedule for such
replacement launch.
13.6 PanAmSat shall pay Sea Launch the same price for the replacement launch
as paid for the Launch declared a Total Failure, Constructive Total
Failure or Partial Failure, subject to escalation at a rate of
[***********************] calculated from the first day of the Launch
Period established at the time of Contract award to the first day of
the Launch Period agreed upon by the Parties in accordance with
Paragraph 13.3. [*****************************************************
**********************************************************************
******************************************************************]
13.7 Payment for the replacement launch shall be made by PanAmSat in
accordance with the payment schedule set forth in Article 5, Payments.
The initial payment shall be made by PanAmSat at the time of the
written agreement on the Launch Period of the replacement launch in
accordance with Paragraph 13.3. The initial payment shall include all
sums necessary to make the payments current.
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13.8. The remedies set forth in this Article 13, and in Article 12, if
applicable, shall constitute the sole and exclusive remedies of
PanAmSat for Total Failure, Constructive Total Failure, or Partial
Failure.
ARTICLE 14 -- TERMINATION
14.1 Termination by PanAmSat
14.1.1 PanAmSat, for its convenience, may terminate the
Contract or any Launch under the Contract at any time prior to
Launch by written notice to Sea Launch. In the event of such a
termination, Sea Launch shall be entitled to retain, as a
termination charge and not as a penalty, [******************
*************************************************************
*********** Within thirty (30) days of the date of the
termination, Sea Launch shall refund to PanAmSat the balance
of all payments made for the Launch terminated in excess of
the termination charge.
14.1.2 PanAmSat, by proper written notice to Sea Launch, may
terminate a Launch for cause if Sea Launch, for reasons other
than excusable delay or PanAmSat's changes or postponements,
has delayed or postponed a given Launch by more than
[*************]. PanAmSat's right to terminate under this
paragraph is conditioned upon receipt of written notification
from Sea Launch of a Launch postponement or cumulative
postponements for any given Launch exceeding [**********] or
upon the occurrence of a Launch delay or delays by Sea Launch
which exceed [*********] Upon such termination for cause, Sea
Launch shall refund to PanAmSat all payments theretofore
received by Sea Launch for the terminated Launch, and pay any
unpaid postponement fees assessed in accordance with Paragraph
7.4. Only the Launch delayed or postponed by Sea Launch may be
terminated by PanAmSat under this paragraph.
14.1.3 If PanAmSat brings any claim for material breach prior to
Launch, other than for a Launch delay, the exclusive remedy of
PanAmSat shall be termination of the Contract and refund of an
amount up to the total of all payments made for every Launch
subject to termination.
14.1.4 The exclusive rights and remedies of PanAmSat subsequent to
Launch are limited to a reflight or a refund if such coverage
has been elected in accordance with Article 12, Option for
Reflight or Refund, or a replacement launch in accordance with
Article 13, Replacement Launch.
14.1.5 The rights and remedies of PanAmSat provided in this Contract
shall be the exclusive remedies of PanAmSat in the event of a
delay, default or breach by Sea Launch of this Contract.
14.2 Termination by Sea Launch
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14.2.1 Sea Launch may terminate a Launch Service in the event that
PanAmSat fails to comply with the payment obligations
specified in Article 5, Payments. In no event shall the
effective date of termination by Sea Launch under this
Paragraph be earlier than sixty (60) days after the due date
of any payment made; provided, however, that the Launch
Service shall not be terminated in the event that PanAmSat
makes payment in full to Sea Launch (or, in the event of
disputed amounts, into escrow in accordance with Paragraph
20.2) of such past due amounts prior to the effective date of
termination. Only the Launch Service for which payments are
delinquent may be terminated under this Paragraph. In the
event of such termination, Sea Launch shall retain or receive
as a termination charge and not as a penalty,
[************************************************************
*********************************************] Within thirty
(30) days of the date of the termination, Sea Launch will
refund to PanAmSat the balance of all payments made for the
Launch terminated in excess of the termination charge.
14.2.2 Sea Launch, by proper written notice to PanAmSat, may
terminate a Launch for cause if PanAmSat, for reasons other
than Launch Schedule or Payload changes under Paragraphs 14.5
and 14.6, excusable delay or Sea Launch's changes or
postponements, has delayed or postponed a given Launch
pursuant to Paragraph 7.2 by more than [***********] Sea
Launch's right to terminate under this paragraph is
conditioned upon receipt of written notification from PanAmSat
of a Launch postponement or cumulative postponements for any
given Launch pursuant to Paragraph 7.2 exceeding
[***************], or upon the occurrence of a Launch delay or
delays by PanAmSat pursuant to Paragraph 7.2 which exceed
[***************] In the event of such termination for cause,
Sea Launch shall be entitled to retain, as a termination
charge and not as a penalty, [*******************************
*************************************************************
*****************************************] Only the Launch
delayed or postponed may be terminated under this Paragraph.
14.3 Any termination for default or breach under this Article must be
preceded by thirty (30) days written notification that specifies the
default or breach and the intent to terminate in the event that the
default or breach is not or cannot be cured within thirty (30) days of
such notice.
14.4 Both Parties agree that the settlement terms specified in this Article
represent fair compensation for both Parties, and shall constitute the
exclusive rights and remedies available to the Parties in the event of
termination by either Party.
14.5 [*********************************************************************
*********]
14.5.1 [************************************************************
*************************************************************
**********************************************************]
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14.5.2 [************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
***********************************]
14.5.3 [************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
***************]
14.6 [*****************************************************]
14.6.1 [************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
*************************************************************
********************]
14.6.2 [************************************************************
*************************************************************
*************************************************************
*************************************************************
*************]
ARTICLE 15 -- RISK ALLOCATION
15.1 Waiver of Liability
15.1.1 Sea Launch and PanAmSat agree to a reciprocal waiver of
liability pursuant to which each Party agrees not to bring a
claim in arbitration or otherwise or to xxx the other Party
or Related Third Parties of the other Party, for any property
damage
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or loss it sustains or for any personal injury to, death of,
or property damage or loss sustained by any of its employees,
directors, officers and agents, arising in any manner in
connection with the performance of or activities carried out
pursuant to the Contract, or other activities on or around the
Home Port or Launch Base, or the operation or performance of
the Launch Vehicle or the Spacecraft. Such waiver of liability
shall also extend to any indirect, special, incidental or
consequential damages or loss of revenue or business injury or
loss resulting from any delay in the Launch Schedule, damage
to the Spacecraft before or after Launch, or from the failure
of the Spacecraft to reach its planned orbit or to operate
properly.
15.1.2 Each Party agrees to waive claims against the other Party
regardless of whether the loss, damage, or injury arises from
the acts or omissions, of either Party or its Related Third
Parties. Except as provided in Paragraph 15.1.5, this waiver
shall extend to all theories of recovery including claims in
contract for property loss or damage, tort, negligence, strict
liability or product liability.
15.1.3 Sea Launch and PanAmSat shall each extend the waiver and
release of claims of liability as provided in Paragraphs
15.1.1 and 15.1.2 to its Related Third Parties (other than
employees, officers or directors) by requiring them to waive
and release all claims of liability they may have against the
other Party and the Related Third Parties of the other Party.
15.1.4 The waiver and release by each Party and its Related Third
Parties of claims against the other Party and the Related
Third Parties of the other Party extend to the successors and
assigns, whether by subrogation or otherwise, of the Party and
its Related Third Parties. Each Party shall obtain a waiver of
subrogation and release of any right of recovery against the
other Party and its Related Third Parties from any insurer
providing coverage for the risks of loss for which the Party
hereby waives claims of liability against the other Party and
its Related Third Parties.
15.1.5 Notwithstanding anything herein to the contrary, the waivers
of liability in this Article shall not act to waive any claim
for liability based on gross negligence or willful misconduct
of a Party.
15.2 Indemnification -Property Loss and Damage and Bodily Injury
15.2.1 To the extent that such liability is not covered by an
insurance policy of either Party, each Party agrees to defend,
hold harmless and indemnify the other Party and its Related
Third Parties, for any liabilities, costs and expenses
(including attorneys' fees, cost and expenses), arising as a
result of claims brought by Related Third Parties of the
indemnifying Party, for property loss or damage, or bodily
injury, including death, sustained by such Related Third
Parties, arising in any manner in connection with the
performance of or activities carried out pursuant to the
Contract, or other activities on or around the Home Port or
Launch Base, or the
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operation or performance of the Launch Vehicle or the
Spacecraft. Such indemnification shall extend to any indirect,
special, incidental or consequential damage or loss of revenue
or business injury or loss resulting from any delay in the
Launch Schedule, damage to the Spacecraft before or after
Launch, or from the failure of the Spacecraft to reach its
planned orbit or to operate properly.
15.2.2 To the extent that such claims of liability are not covered by
insurance of either Party, Sea Launch shall defend, hold
harmless and indemnify PanAmSat and its Related Third Parties
for any and all claims of Third Parties, for property loss or
damage, or bodily injury, including death, arising in any
manner from the operation or performance of the Launch
Vehicle.
15.2.3 To the extent that such claims of liability are not covered by
insurance of either Party, PanAmSat shall defend, hold
harmless and indemnify Sea Launch and its Related Third
Parties for any and all claims of Third Parties, for property
loss or damage, or bodily injury, including death, arising in
any manner from the operation or performance of the Spacecraft
or from any claim for indirect damages, consequential damages
or other loss of revenue or business injury or loss resulting
from any loss of or damage to the Spacecraft before or after
Launch, or from the failure of the Spacecraft to reach its
planned orbit or operate properly.
15.2.4 Notwithstanding Paragraphs 15.2.2 and 15.2.3 above, Sea Launch
shall not be obligated to defend, hold harmless or indemnify
PanAmSat for any claim brought by a Third Party against
PanAmSat resulting from any damage to or loss of the
Spacecraft, whether sustained before or after Launch, and
whether due to the operation, performance, non-performance or
failure of the Launch Vehicle or due to any other causes.
PanAmSat shall defend, hold harmless and indemnify Sea Launch
for any claims brought by Third Parties against Sea Launch for
damage to or loss of the Spacecraft, whether sustained before
or after Launch, or whether due to the operation, performance,
non-performance or failure of the Launch Vehicle, or due to
other causes.
15.2.5 The indemnification provided by this Article for property loss
or damage, or bodily injury, extends to all damage or injury
regardless of whether such loss, damage or injury arises from
the acts or omissions, whether due to simple negligence
(active or passive) or otherwise, but expressly excludes gross
negligence and willful misconduct, of either Party or the
Related Third Parties of either Party.
15.2.6 The right of either Party or Related Third Parties to
indemnification under this Article is not subject to
subrogation or assignment and the obligation of either Party
set forth herein to indemnify the other Party or Related Third
Parties extends only to that Party or those Related Third
Parties and not to others who may claim through them by
subrogation or assignment.
15.3 Indemnification by the United States Government
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15.3.1 The Parties recognize that under the Commercial Space Launch
Act Amendments of 1988, and subject thereto, that to the
extent provided in advance in appropriation Acts or to the
extent there is enacted additional legislative authority to
provide for the payment of claims, the Secretary of
Transportation shall provide for the payment by the United
States Government of successful claims (including reasonable
expenses of litigation or settlement) of a third party against
Sea Launch, or its contractors, subcontractors, or customers,
or the contractors or subcontractor of such customers,
resulting from activities carried out pursuant to a license
issued or transferred under the Act for death, bodily injury,
or loss of or damage to property resulting from activities
carried out under the license, but only to the extent that the
aggregate of such successful claims arising out of any
particular launch-
(A) Is in excess of the amount of insurance or demonstration
of financial responsibilities required by the Secretary of
Transportation; and
(B) Is not in excess of the level that is $1,500,000,000 (plus
any additional sums necessary to reflect inflation occurring
after January 1, 1989) above such amount.
15.3.2 Sea Launch makes no representation, nor provides any warranty,
that payment of claims by the United States Government will be
available pursuant to the Commercial Space Launch Act. The
sole obligation of Sea Launch is to make a good faith effort
to obtain such payment as may be available from the United
States Government.
15.3.3 PanAmSat shall execute and deliver an Agreement for Waiver of
Claims and Assumption of Responsibility, which is required by
the U.S. Department of Transportation as a condition of
granting Sea Launch permission to Launch. In the event of any
inconsistency between any provision in this Article and the
Agreement for Waiver of Claims and Assumption of
Responsibility, such Agreement shall be construed and
interpreted so as to be made consistent with this Article.
15.4 Indemnification - Intellectual Property Infringement
15.4.1 Sea Launch agrees to defend, hold harmless and indemnify
PanAmSat and its Related Third Parties from and against any
liability, cost, risk, loss, damage, or injury, or any
consequences thereof, resulting from an infringement or a
claim for infringement of the patent right or any other
intellectual property rights of a Third Party or a Related
Third Party of Sea Launch which may arise from the provision
of Launch Services by Sea Launch.
15.4.2 PanAmSat agrees to defend, hold harmless and indemnify Sea
Launch and its related Third Parties from and against any
liability, cost, risk, loss, damage, or injury, or any
consequences thereof, resulting from an infringement or a
claim for infringement of the patent right or any other
intellectual property right of a Third Party or a Related
Third Party of PanAmSat which may arise from the design,
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manufacture, installation of the Payload in the Launch
Vehicle, Launch or operation of the Spacecraft (excluding any
infringement or claim for infringement for which Sea Launch is
required to defend, hold harmless and indemnify PanAmSat
pursuant to Paragraph 15.4.1).
15.5 Rights and Obligations
15.5.1 The rights to indemnification specified in Paragraphs 15.2 and
15.4 shall be subject to the following conditions.
15.5.2 The Party seeking indemnification shall promptly advise the
other Party in writing of the filing of any suit, or of any
written or oral claim alleging an infringement of any right of
a Related Third Party or a Third Party, upon receipt thereof,
and shall provide the indemnitor, at the indemnitor's request
and expense, with copies of all relevant documentation.
15.5.3 The Party seeking indemnification shall not make any admission
nor shall it reach a compromise or settlement without the
prior written approval of the other Party, which approval
shall not be unreasonably withheld or delayed.
15.5.4 The Party required to defend, indemnify and hold the other
harmless shall assist in and shall have the right to assume,
when not contrary to the governing rules of procedure, the
defense of any claim or suit or settlement thereof, and shall
pay all reasonable litigation and administrative costs and
expenses, including attorney fees, incurred in connection with
the defense of any such suit, shall satisfy any judgments
rendered by a court of competent jurisdiction in such suits
and shall make all settlement expenses.
15.5.5 The Party indemnified may participate in any defense at its
own expense, using counsel reasonably acceptable to the Party
required to indemnify, provided that there is no conflict of
interest and that such participation does not otherwise
adversely affect the conduct of the proceedings.
15.6 Third Party Liability Insurance.
15.6.1 Sea Launch shall maintain third party liability insurance in
the amount specified by the Secretary of Transportation to
provide for the payment of claims by Third Parties for death
or bodily injury or for loss of or damage to property they may
sustain, and any consequences thereof, resulting from, or
arising in connection with, the performance of the Contract.
Such Third Party liability insurance shall cover Sea Launch
and PanAmSat, and the Related Third Parties of Sea Launch and
PanAmSat.
15.6.2 The third party liability insurance coverage shall attach upon
the time the Spacecraft is under the care, custody and control
of Sea Launch at the Home Port or Launch Base and shall
terminate upon return of all parts of the Launch Vehicle
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to Earth, or twelve (12) months after Launch, whichever is
earlier. If the Spacecraft is removed from the Home Port or
Launch Base for reasons other than to conduct the Launch, the
third party liability coverage shall terminate upon removal of
the Spacecraft from the Home Port or Launch Base.
15.6.3 The third party liability insurance obtained pursuant to this
Article shall not cover loss of or damage to the Spacecraft
even if a claim is brought by a Third Party or Related Third
Party.
ARTICLE 16 -- PROPRIETARY DATA
16.1 The Parties recognize that technical information may be disclosed by
one Party to the other Party in the course of performance under the
Contract and that the disclosing Party may desire to protect such
information against unrestricted use or disclosure to others. To
provide protection for such information, each Party agrees to respect
such information and, to the extent it includes proprietary data, to
handle such information as provided for in this Article.
16.2 For the purpose of this Contract, the term "proprietary data" means
each Party's proprietary, secret, or confidential information, data,
processes, and physical materials, including information originated by,
or available only from the disclosing Party and information originating
with a Third Party with respect to which the disclosing Party has
limited disclosure rights, and which the disclosing Party desires to
protect against unrestricted disclosure to others, provided that such
information, data, processes, and physical materials are marked
"proprietary data" or with an equivalent legend.
16.3 A Party receiving proprietary data shall take all reasonable
precautions to prevent publication or disclosure of proprietary data to
others, and shall use such data only for the purpose of performance
under the Contract. Any other use of such proprietary data shall be
made only upon prior written consent of the disclosing Party. Each
Party agrees to protect the other Party's proprietary data with the
same degree of care as it protects its own proprietary data, and to
restrict disclosures of such proprietary data to those persons and
subcontractors having a need to know the data.
16.4 The aforementioned restrictions on the use and disclosure of
proprietary data shall not apply if the proprietary data:
16.4.1 Is in the public domain at the time of receipt or comes into
public domain thereafter through no act of the receiving Party that is
inconsistent with the aforementioned restrictions;
16.4.2 Known to the receiving Party prior to disclosure by the
disclosing Party;
16.4.3 Disclosed with the prior written approval of the disclosing
Party;
16.4.4 Independently developed by the receiving Party; or
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16.4.5 Lawfully disclosed to the receiving Party by a Third Party under
conditions permitting such disclosure.
16.5 Upon termination or upon completion of performance under the Contract,
and upon the request of one Party, the other Party shall return all
proprietary data (including any copies thereof) received from that
Party, or provide written certification that such proprietary data has
been destroyed, except that either Party may retain a legal file copy.
16.6 Neither Party assumes any liability to the other Party for damages
arising from the use of or reliance upon any information disclosed
pursuant to this Article 16, except as provided elsewhere herein.
ARTICLE 17 -- RIGHTS TO INVENTIONS AND DATA
17.1 Sea Launch and PanAmSat agree that neither Party shall by entry into
the Contract or by performance of the Contract, acquire any rights to
or under the other Party's patents, proprietary data, or other
intellectual property or technical information, unless the grant of any
such right is expressly provided for in a separate written agreement
duly executed by the granting Party.
ARTICLE 18 -- CHANGES
18.1 The Contract shall be modified only upon mutual consent and such
modification shall be made in writing and shall be signed on behalf of
both Parties by their Authorized Representatives.
18.2 PanAmSat may at any time, by a written notice to Sea Launch, request
changes within the general scope of this Contract. If any such change
causes an increase or decrease in the cost of, or the time required
for, the performance of any part of the work under this Contract, an
equitable adjustment, to be negotiated in good faith between the
parties, shall be made in the price, delivery schedule, or other terms
affected by the requested change, and the Contract shall be modified in
writing accordingly. Any claim by Sea Launch for an adjustment must be
made in writing within thirty (30) days of the receipt of any such
notice. Nothing in this Article 18 shall excuse Sea Launch from
proceeding without delay to perform this Contract as changed.
18.3 Sea Launch shall have the right to recommend changes within the general
scope of this Contract. Sea Launch shall submit any such changes to
PanAmSat in writing and PanAmSat shall accept or reject such change in
its sole discretion. PanAmSat shall respond to any such change proposed
by Sea Launch promptly but in no event later than
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forty-five (45) days after the date on which Sea Launch submitted the
proposed change. Subject to Paragraph 18.5, Sea Launch shall not
proceed with any change under this Article until an amendment to this
Contract is executed by both parties authorizing the change and making
the corresponding adjustments to the work and/or the terms of this
Contract necessitated by the change.
18.4 Launch Service(s) postponements by PanAmSat or Sea Launch shall be
resolved in accordance with the applicable provisions of Article 7,
Paragraph 14.5 and Paragraph 14.6 of this Contract.
18.5 In the event that, in connection with a change pursuant to Paragraph
18.2 or 18.3, the Parties agree on work to be done but not the
resulting adjustment (if any) to price and/or schedule, then the
Parties shall proceed with performance of their respective obligations
as modified by such change, and shall resolve the adjustment (if any)
to price and/or schedule in accordance with Article 20.
ARTICLE 19 -- ASSIGNMENT
19.1 The Parties agree not to assign their respective rights or obligations
under the Contract without the prior written consent of the other
Party; provided that PanAmSat may assign its rights and obligations
regarding one or more Launch Services to a PanAmSat Affiliate. Any such
assignment shall be mutually agreed to and consent to Assign shall not
be unreasonably withheld by the other Party. For purposes of this
Article 19, "PanAmSat Affiliate" shall include (i) any entity
controlled by PanAmSat and (ii) any joint venture or similar entity in
which PanAmSat owns or agrees to acquire an equity interest.
ARTICLE 20 -- DISPUTE SETTLEMENT
20.1 The Parties shall endeavor to reach an amicable settlement of any
dispute or controversy resulting from, or arising in connection with,
the performance of this Contract. Prior to filing any legal action, a
dispute or controversy shall be referred to the respective Presidents
of Sea Launch and PanAmSat, who shall use their best efforts to reach a
settlement acceptable to both Parties.
20.2 In the event of any dispute as to payment or price, no amount shall be
deemed unpaid if PanAmSat shall have paid such amount into an escrow
account pending resolution of such dispute. Upon such resolution, the
Party entitled to such amount shall receive such amount together with
all accrued interest thereon, and the other Party shall pay all costs
and fees associated with such escrow account.
ARTICLE 21 - COOPERATION ON INSURANCE
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21.1 Sea Launch shall cooperate in good faith with PanAmSat's efforts to
obtain and maintain launch insurance for Spacecraft launched under this
Contract. Subject to U. S. Export Control laws and regulations, such
cooperation shall include (i) delivering information and data regarding
the Launch Vehicle to PanAmSat's insurers and brokers, (ii) conducting
briefings for such insurers and brokers, (iii) responding to inquiries
from such insurers and brokers, and (iv) exercising reasonable best
efforts to obtain in a timely manner and thereafter maintain any
government licenses, approvals or other authorizations required for
such cooperation.
ARTICLE 22-- APPLICABLE LAW
22.1 The Contract and any matter arising under the Contract, regardless of
whether such matter is addressed in the Contract, shall be governed by
the laws of the state of California, USA, excluding its choice of law
rules.
ARTICLE 23 -- SEVERABILITY
23.1 In the event any of the provisions of the Contract shall, for any
reason whatsoever, be held to be invalid or unenforceable, the
remaining provisions shall not be affected.
ARTICLE 24 -- NO WAIVER
24.1 No waiver of any of the provisions of the Contract shall be binding on
either Party unless evidenced by a written notice signed by the Party
to be bound. Failure of either Party to insist upon performance of any
of the terms or conditions herein or to exercise any right or privilege
shall not constitute a waiver. A waiver by either Party of a breach of
any provision of this contract does not constitute a waiver of any
succeeding breach of the same or any other provision, nor shall it
constitute a waiver of the provision itself.
ARTICLE 25 -- ENTIRE AGREEMENT
25.1 The Contractual Documents referred to in Article 2 comprise the entire
understanding between the Parties with respect to the subject matter of
the Contract and shall supersede all prior and contemporaneous
discussions between the Parties. Neither Party shall be bound by any
conditions, warranties, definitions, statements, or documents previous
to the Contract unless the Contract makes express reference thereto.
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IN WITNESS WHEREOF, the Parties hereto have executed the Contract as of the day
and year stated:
PanAmSat Corporation Sea Launch Limited Partnership acting
through its General Partner,
Sea Launch Company, LDC
By /s/ Xxxxxx X. Xxxxxxxx By /s/ X. X. Xxxxx
-------------------------- -----------------------
Title E.V.P. and C.T.O. Title Director of Contracts
--------------------- -----------------------
Date March 15, 2000 Date February 2, 2000
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