EXHIBIT 10.17
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARATELY WITH THE
COMMISSION.
The portions of this Exhibit for which confidential treatment has been requested
are marked by bracket ([ ]). In addition, an asterisk ( * ) appears in the right
hand margin of each paragraph in which confidential treatment is included.
ORION-Z SPACECRAFT PURCHASE
CONTRACT
BY AND BETWEEN
LORAL ORION NETWORK SERVICES, INC.
AND
SPACE SYSTEMS/LORAL, INC.
XXXXXXXX XX. XX/X-XX00000
PROPRIETARY NOTICE
THIS CONTRACT AND THE INFORMATION CONTAINED HEREIN IS PROPRIETARY TO LORAL ORION
NETWORK SYSTEMS, INC. AND SPACE SYSTEMS/LORAL, INC. AND SHALL NOT BE PUBLISHED,
REPRODUCED, COPIED, DISCLOSED, OR USED FOR OTHER THAN ITS INTENDED PURPOSE
WITHOUT THE EXPRESS WRITTEN CONSENT OF A DULY AUTHORIZED REPRESENTATIVE OF LORAL
ORION NETWORK SERVICES, INC. AND SPACE SYSTEMS/LORAL, INC.
Part 1(A) Terms and Conditions
PARTS
PART 1 (A) TERMS AND CONDITIONS, dated May 15, 1998
PART 1 (B) PAYMENT MILESTONE SCHEDULE AND TERMINATION LIABILITY AMOUNTS
PART 1(C) KEY CONTRACTOR POSITIONS, dated May 11, 1998
PART 2(A) ORION-Z STATEMENT OF WORK (SOW), dated May 11, 1998
PART 2(B) ORION-Z CONTRACT DOCUMENTATION REQUIREMENTS LIST (CDRL), dated
May 11, 1998
PART 3(A) TECHNICAL SPECIFICATIONS FOR ORION-Z SPACECRAFT, dated May 11,
1998
PART 3(A) ANNEX A, RADIATION ENVIRONMENT SPECIFICATION, dated May 11, 1998
PART 3(B) ORION-Z SPACECRAFT PRODUCT ASSURANCE REQUIREMENTS, dated April
14, 1998
PART 3(C) ORION-Z SPACECRAFT ON-GROUND TEST REQUIREMENTS, dated May 11,
1998
PART 3(D) ORION-Z IN-ORBIT COMMISSIONING AND ACCEPTANCE TEST REQUIREMENTS,
dated May 11, 1998
PART 3(E) DYNAMIC SPACECRAFT SIMULATOR SPECIFICATION, dated May 11, 1998
PART 3(F) ORION-Z SPACECRAFT SCF AND SOFTWARE REQUIREMENTS SPECIFICATION
(E191269), dated May 11, 1998
PART 4 RESERVED
PART 5 SATELLITE STORAGE PLAN, dated May 11, 1998
Part 1(A) Terms and Conditions
ORION NETWORK SERVICES, INC.
PART 1(A)
TERMS AND CONDITIONS
Part 1(A) Terms and Conditions
TABLE OF CONTENTS
1. DEFINITIONS AND CONSTRUCTION ........................................... 1
1.1 CERTAIN DEFINITIONS .................................................... 1
1.2 OTHER TERMS ............................................................ 7
1.3 PARTS .................................................................. 8
1.4 INTEGRATION AND CONSTRUCTION ........................................... 8
1.5 HEADINGS ............................................................... 9
2. CONTRACTOR SCOPE OF WORK ............................................... 9
2.1 SCOPE OF WORK .......................................................... 9
3. ORION SCOPE OF WORK .................................................... 9
3.1 SCOPE OF WORK .......................................................... 9
4. CONTRACT PRICE AND OTHER CHARGES ....................................... 9
4.1 GENERAL ................................................................ 9
4.2 CONTRACT PRICE ......................................................... 10
5. INVOICING AND PAYMENT .................................................. 10
5.1 INVOICING .............................................................. 10
5.2 PAYMENT ................................................................ 11
5.3 METHOD OF PAYMENT ...................................................... 13
5.4 LATE PAYMENT FEE ....................................................... 13
5.5 OTHER PAYMENTS ......................................................... 13
5.6 RIGHT OF SET-OFF ....................................................... 13
5.7 DISPUTED CHARGES ....................................................... 14
6. DELIVERY ............................................................... 14
6.1 DELIVERY SCHEDULE ...................................................... 14
6.2 DELAY .................................................................. 15
6.3 EXCUSABLE DELAY ........................................................ 15
7. ACCEPTANCE TESTING AND FINAL ACCEPTANCE ................................ 16
7.1 GENERAL ................................................................ 16
7.2 ACCEPTANCE TESTING ..................................................... 16
Part 1(A) Terms and Conditions
Issue 1
7.3 PRE-LAUNCH CERTIFICATION ............................................... 16
7.4 FINAL ACCEPTANCE OF DATA AND DOCUMENTATION ............................. 16
7.5 FINAL ACCEPTANCE OF ORION-Z SPACECRAFT ................................. 17
8. TITLE TO DELIVERABLE ITEMS AND RISK OF LOSS ............................ 18
8.1 ORION-Z SPACECRAFT ..................................................... 18
8.2 DATA AND DOCUMENTATION ................................................. 19
8.3 OTHER DELIVERABLE ITEMS ................................................ 19
9. CHANGES IN SCOPE OF WORK ............................................... 19
9.1 CHANGES REQUESTED BY ORION ............................................. 19
9.2 CHANGES REQUESTED BY CONTRACTOR ........................................ 20
10. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES ........................... 20
10.1 CORRECTIVE MEASURES .................................................... 20
10.2 MANUFACTURERS' WARRANTIES .............................................. 22
10.3 REPLACED EQUIPMENT ..................................................... 23
10.4 IN-ORBIT DATA .......................................................... 23
11. REPRESENTATIONS AND WARRANTIES ......................................... 23
11.1 CONTRACTOR PERSONNEL ................................................... 23
11.2 SOFTWARE AND INVENTION OWNERSHIP ....................................... 23
11.3 AUTHORIZATION .......................................................... 23
11.4 INDUCEMENTS ............................................................ 23
12. IN-ORBIT PERFORMANCE WARRANTY AND INCENTIVE PAYMENTS ................... 24
12.1 IN-ORBIT PERFORMANCE WARRANTY .......................................... 24
12.2 ADVANCE INCENTIVE PAYMENT AT FINAL ACCEPTANCE .......................... 24
12.3 MONTHLY TRANSPONDER INCENTIVE AMOUNT ................................... 28
12.4 MONTHLY POWER INCENTIVE AMOUNT ......................................... 33
12.5 MEASURING IN-ORBIT PERFORMANCE ......................................... 37
12.6 ECLIPSE ................................................................ 37
12.7 DISPUTED PERFORMANCE ................................................... 37
13. INSURANCE .............................................................. 38
13.1 GENERAL ................................................................ 38
13.2 REQUIRED INSURANCE ..................................................... 38
Part 1(A) Terms and Conditions
Issue 1
13.3 SUBCONTRACTS............................................................ 40
13.4 DOCUMENTARY EVIDENCE.................................................... 40
13.5 CLAIMS.................................................................. 40
14. ADDITIONAL SATELLITE OPTION............................................. 40
14.1 DELIVERY SCHEDULE....................................................... 40
14.2 PRICE................................................................... 41
14.3 ADDITIONAL SATELLITE CONTRACT PROVISIONS................................ 41
15. INDEMNIFICATION, INTER-PARTY WAIVER OF LIABILITY, AND LIMITATION
OF LIABILITY AND DISCLAIMER OF WARRANTY ................................ 41
15.1 INDEMNITY BY CONTRACTOR................................................. 41
15.2 INDEMNITY BY ORION...................................................... 42
15.3 INFRINGEMENT............................................................ 43
15.4 INDEMNIFICATION PROCEDURES.............................................. 43
15.5 INTER-PARTY WAIVER OF LIABILITY FOR LAUNCH OPERATIONS................... 44
15.6 WAIVER OF SUBROGATION................................................... 45
15.7 LIMITATION OF LIABILITY................................................. 45
15.8 DISCLAIMER OF WARRANTY.................................................. 45
16. DISPUTE RESOLUTION...................................................... 46
16.1 INFORMAL DISPUTE RESOLUTION............................................. 46
16.2 ARBITRATION............................................................. 46
16.3 LITIGATION.............................................................. 48
17. TERMINATION............................................................. 49
17.1 TERMINATION FOR CONVENIENCE............................................. 49
17.2 TERMINATION FOR CONTRACTOR'S DEFAULT.................................... 50
17.3 TERMINATION FOR EXCUSABLE DELAY......................................... 52
17.4 TERMINATION FOR ORION'S DEFAULT......................................... 53
17.5 MITIGATION OF DAMAGES................................................... 54
17.6 RESOLUTION EFFORTS...................................................... 55
17.7 CONTINUED PERFORMANCE................................................... 55
18. KEY CONTRACTOR PERSONNEL................................................ 55
18.1 KEY POSITIONS........................................................... 55
18.2 ASSIGNMENT OF KEY CONTRACTOR PERSONNEL.................................. 55
Part 1(A) Terms and Conditions
Issue 1
18.3 APPROVED KEY CONTRACTOR PERSONNEL....................................... 56
19. PERMITS, LICENSES AND GOVERNMENT APPROVALS.............................. 56
19.1 CONTRACTOR RESPONSIBILITY AND EXPENSES.................................. 56
19.2 ORION REVIEW OF GOVERNMENT APPLICATIONS................................. 56
19.3 COMPLIANCE WITH GOVERNMENT REQUIREMENTS................................. 56
20. ACCESS TO WORK IN PROGRESS.............................................. 57
20.1 GENERAL................................................................. 57
20.2 OFFICE SPACE AND FACILITIES............................................. 57
20.3 DOCUMENTATION........................................................... 58
20.4 MEETINGS AND REVIEWS.................................................... 58
20.5 SUBCONTRACTS............................................................ 59
21. LICENSE RIGHTS.......................................................... 59
21.1 SOFTWARE, INVENTIONS AND DATA AND DOCUMENTATION......................... 59
21.2 TECHNICAL DATA AND INFORMATION.......................................... 60
22. CONFIDENTIALITY AND NONDISCLOSURE OF PROPRIETARY INFORMATION............ 63
22.1 DEFINITION AND EXEMPTIONS............................................... 63
22.2 PRIOR APPROVAL OF CERTAIN DISCLOSURES................................... 64
22.3 CONFIDENTIALITY OBLIGATIONS............................................. 64
22.4 COPYING................................................................. 65
23. YEAR 2000 COMPLIANCE.................................................... 65
24. CONTRACT MANAGEMENT..................................................... 65
24.1 GENERAL................................................................. 65
24.2 APPROVALS AND ACCEPTANCES............................................... 65
24.3 CONTRACT MONITORING..................................................... 66
24.4 ORION CONSULTANTS....................................................... 66
24.5 SUBCONTRACTING.......................................................... 66
25. GROUND STORAGE OPTION................................................... 69
25.1 NOTIFICATION............................................................ 69
25.2 STORAGE LOCATION........................................................ 69
25.3 STORAGE PRICES.......................................................... 69
25.4 INVOICING AND PAYMENT................................................... 69
Part 1(A) Terms and Conditions
Issue 1
25.5 TITLE AND RISK OF LOSS................................................. 69
25.6 NOTIFICATION OF INTENTION TO LAUNCH A STORED SPACECRAFT................ 69
25.7 IN-ORBIT PERFORMANCE WARRANTY AND PAYMENTS............................. 70
26. LAUNCH VEHICLE AGENCY.................................................. 70
26.1 INSURANCE.............................................................. 70
26.2 COMPLIANCE WITH LAWS AND REGULATIONS................................... 70
27. RESPONSIBILITY FOR THE CONTRACT........................................ 71
27.1 ABILITY TO PERFORM..................................................... 71
27.2 FIXED CONTRACT PRICE................................................... 71
27.3 INCONSISTENCIES IN CONTRACT............................................ 71
27.4 SUBCONTRACTOR COOPERATION.............................................. 72
28. GENERAL................................................................ 72
28.1 EFFECTIVE DATE OF CONTRACT............................................. 72
28.2 ASSIGNMENT............................................................. 72
28.3 ENTIRE AGREEMENT....................................................... 72
28.4 AMENDMENTS............................................................. 73
28.5 WAIVER OF BREACH OF CONTRACT........................................... 73
28.6 CUMULATIVE REMEDIES.................................................... 73
28.7 SEVERABILITY........................................................... 73
28.8 APPLICABLE LAW......................................................... 73
28.9 NOTICES................................................................ 73
28.10 CONTRACTOR NOT AGENT................................................... 74
28.11 SURVIVAL............................................................... 74
28.12 RELEASE OF INFORMATION................................................. 75
28.13 GOVERNMENT FILINGS..................................................... 75
28.14 IMPROPER PAYMENTS, KICKBACKS, GIFTS, AND GRATUITIES.................... 75
28.15 COMPLIANCE WITH APPLICABLE LAWS........................................ 76
28.16 FINANCING.............................................................. 76
Part 1(A) Terms and Conditions
Issue 1
TERMS AND CONDITIONS
THIS ORION-Z SPACECRAFT PURCHASE CONTRACT (the "Contract") is made and
entered into this 15th day of May, 1998 by and between Loral Orion Network
Services, Inc., a Delaware corporation with its principal offices located at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, X.X.X. ("ORION"), and Space
Systems/Loral, Inc., a company organized and existing under the laws of Delaware
with its principal offices located at 0000 Xxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx
00000 ("Contractor"). As used in the Contract, "Party" means either ORION or
Contractor, as appropriate, and "Parties" means ORION and Contractor.
WHEREAS, the primary object of ORION is the carrying on of the business of
providing a telecommunications system by the use of space satellites;
WHEREAS, ORION anticipates providing the business referred to above through
the ORION satellite system ("ORIONSAT System");
WHEREAS, the ORION-Z Spacecraft to be constructed pursuant to the Contract
is intended to form part of the space segment of the ORIONSAT System;
WHEREAS, ORION and Contractor have agreed that Contractor will perform the
Work as defined below and that ORION will pay for the Work on the terms and
conditions set out in the Contract;
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements contained herein, the Parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
1.1 CERTAIN DEFINITIONS.
In the Contract, the following terms shall have the meaning stated
hereunder:
(a) "ADDITIONAL SATELLITE" shall have the meaning ascribed to it in
Article 14 (Additional Satellite).
(b) "ADVANCE INCENTIVE PAYMENT" means that portion of the Transponder
Orbital Incentive Amount and Power Orbital Incentive Amount paid by ORION to
Contractor as an advance incentive payment under Article 12.2 (Advance Incentive
Payment at Final Acceptance).
(c) "AGGREGATE PREDICTED TRANSPONDER LIFE" means the sum of the
Predicted Transponder Life of each and every Serviceable Transponder embodied in
the Launched ORION-Z Spacecraft.
1
(d) "ASSOCIATES" means with respect to an entity, its directors,
officers, employees, agents, consultants, and assigns.
(e) "BUSINESS DAY" means any day other than the following: a Saturday,
Sunday or other day on which banks are authorized to be closed in the State of
New York.
(f) "CONSTRUCTIVE TOTAL LOSS" shall have the meaning set forth in
ORION's applicable launch insurance policy.
(g) "CONSULTANT" means any third party authorized by ORION to provide
technical and program support and assistance in connection with the performance
of the Contract.
(h) "CONTRACT" means the written instrument herein dated the day and
year first written above, including any amendments made pursuant to Article 28.4
(Amendments), embodying the agreement between Contractor and ORION and including
the Parts attached hereto and made a part of the Contract.
(i) "CONTRACT DOCUMENTATION REQUIREMENTS LIST" or "CDRL" means the
documentation requirements listed in Part 2(B) to the Contract and provided to
Contractor.
(j) "CONTRACT PRICE" means the total amount set forth in Article 4.2
(Contract Price).
(k) "CORRECTION PLAN" means a plan submitted by Contractor which
details how Contractor shall correct (i) a failure to make adequate progress
towards completion of the Work or (ii) a default or breach under the Contract in
accordance with Article 17.2.
(l) "DATA AND DOCUMENTATION" means that data and documentation to be
supplied by Contractor pursuant to the requirements of Part 2(A) (Statement of
Work) and Part 2(B) (Contract Documentation Requirements List).
(m) "DEFECT" means (i) with regard to the ORION-Z Spacecraft and all
components thereof, any defect in design, material or workmanship, or failure to
perform in accordance with the specifications and requirements of the Contract
that results in , or is likely to result in , non-compliant ORION-Z Spacecraft
performance; (ii) with regard to services, a failure to conform to a high
standard consistent with industry practice; and (iii) with regard to Data and
Documentation, a failure to meet any specifications or requirements set forth in
the Contract.
(n) "DELIVERABLE ITEM" means the items listed in Table 6.1 of Article
6 (Delivery), including the ORION-Z Spacecraft delivered in-orbit, and Data and
Documentation, and other items so identified in amendments to the Contract.
(o) "DELIVER" and its derivatives (such as "Delivered" and "Delivery")
shall have the meaning set forth in Article 5.2 (Payment) and Article 6.1
(Delivery Schedule).
2
(p) "DELIVERY DATES" means those dates set forth in Article 6.1.
(q) "DELIVERY SCHEDULE" means the schedule for Delivery of the Work as
set forth in Table 6.1 of Article 6 (Delivery).
(r) "DEMAND" means, in the context of Article 17.2 (Termination for
Contractor's Default), a demand by ORION made of Contractor for Contractor to
provide a Correction Plan in the event that Contractor is failing to make
adequate progress in the performance of the Contract or is in default or breach.
(s) "EFFECTIVE DATE" or "EDC" means the effective date of the Contract
as set forth in Article 28.1 (Effective Date of Contract).
(t) "EQUIPMENT" means individual assemblies, parts thereof and
complete systems.
(u) "EXCUSABLE DELAY" has the meaning set forth in Article 6.3
(Excusable Delay).
(v) "FINAL ACCEPTANCE" has the meaning set forth in Article 7.5 (Final
Acceptance of ORION-Z Spacecraft).
(w) "IN-ORBIT ACCEPTANCE REQUIREMENTS" means Part 3(D) (In-Orbit
Commissioning and Acceptance Test Requirements).
(x) "IN-ORBIT ACCEPTANCE TEST PLAN" means that document that is a
Deliverable Item under Part 2(B) (Contract Documentation Requirements List) and
as described in Part 3(D) (In-Orbit Commissioning and Acceptance Test
Requirements) of the Contract.
(y) "IN-ORBIT ACCEPTANCE TEST REPORT" or "IN-ORBIT ACCEPTANCE REPORT"
means that document that is a Deliverable Item under Part 2(B) (Contract
Documentation Requirements List) and as described in Part 2(A) (Statement of
Work) and Part 3(D) (In-Orbit Commissioning and Acceptance Test Requirements) of
the Contract.
(z) "IN-ORBIT PERFORMANCE WARRANTY PERIOD" shall have the meaning
ascribed to it in Article 12.1 (In-Orbit Performance Warranty).
(aa) "INCLUDING" and its derivatives (such as "include" and
"includes") shall mean including without limitation. This term is as defined,
whether or not capitalized in this Agreement.
(bb) "INITIAL PAYMENT" means the aggregate amount representing
cumulative Milestone Payments due to Contractor as of the Effective Date of the
Contract as determined in accordance with Part 1(B) (Payment Milestone Schedule
and Termination Liability Amounts).
3
(cc) "INTENTIONAL IGNITION" means the point in time in the ignition
process of an Ariane 44LP Launch Vehicle, for the purpose of Launch, when the
command signal sent from the launch control console is received by the Launch
Vehicle, which command signal is intended to and does ignite the propellant
system for the purpose of Launch.
(dd) "INVOICE" means an invoice in the form of Annex A to this Part
1(A) of the Contract.
(ee) "L-X" means x months prior to the Scheduled Launch Date. For
example, if the Scheduled Launch Date is January 1, 1999, then L-6 means July 1,
1998.
(ff) "L+X" means x months after the Scheduled Launch Date. For
example, if the Scheduled Launch Date is January 1, 1999, then L+1 means
February 1, 1999.
(gg) "LAUNCH" means Intentional Ignition followed by the opening of
the table clamps.
(hh) "LAUNCH AGENCY" means Arianespace or such other Subcontractor as
is selected to supply, integrate and launch the Launch Vehicle, and provide
other launch services until separation of the ORION-Z Spacecraft from the Launch
Vehicle.
(ii) "LAUNCH AGREEMENT" means the agreement between Contractor and the
Launch Agency to perform the launch of the ORION-Z Spacecraft.
(jj) "LAUNCH SERVICES" means the launch campaign/transportation,
launch services, mission planning and launch/early operations phase services as
more particularly set forth in Section 7 of Part 2(A) (Statement of Work).
(kk) "LAUNCH TERMINATION" means the point in time when, following
Terminated Ignition, the launch pad is officially declared safe by the Launch
Agency
(ll) "LAUNCH VEHICLE" means the Ariane 44LP.
(mm) "LAUNCHED ORION-Z SPACECRAFT" means the ORION-Z Spacecraft after
its Launch.
(nn) "LOSSES" mean all losses, liabilities, damages, royalty payments
and claims, and all related costs and expenses (including reasonable legal fees
and disbursements and costs of investigation, litigation, settlement, judgment,
interest and penalties).
(oo) "MAJOR SUBCONTRACT" means a Subcontract that is of a value
exceeding Two Million, Five Hundred Thousand Dollars ($2,500,000) or of
importance or critical in nature to
4
the overall program (e.g., a Subcontract for major or critical units, subsystems
or other items or services).
(pp) "MILESTONE PAYMENT" means those payments listed as Milestone
Payments in Part l(B) (Payment Milestone Schedule and Termination Liability
Amounts) of the Contract.
(qq) "MISSION SPECIFIC HARDWARE AND SOFTWARE" means those items of
hardware and software described in Section 10 of Part 2(A) (Statement of Work)
of the Contract.
(rr) "MONTHLY POWER INCENTIVE AMOUNT" means the Power Incentive Amount
paid at Final Acceptance divided into one hundred fifty-six (156) equal monthly
amounts.
(ss) "MONTHLY TRANSPONDER INCENTIVE AMOUNT" means the Transponder
Incentive Amount paid at Final Acceptance divided into one hundred fifty-six
(156) equal monthly amounts.
(tt) "ON-GROUND TEST REQUIREMENTS" means the test plans and test
procedures set forth in Part 3(C) (On-Ground Test Requirements) of the Contract.
(uu) "ORBITAL INCENTIVE AMOUNT" means a firm fixed sum of [ ] * [ ]
equivalent to the sum of the Power Orbital Incentive Amount and the Transponder
* Orbital Incentive Amount.
(vv) "ORION PERSONNEL" mean ORION's employees or representatives, or
its Consultant's employees or representatives.
(ww) "ORION-Z SPACECRAFT" means the satellite to be constructed and
Delivered to ORION as part of the Work and as identified in Part 2(A) (Statement
of Work) of the Contract.
(xx) "PAYMENT MILESTONE" means the task to be performed or event to
occur before payment is due under Article 5 (Invoicing and Payment) and Part 1
(B) (Payment Milestone Schedule and Termination Liability Amounts).
(yy) "POWER ORBITAL INCENTIVE AMOUNT" means a firm fixed sum of [ ] *
[ ]. *
(zz) "PREDICTED TRANSPONDER LIFE" means the period of time, measured
in years and portions thereof, over which a Serviceable Transponder can be
operated, commencing from the date of Delivery of the Preliminary In-Orbit
Acceptance Report, this period of time being equal to whichever is the shortest
of:
(1) thirteen (13) years, or
5
(2) the ORION-Z Spacecraft predicted propellant life calculated
in accordance with Section 5 of Part 3(D) (In-Orbit
Commissioning and Acceptance Test Requirements) of the
Contract, or
(3) the period of time over which there is predicted to be
sufficient solar array power to operate such Serviceable
Transponder co-extensively with all other Serviceable
Transponders, calculated in accordance with Section 5 of
Part 3(D) (In-Orbit Commissioning and Acceptance Test
Requirements) of the Contract.
(aaa) "PRIMARY TRANSPONDER" means a transponder where the
communication signals are received from and transmitted to the ground.
(bbb) "REVENUE" means all amounts received by ORION with respect to an
individual Primary Transponder, whether as a result of its sale, lease, license
or other disposition, it being understood that, if said amounts are not received
in equal monthly installments, the total amount received or to be received by
ORION shall be deemed received in equal monthly installments over the remainder
of the Predicted Transponder Life of such Transponder.
(ccc) "SATISFACTORILY OPERATING PRIMARY TRANSPONDER" means a Primary
Transponder which is capable of meeting (i) the requirements of Part 3(A)
(Technical Specifications for ORION-Z Spacecraft) regarding Primary Transponder
performance and (ii) the Primary Transponder Test Requirements set forth in Part
3(D) (In-Orbit Commissioning and Acceptance Test Requirements).
(ddd) "SATURATED TRANSPONDER" means a Primary Transponder whose output
power amplifier is driven at its maximum designed end-of-life RF power output
point.
(eee) "SCHEDULED LAUNCH DATE" means the calendar date on which Launch
is scheduled to occur.
(fff) "SENIOR EXECUTIVE" means each of the senior executives
designated from time to time in writing, by ORION and by Contractor,
respectively, to be their representatives for the purposes of dispute resolution
under the Contract.
(ggg) "SERVICEABLE TRANSPONDER" means a Primary Transponder that meets
the requirements set forth in Section 5 of Part 3(D) (In-Orbit Commissioning and
Acceptance Test Requirements) of the Contract and is determined, pursuant to
Section 5.2 thereof, to be capable of operation in accordance with such
requirements during a period of eclipse. In the event that the Launched ORION-Z
Spacecraft has insufficient energy to operate [ ] Serviceable * Transponders at
2.2 dB output backoff and single amplifier mode in beginning of life eclipse,
those specific Transponders, if any, which failed the testing requirements of
Section 5.2 of Part
6
3(D) will only be counted once in determining the total number of Transponders
that are Serviceable Transponders.
(hhh) "STATEMENT OF WORK" or "SOW" means the Work described in Part
2(A) (Statement of Work) to the Contract and to be provided by Contractor.
(iii) "SUBCONTRACT" means a contract awarded by Contractor to a
Subcontractor or a contract awarded by a Subcontractor at any tier of
performance of any work specified in the Contract.
(jjj) "SUBCONTRACTOR" means a person, firm, corporation or business
entity that has been awarded a Subcontract by Contractor or another
Subcontractor to provide a portion of the Work covered by the Contract.
(kkk) "TECHNICAL SPECIFICATIONS" means the technical specifications
set forth in Part 3(A) (Technical Specifications for ORION-Z Spacecraft) of the
Contract.
(lll) "TERMINATED IGNITION" means, following Intentional Ignition, the
Launch sequence is shut down before Launch.
(mmm) "TERMINATION LIABILITY AMOUNTS" means the amounts listed as
Termination Liability Amounts in Part 1(B).
(nnn) "TRANSPONDER" means an individual transmission channel of
defined bandwidth providing a path, inclusive of amplification, frequency
translation and frequency channelization, from a receive antenna with defined
coverage and polarization to a transmit antenna also with defined coverage and
polarization.
(ooo) "TRANSPONDER ORBITAL INCENTIVE AMOUNT" means a firm fixed sum of
[ ] * [ ]. *
(ppp) "WORK" means the whole of the work described in Part 2(A)
(Statement of Work) and elsewhere in the Contract and where the context so
permits or requires, "Work" includes any part or parts of the Work. The Work
includes all elements and phases of delivering the operational ORION-Z
Spacecraft in-orbit from design and manufacture, through Launch, Launch Services
and in-orbit testing, including provision of all Equipment and Data and
Documentation related thereto, including Deliverable Items, as specified in the
Contract.
1.2 OTHER TERMS.
Other terms in the Contract are defined in the context in which they are
used and shall have the meanings there indicated.
7
1.3 PARTS.
The following documents hereby constitute the Contract:
(a) Part 1(A) - Terms and Conditions
(b) Part 1(B) - Payment Milestone Schedule and Termination Liability
Amount
(c) Part 1(C) - Key Contractor Positions
(d) Part 2(A) - ORION-Z Statement of Work (SOW)
(e) Part 2(B) - ORION-Z Contract Documentation Requirements List
(CDRL)
(f) Part 3(A) - Technical Specifications for ORION-Z Spacecraft
(g) Part 3(A), Annex A - Radiation Environment Specification
(h) Part 3(B) - ORION-Z Spacecraft Product Assurance Requirements
(i) Part 3(C) - ORION-Z Spacecraft On-Ground Test Requirements
(j) Part 3(D) - ORION-Z In-Orbit Commissioning and Acceptance Test
Requirements
(k) Part 3(E) - Dynamic Spacecraft Simulator Specification
(l) Part 3(F) - ORION Z Spacecraft SCF and Software Requirements
Specification
(m) Part 4 - RESERVED
(n) Part 5 - Satellite Storage Plan
1.4 INTEGRATION AND CONSTRUCTION.
(a) Notwithstanding anything herein to the contrary, the documents
listed in Article 1.3 shall be deemed to constitute one fully integrated
agreement between the Parties. In the event of any ambiguity, conflict or
inconsistency among the provisions of the various parts of the Contract, such
conflict or inconsistency shall be resolved by giving a descending level of
precedence to the documents listed in Article 1.3.
8
(b) In the event the Parties are unable to resolve any ambiguity, conflict
or inconsistency that affects the Work, ORION shall direct Contractor and
Contractor shall follow such direction as to the interpretation to be followed
in carrying out the Work. If Contractor disputes ORION's interpretation and such
interpretation results in delay and/or increased costs and/or risks, either
Party may proceed under Article 16 (Dispute Resolution) to resolve such dispute.
1.5 HEADINGS.
The Article headings are for convenience of reference only and shall not be
considered in interpreting the text of the Contract. Words in the singular
include the plural and vice versa and words imputing the masculine gender
include the feminine and neuter genders where the context so requires.
2. CONTRACTOR SCOPE OF WORK
2.1 SCOPE OF WORK.
Contractor shall furnish the Work in accordance with the provisions of the
Contract. In the performance of the Work, Contractor shall supply all personnel,
materials and facilities necessary therefore.
3. ORION SCOPE OF WORK
3.1 SCOPE OF WORK.
The primary ORION responsibilities necessary to enable Contractor to
perform Work in certain defined areas are identified in Part 2(A) (Statement of
Work).
Orion's failure to timely perform one or more of its responsibilities under
the Contract shall entitle Contractor to an equitable adjustment to the Contract
Price and Delivery Schedule, provided Contractor provides ORION reasonable
notice of non-performance and reasonable opportunity to cure.
4. CONTRACT PRICE AND OTHER CHARGES
4.1 GENERAL.
All charges for the Work are set forth in this Article 4 and Article 12
(In-Orbit Performance Warranty and Incentives) and, if an Additional Satellite
is ordered, Article 14 (Additional Satellite), and if ground storage is ordered,
Article 25 (Ground Storage Option), as such articles may be amended pursuant to
Articles 8 (Changes in Scope of Work) and 28.4
9
(Amendments). ORION shall not be required to pay Contractor any amounts for the
Work in addition to those payable to Contractor under this Article 4, Article
12, Article 14 and Article 25.
4.2 CONTRACT PRICE.
(a) ORION shall pay to Contractor the sum of One Hundred Fifty-Five Million
Five Hundred Thirty Thousand Dollars ($155,530,000) as the Contract Price for
the performance of the Work under the Contract. Upon the full and timely
completion and delivery, as required, of the items of Work specified in the
Contract, and acceptance of such items by ORION in accordance with the
requirements of the Contract, Contractor shall be entitled to payment by ORION
in accordance with the provisions of Article 5 (Invoicing and Payment).
(b) The Contract Price shall comprise the following elements:
================================================================================
TABLE 4.2 CONTRACT PRICE
--------------------------------------------------------------------------------
ITEM $U.S.
1. ORION-Z Spacecraft delivered in orbit (including cost of Ariane 44LP $[ ] *
Launch Vehicle, any Launch Services, Data and Documentation, Operations
Training, Mission Specific Hardware and Software, and the Dynamic
Software Simulator)
2. Orbital Incentive Amount $[ ] *
CONTRACT PRICE TOTAL $ 155,530,000
(c) The Contract Price includes all charges for Data and Documentation,
operations training, interest, the insurance specified in Article 13 and 26.1,
shipping costs and all other assessments, including all applicable duties and/or
taxes. Contractor shall pay any duty and/or tax levied by any governmental
agency as may be required by law to be paid in the performance of Contractor's
obligations under the Contract. Except as expressly provided in the Contract,
the Contract Price is not subject to any escalation, or to any adjustment or
revision by reason of the actual cost incurred by Contractor in performance of
Contractor's obligations under the Contract.
10
5. INVOICING AND PAYMENT
5.1 INVOICING.
(a) Upon successful performance of the Work associated with each Payment
Milestone, Contractor shall submit an Invoice in the amount specified in Part
1(B) (Payment Milestone Schedule and Termination Liability Amounts) for that
Payment Milestone. Each such Invoice shall be accompanied by a certificate in
the form of Annex A hereto together with such supporting data as Contractor
deems necessary or appropriate. This Article 5.1 shall also apply to the Initial
Payment.
(b) Except as otherwise expressly stated herein, all other amounts due to
Contractor under the Contract shall be invoiced in accordance with the
procedures set forth in this Article 5.1.
(c) Contractor shall first submit its Invoice via electronic communications
media (e.g., facsimile) to be followed by the original Invoice. Provided ORION
receives the original Invoice within five (5) days after receipt of the
electronic communication, the date of receipt of the electronic communication
shall be deemed the date of receipt of the Invoice and the start of the payment
period; otherwise, the date of receipt of the original Invoice shall be deemed
the date of receipt of the Invoice and the start of the payment period.
Contractor shall submit copies of the Invoice to:
ORION
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
5.2 PAYMENT.
(a) With the exception of the Initial Payment, which shall be paid
simultaneously with the Effective Date of the Contract, ORION shall make
Milestone Payments to the Contractor in accordance with the Milestone Payment
Plan specified in Part 1(B) as adjusted by Article 28.4. Each Milestone Payment
shall be payable by the Contractor submitting to ORION a Request for Payment
accompanied by a certificate in the form of Annex A hereto together with such
supporting documentation the Contractor deems necessary or appropriate. ORION
shall pay Contractor, within thirty (30) days from the date of receipt (as
determined in accordance with Article 5.1(c)) of such Invoice, the total amount
claimed by Contractor on such Invoice; provided, however, that (i) the Work
associated with the applicable Payment Milestone has been Successfully
Completed, Conducted, or Delivered (as each term is defined in Article 5.2(e)
below), as applicable, (ii) the certificate in the form of Annex A hereto has
been executed by
11
both ORION and Contractor; and (iii) for the month when such Invoice would be
due for payment, the aggregate amount (including such Invoice) paid by ORION to
that point in time would not exceed the aggregate amount scheduled to be paid to
that point in time in accordance with Part 1(B). There shall be only one (1)
payment made to Contractor per calendar month.
(b) Where the thirty-day period specified in (a) above causes a payment to
become due on a non-Business Day, such payment shall be due on the next Business
Day.
(c) In the event Contractor completes any Payment Milestone in advance of
the time scheduled for payment of such Payment Milestone as set forth in Part
1(B), Contractor shall have the right to submit an Invoice for such Payment
Milestone and ORION shall be required to pay such Invoice; provided, however,
that (i) the Work associated with the Payment Milestone has been Successfully
Completed, Conducted or Delivered, as applicable, and (ii) for the month when
such Invoice would be due for payment, the aggregate amount (including such
Invoice) paid by ORION to that point in time would not exceed the aggregate
amount scheduled to be paid to that point in time in accordance with Part 1(B).
(d) The following terms shall have the meanings stated herein, applicable
to the Payment Milestones set forth in Part l(B):
(1) "SUCCESSFULLY COMPLETED" as it pertains to test milestones means
that:
(i) test(s) shall have been conducted in accordance with the
applicable On-Ground Test Requirements;
(ii) test results shall be within the limits prescribed in
the On-Ground Test Requirements, or noncompliance with
such requirements shall have been identified, reviewed
and corrected in accordance with the Contract; and
(iii) test results shall have been provided in writing to
ORION in accordance with the Contract.
(2) "CONDUCTED" as it pertains to the conduct of design reviews means,
as applicable, that:
(i) design review data packages shall have been submitted to
ORION in accordance with the Contract;
(ii) design review meetings shall have been held, and action
items and minutes issued, in accordance with the Contract; and
(iii) design review action items have been completed.
12
(3) "DELIVERED" means that the applicable item (for example,
ORION-Z Spacecraft, Launch Vehicle, Equipment, services, and Data
and Documentation) described in Part 1 (B) (Payment Milestone
Schedule and Termination Liability Amounts) conforms to the
requirements of the Contract and has been delivered to ORION in
accordance with the provisions of Article 6 (Delivery).
5.3 METHOD OF PAYMENT.
(a) Amounts payable to either Party shall be remitted by wire transfer to
the following bank accounts, as applicable:
ORION The Chase Manhattan Bank, N.A.
New York, New York
[ ] *
For the account of Orion Network Systems, Inc.
[ ] *
Xxxxxxxxxx Xxxx xx Xxxxxxx, XX & XX
Xxxxxxx, Xxxxxxxx
[ ] *
For the account of Space Systems/Loral, Inc.
[ ] *
(b) Any payment shall be deemed to have been made when credit for the
amount is established in the above bank account. Each Party shall notify the
other in writing within ten (10) days of a change to its respective bank
accounts.
5.4 LATE PAYMENT FEE.
Each Party shall be entitled to the interest due on any amounts properly
due but not paid to such Party for each day after the date such amount is due.
Such interest shall be paid within ten (10) days of the date of the
determination such interest is due. Interest shall be at an annual compounded
rate of LIBOR plus three percent (3%).
5.5 OTHER PAYMENTS.
Except as otherwise expressly stated herein, all other payments due and
payable to Contractor shall be made in accordance with the procedures set forth
in Article 5.3 (Method of Payment) within thirty (30) days after the date of
receipt (as determined in accordance with Article 5.1(c)) of the corresponding
Invoice.
13
5.6 RIGHT OF SET-OFF.
Any amount payable or refundable by Contractor to ORION under the Contract,
including any payment due as a result of any price adjustment for late delivery
or failure to earn incentive amounts, and any finally adjudicated claim for
payment made by ORION against Contractor within the purview of the Contract, may
be deducted by ORION from any payment due, or to become due, to Contractor on
any account whatsoever under the Contract as ORION in its sole discretion may
decide.
5.7 DISPUTED CHARGES.
Subject to Article 5.6, ORION shall pay undisputed charges when such
payments are due under this Article 5, Article 12 (In-Orbit Performance Warranty
and Incentives), Article 14 (Additional Satellite) or Article 25 (Ground Storage
Option).
6. DELIVERY
6.1 DELIVERY SCHEDULE.
(a) "Delivery" shall be deemed to have occurred for each Deliverable Item
upon its Final Acceptance by ORION. The Delivery of the ORION-Z Spacecraft is to
be in orbit. Subject to Articles 6.3 and 28.4, Deliverable Items, as listed in
Table 6.1 below, shall be Delivered by Contractor to the destinations indicated,
on or before the dates ("Delivery Dates") specified in such table.
14
================================================================================
TABLE 6.1
DELIVERY SCHEDULE
--------------------------------------------------------------------------------
DELIVERABLE ITEM DELIVERY DATE DESTINATION
1. ORION-Z Spacecraft June 30, 1999 In Orbit at 12o X.X.
2. Data & Documentation Per CDRL Per CDRL
3. Operations Training Per SOW ORION MCC
4. Mission Specific Hardware and Per SOW, Annex A MCC and TT&C
Software
5. Dynamic Spacecraft Software Per SOW Rockville, MD
Simulator
(b) Notwithstanding any other provision of the Contract, Contractor shall
advise ORION immediately by telephone and confirm in writing any event,
circumstance or development that materially threatens (i) the quality of any
ORION-Z Spacecraft or component part thereof, as well as any services, Data and
Documentation or Equipment to be provided hereunder, or (ii) the Delivery Dates
established in Table 6.1 above.
6.2 DELAY.
(a) Contractor acknowledges and agrees that failure to duly Deliver the
ORION-Z Spacecraft in orbit on or before the Delivery Date specified in Table
6.1 above may be the sole or partial cause of substantial financial loss or
damage being sustained by ORION due to the cost of alternative means of
providing service to customers and loss of continuity of service. Subject to the
provisions of Article 6.3 (Excusable Delay), if the Delivery in orbit of the
ORION-Z Spacecraft occurs later than the applicable Delivery Date due to any
reason other than Constructive Total Loss, Contractor agrees to pay to ORION on
demand liquidated damages from and including the [ ] Calendar Day of lateness up
to and including the [ ] * [ ] Calendar Day of lateness (the "Liquidated Damages
Period) in the * amount of [ ] per day for each Calendar Day in the * Liquidated
Damages Period. The remedy provided in Article 6.2(a) is not exclusive of any
other remedy provided in the Contract.
6.3 EXCUSABLE DELAY.
(a) Any delay in the performance of the Work caused by an event that is
beyond the control of Contractor or its Subcontractors, such as, but not limited
to, any acts of government in
15
its contractual or sovereign capacity, fire, flood, epidemic, quarantine
restriction, freight embargo, or acts of God, or any postponement by the Launch
Agency of launch of the ORION-Z Spacecraft, or acts or omissions of ORION that
unreasonably delay or hinder Contractor's performance or failure by ORION to
meet its responsibilities under the Contract, and which delay could not have
been avoided by Contractor or Subcontractor through the exercise of reasonable
foresight or reasonable precautions and cannot be circumvented by Contractor
through the use of alternate sources, work-around plans, or other means, shall
constitute a basis for excusable delay ("Excusable Delay") if notice thereof is
given to ORION, in writing, within three (3) Business Days after Contractor
shall have first learned of an occurrence of such an event or with regard to the
Launch Vehicle, the probability of the occurrence of such event. Such notice
shall include a detailed description of the portion of the Work affected by such
a delay, as well as details of any work-around plans, alternate sources or other
means Contractor will utilize to forestall a delay to the Delivery Schedule
stated in Article 6 (Delivery). Written notice must also be given to ORION when
the event constituting an Excusable Delay appears to have ended. In all events,
Contractor shall use reasonable efforts to avoid or minimize such delay. In
addition, ORION's exercise of its rights under Article 25 (Ground Storage
Option) due to circumstances caused by ORION shall constitute an Excusable
Delay.
(b) Contractor shall be entitled to such extensions of time as are
reasonable for the Excusable Delay. In the event ORION disputes the Excusable
Delay, ORION must inform Contractor in writing within ten (10) Business Days
from the date of receipt of written notice of the event constituting an
Excusable Delay and, if the Parties have not resolved the dispute within the ten
(10) Business Days of Contractor's receipt of written notice from ORION, the
dispute shall be resolved pursuant to Article 16 (Dispute Resolution).
(c) In the event of an Excusable Delay, there shall be an equitable
adjustment to the Delivery Schedule set forth in Table 6.1, Article 6 (Delivery)
and the Delivery Schedule set forth in Article 14 (Additional Satellite) to the
extent such Excusable Delay affects such delivery schedules and to such other
terms in the Contract as applicable; provided, however, that the occurrence of
an Excusable Delay shall not entitle Contractor to an increase in the Contract
Price (unless such Excusable Delay is caused solely or substantially by ORION's
acts or omissions that unreasonably delay or hinder Contractor's performance or
ORION's failure to meet its responsibilities). Any extension of time or other
relief granted under this Article 6.3 shall be formalized by the execution of an
amendment to the Contract in accordance with Article 28.4.
7. ACCEPTANCE TESTING AND FINAL ACCEPTANCE
7.1 GENERAL.
Each Deliverable Item under the Contract shall be accepted by ORION upon
Contractor's successful demonstration of its timely compliance with the
requirements of the Contract.
16
7.2 ACCEPTANCE TESTING.
Contractor agrees to notify ORION in writing ten (10) days in advance of
conducting acceptance tests for Deliverable Items and pre-launch tests of the
integrated ORION-Z Spacecraft. Upon compliance with the notification
requirement, ORION's absence at such tests shall neither be a cause of delaying
the acceptance tests nor invalidating the test results obtained therefrom.
7.3 PRE-LAUNCH CERTIFICATION.
Upon completion of the pre-launch tests at the launch site in accordance
with the requirements of the Contract, Contractor shall furnish ORION with
pre-launch certification as soon as feasible prior to Launch.
7.4 FINAL ACCEPTANCE OF DATA AND DOCUMENTATION.
(a) "Final Acceptance" (and therefore, Delivery) of Data and Documentation
shall occur only when:
(1) Contractor has fulfilled the Contract's requirements for the Data
and Documentation; and
(2) the Data and Documentation has been delivered at the place
referenced in Table 6.1 of Article 6 (Delivery) in a condition
fully conforming to the provisions of the Contract.
(b) Data and Documentation not requiring approval by ORION in accordance
with Part 2(B) shall be deemed to have achieved Final Acceptance unless rejected
by ORION in writing within ten (10) Business Days after receipt of said Data and
Documentation by ORION. If such Data and Documentation is unacceptable, ORION
shall, within the said ten (10) Business Days, notify Contractor in writing in
which respects the Data and Documentation fails to conform to applicable
requirements of the Contract. Any Data and Documentation that fails to conform
to applicable requirements of the Contract with respect to which ORION has so
notified Contractor as being non-conforming, shall be deemed under the Contract
not to have been delivered unless and until the Defects that resulted in such
rejection have been remedied or demonstrated not to exist pursuant to
verification procedures in accordance with the Contract, and the Data and
Documentation is at the destination referenced in Table 6.1 of Article 6
(Delivery) whereupon ORION shall accept the Data and Documentation in writing
and Final Acceptance shall occur.
(c) Final Acceptance of any Data and Documentation requiring approval by
ORION in accordance with Part 2(B) shall occur when such approval has been
granted by ORION in writing. ORION shall respond under this Article 7.4 within
ten (10) Business Days after receipt
17
of such Data and Documentation by ORION; failing such response, the Parties
shall be deemed forthwith to be in dispute and their rights shall be determined
in accordance with the provisions of Article 16 (Dispute Resolution) hereof.
(d) The provisions of this Article 7.4 shall not apply to the Final
Acceptance of a Launched ORION-Z Spacecraft or to the Preliminary In-Orbit
Acceptance Report. The Final Acceptance of the Launched ORION-Z Spacecraft and
of the In-Orbit Acceptance Report essential thereto shall be governed by Article
7.5.
7.5 FINAL ACCEPTANCE OF ORION-Z SPACECRAFT.
(a) In-Orbit Acceptance Report.
(1) Upon arrival at its designated orbital location, Contractor will
perform the tests and analyses set forth in Part 3(D) (In-Orbit
Commissioning and Acceptance Test Requirements) for the Launched
ORION-Z Spacecraft to determine the Aggregate Predicted
Transponder Life of the Launched ORION-Z Spacecraft. The results
of such tests and analyses will be furnished to ORION in
Preliminary and Final In-Orbit Acceptance Reports prepared by
Contractor for the Launched ORION-Z Spacecraft in accordance with
Part 2(A)(SOW), Part 2(B)(CDRL) and Part 3(D).
(2) Within forty-five (45) days after Launch of the ORION-Z
Spacecraft, Contractor shall furnish to ORION the Preliminary
In-Orbit Acceptance Report in full compliance with Part 2(A),
Part 2(B) and Part 3(D) in respect of the Launched ORION-Z
Spacecraft, and, within sixty (60) days after Launch, Contractor
shall furnish to ORION the Final In-Orbit Acceptance Report in
full compliance with Part 2(A), Part 2(B) and Part 3(D).
(3) Unless the ORION-Z Spacecraft is a Constructive Total Loss, Final
Acceptance (and therefore, Delivery) of the ORION-Z Spacecraft
will take place upon receipt by ORION of the Preliminary In-Orbit
Acceptance Report demonstrating that the ORION-Z Spacecraft is in
full compliance with Part 3(A) and Part 3(D).
(4) Unless ORION responds to the Preliminary In-Orbit Acceptance
Report within thirty (30) days after receipt thereof, or such
other period of time acceptable to both Parties, the report shall
be deemed acceptable.
(5) If ORION's response under Article 7.5(a)(4) contests the findings
of the Preliminary In-Orbit Acceptance Report, the Parties shall
be deemed forthwith to be in dispute and either Party may proceed
under Article 16 to have such dispute resolved.
18
(6) The existence of a dispute shall not affect Final Acceptance set
forth above.
8. TITLE TO DELIVERABLE ITEMS AND RISK OF LOSS
8.1 ORION-Z SPACECRAFT.
(a) Risk of loss or damage to the ORION-Z Spacecraft shall pass from
Contractor to ORION at the time of Intentional Ignition of the ORION-Z
Spacecraft. Title to the ORION-Z Spacecraft, free and clear of all liens and
encumbrances of any kind shall pass from Contractor to ORION upon Final
Acceptance of the ORION-Z Spacecraft in accordance with Article 7, (Acceptance
Testing and Final Acceptance - Deliverable Items).
(b) In the event of the occurrence of a Terminated Ignition of the Launch
Vehicle used for Launch of the ORION-Z Spacecraft to be delivered hereunder, the
Parties agree that Contractor shall re-assume risk of loss of the ORION-Z
Spacecraft upon Launch Termination and will thereafter immediately commence work
required to ready the ORION-Z Spacecraft for a Launch Vehicle re-launch
(including, as applicable, demating and defueling of the ORION-Z Spacecraft,
procurement of pre-launch/transit insurance(s), storage, shipping of the ORION-Z
Spacecraft back to Palo Alto, CA, refurbishing, retesting, re-shipping, and
re-initiation and performance of a subsequent Launch, and any other related
effort). It is agreed by the Parties that such support shall be provided at
ORION's expense and shall be subject to an equitable adjustment to the Contract
Price and schedule as mutually agreed to by the Parties. Equitable adjustment
for such work and all affected terms of this Contract, and its Parts, as
applicable, shall be negotiated within thirty (30) days of the Terminated
Ignition or as otherwise agreed to by the Parties, and the Parties agree,
pending final negotiation of an equitable adjustment, to perform their
respective obligations described elsewhere in this Contract.
(c) In the event of a Constructive Total Loss, title free and clear of all
liens and encumbrances of any kind shall pass to ORION. In such event, at
ORION's direction, Contractor shall surrender the ORION-Z Spacecraft to the
insurers obligated to cover such loss.
8.2 DATA AND DOCUMENTATION
The license rights set forth in Article 21.1 and risk of loss or damage to
Data and Documentation delivered under the Contract shall pass from Contractor
to ORION at the time of Final Acceptance in accordance with Article 7
(Acceptance Testing and Final Acceptance - Deliverable Items).
8.3 OTHER DELIVERABLE ITEMS.
Title, free and clear of all liens and encumbrances of any kind, and risk
of loss or damage to each Deliverable Item (other than the ORION-Z Spacecraft
and Data and Documentation) delivered under the Contract shall pass from
Contractor to ORION at the time of Final
19
Acceptance by ORION in accordance with Article 7 (Acceptance Testing and Final
Acceptance - Deliverable Items).
9. CHANGES IN SCOPE OF WORK
9.1 CHANGES REQUESTED BY ORION.
(a) ORION may, at any time after the Effective Date of the Contract, by
written change order issued by ORION make changes within the general scope of
the Contract that will add or delete Work, affect the design of the ORION-Z
Satellite, change the time or place of delivery or affect any other requirement
of the Contract.
(b) Contractor shall perform the Work in accordance with such orders and
changes as if the same had appeared in and formed part of the Contract.
(c) If any such change causes an increase or decrease in the cost of the
Work, or the time required for the completion of the Work to be provided herein,
or otherwise affects any other provision of the Contract, an equitable
adjustment shall be made to the Contract Price, the Delivery Schedule or both,
and to such other provisions as may be affected. The Parties shall consider,
negotiate and agree to such equitable adjustments in a timely manner, and the
Contract shall be amended in accordance with Article 28.4 (Amendments).
(d) ORION shall have the right to prescribe the manner in which Contractor
shall dispose of any Work made obsolete as a result of such orders,
dispensations or changes.
(e) Nothing in this Article shall excuse Contractor from promptly
proceeding with the additions, dispensations or changes specified in the change
order.
9.2 CHANGES REQUESTED BY CONTRACTOR.
(a) Contractor may, at any time after the Effective Date of the Contract,
provide ORION with a request for a change or waiver in the whole or any part of
the Work or schedules herein, provided that Contractor shall use reasonable
efforts to submit such request in writing to ORION at least sixty (60) days
prior to the proposed date of any change or waiver that would add or delete
work, affect the design of the ORION-Z Spacecraft, change the method of shipment
or packing, or place or time of delivery, or would affect any other requirement
of the Contract.
(b) If such Contractor-requested change or waiver would cause an increase
or decrease in the Contract Price or Delivery Schedule, Contractor shall submit
to ORION, concurrent with the requested change, the details of such increase or
decrease.
(c) Contractor shall not proceed with the requested change or waiver unless
and until ORION agrees with and accepts such change or waiver.
20
(d) ORION shall notify Contractor in writing, within thirty (30) days after
receipt of a request from Contractor for a change or waiver, whether or not it
agrees with and accepts such change or grants such waiver. If ORION agrees with
and accepts such change or grants such waiver, Contractor shall proceed with the
performance of the Contract as changed or waived and an amendment to the
Contract reflecting such change and price adjustment, if any, in accordance with
Article 28.4 (Amendments), shall be issued. If ORION does not agree with the
change or waiver as requested, the Parties shall attempt to reach agreement on
such change or waiver. In the event the Parties are unable to reach agreement on
the change or waiver, or on the applicable price adjustment, if any, or both,
Contractor shall proceed with the performance of the Contract as unchanged.
10. CORRECTIVE MEASURES IN UNLAUNCHED SATELLITES
10.1 CORRECTIVE MEASURES.
(a) Notice.
(1) ORION shall notify Contractor in writing when it believes any
Defect exists in the ORION-Z Spacecraft, the services and/or the
Data and Documentation. Contractor may from time to time advise
ORION in writing that it disagrees with ORION as to the existence
or nature of a Defect. In such event, the Parties shall negotiate
in good faith to determine what Defect exists, if any, and any
action required to remedy such Defect.
(2) Notwithstanding any other provision of the Contract, Contractor
shall advise ORION immediately by telephone and confirm in
writing any event, circumstance or development that materially
threatens the quality of the ORION-Z Spacecraft, or component
part thereof as well as any services and/or Data and
Documentation to be provided hereunder or the Delivery Dates
established.
(b) Defect in ORION-Z Spacecraft.
(1) Without limiting the obligations of Contractor or the rights of
ORION under the provisions of the Contract, prior to Launch,
Contractor shall, at its expense, use its best efforts to
promptly correct any Defect related to the ORION-Z Spacecraft
that it or ORION discovers during the course of the Work, and
notwithstanding that a payment may have been made in respect
thereof, and regardless of prior reviews, inspections, approvals
or acceptances. This provision is subject to the right of
Contractor to have any items containing a Defect returned at
Contractor's expense to Contractor's facility for Contractor to
verify the non-conformance and to correct the Defect. All
transportation costs such as packaging, shipping and insurance,
shall be paid
21
by Contractor, except that if it is reasonably determined after
investigation that ORION directly caused the Defects in question,
or that the item is in conformance with applicable specifications
and requirements, ORION will reimburse Contractor for the
above-described costs and will pay all costs associated with the
shipment to and from Contractor's facility.
(2) If Contractor fails to so correct such Defects within a
reasonable time after notification from ORION, and after the
Parties have followed the provisions of Article 10.1 (a)(1) above
(including agreement on the existence of such Defect), ORION may,
by separate contract or otherwise, correct or replace such items
or services, and, unless it is reasonably determined after
investigation that ORION directly caused the Defect in question,
or that the item or service is in conformance with applicable
specifications or requirements, Contractor shall pay to ORION the
direct actual cost of such correction or replacement. The amount
payable by Contractor shall be verified at Contractor's request
by an internationally recognized firm of accountants appointed by
Contractor, such appointment to be approved by ORION and such
approval not to be unreasonably withheld or delayed. The costs of
such verification shall be paid by Contractor and shall be
without prejudice to the right of either Party to seek
arbitration under Article 16.2. The report of such accountants
may be used by either Party in any arbitration proceeding but
shall not be binding upon the arbitrators.
(c) Defect in Similar Satellite.
(1) Without limiting the obligations of Contractor or the rights of
ORION under other provisions of the Contract, if the data
available from the Launched ORION-Z Spacecraft or another
spacecraft of a similar class that is being built by Contractor
indicates that the ORION-Z Spacecraft contains a Defect,
Contractor shall inform ORION of such Defect and shall, promptly
upon the request of ORION, use its best efforts to take
appropriate corrective measures with respect to the ORION-Z
Spacecraft and Additional Satellite, if ordered, so as to
satisfactorily eliminate such Defect from the ORION-Z Spacecraft
and Additional Satellite. Contractor shall fulfill the foregoing
obligations at its own cost and expense, including all costs
arising from charges for shipping, insurance, taxes and other
matters associated with the corrective measures.
(2) If Contractor fails to take such corrective measures with respect
to the ORION-Z Spacecraft within a reasonable time after request
from ORION, ORION may by separate contract or otherwise, have all
such Defects corrected in accordance with Article 10.1(b)(2).
22
(d) Minor Defects. For any Defect that does not adversely affect the form,
fit, useful life, reliability or function (i.e., operational performance) of a
Transponder, Contractor and ORION agree to negotiate a reasonable resolution. If
the Parties are unable to reach an agreed resolution within ten (10) days of
ORION receiving notice of the Defect from Contractor ("Notice Date"), Contractor
or ORION shall have the right to elevate the negotiations to Contractor's Senior
Executive and to ORION's Senior Executive. In the event the Parties are unable
to reach an agreed resolution within fifteen (15) days of the Notice Date, ORION
shall thereafter be able to exercise all of its rights under this Article 10.
(e) No Additional Payment. Subject to Article 6.3 (Excusable Delay),
Contractor acknowledges and agrees that it shall not be entitled to payment for
any additional costs incurred as a consequence of any Defect.
(f) Delay. Contractor shall have a reasonable time to effect corrections
required ; however, Contractor's time to correct shall not impact Customer's
rights under Article 7 (Acceptance Testing and Final Acceptance) and Article 6.2
(Delay).
(g) Waiver of Defect. After notification of a Defect to Contractor, the
Parties may jointly elect in writing, pursuant to Article 28.4 (Amendments), not
to require correction or replacement of such items or services or to waive the
Defects noted. In such event, Contractor, if required by ORION but pursuant to
the procedures set forth in Article 10.1 (b)(2), shall repay such portion of the
Contract Price as is equitable in the circumstances.
10.2 MANUFACTURERS' WARRANTIES.
Subject to the provisions of any applicable law, Contractor agrees to
enforce any manufacturer's warranty given to it in connection with any Work to
be provided under the Contract and Contractor shall provide to ORION the benefit
of any warranty protection or pledge to ORION any proceeds therefrom in respect
of that Work and other items as are given to Contractor by the manufacturers or
service providers.
10.3 REPLACED EQUIPMENT.
If Contractor, in accordance with this Article, replaces any Equipment that
was determined to be deficient, such deficient Equipment shall remain or become
the property of Contractor.
10.4 IN-ORBIT DATA.
Except to the extent required to perform its obligations under Article
10.1, nothing in this Article requires Contractor to disclose to ORION in-orbit
data from satellites owned by others, without prior written consent.
23
11. REPRESENTATIONS AND WARRANTIES
11.1 CONTRACTOR PERSONNEL.
Contractor represents and warrants that it shall assign properly qualified
and experienced personnel to the program contemplated by the Contract.
11.2 SOFTWARE AND INVENTION OWNERSHIP.
Contractor represents and warrants that it is either the owner of, or
authorized to use and incorporate, any software or invention utilized or
incorporated in the Work.
11.3 AUTHORIZATION.
Each Party represents and warrants to the other that:
(a) it has the requisite corporate power and authority to enter into the
Contract and to carry out the transactions contemplated by the Contract;
(b) the execution, delivery and performance of the Contract and the
consummation of the transactions contemplated by the Contract have been duly
authorized by the requisite corporate action on the part of such Party; and
(c) the Contract is a valid and binding obligation of such Party,
enforceable in accordance with its terms.
11.4 INDUCEMENTS.
Contractor represents and warrants to ORION that it has not violated any
applicable laws or regulations or any ORION policies of which Contractor has
been given notice regarding the offering of unlawful inducements in connection
with the Contract.
12. IN-ORBIT PERFORMANCE WARRANTY AND INCENTIVE PAYMENTS
12.1 IN-ORBIT PERFORMANCE WARRANTY.
Contractor warrants that the ORION-Z Spacecraft will provide the following:
(a) The ORION-Z Spacecraft will support simultaneous operation of [ ] *
Satisfactorily Operating Primary Transponders at 2.2 dB output power back-off
commencing on the date of Final Acceptance and for a period through the last day
of the [ ] year thereafter * and will support [ ] Satisfactorily Operating
Primary Transponders at 2.2 dB output * power back-off commencing with the first
day of year [ ] for a period of [ ] years *
24
thereafter; and
(b) The ORION-Z Spacecraft power will support simultaneous operation of [ ]
* [ ] Satisfactorily Operating Primary Transponders with [ ] Saturated
Transponders * and [ ] Transponders at 3.0 dB output power back-off commencing
on the date of * Final Acceptance and for a period through the last day of the [
] year thereafter and will * support simultaneous operation of [ ]
Satisfactorily Operating Primary Transponders * with [ ] Saturated Transponders
and [ ] Transponders at 3.0 dB output * power back-off commencing with the first
day of year [ ] and for a period of [ ] years * thereafter. (collectively the
"In-Orbit Performance Warranty Period"). The Transponders will be configured
symmetrically on the north and south panels.
12.2 ADVANCE INCENTIVE PAYMENT AT FINAL ACCEPTANCE.
(a) If, at Final Acceptance, the ORION-Z Spacecraft has [ ] Serviceable *
Transponders operating at 2.2 dB output power back-off and a propellant lifetime
as calculated in Part 3(D) (In-Orbit Commissioning and Acceptance Test
Requirements) of at least [ ] * years, ORION shall pay Contractor the
Transponder Orbital Incentive Amount as an Advance Incentive Payment.
(b) If at Final Acceptance, the ORION-Z Spacecraft does not meet the
requirements set forth in Paragraph 12.2(a) above, then ORION shall pay
Contractor, as an Advance Incentive Payment, a percentage of the Transponder
Orbital Incentive Amount in accordance with the Aggregate Predicted Transponder
Life as provided in Table 12.2(b) below:
25
----------------------------------------------------------------------
Table 12.2(b)
Schedule of Transponder Orbital Incentive
Payment at Final Acceptance
----------------------------------------------------------------------
Aggregate Predicted Percentage of Total
Transponder Life Incentive Amount
------------------- -------------------
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
(c) If, at Final Acceptance, the ORION-Z Spacecraft has sufficient
end-of-life power as calculated in Part 3(D) (In-Orbit Commissioning and
Acceptance Test Requirements) to support [ ] Serviceable Transponders with
eighteen (18) Saturated Transponders * and [ ] Transponders operating at 3.0 dB
power back-off, ORION shall pay Contractor * the Power Orbital Incentive Amount,
as an Advance Incentive Payment.
(d) If, at Final Acceptance, the ORION-Z Spacecraft does not meet the
requirements set forth in Paragraph 12.2(c), then ORION shall pay to the
Contractor, as an Advance Incentive Payment, a percentage of the Power Orbital
Incentive Amount in accordance with the number of Saturated Transponders as
provided in Table 12.2(d) below:
26
----------------------------------------------------------------------
Table 12.2(d)
Schedule of Power Orbital Incentive
Payment at Final Acceptance
----------------------------------------------------------------------
No. of Saturated Percentage of Total
Transponders Incentive Amount
---------------- -------------------
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
(e) If the ORION Z Spacecraft is rendered inoperative because of a Launch
Vehicle failure or failure of the Launch Vehicle to place the Satellite in its
geostationary transfer orbit location or if the ORION-Z Spacecraft is deemed a
Constructive Total Loss through no fault of Contractor, Contractor shall receive
and be entitled to retain the full Orbital Incentive Amount payable under this
Article 12. Payment of any amount due Contractor shall be paid thirty (30) days
after ORION's receipt of invoice and in accordance with Article 5.
27
12.3 MONTHLY TRANSPONDER INCENTIVE AMOUNT.
(a) Contractor shall earn and be entitled to retain a percentage of the
Monthly Transponder Incentive Amount during each calendar month of the In-Orbit
Performance Warranty Period according to the number of Satisfactorily Operating
Primary Transponders that the ORION-Z Spacecraft has, as provided in Table 12.3
below. Subject to Article 12.3(b), in the event any of the Monthly Transponder
Incentive Amount is not so earned by Contractor during any calendar month of the
In-Orbit Performance Warranty Period, Contractor shall refund to ORION all such
unearned amounts.
(b) If a Primary Transponder does not satisfy the requirements of a
Satisfactorily Operating Primary Transponder, but ORION nevertheless elects to
use such Primary Transponder for Revenue-earning purposes, then, when the
Revenue (or equivalent consideration) received by ORION for such Primary
Transponder in any one calendar monthly period is less than the proportion of
the Monthly Incentive Amount attributable to such Primary Transponder,
Contractor shall, in the succeeding month, refund to ORION the difference
between the said proportion of the Monthly Incentive Amount for such Primary
Transponder and ORION's actual monthly Transponder Revenue for such calendar
monthly period. In no event shall any one monthly payment by Contractor under
this Article 12.3(b) exceed said proportion of the Monthly Incentive Amount for
such Primary Transponder. In the event that a Primary Transponder is determined
not to be a Satisfactorily Operating Primary Transponder but is later used for
Revenue-earning purposes, ORION shall so advise Contractor within seven (7)
Business Days after commencing such use.
(c) Payment of any refund provided for under this Article 12.3 shall be due
thirty (30) days after the date of receipt by Contractor of an invoice from
ORION; interest shall be paid (at the rate specified in Article 5.4) on any
amounts not paid when due. Invoices shall be accompanied by sufficient data to
support ORION's refund claim. ORION may offset any such payments not made by
Contractor against any outstanding balance due under the Contract. Contractor
shall be deemed to have accepted the Invoice ten (10) Business Days after
receipt of the Invoice unless, within such time period, it notifies ORION of a
dispute. Contractor shall pay any undisputed part of an Invoice.
28
----------------------------------------------------------------------
Table 12.3
Schedule of Monthly Transponder Orbital Incentive Amount Earned for
[ ] Transponders during years [ ] *
----------------------------------------------------------------------
Number of Satisfactorily Percentage of Monthly Transponder
Operating Primary Transponders Incentive Amount
------------------------------ ---------------------------------
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
29
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
----------------------------------------------------------------------
Table 12.3
Schedule of Monthly Transponder Orbital Incentive Amount Earned for
[ ] Transponders during years [ ] *
----------------------------------------------------------------------
Number of Satisfactorily Percentage of Monthly Transponder
Operating Primary Transponders Incentive Amount
------------------------------ ---------------------------------
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
30
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
12.4 MONTHLY POWER INCENTIVE AMOUNT.
(a) Contractor shall earn and be entitled to retain a percentage of the
Monthly Power Incentive Amount during each calendar month of the In-Orbit
Performance Warranty Period according to the number of Saturated Transponders
that the ORION-Z Spacecraft has, as provided in the applicable Table 12.4 below.
In the event any of the Monthly Power Incentive Amount is not so earned by
Contractor during any calendar month of the In-Orbit Performance Warranty
Period, Contractor shall refund to ORION all such unearned amounts.
(b) Payment of any refund provided for under this Article 12.3 shall be due
thirty (30) days after the date of receipt by Contractor of such invoice from
ORION; interest shall be paid (at the rate specified in Article 5.4) on any
amounts not paid when due. Invoices shall be accompanied by sufficient data to
support ORION's refund claim. ORION may offset any such payments not made by
Contractor against any outstanding balance due under the Contract. Contractor
shall be deemed to have accepted the Invoice ten (10) Business Days after
receipt of the Invoice unless, within such time period, it notifies ORION of a
dispute. Contractor shall pay any undisputed part of an Invoice.
31
----------------------------------------------------------------------
Table 12.4
Schedule of Monthly Power Orbital Incentive Amount Earned for [ ] *
[ ] Transponders during years [ ] *
----------------------------------------------------------------------
Number of Saturated Transponders Percentage of Monthly Power
Incentive Amount
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
32
----------------------------------------------------------------------
Table 12.4
Schedule of Monthly Power Orbital Incentive Amount Earned for [ ] *
[ ] Transponders during years [ ] *
----------------------------------------------------------------------
Number of Saturated Transponders Percentage of Monthly Power
Incentive Amount
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
[ ] [ ] *
12.5 MEASURING IN-ORBIT PERFORMANCE.
(a) For the purposes of this Article 12, in determining whether a Primary
Transponder is a Satisfactorily Operating Primary Transponder, no account shall
be taken of any period of unavailability:
(1) less than thirty (30) cumulative seconds per day;
33
(2) attributable to ORION-Z Spacecraft maintenance activities,
station keeping maneuvers, payload reconfiguration for business
purposes or station change maneuvers;
(3) attributable to communications link fading due to external
causes, including but not limited to weather;
(4) arising directly or indirectly as a consequence of any negligent
act or omission of ORION or any of its agents, assignees,
consultants, employees, or customers; or
(5) attributable to earth station sun blinding.
(b) All measurements, computations and analyses, for the purpose of
determining whether a Primary Transponder is a Satisfactorily Operating Primary
Transponder shall be performed by ORION or its Consultants, provided that
Contractor may, at its expense, assist in determining the nature of anomalies
and corrective measures. Contractor shall for this purpose be given access to
any data collected by ORION.
12.6 ECLIPSE.
In the event the ORION-Z Spacecraft fails to meet the eclipse operations
requirements as specified in Part 2(A) (Technical Specifications), a reduction
shall be made to that portion of the Monthly Transponder Incentive Amount and
Monthly Power Incentive Amount calculated under Articles 12.3 and 12.4, as
having been earned by Contractor, with such reduction being equivalent to the
percentage of lost communications capacity determined during eclipse.
12.7 DISPUTED PERFORMANCE.
In the event ORION claims for any month of operation of the ORION-Z
Spacecraft that any of the criteria established or referred to under Articles
12.3, 12.4 and 12.5 above have not been met, ORION's claim shall be accompanied
by technical data, reports, analyses and such records as are available to
support such claim, and Contractor shall be given an opportunity to verify the
data. Should Contractor disagree with such claim and present evidence to the
contrary, then ORION shall consider such evidence and consult with Contractor.
In the event the Parties cannot resolve such disagreement, then either Party may
proceed under Article 16 (Dispute Resolution) to have such dispute resolved.
34
13. INSURANCE
13.1 GENERAL.
(a) Contractor shall provide and maintain, at its expense, the insurance
required by Article 13.2. The insurers selected by Contractor shall have an A.M.
Best rating of A-XIII or foreign equivalent or better or, if such ratings are no
longer available, a comparable rating from a recognized insurance rating agency.
Such insurance coverages shall be in amounts no less than the insurance
coverages Contractor provides and maintains for Contractor's other customers.
(b) Except as otherwise specifically provided in the Contract, the
insurance required by this Article shall not limit, bar or otherwise affect the
liability and obligation of Contractor to complete the Work and deliver the
Deliverable Items in accordance with the Contract.
13.2 REQUIRED INSURANCE.
(a) Insurance of the Work.
(1) All Risks Policy.
(i) Before Contractor commences the Work, Contractor shall have
an insurance policy against all risks, loss or damage to the
ORION-Z Spacecraft occurring prior to Intentional Ignition
(including coverage against damage or loss caused by earth
movement, flood, boiler, turbine and machinery accidents)
subject to normal "All Risks Policy" exclusions. The details
of the insurer and the relevant extracts of the policy shall
be submitted to ORION.
(ii) Such insurance coverage shall be maintained by Contractor up
to the point of Intentional Ignition of the ORION-Z
Spacecraft ordered by ORION pursuant to the Contract and
shall provide (i) coverage for removal of debris, and
insuring the structures, machines, equipment, facilities,
fixtures and other properties constituting a part of the
project, (ii) transit coverage, including ocean marine
coverage (unless insured by the supplier), (iii) off-site
coverage covering any key equipment, and (iv) off-site
coverage covering any property or equipment not stored on
the construction sites.
(2) The insurance of the Work as required by this Article 13.2(a),
whether effected by Contractor or ORION, shall not limit, bar or
otherwise affect the liability and obligation of Contractor to
complete the Work and deliver the Deliverable Items in accordance
with the Contract.
35
(3) Contractor shall use best efforts to require its insurers to
waive all rights of subrogation against ORION, save those for
which ORION indemnifies Contractor pursuant to Article 15.2
(Indemnity by ORION) provided that such coverage shall be at no
additional cost to the insuring Party.
(b) Commercial General Liability Insurance.
(1) Before Contractor commences the Work, Contractor shall have a
Commercial General Liability Policy of insurance. The policy
shall cover Contractor and all Subcontractors employed from time
to time in relation to the Work and performance of the ORION-Z
Contract for their respective rights and interests and cover
their liabilities to third parties.
(2) The Commercial General Liability Policy shall be maintained until
all Work pursuant to the Contract, including remedial work, is
Delivered and Final Acceptance of the ORION-Z Spacecraft has
occurred.
(3) Contractor shall require insurers to waive all rights of
subrogation against ORION, save those for which ORION indemnifies
Contractor pursuant to Article 15.2 (Indemnity by ORION) provided
that such coverage shall be at no additional cost to the insuring
Party.
(c) Insurance of Employees.
(1) Before commencing the Work, Contractor shall have Worker's
Compensation Insurance, including occupational illness or disease
coverage, or other similar social insurance in accordance with
the laws of the country, state or territory exercising
jurisdiction over the employee and Employer's Liability
Insurance. Such insurance shall be maintained until all Work
pursuant to the Contract, including remedial work, is Delivered
and Final Acceptance of the ORION-Z Spacecraft has occurred.
Contractor shall ensure that all Subcontracts contain a similar
provision.
(2) Contractor shall require its insurers to waive all rights of
subrogation against ORION, save those for which ORION indemnifies
Contractor pursuant to Article 15.2 (Indemnity by ORION) provided
that such coverage shall be at no additional cost to the insuring
Party.
(d) Comprehensive Automobile Liability Insurance.
(1) Before commencing the Work, Contractor shall self-insure or
Contractor shall insure against liability for claims of personal
injury (including bodily injury and death) and property damage
covering all owned, leased, non-owned and
36
hired vehicles used at any of Contractor's facilities in the
performance of Contractor's obligations under the Contract.
13.3 SUBCONTRACTS.
Contractor shall require its Subcontractors to provide and maintain
insurance, and such insurance shall be no less in kind or amount as Contractor
requires its Subcontractors to provide and maintain for work to be provided by
such Subcontractors to other customers of Contractor.
13.4 DOCUMENTARY EVIDENCE.
(a) In respect of every insurance policy required under this Article 13,
before commencement of the Work and whenever requested by ORION in writing,
Contractor shall periodically provide documentary evidence that the coverages
and policy endorsements required under the Contract have been effected and are
being maintained in force and Contractor shall provide ORION not less than
thirty (30) days written notice prior to any modification, cancellation or
non-renewal of the policies.
(b) Contractor shall produce evidence of compliance with the insurance
obligations applicable to Contractor pursuant to this Article 13 within fourteen
(14) days of written request by ORION. In the event Contractor does not provide
such evidence within such time period, ORION shall provide Contractor written
notice thereof.
13.5 CLAIMS.
As soon as practicable after any occurrence that may give rise to a claim
under a policy of insurance required by this Article 13, Contractor shall inform
ORION in writing of such occurrence and shall thereafter keep ORION informed of
subsequent developments concerning the claim. Contractor shall ensure that
Subcontractors similarly inform ORION of any such occurrences through
Contractor. Each Party shall provide to the other Party any information that may
reasonably be required to prepare and present an insurance claim.
14. ADDITIONAL SATELLITE OPTION
14.1 DELIVERY SCHEDULE.
Contractor agrees to provide an additional satellite identical to the
ORION-Z Spacecraft design, ("Additional Satellite") for on-ground delivery to a
launch site designated by ORION and without further obligation for Contractor to
provide any launch readiness service no later than nineteen (19) months after
receipt of an order from ORION or four (4) months after delivery of ORION-Z,
whichever is later. ORION may place such order at any time after the EDC but in
no event later than two (2) months after Launch of the Satellite.
37
14.2 PRICE.
(a) The firm fixed price for the Additional Satellite ("Additional
Satellite Price"), is [ ] provided ORION orders such Additional Satellite no *
later than March 30, 1999. Thereafter, the Additional Satellite Price shall
increase to [ ] * [ ] subject to ORION placing an order for the Additional
Satellite * no later than September 30, 1999. Thereafter, the price of an
Additional Satellite shall be negotiated between the Parties prior to ORION
ordering the Additional Satellite.
(b) The Additional Satellite payment plan shall be negotiated between the
Parties prior to ORION ordering the Additional Satellite; the payment plan shall
match Contractor's actual expenditure profile so as to avoid prepayments and
financing costs.
(c) Selection of the launch vehicle and launch services contractor will be
made by ORION (with the concurrence of Contractor) in sufficient time to permit
delivery of the Additional Satellite on the schedule set forth in Article 14.1.
The prices for both such items will be identified and agreed to as a part of
such process.
(d) ORION shall provide for launch insurance for the Additional Satellite.
14.3 ADDITIONAL SATELLITE CONTRACT PROVISIONS.
(a) Contractor shall furnish the Additional Satellite in accordance with
the provisions of the documents that constitute the Contract, with the dates
therein adjusted (if necessary) for the later timeframe of the Additional
Satellite.
(b) Except as otherwise required by the terms of this Article 14, contract
terms for the Additional Satellite will be identical to the Contract, with risk
elements (e.g., liquidated damages for late delivery and warranty payback
incentives) adjusted to the change in price from the ORION-Z Spacecraft so as to
represent the same percentage risk.
15. INDEMNIFICATION, INTER-PARTY WAIVER OF LIABILITY, AND LIMITATION OF
LIABILITY AND DISCLAIMER OF WARRANTY
15.1 INDEMNITY BY CONTRACTOR.
Contractor shall indemnify, defend and hold harmless ORION and its
Associates from any and all Losses arising from, in connection with, or based on
any allegations made by third parties (including employees, Consultants or
customers of ORION, Contractor, Subcontractors and all other persons performing
any of the Work hereunder) regarding any of the following:
(a) injury to persons (including sickness or death) or damage to real or
tangible personal property (excluding the ORION-Z Spacecraft after Intentional
Ignition), resulting from any act or omission, negligent or otherwise, of
Contractor or its Subcontractors in the
38
performance of the Work, or any act or omission of ORION or ORION Personnel
occurring at any installation of Contractor (except acts or omissions that
constitute willful misconduct or lack of good faith);
(b) any claims of infringement of any intellectual property rights,
including patent, copyright or industrial design, or of unauthorized use or
disclosure of any proprietary technical information, alleged to have occurred
because of the Work performed under the Contract;
(c) Contractor's breach of its obligations with respect to improper
payments as set forth in Article 28.14 (Improper Payments, Kickbacks, Gifts and
Gratuities); and
(d) Contractor's breach of its obligations with respect to compliance with
applicable laws as set forth in Article 28.15 (Compliance With Applicable Laws).
15.2 INDEMNITY BY ORION.
ORION shall indemnify, defend and hold harmless Contractor and its
Associates from any and all Losses arising from, in connection with, or based on
any allegations made by third parties (including employees of Contractor and
Subcontractors, employees, Consultants and customers of ORION and all other
persons performing any of the Work hereunder) regarding any of the following:
(a) injury to persons (including sickness or death) or damage to real or
tangible personal property, resulting from any act or omission, negligent or
otherwise, of ORION or ORION Personnel relating to the Work; provided, however,
ORION shall have no obligation with respect to claims for acts or omissions of
ORION or ORION Personnel occurring at any installation of Contractor (except
acts or omissions that constitute willful misconduct or lack of good faith);
(b) any claims of infringement of any intellectual property rights,
including patent, copyright or industrial design, or of unauthorized use or
disclosure of any proprietary technical information, alleged to have occurred
because of any resource provided to Contractor for performance of the Work;
(c) ORION's breach of its obligations with respect to improper payments as
set forth in Article 28.14 (Improper Payments, Kickbacks, Gifts and Gratuities);
and
(d) ORION's breach of its obligations with respect to compliance with
applicable laws as set forth in Article 28.15 (Compliance With Applicable Laws).
39
15.3 INFRINGEMENT.
(a) In the event that, as a result of any claim or action alleging
infringement as described in Article 15.1(b), the manufacture, use, lease or
sale of any item thereof is enjoined, Contractor agrees to utilize its best
efforts either:
(1) to negotiate a license or other agreement with the plaintiff so
that such item is no longer subject to such injunction; or
(2) to modify suitably such item or substitute a suitable item
therefor, which modified or substituted item is not subject to
such injunction and to extend the provisions of this Article
thereto.
(b) In the event neither of the alternatives set forth under Article
15.3(a) above is accomplished by Contractor, Contractor shall refund to ORION
all payments made by ORION to it on account of the Contract Price, plus any
orbital incentive payments. Should Contractor be required under this Article
15.3(b) to refund to ORION all payments, ORION shall retransfer title in the
enjoined item to Contractor if title has previously passed to ORION.
(c) Contractor agrees to promptly provide ORION with written notice of any
demand, claim, request, proceeding or action against Contractor or any of
Contractor's other customers alleging that technology incorporated into the Work
provided under the Contract infringes the claimant's intellectual property
rights.
15.4 INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by any entity entitled to indemnification under
Articles 15.1 and 15.2 of notice of the commencement or threatened commencement
of any civil, criminal, administrative, or investigative action or proceeding
involving a claim in respect of which the indemnitee will seek indemnification
pursuant to such Article, the indemnitee shall notify the indemnifying Party of
such claim in writing. Failure to so notify the indemnifying Party shall not
relieve the indemnifying Party of its obligations under the Contract except to
the extent that it can demonstrate damages attributable to such failure. Within
fifteen (15) days following receipt of written notice from the indemnitee
relating to any claim, but no later than ten (10) days before the date on which
any response to a complaint or summons is due, the indemnifying Party shall
notify the indemnitee in writing if the indemnifying Party elects to assume
control of the defense and settlement of that claim (a "Notice of Election")
unless the indemnifying Party received notice of the claim less than ten (10)
days before said due date, in which case the indemnifying Party shall provide
the indemnitee a Notice of Election as soon as is reasonably practicable after
receipt of notice of the claim.
(b) If the indemnifying Party delivers a Notice of Election relating to any
claim within the required notice period, the indemnifying Party shall be
entitled to have sole control
40
over the defense and settlement of such claim; provided that (i) the indemnitee
shall be entitled to participate in the defense of such claim and to employ
counsel at its own expense to assist in the handling of such claim; (ii) where
the indemnitee is so represented, the indemnifying Party shall keep the
indemnitee's counsel informed of each step in the handling of any such claim;
(iii) the indemnitee shall provide, at the indemnifying Party's request and
expense, such assistance and information as is available to the indemnitee for
the defense and settlement of such claim; and (iv) the indemnifying Party shall
obtain the prior written approval of the indemnitee before entering into any
settlement of such claim or ceasing to defend against such claim. After the
indemnifying Party has delivered a Notice of Election relating to any claim in
accordance with the preceding paragraph, the indemnifying Party shall not be
liable to the indemnitee for any legal expenses incurred by the indemnitee in
connection with the defense of that claim. In addition, the indemnifying Party
shall not be required to indemnify the indemnitee for any amount paid or payable
by the indemnitee in the settlement of any claim for which the indemnifying
Party has delivered a timely Notice of Election if such amount was agreed to
without the written consent of the indemnifying Party.
(c) If the indemnifying Party does not deliver a Notice of Election
relating to any claim within the required notice period, the indemnitee shall
have the right to defend the claim in such manner as it may deem appropriate, at
the cost and expense of the indemnifying Party. The indemnifying Party shall
promptly reimburse the indemnitee for all such costs and expenses.
15.5 INTER-PARTY WAIVER OF LIABILITY FOR LAUNCH OPERATIONS.
(a) ORION 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 that it sustains as a result of damage to its own property and employees,
including death, while involved in launch operations in or around the launch
site, which damage is caused by either Contractor, ORION, the Launch Agency or
any other party involved in launch operations, and 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 this Article 15.5 only, each Party further agrees that
if it subcontracts with a third party to provide services that necessitate such
third party's presence on the launch site, then it acknowledges and agrees 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 Article.
(c) In the event that a Party fails to obtain the aforesaid inter-party
waiver of liability from its subcontractor(s), then such Party shall indemnify
and hold harmless the other Party, the Launch Agency, other users of launch
services and their respective contractors and subcontractors from claims brought
by such subcontractor(s) of the first Party for damage to such
subcontractor(s)'s property or injury to, or death of, such subcontractor(s)'s
employees with respect to matters that otherwise would have been covered by the
inter-party waiver of liability.
41
(d) The Parties will take such further actions as may be required to
implement the provisions of this Article 15.5, including the execution of such
agreements and waivers as are customarily used with respect to operations at the
launch site and are consistent with the provisions of this Article 15.5.
15.6 WAIVER OF SUBROGATION.
Except as provided in Article 7.5(g)(4), if a Party insures against any
loss or damage it may suffer in respect of which such Party is required to
indemnify the other Party or an Associate of the other Party pursuant to this
Article 15, it shall be a condition that such Party shall arrange for the
insurer to waive its right of subrogation against the other Party and every
Associate of the other Party provided that such coverage shall be at no
additional cost to the insuring Party. Each Party shall be entitled to require
proof from time to time that the other Party has complied with its obligations
under this Article. In the event that a Party does not comply with such
obligations, the respective indemnities referred to in Articles 15.1 and 15.2
shall extend, as applicable, to any claim that may be made by an insurer
pursuant to an alleged right of subrogation.
15.7 LIMITATION OF LIABILITY.
(a) EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED IN THE CONTRACT IN NO EVENT
SHALL EITHER PARTY BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER PARTY AND ITS
ASSOCIATES AND SUBCONTRACTORS OR TO ANY ASSIGNEE OR SUCCESSOR OWNERS OF THE
ORION-Z SPACECRAFT FOR ANY AMOUNT REPRESENTING LOSS OF PROFITS, LOSS OF
BUSINESS, OR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES
ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THE CONTRACT OR ANY ACTS OR
OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMS OR SERVICES
FURNISHED HEREUNDER, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES OR ANY OTHER LEGAL
THEORY. EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED IN THE CONTRACT, IN NO EVENT
SHALL EITHER PARTY'S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY DAMAGES CLAIMED
HEREUNDER EXCEED THE CONTRACT PRICE.
(b) The foregoing limitation of liability shall not be deemed to affect the
Contractor's duties or ORION's remedies under Article 7.5 and Article 13.
15.8 DISCLAIMER OF WARRANTY.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE CONTRACT, CONTRACTOR MAKES NO
WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY
42
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO
THE ORION-Z SPACECRAFT OR ANY OTHER DELIVERABLE ITEM PROVIDED UNDER THE
CONTRACT.
16. DISPUTE RESOLUTION
Any dispute between the Parties arising out of or relating to the Contract,
including with respect to the interpretation of any provision of the Contract
and/or with respect to performance under the Contract, shall be resolved as
provided in this Article.
16.1 INFORMAL DISPUTE RESOLUTION.
Prior to the initiation of formal dispute resolution procedures, the
Parties shall first attempt to resolve their dispute informally, as follows:
(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 the Contract will not be
met, the Party shall give written notice of its objections and the reasons
therefor and may recommend corrective action by the other Party. Contractor's
Program Manager shall promptly consult with ORION's Program Manager in an effort
to reach an agreement to overcome the objections (first instance).
(b) In the event agreement cannot be reached within ten (10) days of
receipt of written notice, then either Party may request that it be escalated
and the respective positions of the Parties shall be forwarded to Contractor's
Senior Executive and ORION's Senior Executive for discussion, and an attempt
shall be made to reach agreement (second instance).
(c) In the event agreement cannot be reached in the first instance or in
the second instance within thirty (30) days of the written notice described in
Article 16.1(a), then either Party may request that it be escalated and the
positions of the Parties shall be forwarded to Contractor's President and
ORION's President for resolution of the objections (third instance). If
agreement still cannot be reached within ten (10) additional days, either Party
may commence arbitration in accordance with Article 16.2.
(d) In the event of a dispute as to the performance of the Launched ORION-Z
Spacecraft, the Parties agree to have an independent determination of the
ORION-Z Spacecraft technical status performed by a mutually acceptable
technically qualified third party. The costs incurred in retaining the third
party shall be shared equally between Contractor and ORION. Such independent
determination may be used by either Party in any arbitration under Article 16.2,
but such determination shall not be binding upon the arbitrators.
43
16.2 ARBITRATION.
If the Parties are unable to resolve any dispute as contemplated by Article
16.1 and if such dispute is not subject to Article 16.3, then such dispute shall
be submitted to mandatory and binding arbitration at the election of either
Party (the "Disputing Party") pursuant to the following conditions:
(a) The Disputing Party shall notify the American Arbitration Association
("AAA") and the other Party in writing describing in reasonable detail the
nature of the dispute.
(b) The arbitration shall be conducted by a tribunal of three (3)
arbitrators. Each Party shall appoint one (1) arbitrator and the third shall be
appointed by the two (2) arbitrators so previously appointed.
(c) The arbitration shall be conducted in accordance with the AAA's
Commercial Arbitration Rules then in effect. The arbitral tribunal shall allow
reasonable discovery in the forms permitted by the Federal Rules of Civil
Procedure, to the extent consistent with the purpose of arbitration. The
arbitral tribunal shall have no power or authority to amend or disregard any
provision of this Article 16.2 or any other provision of the Contract (in
particular, the arbitral tribunal shall not have authority to exclude the right
of a Party to terminate this Agreement when a Party would otherwise have such
right). The arbitral hearing shall be commenced promptly and conducted
expeditiously, with each Party being allocated one-half of the time for the
presentation of its case. Unless otherwise agreed by the Parties, an arbitral
hearing shall be conducted on consecutive days. In respect of a default by
either Party in respect of any procedural order made by the arbitral tribunal,
the tribunal shall have power to proceed with the arbitration and make its
award.
(d) The arbitration shall be held in Washington, D.C., U.S.A. and shall be
conducted in the English language.
(e) Any arbitration proceeding held pursuant to this article shall be
governed exclusively by the United States Arbitration Act, 9 U.S.C., Section 1
et seq.
(f) The following time limits shall be observed in respect of any
arbitration held pursuant to this Article:
(1) each Party shall appoint its arbitrator within ten (10) days of
receipt of the AAA acknowledgment of a demand for arbitration;
(2) the two (2) appointed arbitrators shall appoint a third
arbitrator within a further twenty (20) days from the time
stipulated in Article 16.2(f)(1) (unless the two (2) arbitrators
agree to an extension not to exceed an additional twenty (20)
days); and
44
(3) any decision by the arbitrators referred to 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.
(g) Pending a decision by the arbitral tribunal, each Party shall, unless
directed otherwise by the other Party in writing, fulfill all its obligations
under the Contract, including, if and so far as it is reasonably practicable,
the obligation to take steps necessary during the arbitration proceedings to
ensure that the Work will be delivered within the time stipulated or within such
extended time as may be allowed under the Contract. Dispute over payment shall
not relieve Contractor of its obligations under this Article 16.2(g).
(h) The arbital tribunal shall, after reaching judgment and award, prepare
and distribute to the Parties a writing describing the findings of fact and
conclusions of law relevant to such judgment and award, and containing an
opinion setting forth the reasons for the giving or denial of any award. The
award of the arbitral tribunal shall be final and binding on the Parties, and
any judgment thereon may be entered in a court of competent jurisdiction. In no
event shall the arbitral tribunal be entitled to include indirect or
consequential damages in any damage award payable by either Party.
(i) The arbitral tribunal shall award prejudgment interest on any amount
that the tribunal determines is owing from one Party to the other, such interest
to be calculated at an annual rate equal to the Chase Manhattan Prime Rate then
in effect for each day from forty-five (45) days following the date of loss or
from the date of the filing for arbitration, whichever is the earlier, until the
date full payment is made.
(j) The cost of arbitration, including fees and expenses of the
arbitrators, will be shared equally by the Parties, unless the arbitral award
otherwise provides. Each Party shall bear the cost of preparing and presenting
its own case, unless the arbitral award otherwise provides.
(k) Notwithstanding anything else contained herein, the Parties agree that
time is of the essence in resolving any dispute.
16.3 LITIGATION.
(a) The Parties agree that the only circumstances in which disputes between
them shall not be subject to the provisions of Articles 16.1 and 16.2 is where a
Party makes a good faith determination that a breach of the terms of the
Contract by the other Party is such that the damages to such Party resulting
from the breach will be so immediate, so large or severe, and so incapable of
adequate redress after the fact that a temporary restraining order or other
immediate injunctive relief is the only adequate remedy. If a Party files a
pleading with a court seeking immediate injunctive relief and this pleading is
challenged by the other Party and the injunctive relief sought is not awarded in
substantial part, the Party filing the pleading seeking immediate
45
injunctive relief shall pay all the costs and attorneys' fees of the Party
successfully challenging the pleading.
(b) The Parties consent to the non-exclusive jurisdiction of competent
Maryland state courts or federal courts in the District of Maryland, for all
litigation that may be brought under Article 16.3(a) above, subject to the
requirement for arbitration hereunder, with respect to the terms of, and the
transactions and relationships contemplated by, the Contract. The Parties
further consent to the jurisdiction of any court located within a district that
encompasses assets of a Party against which a judgment has been rendered, either
through arbitration or through litigation, for the enforcement of such judgment
or award against the assets of such Party.
17. TERMINATION
17.1 TERMINATION FOR CONVENIENCE.
(a) ORION may, upon written notice to Contractor, terminate all or any part
of the Contract without cause and at any time, and Contractor shall immediately
cease work in the manner and to the extent specified and shall similarly direct
its Subcontractors and take such action as may be reasonably necessary or as
ORION may direct for the protection and preservation of the Work that is in the
possession of Contractor or any Subcontractor and in which ORION has or may
acquire an interest.
(b) In the event of such termination under this Article 17.1 and provided
the termination was not due to the default of Contractor under Article 17.2,
Contractor shall be entitled to payment of an amount equal to, (i) in the case
of termination of all of the Contract, the Termination Liability Amount as
specified in Part l(B) (Payment Milestone Schedule and Termination Liability
Amounts) corresponding to the month in which termination occurs less the sum of
the Payment Milestones received by Contractor and, (ii) in the case of
termination of a part of the Contract, such amount as applicable to such
terminated part, less the total applicable amount of the sum of the Payment
Milestones received by Contractor; provided that in either case, where such
amount is a negative number, Contractor shall pay such amount promptly to ORION
within twenty (20) days.
(c) Contractor shall submit an Invoice to ORION within sixty (60) days
after the termination date which shall specify the amount due to Contractor from
ORION pursuant to this Article 17.1, and Contractor shall be entitled to payment
by ORION of such amount within thirty (30) days thereafter. Payment of such
amount by any Financing Entity on behalf of ORION to Contractor shall relieve
ORION from its obligation to make such payment.
(d) The amount payable by ORION to Contractor pursuant to Article 17.1(b)
shall constitute a total discharge of ORION's liabilities to Contractor for
termination pursuant to this Article 17.1.
46
(e) If the Contract is terminated as provided in this Article 17.1 and full
payment is made in accordance with Articles 17.1 (b) and (c), ORION may require
Contractor to transfer to ORION, in the manner and to the extent directed by
ORION and at the expense of ORION, title to and possession of any items
comprising all or any part of the Work terminated (including, without
limitation, all Work in progress and all inventories allocated to the Contract),
and Contractor shall, upon the direction and at the expense of ORION, protect
and preserve property in the possession of Contractor or its Subcontractors in
which ORION has an interest and shall facilitate access to and possession by
ORION of items comprising all or any part of the Work so terminated. If ORION so
requests or ORION has not taken delivery of property in which it has an interest
within sixty (60) days after termination, or such longer period as is agreed
between the Parties, Contractor shall make a reasonable, good faith effort to
sell such property and to remit any sales proceeds to ORION, less a deduction
for costs of disposition reasonably incurred by Contractor.
17.2 TERMINATION FOR CONTRACTOR'S DEFAULT.
(a) If at any time Contractor has failed to make adequate progress toward
the completion of the ORION-Z Spacecraft, including where such failure is due to
the unlaunched ORION-Z Spacecraft or any component being damaged or destroyed
where such damage or destruction does not constitute an Excusable Delay, such
that Contractor will not be able to Deliver the ORION-Z Spacecraft within ninety
(90) days after the ORION-Z Spacecraft Delivery Date set forth in Article 6
(Delivery) (as such date may have been modified in accordance with the
Contract), then ORION shall be entitled to deliver to Contractor a demand
("Demand") for correction of the failure within thirty (30) days after ORION
learns of such failure. Such Demand shall state full details of the failure.
Within ten (10) days after receipt of the Demand, or such longer time as the
Parties agree, Contractor shall submit to ORION a Correction Plan for achieving
Final Acceptance of the ORION-Z Spacecraft not later than one hundred and eighty
(180) days after the ORION-Z Spacecraft Delivery Date as specified in Article 6
(Delivery), provided that no Correction Plan shall ever result in a change to a
Delivery Date, unless the Parties agree in accordance with Article 28.4
(Amendments). If the Correction Plan does not reasonably correct or offset the
effect of the failure so as to demonstrate that Final Acceptance can be achieved
not later than one hundred and eighty (180) days after the ORION-Z Spacecraft
Delivery Date (as such date may have been modified in accordance with the
Contract), ORION may reject the Correction Plan within thirty (30) days after
receipt, in which case the Parties shall negotiate in good faith to develop a
Correction Plan that will be satisfactory to both Parties. If ORION does not
reject the Correction Plan within thirty (30) days after receipt, the Contract
shall be deemed modified in accordance with the Correction Plan and the failure
shall be deemed cured so long as Contractor complies with the terms of such
Correction Plan.
(b) If Contractor refuses or fails to observe or perform any material duty
or obligation in the Contract, except those obligations of Contractor for which
particular remedies are specified elsewhere in the Contract as being exclusive,
then ORION shall be entitled to deliver to Contractor a Demand that it correct
the breach within thirty (30) days. Such Demand shall state
47
full details of the breach. Within ten (10) days after receipt of the Demand, or
such longer time as the Parties agree, Contractor shall submit to ORION a
Correction Plan. If the Correction Plan does not reasonably correct or offset
the effect of the breach in a timely manner, ORION may reject the Correction
Plan within thirty (30) days after receipt, in which case the Parties shall
negotiate in good faith to develop a Correction Plan that will be satisfactory
to both Parties. If ORION does not reject the Correction Plan within thirty (30)
days after receipt, the Contract shall be deemed modified in accordance with the
Correction Plan and the breach shall be deemed cured so long as Contractor
complies with the terms of such Correction Plan.
(c) ORION may, upon written notice to Contractor, terminate immediately for
cause all or any portion of the Contract if:
(1) Contractor does not submit a Correction Plan to ORION within ten
(10) days after receipt of a Demand, or the Parties cannot
develop a Correction Plan that reasonably corrects or offsets the
effects of the failure or breach or that is otherwise
satisfactory to both ORION and Contractor within twenty (20) days
after ORION's rejection of the Correction Plan; or
(2) Contractor fails to Deliver in orbit the ORION-Z Spacecraft
within one hundred and eighty (180) days after the ORION-Z
Spacecraft Delivery Date set forth in Article 6 (Delivery) (as
such date may have been modified in accordance with the
Contract); or
(3) Contractor (i) files for bankruptcy, (ii) becomes or is declared
insolvent, or is the subject of any proceedings related to its
liquidation, insolvency or the appointment of receiver or similar
officer for it, (iii) makes an assignment for the benefit of all
or substantially all of its creditors; or (iv) enters into an
agreement for the composition, extension, or readjustment of
substantially all of its obligations; or
(4) Contractor resorted to fraudulent, corrupt or unlawful practices
in connection with its securing or implementing the Contract; or
(5) Contractor breaches its obligations under Article 28.14 (Improper
Payments, Kickbacks, Gifts and Gratuities) or Article 28.15
(Compliance with Applicable Laws).
(d) In no event may ORION terminate the Contract with respect to the
ORION-Z Spacecraft after Intentional Ignition.
(e) In the event ORION terminates the Contract in whole or in part as
provided in this Article 17.2, then:
48
(1) ORION may require Contractor to transfer to ORION, in the manner
and to the extent directed by ORION and at the expense of
Contractor, title to and possession of any items comprising all
or any part of the Work terminated (including, without
limitation, all Work in progress and all inventories allocated to
the Contract). The transfer to ORION of Work in progress and
inventories allocated to the Contract not associated with a
Payment Milestone that has been Successfully Completed, Conducted
or Delivered (as defined in Article 5) shall be contingent upon
Contractor being paid an amount mutually agreed upon by the
Parties for such Work in progress and inventories allocated to
the Contract, which amount shall in no event exceed Contractor's
reasonable actual cost incurred therefor. ORION also may cause
the ORION-Z Spacecraft to be completed by another party, and as
damages (in addition to any applicable liquidated damages for
delay levied pursuant to Article 6.2 up to the date of
termination) may charge Contractor for any actual and reasonable
increased cost for such completion incurred in connection
therewith in excess of the Contract Price; provided that
Contractor's liability for such additional damages shall not
exceed [ ] * [ ], as may be adjusted under Article 28.4 *
(without regard to any payments made to Contractor to the date of
termination). The amount payable by Contractor shall be verified
at Contractor's request and expense by an internationally
recognized firm of accountants appointed by Contractor for that
purpose subject to approval of ORION, such approval not to be
unreasonably withheld or delayed. A demand for any such excess
costs must be made within one (1) year after termination under
this Article 17.2 and must be paid within sixty (60) days after
receipt of such verification. Contractor's right to verification
shall be without prejudice to the rights of either Party under
Article 16 (Dispute Resolution). The report issued by the
accountants may be used by either Party during any arbitration
proceeding, but the report shall not be binding on the
arbitrator(s). By notice in writing received by ORION no later
than sixty (60) days after receipt of ORION's invoice pursuant to
this Article 17.2, Contractor may dispute the amount of said
invoice. In the event Contractor does not so notify ORION that it
disputes ORION's invoice, Contractor shall be deemed to have
accepted said invoice; or
(2) ORION shall return or dispose of any or all Work in progress (as
requested by Contractor) and Contractor shall pay ORION (i) all
amounts previously paid by ORION to Contractor, (ii) as damages,
direct reasonable re-procurement costs in excess of the Contract
Price, such damages not to exceed [ ] (as may be * adjusted under
Article 28.4), and (iii) all applicable liquidated damages for
delay levied pursuant to Article 6.2 up to the date of
termination. Title to the Work in progress shall vest or remain
vested in Contractor.
49
(f) If, after termination of the Contract under this Article 17.2, it is
determined by mutual agreement of the Parties or in accordance with Article 16.2
(Arbitration) that Contractor was not in default under the provisions of this
Article 17.2 or that the default was excusable under Article 6.2 (Excusable
Delay), Contractor shall be entitled to its direct damages caused by the
wrongful default termination. Payment shall be made within 30 days of ORION's
receipt of an invoice for such damages with reasonable supporting evidence.
17.3 TERMINATION FOR EXCUSABLE DELAY.
ORION may, upon written notice to Contractor terminate immediately all or
any portion of the Contract if any Excusable Delay (other than Excusable Delay
resulting from acts or omissions of ORION that unreasonably delay or hinder
Contractor's performance or ORION's failure to meet its responsibilities under
the Contract or its exercise of its rights under Article 25 (Ground Storage
Option) due to circumstances caused by ORION) exist for a cumulative period of
time exceeding twelve (12) months. If ORION so terminates the Contract,
Contractor shall refund to ORION all amounts paid for non-Equipment Deliverable
Items (such as Data and Documentation and Operations Training and software) and
all undelivered Equipment Deliverable Items (excluding the ORION-Z Spacecraft if
Launched prior to termination pursuant to this Article 17.3).
17.4 TERMINATION FOR ORION'S DEFAULT.
(a) Contractor shall be entitled to terminate the Contract in whole or,
where severable, in part, under the following circumstances:
(1) if Contractor gives written notice to ORION of default in the
payment of any Milestone Payment when the same shall have become
due and payable and ORION fails to cure such event within thirty
(30) days after receiving such written notice; or
(2) if Contractor gives written notice to ORION that Contractor,
solely as a result of ORION's failure (for reasons that do not
constitute Excusable Delay) to perform its responsibilities as
set forth in the Contract, is unable to substantially perform its
obligations under the Contract for a period in excess of six (6)
months; provided that: (i) Contractor has used commercially
reasonable efforts to perform notwithstanding ORION's failure to
perform; and (ii) Contractor's inability to perform could not
have been prevented by reasonable precautions and cannot
reasonably be circumvented by Contractor through the use of
alternate sources, work-around plans or other means; or
(3) ORION (i) files for bankruptcy, (ii) becomes or is declared
insolvent, or is the subject of any proceedings related to its
liquidation, insolvency or the appointment of receiver or similar
officer for it, (iii) makes an assignment for
50
the benefit of all or substantially all of its creditors; or (iv)
enters into an agreement for the composition, extension, or
readjustment of substantially all of its obligations; or
(4) ORION has resorted to fraudulent or corrupt practices in
connection with its securing or implementing of the Contract.
(b) Except as specified above, Contractor shall not have the right to
terminate or suspend the Contract.
(c) In the event of such termination, Contractor shall be entitled
forthwith to take any or all of the following actions:
(1) treat the Contract as terminated as to any or all of the items
then undelivered or services unperformed and cease or suspend
manufacture of any of the items to be supplied hereunder;
(2) withhold delivery of any of the items to be supplied hereunder
until Contractor has received full payment under this Article and
retain all sums then paid on account thereof,
(3) cease or suspend performance of any of the services to be
provided to ORION hereunder, except those services that are
specifically intended to be provided in connection with a
termination of the Contract; and
(4) take payment of an amount equal to the Termination Liability
Amount for the ORION-Z Spacecraft for the calendar month next
following the calendar month in which the date of termination
occurs, less the sum of the Milestone Payments actually received
by Contractor, provided that, where such amount is a negative
number, Contractor shall refund such amount promptly to ORION
within twenty (20) days. Where Contractor is owed money by ORION,
Contractor shall submit an Invoice to ORION within sixty (60)
days after the termination date which shall specify the amount
due to Contractor from ORION pursuant to this Article 17.4 and
Contractor shall immediately be entitled to full payment by ORION
immediately thereafter.
(d) To the extent that full payment has been made therefor, ORION may
require Contractor to transfer to ORION in the manner and to the extent directed
by ORION, title to and possession of any items comprising all or any part of the
Work terminated (including, without limitation, all Work in progress and all
inventories allocated to the Contract), and Contractor shall, upon direction of
ORION, protect and preserve property at ORION's expense in the possession of
Contractor or its Subcontractors in which ORION has an interest and shall
facilitate access to and possession by ORION of items comprising all or part of
the Work
51
terminated. Alternatively, ORION may request Contractor to make a reasonable,
good faith effort to sell such items and to remit any sales proceeds to ORION
less a deduction for costs of disposition reasonably incurred by Contractor for
such efforts.
(e) Nothing in this Article 17.4 shall affect ORION's remedies under
Article 6.2.
17.5 MITIGATION OF DAMAGES.
In all instances, the Party terminating or claiming other remedies shall
take all reasonable steps available to it to mitigate any claim that it may have
against the defaulting Party.
17.6 RESOLUTION EFFORTS.
Except in the case of a default under Article 17.2(c)(3), Article
17.4(a)(1), and Article 17.4(a)(3), prior to either Party exercising its right
to terminate the Contract under this Article, the Parties agree that ORION's
Senior Executive and Contractor's Senior Executive, and if mutually agreed, an
independent third party, will meet within fifteen (15) days of receipt of
written notice of the dispute by one Party to the other Party to try to resolve
the said dispute. If ORION's Senior Executive and Contractor's Senior Executive
cannot agree on an appropriate resolution of the dispute within ten (10) days,
then the Parties shall resolve their dispute in accordance with the provisions
of Article 16; provided, however, in such circumstances, the Parties shall not
be required to comply with Articles 16.1(a) - (b).
17.7 CONTINUED PERFORMANCE.
Each Party shall continue the performance of its obligations under the
Contract to the extent not terminated under the provisions of this Article.
18. KEY CONTRACTOR PERSONNEL
18.1 KEY POSITIONS.
(a) "Key Contractor Positions" shall be the positions set forth as such in
Part 1(C) (Key Contractor Positions). Contractor shall cause each of the
personnel filling the Key Contractor Positions to devote such time and effort as
is necessary to provide the Work.
(b) The Contractor Program Manager shall be one of the Key Contractor
Positions. The Contractor Program Manager shall serve as the single point of
accountability for Contractor for the Work.
52
18.2 ASSIGNMENT OF KEY CONTRACTOR PERSONNEL.
(a) With respect to Key Contractor Positions identified in Part 1(C) (Key
Contractor Positions) as being subject to ORION approval, before assigning an
individual to such a Key Contractor Position, whether as an initial assignment
or a subsequent assignment, Contractor shall notify ORION of the proposed
assignment, shall introduce the individual to appropriate ORION representatives
(and, upon request, provide such representatives with the opportunity to
interview the individual) and shall provide ORION with a resume and other
information about the individual reasonably requested by ORION. If ORION in good
faith objects to the proposed assignment, the Parties shall attempt to resolve
ORION's concerns on a mutually agreeable basis. If the Parties have not been
able to resolve ORION's concerns within five (5) Business Days, Contractor shall
not assign the individual to that position and shall propose to ORION the
assignment of another individual of suitable ability and qualifications.
Personnel filling such Key Contractor Positions may not be transferred or
re-assigned until a suitable replacement has been approved by ORION.
(b) With respect to Key Contractor Positions identified in Part 1(C) (Key
Contractor Positions) as being subject to ORION consultation, before assigning
an individual to such a Key Contractor Position, whether as an initial
assignment or a subsequent assignment, Contractor shall notify ORION of the
proposed assignment, shall introduce the individual to appropriate ORION
representatives (and, upon request, provide such representatives with the
opportunity to interview the individual) and shall provide ORION with a resume
and other information about the individual reasonably requested by ORION. If
ORION in good faith objects to the proposed assignment, the Parties shall
attempt to resolve ORION's concerns on a mutually agreeable basis.
18.3 APPROVED KEY CONTRACTOR PERSONNEL.
The personnel approved as of the Effective Date to fill the Key Contractor
Positions identified in Part 1(C) as subject to ORION approval, are listed in
Part 1(C).
19. PERMITS, LICENSES AND GOVERNMENT APPROVALS
19.1 CONTRACTOR RESPONSIBILITY AND EXPENSES.
(a) Contractor shall, at its own expense, secure and maintain all permits,
licenses and approvals as may be required for the performance of the Work under
the Contract, including any authorization or license relating to transfer or
export of technology or technical data and any applicable launch licenses.
Contractor shall, at its own expense, perform the Work in accordance with the
conditions of all applicable permits and licenses.
(b) Contractor shall submit an application to the appropriate United States
Government entity for a Technical Assistance Agreement. Such application shall
be made within
53
thirty (30) days after EDC provided ORION supports the application in a timely
manner and shall identify ORION's Consultants.
19.2 ORION REVIEW OF GOVERNMENT APPLICATIONS.
Contractor shall review with ORION any application Contractor makes to any
government department, agency or entity for any permit, license, agreement or
approvals, as may be required to meet Contractor's contractual obligations under
the Contract, prior to the submission of such application. Contractor shall
provide ORION a minimum of ten (10) Business Days to review such applications
prior to submission to such governmental entity and Contractor shall in good
faith consider any comments made by ORION and shall incorporate in such
application all reasonable revisions to such application proposed by ORION.
19.3 COMPLIANCE WITH GOVERNMENT REQUIREMENTS.
Notwithstanding any other Article in the Contract, the Parties understand
and agree that certain restrictions, including those placed on access to
Contractor's and Subcontractor's plants and the use, sale or other disposition
of technical data, and/or Work delivered under the Contract may be imposed by
any government which has jurisdiction over the Work. The Parties at all times,
both before and after completion of the Contract, agree to be and remain bound
by any such government requirements pertaining to the technical data or Work and
shall cooperate in obtaining all required consents and approvals.
20. ACCESS TO WORK IN PROGRESS
20.1 GENERAL.
(a) The provisions of this Article 20 are subject to Article 19.3.
(b) ORION Personnel shall have reasonable access to any premises of
Contractor or Subcontractor on an "as needed" basis where Work is being
performed under the Contract and may observe all of the Work, as well as any
associated facilities and documentation, during regular business hours, or such
other times as Work is being performed under the Contract, provided that such
access does not unreasonably interfere with such Work. Contractor shall provide
ORION Personnel reasonable assistance in the performance of such inspections.
The Parties agree that non-escort badges to agreed work areas for the period
from commencement of Work through Launch where ORION activities are being
performed shall be made available to all ORION Personnel subject to adequate
notice of personnel details being provided to Contractor and security and export
clearance being granted.
54
20.2 OFFICE SPACE AND FACILITIES.
(a) Contractor shall provide office space and facilities for the
accommodation of up to four (4) ORION Personnel at Contractor's facilities and
shall make reasonable work space available for such ORION Personnel at
environmental test facilities (if located off site) and shall use best efforts
to ensure that office space and facilities are provided for up to two (2) ORION
Personnel at other selected Subcontractors' plants on a temporary basis to
attend meetings or witness tests. At a minimum, Contractor shall provide desks,
chairs, office supplies, local telephone service (long distance telephone usage
to be charged to ORION), car parking facilities and access to meetings rooms,
copying machines and facsimile equipment, and, as available, access to and use
of video conferencing facilities at Contractor's facilities (in this connection,
Contractor will take reasonable measures to facilitate video conferencing
between Contractor's facilities and ORION's premises, provided the video
conferencing facilities of both Parties are fundamentally compatible).
(b) ORION Personnel visiting or resident at Contractor's or Subcontractors'
facilities will abide by the applicable security and export regulations and will
not disclose to any third party any information that is identified by Contractor
or by Subcontractors to be of a proprietary nature. All ORION Personnel having
access to Contractor's technical data or manufacturing facilities are required
to be bound by a duly executed non-disclosure agreement.
(c) Notwithstanding the fact that ORION Personnel visiting or resident at
Contractor's or Subcontractors' facilities will be in consultation with
Contractor's or Subcontractors' employees, such ORION Personnel shall remain
employees of ORION, its Consultants , as applicable, and as such, compensation
for their services and all liability for their actions remain the responsibility
of ORION Personnel, as applicable.
20.3 DOCUMENTATION.
(a) ORION Personnel will have reasonable access to (i) any drawings,
circuit diagrams/schematics, specifications, standards or process descriptions
available to Contractor and relevant to the ORION-Z Spacecraft, (ii) data and
documentation provided to Contractor by its Subcontractors and relevant to the
ORION-Z Spacecraft (to the extent permitted by the Subcontractors after
Contractor has used best efforts to obtain such permission), and (iii) Data and
Documentation. Contractor will make available to ORION Personnel copies of such
documentation, at no charge to ORION, on the reasonable request of ORION
Personnel where such documentation is necessary for evaluation of designs,
performance considerations, assessment of test plans and test results or for any
other purpose connected with the design, qualification, testing, Final
Acceptance or operation of the ORION-Z Spacecraft and its components. To
facilitate their work in this respect, Contractor will allow ORION Personnel
reasonable access to all indexes related to such drawings, circuit
diagrams/schematics, and documents.
55
(b) With regard to electronically generated information, Contractor will
copy ORION and/or provide ORION electronic access to that information necessary
to keep ORION advised, on a current basis, of program issues, decisions and
problems. To the extent Contractor establishes data links for general use
between the facilities of Contractor and its customers, Contractor shall
establish data links between its and ORION's facilities such that ORION has
remote electronic access to those project related documents identified in Part
2(B) (CDRL). Contractor will also provide ORION Personnel with "real time"
access to all measured data taken at Contractor's and Subcontractors' facilities
on a non-interference basis.
(c) Subject to Article 9 (Changes in Scope of Work), the inspection,
examination, agreement to, or approval, waiver or deviation by ORION (other than
in accordance with Article 28.4 (Amendments)) with regard to any design,
drawing, specification or other documentation produced under the Contract shall
not relieve Contractor from fulfilling its contractual obligations or result in
any liability being imposed on ORION.
20.4 MEETINGS AND REVIEWS.
(a) ORION Personnel shall be entitled to attend all meetings and reviews
(including meetings and reviews held by electronic means) of Contractor and of
Contractor with any Subcontractors where such meetings and reviews are
materially related to project schedule and management, engineering, design,
manufacturing, integration, testing and launch and shall have the right to
participate in and make recommendations, but not to control, give directions or
assign actions, in all meetings and reviews at the system, subsystem and unit
level, as well as internal program reviews. The Parties agree to work
cooperatively in resolving issues that arise at the various meetings and, where
ORION has an objection to a recommended resolution/ implementation, the Parties
agree to discuss it at the Senior Executive level prior to implementation, but
the final decision concerning implementation shall remain with Contractor who
shall provide ORION with a written explanation for its decision.
(b) In the event a meeting or review is convened at Contractor's or a
Subcontractor's plant, Contractor shall provide reasonable advance notice to
ORION (e.g., one week for regularly scheduled meetings) and shall make the
necessary arrangements to facilitate the entry of ORION Personnel to the meeting
place.
20.5 SUBCONTRACTS.
Contractor shall require that any Subcontract entered into after EDC,
contains a provision substantially similar to this Article 20 to ensure
effectiveness of ORION's rights under the Contract. With respect to Subcontracts
entered into before EDC, ORION's rights under this Article 20 shall be as
permitted in such Subcontracts.
56
21. LICENSE RIGHTS
21.1 SOFTWARE, INVENTIONS AND DATA AND DOCUMENTATION.
(a) License. Contractor grants to ORION an irrevocable, non-exclusive
license to use and have used throughout the world (i) any software covered by
any copyright or patent and any invention covered by any patent, now or
hereafter owned by Contractor or for which Contractor has or may acquire the
right to grant such a license, which software and/or invention is directly
incorporated in any Deliverable Item or directly employed in the use of any
Deliverable Item under the Contract, and (ii) the Data and Documentation. Such
license shall, in connection with the operation, maintenance, redesign or
modification of any Deliverable Items:
(1) permit the copying of such software; and
(2) in the event Contractor no longer elects, or is able, to maintain
such software, permit the modification of such software by ORION
(with Contractor releasing to ORION the source code for such
software upon such event); and
(3) permit the copying and modification of Data and Documentation by
ORION; and
(4) be deemed to be fully paid-up; and
57
(5) be on reasonable terms and conditions for other purposes.
Such license shall be transferable to any other entity, subject to Contractor's
approval, such approval not to be unreasonably withheld. Nothing herein shall be
construed as (i) granting any rights of ownership in any intellectual property
contained in ORION-made redesigns or modifications of Deliverable Items or (ii)
conferring any liability on Contractor for such ORION-made redesigns or
modifications.
(b) No Limitation of Rights. This Article shall not be construed as
limiting any rights of ORION or obligations of Contractor under the Contract,
including specifically the right of ORION, without payment of additional
compensation to Contractor, to use, have used, deliver, lease, sell or otherwise
dispose of, any item or any part thereof, delivered under the Contract.
21.2 TECHNICAL DATA AND INFORMATION.
(a) Definitions. The following definitions shall apply to the Contract:
(1) "Technical Data and Information" includes but is not limited to
technical writings, sound recordings, computer programs,
pictorial reproductions, drawings, circuit diagrams/schematics
and other graphic representations and works of similar nature,
and any other data necessary to enable the manufacture of any
item or the practice of any process manufactured or practiced
pursuant to the Contract, whether or not copyrighted, to the
extent that the same are of the type customarily retained in the
normal course of business. The term does not include financial
reports, costs analyses, and other information incidental to
contract administration.
(2) "Foreground Data" means any Technical Data and Information
generated in the performance of the Work under the Contract or
any Subcontract.
(3) "Background Data" means Technical Data and Information, other
than Foreground Data, directly utilized in the execution of the
Work performed under the Contract or any Subcontract and
necessary for the reconstruction, establishment, maintenance or
operation of any item delivered under the Contract or any
Subcontract or for the modification of any software delivered
under the Contract (as permitted under the Contract by ORION) or
any Subcontract.
(b) Foreground Data.
(1) Upon completion of the Work or upon termination of the Contract,
and also upon written request of ORION not more often than
quarterly during the term
58
of the Contract, Contractor shall notify ORION of any and all
items of Foreground Data. Notification shall be in the form of a
list setting forth the nature of the Foreground Data, the system,
subsystem, or part to which each such item of Foreground Data
relates, and the source of each such item. ORION shall be
entitled to disclose any such list of Foreground Data furnished
to it hereunder, in whole or in part, to any third party for the
purposes of reconstructing, establishing, maintaining, marketing
and operating the ORIONSAT System.
(2) At any time after the Effective Date of the Contract and until
the end of the twenty-fourth (24th) month after final payment
under, or termination of, the Contract, or at any time thereafter
so long as Contractor retains it, Contractor shall, upon written
request of ORION, disclose to ORION any and all Foreground Data
without payment of additional compensation to Contractor. ORION
shall be entitled to disclose, without payment of additional
compensation to Contractor, any and all Foreground Data disclosed
to it hereunder to any third party for the purposes of or in
connection with reconstructing, establishing, maintaining,
marketing and operating the ORIONSAT System.
(3) Contractor agrees to and does hereby grant to ORION or its
assignees pursuant to Article 28.2 (Assignment) an irrevocable,
non-exclusive, fully paid-up right and license to use and to
authorize any third party to use, throughout the world and
without payment of additional compensation to Contractor,
Foreground Data for the purposes of, or in connection with,
reconstructing, establishing, maintaining, marketing and
operating the ORIONSAT System, together with the irrevocable,
nonexclusive, fully paid-up and royalty-free right to have
Contractor grant directly to such third party such right and
license to use. As among all users under this Article 21, the
terms and conditions of the rights of the use granted shall be
nondiscriminatory.
(c) Background Data. To the extent Contractor now is or subsequently
becomes entitled to do so, Contractor agrees, at the written request of ORION,
(i) to grant to ORION an irrevocable, non-exclusive, fully paid-up right and
license to use Background Data throughout the world, and (ii) an irrevocable,
royalty-free right to have Contractor grant directly to any third party the
right and license to use Background Data throughout the world on a
non-discriminatory basis, provided that, subject to Article 21.2(e)
(Unconditional Use), such use by such third parties shall be on fair and
reasonable terms and conditions to be negotiated directly between Contractor and
such third party requesting the use of such Background Data. Any right or
license to use granted pursuant to this Article shall be limited to that use
necessary for the reconstruction, modification, establishment, maintenance and
operation of (those portions of the ORIONSAT System delivered under the
Contract).
59
(d) Copying Rights.
(1) ORION and/or the person or entity to whom Technical Data and
Information is furnished under the Contract shall have the
irrevocable and non-exclusive right to copy for use authorized
under the Contract in connection with any items delivered under
the Contract, any Technical Data and Information that is required
to be furnished to ORION and such others pursuant to the
Contract; provided that if any of the foregoing Technical Data
and Information is copyrighted, Contractor hereby grants to ORION
and such others the royalty-free right to copy such copyrighted
material to the extent that Contractor now has or hereafter
acquires the authority to grant to others such right to make
copies. ORION and such others shall apply an appropriate
copyright notice to all copies of such copyrighted Technical Data
and Information.
(2) At the time that any Technical Data and Information is furnished
under the Contract to ORION and such others, Contractor shall
notify ORION and such others in writing of the inclusion in the
furnished material of any such amount of copyrighted material or
other material with respect to which Contractor is not entitled
to grant the right to make copies to others. Any such copyrighted
material that is marked by Contractor with an appropriate
proprietary legend shall be protected by ORION and such others in
the same manner as they protect their own proprietary
information.
(e) Unconditional Use. Notwithstanding any other provision of this Article,
with respect to any Technical Data and Information any person or entity is
authorized by the terms of this Article to use only under certain conditions or
limitations, such use shall be free, unconditional and unlimited from and after
the time such Technical Data and Information comes into the public domain or
becomes otherwise lawfully available to such person or entity on such other
terms.
(f) Proprietary Markings.
(1) All Foreground Data furnished pursuant to this Article shall be
marked by Contractor with the following legend:
"This document is furnished pursuant to a Contract
between ORION and Contractor dated
_________________ (adding, if appropriate, and a
subcontract thereunder between ____________ and
_____________). This document contains Foreground
Data as defined in that Contract, which may be
used only in the manner specified in that
Contract, unless such Foreground Data is or
lawfully becomes in the
60
public domain or is or lawfully becomes available
to the user on other terms."
(2) All Background Data furnished pursuant to this Article shall be
marked by Contractor with the following legend:
"This document is furnished pursuant to a Contract
between ORION and Contractor dated (adding, if
appropriate, and a subcontract thereunder between
__________ and __________). This document contains
Background Data as defined in that Contract, which
may be used only in the manner specified in that
Contract, and upon such terms as are agreed upon
by _______________ and the user, unless such
Background Data is or lawfully becomes in the
public domain or is or lawfully becomes available
to the user on other terms."
(3) ORION and/or the person or entity to whom any Technical Data and
Information is furnished under the Contract shall be entitled at
any time to modify, remove, obliterate, or ignore any marking not
authorized by this Article 21 on any piece of Technical Data or
Information furnished under the Contract, but only after written
notice and reasonable opportunity has been given to Contractor to
defend such marking.
(g) Subcontracts.
Contractor shall, unless otherwise authorized or directed by ORION, use
best efforts to include in each Subcontract hereunder a license rights clause
pursuant to which each Subcontractor will grant license rights to ORION to the
same extent as the license rights granted by Contractor in this Article.
22. CONFIDENTIALITY AND NONDISCLOSURE OF PROPRIETARY INFORMATION
22.1 DEFINITION AND EXEMPTIONS.
(a) Definition. During the course of performance of the Contract each Party
may have access to or receive information from the other, such as information
concerning inventions, techniques, processes, devices, discoveries and
improvements, or regarding administrative, marketing, financial or manufacturing
activities. All such information, including any materials or documents
containing such information, whether disclosed orally or otherwise, shall be
61
considered proprietary and confidential information of the disclosing Party
("Proprietary Information").
(b) Exemptions. For the purpose of this Article 22, "Proprietary
Information" shall not include any information that the receiving Party can
establish (i) was, at the time of disclosure to it, in the public domain; (ii)
after disclosure to it, is published or otherwise becomes part of the public
domain through no fault of the receiving Party; (iii) was in the possession of
the receiving party at the time of disclosure to it, as established by
documentary evidence; (iv) was received after disclosure to it from a third
party who had a lawful right to disclose such information; and (v) was
independently developed by the receiving Party without reference to the
Proprietary Information of the other, as established by documentary evidence.
22.2 PRIOR APPROVAL OF CERTAIN DISCLOSURES.
(a) Contractor agrees that it will not, for the period specified in Article
22.3(a), disclose details of the Work to be provided to ORION, to the extent
that such disclosure would reveal specific performance information regarding the
ORIONSAT System and the ORION-Z Spacecraft or any other information that would
materially affect ORION's commercial interests or the commercial use of the
ORIONSAT System without the prior written consent of ORION, which shall not be
unreasonably withheld. Notwithstanding the foregoing, the Parties expressly
agree that Contractor shall have the unrestricted right at any time to use and
to supply to third parties services or equipment similar or identical to any
Work provided hereunder.
(b) ORION agrees that it will not, for the period specified in Article 22.3
(a), disclose Proprietary Information of Contractor to the extent that such
disclosure would reveal information to a direct competitor of Contractor that
would materially affect the commercial interests of Contractor without the prior
written consent of Contractor, which shall not be unreasonably withheld.
Contractor agrees that for purposes of this Article 22, in the event that
TELESAT and/or COMSAT are engaged as Consultants to ORION for purposes of the
Contract, they shall not be deemed direct competitors of Contractor.
22.3 CONFIDENTIALITY OBLIGATIONS.
(a) Both during and for a period of three (3) years after the termination
or expiration of the Contract, each Party agrees to preserve and protect the
confidentiality of the Proprietary Information of the other and all physical
forms thereof. Neither Party shall disclose or disseminate Proprietary
Information of the other to any third party, including employees, independent
consultants, or Subcontractors unless each Party has (i) a need to know the
Proprietary Information for the purpose of establishing, maintaining, operating,
financing or marketing the ORIONSAT System, and (ii) has executed an agreement
obligating the party to maintain the confidentiality of the Proprietary
Information and limiting the use of the Proprietary Information to establishing,
maintaining, operating, financing or marketing the ORIONSAT System. Neither
Party shall use Proprietary Information of the other for its own benefit or for
the
62
benefit of any third party, except as specifically provided under the terms and
conditions of the Contract.
(b) The foregoing shall not affect any right of ORION in respect of Data
and Documentation provided for under the Contract nor shall either Party be
prevented from using the general know-how and abilities gained during the
performance of the Contract for any purpose whatsoever.
22.4 COPYING.
(a) Either Party shall be entitled to make copies of any documents
containing Proprietary Information under the terms and conditions outlined
above.
(b) Either Party shall have the right at any time to remove, obliterate or
ignore any proprietary/confidential legend placed on any Data or Documentation,
or other information furnished under the Contract where the legend is not in
accordance with the Contract but only after notice to the other Party and
reasonable opportunity for such Party to defend such legend.
23. YEAR 2000 COMPLIANCE
Contractor represents and warrants that any and all software provided
hereunder will accurately process date/time data (including, but not limited to,
calculating, comparing, and sequencing) from, into, and between the twentieth
and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations (hereinafter "Year 2000 Compliant"). Year 2000 Compliant
information technology, when used in combination with other information
technology, shall accurately process date/time data if the other information
technology properly exchanges date/time data (hereinafter, collectively the
"Year 2000 Warranty").
24. CONTRACT MANAGEMENT
24.1 GENERAL.
Contractor shall conduct and/or attend meetings, reviews and analyses and
shall prepare and deliver reports (including progress reports) and documentation
as required in Part 2(A) (SOW) and Part 2(B)(CDRL).
24.2 APPROVALS AND ACCEPTANCES.
No approval, acceptance, waiver or deviation prior to Final Acceptance by
ORION of any action or item under the Contract shall waive any of ORION's
contractual rights with regard to Final Acceptance of any Deliverable Item or
otherwise change or modify Contractor's obligation to meet the requirements of
the Contract except to the extent a requirement is expressly and
63
specifically waived by a written instrument signed by an authorized
representative of ORION and made an Amendment to the Contract pursuant to
Article 28.4 (Amendment).
24.3 CONTRACT MONITORING.
During the performance of the Contract, Contractor and ORION shall each
designate a person to be its Contract Program Manager, whose duties shall be to
monitor the Work and to act as liaisons between the Parties. Such monitoring by
ORION shall not relieve Contractor from performing the Contract in accordance
with its terms and shall not in any way detract from Contractor's position as an
independent contractor.
24.4 ORION CONSULTANTS.
ORION's Consultants shall not be employees of any entity in direct
competition with Contractor's manufacturing operations and shall have no
authority to change any part of the Contract, or to direct Contractor or to bind
ORION. The Parties agree that TELESAT and COMSAT may be utilized by ORION as
Consultants on the ORION-Z program. Any changes to the Contract shall be made
only in accordance with Article 28.4 (Amendments), but ORION's Consultants may
participate in discussions regarding such changes. Any action taken by
Contractor prior to the resolution of any such question shall be at Contractor's
own risk and expense.
24.5 SUBCONTRACTING.
(a) Contractor shall provide ORION two (2) copies of all Subcontracts
issued, either by Contractor or by a Major Subcontractor on an "as-needed basis"
at ORION's request. Such copies shall not be required to contain any financial
information.
(b) To the extent practical, all Major Subcontracts issued at any time,
including those Subcontracts entered into before EDC shall contain the
provisions specified in the Articles of the Contract as appropriate to the
particular Major Subcontract.
(c) Major Subcontracts.
(1) Contractor has represented that in the performance of the Work
required by the Contract, it will be necessary for Contractor or
its Subcontractors to enter into Major Subcontracts. Initially,
the Major Subcontractors are as provided below:
64
--------------------------------------------------------------------------------
TABLE 24.5
MAJOR SUBCONTRACTORS
--------------------------------------------------------------------------------
NAME OF MAJOR
SUBCONTRACTOR DESCRIPTION OF WORK
------------- -------------------
Arianespace Launch Vehicle
Xxxxx Linearizers
AEG/Thomson TWT
Bosch EPC
ComDev Switches, Diplexers
Alenia Telemetry & Command RF Equipment
TecStar Solar Array Panels
MELCO Solar Array Panels
NEC Earth Sensors
Adcole Sun Sensors
Eagle-Picher Battery Cells
Sharp Solar Cells
Lockheed Xxxxxx Federal Systems SCE Processors
Pressure Systems Inc. Propellant Tanks
Lincoln Composites Pressurant Tanks
Kaiser Xxxxxxxx 110 lb. Thrusters
65
Atlantic Research Corp. 5 lb. Thrusters
Teldix Momentum Wheel
Xxxxxxxx Digital Integrating Rate Assy
MELCO Structural Panels, Comm Panels
(2) In the event that Contractor or a Major Subcontractor selects or
has a necessity to terminate any Major Subcontract or substitute
Major Subcontractors on any Major Subcontract, Contractor shall
consult with ORION and discuss any and all such actions prior to
implementation. The foregoing shall also apply to Subcontracts
and Subcontractors on an "as needed basis." Subject to Article
24.5(c)(3), ORION shall have no right or prior approval of
Contractor's actions.
(3) In the event that Contractor has a necessity to terminate or
substitute any Major Subcontractor, Contractor shall first
consult with and obtain the approval of ORION. If ORION does not
approve such actions and Contractor deems such actions to be
necessary to meet its performance obligations under the Contract,
then Contractor may take such action without ORION's approval.
(4) In the event that Contractor or a Subcontractor that has been
awarded a Major Subcontract has reason to waive, or to agree to,
a deviation in any of the technical requirements of any Major
Subcontract that will cause a material impact on the technical
parameters of the ORION-Z Spacecraft as set forth in Part 3(A)
(Technical Specifications), such variations shall be handled in
accordance with Part 3(A) and shall require a formal Amendment to
the Contract pursuant to Article 28.4.
(d) Nothing in the Contract shall be construed as creating any contractual
relationship between ORION and any Subcontractor. Contractor is fully
responsible to ORION for the acts and omissions of Subcontractors and of all
persons used by Contractor or a Subcontractor in connection with the performance
of the Work under the Contract. Any failure by a Subcontractor to meet its
obligations to Contractor shall not constitute a basis for excusable delay,
except as provided in Article 6.3 (Excusable Delay), and shall not relieve
Contractor from meeting any of its obligations under the Contract.
66
25. GROUND STORAGE OPTION
25.1 NOTIFICATION.
ORION, at its option to be exercised no later than three (3) months prior
to the projected shipment date of the ORION-Z Spacecraft to the launch site, may
direct Contractor to provide ground storage for such Spacecraft for a period of
up to eighteen (18) months. ORION's exercise of its rights under this Article 25
shall constitute an Excusable Delay as provided in Article 6.3 (Excusable Delay)
provided ORION exercises such right due to circumstances caused by ORION.
25.2 STORAGE LOCATION.
Ground storage shall be provided at a facility controlled by Contractor and
shall be conducted in accordance with the satellite storage plan set forth in
Part 5 (Satellite Storage Plan).
25.3 STORAGE PRICES.
In the event that ORION, due to circumstances or Excusable Delay not caused
by ORION, elects to exercise the ground storage option for the ORION-Z
Spacecraft provided in this Article 25 from Contractor, then such ground storage
(and reverification of system flight assurance and reverification testing) shall
be provided at no charge to ORION. Otherwise: (i) such ground storage shall be
provided for the firm fixed price of [ ] per month while * the ORION-Z
Spacecraft is in ground storage and until ORION directs Contractor pursuant to
Article 25.6 to remove such Spacecraft from ground storage, conduct the
verification tests, and ship such Spacecraft to the launch site; and (ii) ORION
shall pay directly or reimburse Contractor for reverification of system flight
assurance and reverification testing (at [ ] * [ ] of Contractor's cost) and for
such reasonable additional costs such as taxes, * tariffs, duties,
transportation, insurance and launch-related expenses that Contractor would not
have incurred had ORION not elected ground storage for the ORION-Z Spacecraft.
25.4 INVOICING AND PAYMENT.
Contractor shall provide ORION an Invoice for amounts due under this
Article 25 in arrears in accordance with Article 5.1. ORION shall pay such
invoiced amounts in accordance with Article 5.
25.5 TITLE AND RISK OF LOSS.
Title and risk of loss or damage to the ORION-Z Spacecraft shall, as
provided in Article 8, remain with Contractor during ground storage and until
Final Acceptance.
67
25.6 NOTIFICATION OF INTENTION TO LAUNCH A STORED SPACECRAFT.
ORION shall direct Contractor by written notice to remove the ORION-Z
Spacecraft from ground storage and Deliver the Spacecraft in-orbit subject to
the availability of a Launch Vehicle. This notification must be received by
Contractor no less than six (6) months prior to the revised Delivery Date for
the ORION-Z Spacecraft.
25.7 IN-ORBIT PERFORMANCE WARRANTY AND PAYMENTS.
(a) In the event that ORION, due to circumstances or Excusable Delay caused
by ORION, elects to exercise the ground storage option provided in this Article
25, upon placement of the ORION-Z Spacecraft in ground storage, ORION shall pay
to Contractor interest on the Orbital Incentive Amount at the rate specified in
Article 5.4 for the period of ground storage until ORION provides Contractor the
notice specified in Article 25.6. Upon Final Acceptance of the ORION-Z
Spacecraft, the provisions of Article 12 shall apply.
(b) In the event it is determined that the amount of the Advance Incentive
Payment to which Contractor is entitled at Final Acceptance under Article 12 is
less than one hundred percent (100%) of the Orbital Incentive Amount, then
Contractor shall pay to ORION a refund in the amount of the difference between
interest paid by ORION under (a) above and interest on the amount of the Advance
Incentive Payment to which Contractor is entitled at Final Acceptance, such
interest at the rate specified in Article 5.4 for the period specified in (a)
above.
26. LAUNCH VEHICLE AGENCY
26.1 INSURANCE.
Contractor shall require the Launch Agency to provide (and verify provision
of) insurance as required by any governmental agency, for loss or damage to its
property resulting from activities to be carried out in connection with launches
to be provided under the Contract. In consideration of and conditioned upon a
reciprocal waiver by the applicable government, both ORION and Contractor agree
to waive any claim against that government or its agencies for any property
damage or loss they sustain or for any personal injury to, death of, or any
property damage or loss sustained by their own employees.
26.2 COMPLIANCE WITH LAWS AND REGULATIONS.
The Launch Agency has executed agreements with various government agencies
for use of government-owned property and facilities relating to the production
of launch vehicles and launch operations. ORION agrees that it will comply with
the applicable government's laws and regulations as they relate to
ORION-furnished property and personnel. Contractor will request the Launch
Agency to furnish copies of such agreements to ORION upon ORION's request. ORION
will indemnify Contractor for any ORION violation of the laws, regulations or
68
agreements as specified herein. In furtherance of the foregoing, the Parties
shall, before launch, execute and deliver an agreement for waiver of claims and
assumption of responsibility, if the execution of which is required by the
applicable government as a condition of granting Contractor's license to conduct
launch activities and launch the ORION-Z Spacecraft.
27. RESPONSIBILITY FOR THE CONTRACT
27.1 ABILITY TO PERFORM.
Contractor, by having submitted a tender to perform the Work and by
executing the Contract, shall be deemed to have satisfied itself as to:
(a) all the conditions and circumstances which may affect the Contract
Price, as defined in Article 5; and
(b) the feasibility of the Work to be performed in accordance with the
terms and conditions of the Contract.
Accordingly, Contractor warrants that it has the necessary skills, facilities
and capacity to perform the Work in accordance with the terms and conditions of
the Contract.
27.2 FIXED CONTRACT PRICE.
Contractor acknowledges that it has fixed the Contract Price according to
its own view and assessment of all relevant matters and no additional costs,
except as otherwise expressly provided for in the Contract, will be charged over
and above the Contract Price.
27.3 INCONSISTENCIES IN CONTRACT.
(a) By executing the Contract, the Parties acknowledge that they have
thoroughly examined all parts of the Contract, and agree that they are complete,
consistent and accurate. If Contractor decides, during the performance of the
Work, that any portion of the Contract is inaccurate or incomplete, or that
there are inconsistencies, it shall notify ORION in writing specifying full
particulars and request resolution before proceeding with the Work in question.
If Contractor proceeds before obtaining such a resolution, it does so at its own
risk and expense, and whether or not the course it has chosen is satisfactory to
ORION, it shall be entitled to no increase in the Contract Price or any
extension of the Delivery Dates set out in Article 6. If Contractor proceeds
with the Work before obtaining resolution of any inaccuracy, incomplete
information or inconsistency and the course of action it has pursued is not
chosen by ORION, it shall, upon request by ORION, promptly and at its own
expense, follow the course of action directed by ORION and make all
readjustments that may be required.
69
(b) ORION shall within twenty (20) days after written notification by
Contractor pursuant to Article 27.3(a) provide a response and resolution of the
issues raised by Contractor.
27.4 SUBCONTRACTOR COOPERATION.
Contractor covenants that it will cooperate fully with all Subcontractors,
and will use reasonable efforts to ensure the full cooperation of all
Subcontractors with ORION in order to achieve due performance of the Contract.
28. GENERAL
28.1 EFFECTIVE DATE OF CONTRACT.
The effective date of the Contract ("EDC") shall be the date as of which
the Contract as been duly signed by both Parties. On the Effective Date,
Contractor will be paid the Initial Payment.
28.2 ASSIGNMENT.
(a) This Contract shall be binding on the Parties and their successors and
assigns. Assignment of this Contract shall not relieve the assigning Party of
any of its obligations nor confer upon the assigning Party any rights except as
provided in the Contract.
(b) Contractor shall not, without the prior written approval of ORION and
except on such terms and conditions as are determined in writing by ORION,
assign, mortgage, charge or encumber the Contract or any part thereof, any of
its rights, duties, or obligations hereunder, the Work or any monies payable or
to become payable under the Contract, to any person, except to a parent or a
wholly-owned direct or indirect subsidiary company of Contractor, or for the
purpose of corporate merger, recapitalization or reconstruction.
(c) ORION shall have the right to assign, mortgage, charge or encumber its
rights, duties or obligations under the Contract to any entity, including any
Financing Entity, subject to prior notice to Contractor.
28.3 ENTIRE AGREEMENT.
This Contract contains the entire Agreement between the Parties regarding
the Work hereunder and supersedes all communications, negotiations, and other
agreements either written or oral, relating to the Work and made prior to the
Effective Date of the Contract unless the same are expressly incorporated by
reference into the Contract.
70
28.4 AMENDMENTS.
The Contract, including Parts, may not be modified except by written
instrument of subsequent date signed on behalf of ORION by its President (or
another person designated by the President in writing to sign such agreement)
and on behalf of Contractor by its Executive Vice President, Business or Vice
President and Chief Financial Officer (or another person designated by either in
writing to sign such agreement) which agreement expressly states that it is an
"Amendment to the ORION-Z Contract."
28.5 WAIVER OF BREACH OF CONTRACT.
A waiver of any breach of a provision of the Contract shall not be binding
upon either Party unless the waiver is in writing, signed by a duly authorized
representative of the Party, as applicable, and such waiver shall not affect the
rights of the Party not in breach with respect to any other or future breach.
28.6 CUMULATIVE REMEDIES.
Except as otherwise expressly provided herein, all remedies provided for in
the Contract shall be cumulative.
28.7 SEVERABILITY.
In the event any one or more of the provisions of the Contract shall for
any reason be held to be invalid or unenforceable, the remaining provisions of
the Contract shall be unimpaired and the invalid or unenforceable provision
shall be deemed to be restated to reflect as nearly as possible the original
intention of the Parties in accordance with applicable law.
28.8 APPLICABLE LAW.
Except as provided in Article 16.2(e), the Contract and performance under
it shall be governed by, construed and enforced in accordance with the laws in
force in the State of Maryland, U.S.A., without regard to conflict of laws
provisions thereof.
28.9 NOTICES.
(a) All notices, requests, demands, and determinations under the Contract
(other than routine operational communications), shall be in writing and shall
be deemed duly given (i) when delivered by hand, (ii) two (2) days after being
given to an express courier with a reliable system for tracking delivery, (iii)
when sent by facsimile confirmed by the specific addressee with a copy sent by
another means specified in this Article 28.9, or (iv) six (6) days after the day
of mailing, when mailed by United States mail, registered or certified, return
receipt requested, postage prepaid, and addressed as follows:
71
ORION
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Xxxxxxx Xxxx, Esq.
Sr. Vice President and General Counsel
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xx. Xxxxx Xxxxxx
Senior Vice President
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SPACE SYSTEMS/LORAL
0000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, PS1
Contract Manager
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxxxxxx Xxxxxx
Program Manager
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) A Party may from time to time change its address or designee for
notification purposes by giving the other Party prior notice of the new address
or designee and the date upon which it will be effective.
28.10 CONTRACTOR NOT AGENT.
Contractor, in performing the Work hereunder, is acting as an independent
contractor, and Contractor has the sole right and obligation to supervise,
manage, contract, direct, procure, perform or cause to be performed, all Work to
be performed by Contractor under the Contract. None of the provisions of the
Contract, including any of its Parts, shall be construed to mean that Contractor
is appointed or is in any way authorized to act as an agent of ORION.
28.11 SURVIVAL.
Any provision of the Contract that can be reasonably construed to survive
the expiration or termination of the Contract for any reason, including Article
11 (Representations and
72
Warranties), Article 12 (In-Orbit Performance Warranty and Incentive Payments),
Article 13 (Insurance), and Article 15 (Indemnification) shall survive such
expiration or termination of the Contract.
28.12 RELEASE OF INFORMATION.
(a) Release of Information. Neither Contractor nor ORION, nor any of their
Associates, contractors, or Subcontractors, shall release or publish any
material (including articles, films, brochures, advertisements and photographs),
or authorize other persons to publish such material, or deliver speeches
(collectively, "Release") about the Work that is marked "Confidential",
"Proprietary", or with similar designation without the prior written approval of
the other Party, which approval shall not be unreasonably withheld. This
obligation shall not apply to (i) ORION's Release of any sort relating to
ORION's intellectual property, including the Technical Specifications and
Statement of Work, and may be Released as ORION so determines, or (ii)
information that is publicly available from any governmental agency or that is
or otherwise becomes publicly available without breach of this Agreement.
(b) The application for approval to Release material required by this
Article 28.12 shall be submitted to the other Party in writing and shall include
full particulars of any intended Release. Upon receipt of the other Party's
agreement in principle to the proposed Release, the applicant shall submit for
final approval by the other Party any material to be in the form and context in
which it is intended to be used. The other Party may then approve or decline to
approve Release in whole or in part of the material and at its discretion may
specify a time for Release.
28.13 GOVERNMENT FILINGS.
Notwithstanding any other provision of the Contract, Contractor and ORION
may make any public release or filings that Contractor or ORION considers
advisable or necessary under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules applicable to the
National Market System, or the securities laws applicable to public companies in
the United States. Prior to making any such filing containing proprietary
information of the other Party, the filing Party shall provide the other Party
reasonable advance notice of the filing and cooperate with such other Party in
obtaining confidential treatment for such proprietary information. In addition,
if a Party desires for any information to be contained within such a filing to
be accorded confidential treatment and not disclosed to the public, it shall so
indicate to the other Party and such other Party shall cooperate with the first
Party in obtaining confidential treatment for such information.
28.14 IMPROPER PAYMENTS, KICKBACKS, GIFTS, AND GRATUITIES.
Each Party agrees that in carrying out its obligations under the Contract
it will not make payments of any salary, fee, commission or compensation of any
kind or the granting of any
73
unlawful or improper gift or gratuity of any kind either directly or indirectly,
to any officer, employee, agent or representative of ORION.
28.15 COMPLIANCE WITH APPLICABLE LAWS.
(a) Subject to Article 19 (Permits, Licenses and Government Approvals),
each Party shall, at its own expense, comply with the requirements of any laws
of any place in which any part of the Work is to be done and with the lawful
requirements of public, municipal and other authorities in any way affecting or
applicable to any Work.
(b) Subject to Article 19 (Permits, Licenses and Government Approvals),
neither Party shall be responsible in any way for the consequences, direct or
indirect, of any violation by the other Party or its Subcontractors or
Consultants, or their officers, employees, agents or servants of any law of a
country in which the Work is performed, or of any country whatsoever.
28.16 FINANCING.
The Parties recognize that the Contract may be financed through external
sources. Contractor agrees to work cooperatively to negotiate and execute such
documents as may be reasonably required to implement such financing to the
extent it does not adversely affect Contractor's rights.
IN WITNESS WHEREOF the Contract has been issued in two (2) counterparts,
executed and sealed on behalf of ORION by persons authorized in that behalf, and
has also been executed and sealed on behalf of CONTRACTOR by persons authorized
in that behalf.
SPACE SYSTEMS/LORAL, INC LORAL ORION NETWORK SYSTEMS, INC.
BY: BY:
---------------------------------------- -------------------------------
TITLE: Executive Vice President, Business TITLE: Sr. Vice President
------------------------------------- ----------------------------
DATE: May 15, 1998 DATE: May 15, 1998
-------------------------------------- -----------------------------
74
CONFIDENTIAL
ANNEX A
MILESTONE ACHIEVEMENT CERTIFICATE
[Date]
Orion Network Services, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Xx Xxxxx
RE: ORION-Z Spacecraft Purchase Contract, dated as of May 15, 1998 (as amended,
supplemented or modified from time to time, the "ORION-Z Contract"),
between Orion Network Services, Inc. ("ORION") and Space Systems/Loral,
Inc. ("Contractor")
Ladies and Gentlemen:
This Invoice is delivered to ORION pursuant to Article 5 of the ORION-Z Contract
and constitutes Contractor's Invoice for the amount of $[...] for Milestone
Payment No. ____ and $[...] for ___________________________.
We hereby certify that the above Milestone has been Successfully Completed,
Conducted, or Delivered (as each term is defined in Article 5.2(e) of the
ORION-Z Contract).
Very truly yours,
SPACE SYSTEMS/LORAL, INC. Agreed to on behalf of ORION:
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
Date:
-------------------------------
PART 1(B)
PAYMENT SCHEDULE
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS PART]
PART 1(B)
TERMINATION LIABILITY
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
STATEMENT OF WORK
PART 2(A)
DATED: 11 MAY 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
i
Use or disclosure of the data contained on this sheet is subject to the
restriction on the title page.
CONTENTS
SECTION PAGE
1 --INTRODUCTION...................................................................................1-1
1.1 SCOPE.................................................................................1-1
1.2 RESPONSIBILITIES......................................................................1-1
1.3 APPLICABLE PROGRAM DOCUMENTS..........................................................1-2
2 --EQUIPMENT, DOCUMENTATION, AND SERVICES.........................................................2-1
2.1 INTRODUCTION..........................................................................2-1
2.2 DELIVERABLE EQUIPMENT.................................................................2-1
2.2.1 Flight Spacecraft..........................................................2-1
2.2.2 Mission Specific Hardware and Software.....................................2-2
2.2.3 TT&C Simulator.............................................................2-2
2.2.4 Dynamic Software Simulator.................................................2-2
2.3 DELIVERABLE DOCUMENTATION.............................................................2-2
2.4 SERVICES..............................................................................2-3
2.4.1 Launch Support Services....................................................2-3
2.4.2 Launch Services............................................................2-3
2.4.3 Insurance..................................................................2-3
2.4.4 Mission Support Services...................................................2-3
2.4.5 Operations Training........................................................2-4
2.4.6 Post Acceptance In-Orbit Support...........................................2-4
2.5 PURCHASER FURNISHED ITEMS FOR IOT.....................................................2-4
2.5.1 Equipment and Personnel....................................................2-4
2.5.2 Data.......................................................................2-5
3 --PROGRAM MANAGEMENT.............................................................................3-1
3.1 INTRODUCTION..........................................................................3-1
3.1.1 Scope......................................................................3-1
3.1.2 Responsibilities...........................................................3-1
3.1.3 Program Management Plan....................................................3-1
3.2 PROGRAM MANAGEMENT INTERFACE..........................................................3-2
3.3 DOCUMENTATION AND DATA MANAGEMENT.....................................................3-2
3.3.1 General....................................................................3-2
3.3.2 Documentation Center.......................................................3-2
3.3.3 Data Management Plan.......................................................3-2
3.3.4 Documentation Submission Criteria..........................................3-2
3.3.5 Revision and Maintenance of Documentation..................................3-2
3.3.6 Monthly Documentation Status Report........................................3-3
3.4 MEETINGS..............................................................................3-3
ii
3.4.1 Progress Meetings..........................................................3-3
3.4.2 Senior Management Meetings.................................................3-3
3.4.3 Quarterly Progress Meetings................................................3-3
3.4.4 Kick-Off Meeting...........................................................3-4
3.4.5 Agenda Coordination Procedure..............................................3-4
3.4.6 Minutes....................................................................3-4
3.4.7 System and Major Subsystems Integration and Test Weekly Meeting............3-4
3.4.8 Major Subcontractor Progress Meetings and Other Meetings....................-5
3.5 REVIEWS...............................................................................3-5
3.5.1 Design Reviews.............................................................3-5
3.5.1.1 Review Chairperson and Review Board............................3-5
3.5.1.2 Review Notification............................................3-6
3.5.1.3 Data Packages..................................................3-6
3.5.1.4 Review Procedures..............................................3-6
3.5.1.5 Review Summary.................................................3-6
3.5.1.6 Review Completion..............................................3-6
3.5.1.7 Spacecraft System/Subsystem CDR................................3-6
3.5.2 System/Subsystem Test Reviews..............................................3-7
3.5.3 Preshipment Review.........................................................3-8
3.5.4 Design Review Documentation................................................3-8
3.5.5 Test Review Documentation..................................................3-8
3.6 ACTION ITEM CONTROL...................................................................3-8
3.7 MANAGEMENT OF CONTRACT CHANGES........................................................3-9
3.7.1 Change Classification......................................................3-9
3.7.2 Preliminary Change Assessment.............................................3-10
3.7.3 Change Request (CR).......................................................3-10
3.7.4 Contract Change Notice (CCN)..............................................3-10
3.7.5 Review and Approval of a Change...........................................3-11
3.7.6 Change Review Board.......................................................3-12
3.7.7 Implementation of a Change by the Contractor..............................3-12
3.7.8 Directed Changes..........................................................3-12
3.7.9 Go Ahead Procedure........................................................3-12
3.7.10 CR/CCN Log...............................................................3-13
3.8 PROGRAM PLANNING AND STATUS INFORMATION..............................................3-14
3.8.1 Spacecraft Hardware Matrix................................................3-14
3.8.2 Qualification Status List.................................................3-14
3.8.3 Critical Items List.......................................................3-14
3.8.4 Program Schedules.........................................................3-14
3.8.5 Monthly Program Progress Report...........................................3-15
iii
3.8.6 Executive Quarterly Summary...............................................3-16
3.9 PROGRAM MONITORING AND NOTIFICATION REQUIREMENTS.....................................3-16
3.9.1 ORION Representatives.....................................................3-16
3.9.2 Office Accommodation and Facilities.......................................3-16
3.9.3 Attendance at Meetings....................................................3-17
3.9.4 Access to Data and Documentation..........................................3-17
3.9.5 ORION Presence During Development, Qualification, and Acceptance Tests....3-17
3.9.6 Notification Requirements.................................................3-17
3.9.7 Material Review Board (MRB) and Failure Review Board (FRB)................3-18
4 --DESIGN ACTIVITIES..............................................................................4-1
4.1 GENERAL...............................................................................4-1
4.2 SYSTEM SPECIFICATION..................................................................4-1
4.3 DESIGN REVIEWS........................................................................4-1
4.4 DESIGN ANALYSES.......................................................................4-2
4.4.1 Analyses at Spacecraft System Level........................................4-2
4.4.1.1 Spacecraft Failure Analysis....................................4-3
4.4.1.2 Dynamic Analysis...............................................4-3
4.4.1.3 Antenna Pointing Error Analysis................................4-3
4.4.1.4 Propellant Budget Analysis.....................................4-4
4.4.1.5 Mass Properties Analysis.......................................4-5
4.4.1.6 Power Budget Analysis..........................................4-5
4.4.1.7 Mission Analysis...............................................4-5
4.4.1.8 Environmental Effects Analyses.................................4-6
4.4.1.9 Worst Case Performance Analysis................................4-7
4.4.1.10 Autonomous Commands Analysis..................................4-8
4.4.2 Subsystem Level Analyses...................................................4-8
4.4.2.1 Communications Subsystem Analyses..............................4-8
4.4.2.2 Telemetry, Tracking, and Command (TT&C) Subsystem Analyses...4-11
4.4.2.3 Attitude and Dynamics Control Subsystem (ADCS)
Analysis.................................................4-12
4.4.2.4 Propulsion Subsystem Analyses.................................4-13
4.4.2.5 Power Subsystem Analyses......................................4-13
4.4.2.6 Thermal Subsystem Analyses....................................4-15
4.4.2.7 Structure Analyses............................................4-15
5 --PRODUCT ASSURANCE..............................................................................5-1
5.1 PRODUCT ASSURANCE REQUIREMENTS........................................................5-1
5.2 QUALITY ASSURANCE TASKS...............................................................5-1
6 --MANUFACTURING, ASSEMBLY, INTEGRATION AND TEST..................................................6-1
iv
6.1 GENERAL...............................................................................6-1
6.2 TEST PLAN.............................................................................6-1
6.3 TEST PROCEDURES, DATA, AND REPORTS....................................................6-2
6.3.1 Unit and Subsystem Level Test Procedures and Reports.......................6-2
6.3.2 Spacecraft Level Test Procedures and Reports...............................6-2
6.3.3 Test Data..................................................................6-2
6.3.4 Spacecraft Log Book........................................................6-3
6.4 TEST REVIEWS..........................................................................6-3
6.5 PRESHIPMENT REVIEW (PSR)..............................................................6-4
6.6 FAILURE NOTIFICATION..................................................................6-4
6.7 ELECTRICAL AND MECHANICAL GROUND SUPPORT EQUIPMENT (EGSE/MGSE)........................6-4
6.8 TEST EQUIPMENT REQUIREMENTS...........................................................6-5
6.9 SOFTWARE REQUIREMENTS.................................................................6-5
6.10 DELIVERY OF DRAWINGS AND ENGINEERING CONTROL DOCUMENTS FOR
SPACECRAFT OPERATION AND IN ORBIT CONTROL............................................6-5
6.11 SECURE COMMAND SYSTEM AND CERTIFICATION..............................................6-6
7 --LAUNCH AND MISSION SUPPORT SERVICES............................................................7-1
7.1 SCOPE.................................................................................7-1
7.2 LAUNCH VEHICLE COMPATIBILITY..........................................................7-1
7.3 LAUNCH SUPPORT SERVICES...............................................................7-2
7.3.1 Spacecraft Preparation at the Launch Sites.................................7-2
7.3.2 Spacecraft Propellant and Pressurant.......................................7-2
7.3.3 Support of Meetings and Reviews............................................7-2
7.4 SAFETY................................................................................7-3
7.5 LAUNCH SERVICES.......................................................................7-3
7.6 MISSION SUPPORT.......................................................................7-3
7.6.1 Scope......................................................................7-3
7.6.2 Mission Support Activities.................................................7-4
7.6.2.1 Preparation and Definition of Mission Support Documents........7-4
7.6.2.2 World-Wide Ground Segment......................................7-7
7.6.2.3 Mission Support Procedures and Sequence of Events..............7-7
7.6.2.4 Spacecraft/ORION SCF Compatibility.............................7-7
7.6.2.5 In Orbit Test Plan and Procedure...............................7-9
7.6.2.6 Mission Reviews................................................7-9
7.6.2.7 Spacecraft and Operations Training.............................7-9
7.6.2.8 Real-Time Mission Operations..................................7-10
7.6.2.9 Post-Mission Review...........................................7-11
7.6.2.10 In Orbit Testing and Test Report.............................7-11
7.6.2.11 Spacecraft Acceptance Review.................................7-11
v
7.6.2.12 Post Acceptance Operational Support..........................7-12
7.7 LAUNCH VEHICLE.......................................................................7-12
7.7.1 Launch vehicle Program Management.........................................7-12
7.7.2 Reviews...................................................................7-12
7.7.2.1 Mission Specific Critical Design Review (CDR).................7-12
7.7.2.2 System Review.................................................7-13
7.7.2.3 Launch Vehicle Quality Review.................................7-13
7.7.2.4 Launch Readiness Review.......................................7-13
7.7.2.5 Review Summary and Action Items...............................7-13
8 --SHIPPING AND STORAGE...........................................................................8-1
8.1 SHIPPING, TRANSPORTATION, AND STORAGE PLAN............................................8-1
8.2 SPACECRAFT SHIPMENT...................................................................8-1
8.3 SPACECRAFT STORAGE....................................................................8-1
9 --MISSION SPECIFIC HARDWARE AND SOFTWARE.........................................................9-1
9.1 TT&C SIMULATOR........................................................................9-1
9.2 PROPULSION MODEL......................................................................9-1
9.3 PROPELLANT GAUGING....................................................................9-1
9.4 SENSOR BLINDING PREDICTION MODEL......................................................9-1
9.5 SATELLITE CONTROL FACILITY (SCF) UPGRADE EQUIPMENT AND SOFTWARE.......................9-1
9.6 DYNAMIC software SIMULATOR............................................................9-1
9.7 SPACECRAFT SPECIFIC CONTROL AND MONITORING SOFTWARE...................................9-1
ANNEX A -- GROUND SYSTEM STATEMENT OF WORK
vi
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 9-1 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
GROUND SYSTEM
STATEMENT OF WORK ANNEX
PART 2(A) ANNEX A
DATED: 11 MAY 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
i
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 --PURPOSE AND SCOPE........................................................1-1
2 --DESIGN OVERVIEW..........................................................2-1
2.1 ROCKVILLE OVERVIEW..............................................2-1
2.2 MT. XXXXXXX OVERVIEW............................................2-2
2.3 XXXXXX OVERVIEW.................................................2-2
3 --DELIVERABLE EQUIPMENT AND SERVICES.......................................3-1
3.1 GROUND EQUIPMENT...............................................3-1
3.1.1 Design Activities....................................3-1
3.1.2 Design Reviews.......................................3-1
3.1.3 Ground Facilities Interface Coordination Meetings....3-2
3.1.4 Non-Impact to Existing Operations....................3-2
3.1.5 Acceptance Tests.....................................3-2
3.1.6 Site System Acceptance Test..........................3-2
3.1.7 Shipping and Installation............................3-3
3.1.8 Ground Equipment Documentation.......................3-3
3.1.9 Warranty.............................................3-3
3.1.10 Special Warranty....................................3-3
3.2 DOCUMENTATION...................................................3-3
4 --CUSTOMER FURNISHED EQUIPMENT AND SERVICES................................4-1
4.1 OVERALL CUSTOMER FURNISHED EQUIPMENT AND SEVICES................4-1
4.1.1 Sites................................................4-1
4.1.2 Other Support Facilities Furnished By ORION..........4-1
4.1.3 Equipment Racks......................................4-1
4.1.4 Uninterruptible Power Systems (UPS)..................4-1
4.1.5 AC power.............................................4-1
4.1.6 RF and Antenna.......................................4-1
4.1.7 Orbital Analysis and Orbit Determination.............4-2
4.1.8 Tracking Data Transfer for Orbit Raising and IOT.....4-2
4.1.9 ORION Network Responsibilities.......................4-2
4.1.10 ORION Control Center Responsibilities...............4-2
4.2 MT. XXXXXXX REQUIREMENTS........................................4-2
4.3 CUSTOMER FURNISHED EQUIPMENT AT XXXXXX..........................4-2
5 --DESIGN ACTIVITIES........................................................5-1
5.1 DESIGN REVIEWS..................................................5-1
5.2 DESIGN DOCUMENTATION............................................5-1
ii
6 --SERVICES.................................................................6-1
6.1 GROUND TT&C SERVICES............................................6-1
6.2 Equipment Installation.................................6-1
6.1.2 Spacecraft Compatibility Test........................6-1
6.2 TRAINING OF PERSONNEL...........................................6-1
6.2.1 Classroom Training...................................6-1
6.2.2 Hands-On Training....................................6-1
7 --GROUND PROGRAM MANAGEMENT................................................7-1
7.1 GROUND MANAGEMENT PROGRAM.......................................7-1
7.2 PROGRAM REVIEWS.................................................7-1
7.2.1 Monthly Review.......................................7-1
7.2.2 Ground Progress Reports..............................7-1
8 --DOCUMENTATION REQUIREMENTS...............................................8-1
9 --DELIVERY DATE............................................................9-1
ILLUSTRATIONS
FIGURE PAGE
2-1 Overview of ORION 2 System..........................................2-1
2-2 Rockville Facility..................................................2-2
2-3 Mt. Xxxxxxx Facility................................................2-3
2-4 Xxxxxx Facility.....................................................2-4
TABLES
TABLE PAGE
3-1 Deliverable Ground Equipment........................................3-1
9-1 Ground Contract Documentation Requirement List (CDRL)...............9-2
iii
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 9-3 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
CONTRACT DOCUMENTATION REQUIREMENTS LIST (CDRL)
PART 2(B)
DATED: 11 MAY 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
PART 2(B) CONTRACT DOCUMENTATION REQUIREMENTS LIST (CDRL)......................1
TABLES
TABLE PAGE
Table 1(a) Program Management Documentation....................................3
Table 1(b) Engineering Documentation...........................................4
Table 1(c) Test Documentation..................................................9
Table 1(d) Product Assurance Documentation....................................15
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1
THROUGH 18 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
TECHNICAL SPECIFICATIONS FOR ORION 2 SPACECRAFT
PART 3(A)
DATED: 11 MAY 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 --INTRODUCTION....................................................................................................1-1
1.1 SCOPE AND PURPOSE......................................................................................1-1
1.2 GENERAL REQUIREMENTS...................................................................................1-1
2 --MISSION REQUIREMENTS............................................................................................2-1
2.1 LIFE 2-1
2.1.0 Propellant Life.............................................................................2-1
2.1.1 Maneuver Life...............................................................................2-1
2.1.2 Orbital Life................................................................................2-1
2.2 LAUNCH CONFIGURATION AND MASS..........................................................................2-2
2.3 AIRBORNE SUPPORT EQUIPMENT (ASE).......................................................................2-2
2.4 SPACECRAFT RELIABILITY AND QUALITY ASSURANCE
REQUIREMENTS......................................................................................2-2
2.4.1 Piece Parts, Components and Subassemblies...................................................2-2
2.4.2 Parts Locations For Testing.................................................................2-4
2.5 DESIGN REQUIREMENTS....................................................................................2-4
2.5.1 Reserved....................................................................................2-4
2.5.2 Reserved....................................................................................2-4
2.5.3 Mechanical Design Criteria for Units and Assemblies.........................................2-4
2.5.4 Thermal Design Criteria for Units and Assemblies............................................2-4
2.5.5 Design Criteria for Electronic Units and Onboard Software...................................2-5
2.5.6 Use of Connectors...........................................................................2-5
2.5.7 Spacecraft Testing Via the Telemetry System.................................................2-5
2.5.8 Hard-Line Connections for Communications and TT&C Subsystem Testing.........................2-6
2.5.9 Insulation of Conductors....................................................................2-6
2.5.10 Radiation Environment......................................................................2-6
2.5.11 Design Considerations Associated with Charging Phenomena...................................2-7
2.5.12 Zero-g Testing.............................................................................2-8
2.5.13 Operation Following Storage................................................................2-8
2.5.14 Launch Windows and Mission Profile Constraints.............................................2-8
2.5.15 Telemetry Transmitters Status During Launch................................................2-8
2.5.16 Helium Pressurant Venting (if applicable)..................................................2-9
2.5.17 Orbit Control Maneuvers....................................................................2-9
2.5.18 Operation in Inclined Orbit................................................................2-9
2.5.19 Attitude Control Failure Mode Recovery and Continued Operation.............................2-9
2.6 DEFINITION OF COORDINATE AXES AND ATTITUDE ANGLES......................................................2-9
2.7 ANTENNA BEAM POINTING ACCURACY........................................................................2-10
ii
3 --COMMUNICATION SUBSYSTEM.........................................................................................2-1
3.1 GENERAL................................................................................................3-1
3.1.2 Conditions for Specification................................................................3-3
3.1.3 Primary Transmission Modes (For Information Only)..........................................3-3
3.2 COVERAGE...............................................................................................3-5
3.2.1 Coverage Regions............................................................................3-5
3.3 POLARIZATION..........................................................................................3-10
3.3.1 Receive Isolation and Discrimination.......................................................3-10
3.3.2 Cross-Polar Transmit Discrimination........................................................3-11
3.4 CAPACITY..............................................................................................3-11
3.5 FREQUENCY PLAN........................................................................................3-12
3.6 COMMUNICATION SUBSYSTEM AND ANTENNA BEAM INTERCONNECTIVITY............................................3-12
3.6.1 Communications Subsystem Configuration.....................................................3-12
3.6.2 Interconnectivity..........................................................................3-14
3.7 INPUT CHARACTERISTICS.................................................................................3-16
3.7.1 Receive Sensitivity (G/T)..................................................................3-16
3.7.2 Gain and Level Control.....................................................................3-16
3.7.2.1 Fixed Gain Mode................................................................3-16
3.7.2.2 Automatic Level Control Mode...................................................3-17
3.7.3 Saturation Flux Density (SFD)..............................................................3-18
3.7.4 Drive Conditions...........................................................................3-19
3.7.4.1 Overdrive Conditions...........................................................3-19
3.7.4.2 Pulsed Transient Response......................................................3-19
3.7.5 Receive Rejection..........................................................................3-20
3.7.6 Linearity of the Common Input Section......................................................3-20
3.7.7 Interference from Command Carrier..........................................................3-20
3.8 OUTPUT CHARACTERISTICS................................................................................3-20
3.8.1 Effective Isotropic Radiated Power (EIRP)..................................................3-20
3.8.2 Spurious Outputs...........................................................................3-23
3.8.3 Spurious Modulation........................................................................3-24
3.8.4 Passive Intermodulation....................................................................3-26
3.8.5 Multipaction...............................................................................3-26
3.9 TRANSFER CHARACTERISTICS..............................................................................3-26
3.9.1 Gain Versus Frequency......................................................................3-26
3.9.2 Gain Slope.................................................................................3-26
3.9.3 Group Delay Versus Frequency...............................................................3-29
3.9.4 Group Delay Slope..........................................................................3-29
3.9.5 Group Delay Stability......................................................................3-29
iii
3.9.6 Group Delay Ripple.........................................................................3-29
3.9.7 Phase Linearity and AM/PM Conversion Coefficient...........................................3-29
3.9.8 AM/PM Transfer Coefficient.................................................................3-31
3.9.9 Amplitude Linearity........................................................................3-32
3.9.10 Frequency Stability.......................................................................3-32
3.9.11 Out-Of-Band Response......................................................................3-33
3.10 RESERVED.............................................................................................3-33
3.11 TRAFFIC ROUTING......................................................................................3-33
3.12 REDUNDANCY...........................................................................................3-33
3.13 HIGH POWER AMPLIFIERS................................................................................3-34
3.13.1 Linearized TWTAs..........................................................................3-34
3.13.2 TWTA Auto-Restart Capability..............................................................3-34
3.14 TT&C INTERFACE.......................................................................................3-34
3.14.1 Command Requirements......................................................................3-34
3.14.2 Telemetry Requirements....................................................................3-35
4 --TELEMETRY, TRACKING. AND COMMAND (TT&C).........................................................................4-1
4.1 TELEMETRY..............................................................................................4-1
4.1.1 Functional Requirements.....................................................................4-1
4.1.1.1 Purpose.........................................................................4-1
4.1.1.2 Function........................................................................4-1
4.1.1.3 Operation.......................................................................4-2
4.1.1.4 Interaction with the Communications Subsystem...................................4-2
4.1.1.5 Redundancy......................................................................4-2
4.1.1.6 Interfaces......................................................................4-2
4.1.1.7 Accuracy........................................................................4-7
4.1.1.8 Data Channel Dynamic Range......................................................4-8
4.1.1.9 Spare Capacity..................................................................4-8
4.1.2 RF Parameters...............................................................................4-8
4.2 COMMAND...............................................................................................4-9
4.2.1 Functional Requirements.....................................................................4-9
4.2.1.1 Purpose.........................................................................4-9
4.2.1.2 Function........................................................................4-9
4.2.1.3 Operation.......................................................................4-9
4.2.1.4 Isolation.......................................................................4-9
4.2.1.5 Redundancy.....................................................................4-10
4.2.1.6 Interfaces.....................................................................4-10
4.2.1.7 System Test Considerations.....................................................4-10
4.2.1.8 Spare Capacity.................................................................4-11
4.2.2 RF Parameters..............................................................................4-11
iv
4.2.3 Baseband Characteristics...................................................................4-11
4.2.3.1 Error Prevention and Detection.................................................4-12
4.2.3.2 Command Security...............................................................4-13
4.2.3.3 Command Acceptance Probability.................................................4-13
4.3 RANGING...............................................................................................4-13
4.3.1 Functional Requirement.....................................................................4-13
4.3.1.1 Purpose........................................................................4-13
4.3.1.2 Function.......................................................................4-14
4.3.13 Operation.......................................................................4-14
4.3.1.4 Isolation......................................................................4-14
4.3.1.5 Redundancy.....................................................................4-14
4.3.2 Performance Requirements...................................................................4-14
5 --ATTITUDE DYNAMICS CONTROL SUBSYSTEM (ADCS)......................................................................5-1
5.1 FUNCTIONAL DESCRIPTION.................................................................................5-1
5.2 SUBSYSTEM PERFORMANCE AND DESIGN REQUIREMENTS..........................................................5-1
5.2.1 Attitude Determination......................................................................5-1
5.2.1.1 Orbit Raising...................................................................5-1
5.2.1.2 Synchronous Orbit...............................................................5-1
5.2.2 Attitude Control............................................................................5-2
5.2.2.1 Transfer to Geosynchronous Orbit and Initial Acquisition........................5-2
5.2.2.2 On Orbit Control................................................................5-2
5.2.3 Reacquisition..............................................................................5-2
5.2.4 Ground Control Command Capability...........................................................5-2
5.2.5 Control Safety Systems......................................................................5-3
5.2.6 Special Features............................................................................5-3
5.2.6.1 Antenna Pattern Measurement Capability..........................................5-3
5.2.6.2 Control Bias Capability.........................................................5-4
5.2.6.3 ADCS Switching..................................................................5-4
5.2.6.4 Control Electronics Fault Protection............................................5-4
5.2.7 Subsystem Configuration and Interfaces......................................................5-4
5.2.7.1 Redundancy......................................................................5-4
5.2.7.2 TT&C Interfaces.................................................................5-5
5.2.7.3 Propulsion Interfaces...........................................................5-5
6 --PROPULSION SUBSYSTEM............................................................................................6-1
6.1 FUNCTIONAL DESCRIPTION.................................................................................6-1
6.2 DESIGN REQUIREMENTS....................................................................................6-1
6.3 REDUNDANCY.............................................................................................6-3
6.4 MANEUVER LIFE AND PROPELLANT LOADING...................................................................6-3
6.4.1 General Requirements........................................................................6-3
v
6.4.2 Propellant Budgeting Methodology............................................................6-4
6.4.2.1 Actual Hardware Performance Test Data...........................................6-4
6.4.2.2 Inefficiencies of Operation.....................................................6-4
6.4.2.3 Inflight Performance............................................................6-5
6.4.2.4 Specific Maneuver Requirements..................................................6-5
6.5 TT&C INTERFACES........................................................................................6-5
7 --POWER SUBSYSTEM.................................................................................................7-1
7.1 FUNCTIONAL DESCRIPTION.................................................................................7-1
7.2 GENERAL REQUIREMENTS...................................................................................7-1
7.3 ENERGY GENERATION......................................................................................7-2
7.3.1 Solar Cells.................................................................................7-2
7.3.2 Power Output................................................................................7-2
7.3.3 Power Transfer Assembly.....................................................................7-2
7.4 ENERGY STORAGE.........................................................................................7-3
7.4.1 Batteries...................................................................................7-3
7.4.2 Battery Charge Management...................................................................7-3
7.4.3 Cell Failure................................................................................7-4
7.4.4 Battery Removal and Storage.................................................................7-4
7.5 POWER CONDITIONING AND CONTROL.........................................................................7-5
7.5.1 Bus Configuration...........................................................................7-5
7.5.2 Failure Modes and Shutdown Sequence.........................................................7-5
7.5.3 Bus Undervoltage and Overvoltage............................................................7-6
7.5.4 Interaction Between the Communications and Power Subsystems.................................7-6
7.6 TT&C INTERFACES........................................................................................7-6
8 --THERMAL CONTROL SUBSYSTEM.......................................................................................8-1
8.1 FUNCTIONAL DESCRIPTION.................................................................................8-1
8.2 PERFORMANCE REQUIREMENTS...............................................................................8-1
8.3 SUBSYSTEM DESIGN REQUIREMENTS..........................................................................8-5
8.3.1 Junction Temperature........................................................................8-5
8.3.2 Instrumentation.............................................................................8-5
8.3.3 Materials...................................................................................8-6
8.3.4 Venting.....................................................................................8-6
8.3.5 Grounding...................................................................................8-6
8.3.6 Multi-Layer Insulating Blanket (MLI)........................................................8-6
8.3.7 Contamination Control.......................................................................8-7
8.4 TT&C INTERFACES........................................................................................8-7
9 --STRUCTURE SUBSYSTEM.............................................................................................9-1
9.1 FUNCTIONAL DESCRIPTION.................................................................................9-1
9.2 PERFORMANCE REQUIREMENTS...............................................................................9-1
vi
9.3 DESIGN REQUIREMENTS....................................................................................9-1
10 --MECHANISMS....................................................................................................10-1
10.1 DESIGN REQUIREMENTS..................................................................................10-1
10.2 TT&C INTERFACES......................................................................................10-2
11 --PYROTECHNIC AND ELECTRO EXPLOSIVE DEVICES.....................................................................11-1
ILLUSTRATIONS
FIGURE PAGE
Figure 3-1. Illustration of Europe Coverage from 12(degree)West....................................................3-9
Figure 3-2. Illustration of American Coverage at 12(degree)West...................................................3-10
Figure 3-3. Frequency Plan........................................................................................3-14
Figure 3-4. Spurious Frequency Modulation Limits..................................................................3-25
Figure 3-5. Spurious Frequency Modulation Limits..................................................................3-25
Figure 3-6. In-Band Gain Vs. Frequency Limits For Input Section...................................................3-27
Figure 3-7. In-Band Gain Vs. Frequency Limits For Overall Transponder.............................................3-28
Figure 3-8. Group Delay Vs. Frequency Limits For Input Section....................................................3-30
Figure 3-9. Group Delay Vs. Frequency Limits For Overall Transponder..............................................3-31
Figure 8-1. Temperature Margins for Internal Mainbody and Thermally Coupled........................................8-2
Figure 8-2. Temperature Margins for Exterior Thermally Isolated Equipment..........................................8-3
vii
TABLES
TABLE PAGE
Table 2-1. Estimated Probability of Survival.......................................................................2-2
Table 3-1. Definition of Europe Coverage Zones.....................................................................3-6
Table 3-2. Definition of American Coverage.........................................................................3-7
Table 3-3. The Minimum Co-Polar Receive Isolations................................................................3-11
Table 3-4. The Minimum Cross-Polar Receive Isolations.............................................................3-11
Table 3-5. The Minimum Cross-Polar Discriminations (Transmit & Receive)...........................................3-11
Table 3-6. Frequency Plan.........................................................................................3-13
Table 3-7. Transponder Cconnectivity Matrix.......................................................................3-15
Table 3-8. Minimum G/T Performance................................................................................3-17
Table 3-9. Maximum Allowable G/T Variation........................................................................3-17
Table 3-10. SFD Variation.........................................................................................3-18
Table 3-11. Receive Rejection.....................................................................................3-20
Table 3-12. Minimum EIRP Performance..............................................................................3-21
Table 3-13. Key City List.........................................................................................3-22
Table 3-14. EIRP Variation........................................................................................3-23
Table 3-15. Spurious Output Levels................................................................................3-24
Table 3-16. Maximum Gain Slope....................................................................................3-29
Table 3-17. Group Delay Slope.....................................................................................3-31
Table 3-18. Third Order Intermodulation Products..................................................................3-32
Table 3-19. Noise Power Ratio*....................................................................................3-32
Table 3-20. Out-Of-Band Response..................................................................................3-33
Table 4-1. Accuracy Requirements...................................................................................4-8
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 11-1 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
RADIATION ENVIRONMENT SPECIFICATION
PART 3(A) ANNEX A
DATED: 11 MAY 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 INTRODUCTION..........................................................1
2 SYNCHRONOUS ORBIT CONDITIONS..........................................2
2.1 ELECTRONS....................................................2
2.2 PROTONS......................................................4
2.3 ALPHA PARTICLES..............................................6
2.4 COSMIC RAY RADIATION.........................................6
2.5 ULTRAVIOLET RADIATION........................................7
2.6 PLASMA.......................................................9
2.7 MICROMETEROIDS..............................................10
3 TRANSFER ORBIT CONDITIONS............................................11
3.1 TRANSFER ORBIT ELECTRON FLUX VALUES.........................11
3.2 TRANSFER ORBIT PROTON FLUX VALUES...........................11
ILLUSTRATIONS
FIGURE PAGE
3.1-1 Transfer Orbit Electron Flux....................................12
3.2-1 Transfer Orbit Proton Flux......................................13
TABLES
TABLE PAGE
2.1-1 Time - Averaged Integral Flux Spectrum...........................2
2.1-1a Time-Averaged Integral Flux Spectrum For Trapped Electrons
(For Solar Array) (12 W).........................................3
2.2-1 Time Averaged Integral Flux Spectrum For Trapped Protons.........4
2.2-2 Proton Fluence (Including solar Flares) and Alpha Particles......5
2.2-3 Solar Flare Proton Models To Use For Solar Array Designs........5
2.4-1 GCR Constants For GCR Energy Distribution........................6
2.4-2 Relative Abundance Of Cosmic Rays................................8
2.5-1 UV Spectrum......................................................9
2.7-1 Flux Of Penetrating Micrometeroids..............................10
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1
THROUGH 13 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
SPACECRAFT PRODUCT ASSURANCE REQUIREMENTS
PART 3(B)
Dated: 11 May 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
i
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 INTRODUCTION....................................................................1-1
1.1 SCOPE..................................................................1-1
1.2 PRODUCT ASSURANCE OBJECTIVES...........................................1-1
2 PRODUCT ASSURANCE REQUIREMENTS..................................................2-1
2.1 PRODUCT ASSURANCE PLAN.................................................2-1
2.2 ORGANIZATION AND MANAGEMENT............................................2-1
2.3 REPORTING..............................................................2-1
2.4 NON-CONFORMANCE........................................................2-2
2.5 WAIVERS AND DEVIATIONS.................................................2-2
3 REVIEWS AND AUDITS..............................................................3-1
3.1 MRBsAND FRBs...........................................................3-1
3.2 MRB AND FRB DOCUMENTATION..............................................3-1
3.3 PROGRAM AUDITS.........................................................3-2
3.4 ORION RIGHT OF ACCESS..................................................3-2
4 SUBCONTRACTOR AND SUPPLIER MANAGEMENT...........................................4-1
4.1 SUBCONTRACTOR/SUPPLIER PRODUCT ASSURANCE PLAN..........................4-1
4.2 REQUIREMENTS...........................................................4-1
4.3 REVIEWS AND CONTROLS...................................................4-1
5 RELIABILITY ASSURANCE...........................................................5-1
5.1 RELIABILITY ASSESSMENT.................................................5-1
5.2 PARTS DERATING AND STRESS ANALYSIS.....................................5-2
5.3 FAILURE MODES, EFFECTS, AND CRITICALITY ANALYSES.......................5-2
5.4 WORST-CASE ANALYSIS (WCA)..............................................5-2
5.5 LIFETIME...............................................................5-3
5.6 CRITICAL ITEMS CONTROL.................................................5-3
5.7 RESERVED...............................................................5-4
5.8 QUALIFICATION STATUS LIST REPORT (QSLR)................................5-4
6 QUALITY ASSURANCE...............................................................6-1
6.1 QUALITY ASSURANCE......................................................6-1
6.2 PROCUREMENT AND FABRICATION............................................6-1
6.3 TEST AND INSPECTION....................................................6-1
6.4 WORKMANSHIP STANDARDS..................................................6-2
6.5 QUALITY RECORDS AND TRACEABILITY.......................................6-2
6.6 NON-CONFORMANCE CONTROL................................................6-2
ii
6.6.1 Non-Conformance Reporting....................................6-2
6.6.2 Non-Conformance/Failure Review and Disposition...............6-3
6.6.3 Failure Analysis and Corrective Action.......................6-3
6.6.4 Trend Analysis...............................................6-3
6.7 QUALITY PROGRESS REPORTING.............................................6-3
7 PARTS PROCUREMENT...............................................................7-1
7.1 PARTS PROCUREMENT AND CONTROL..........................................7-1
7.2 ORGANIZATION AND RESPONSIBILITIES......................................7-1
7.3 SELECTION AND APPLICATION..............................................7-1
7.4 QUALITY PROVISIONS.....................................................7-2
7.5 RADIATION..............................................................7-3
7.6 TRACEABILITY...........................................................7-3
7.7 HYBRIDS, BATTERY CELLS, TWTS, AND MAGNETICS............................7-3
7.8 PARTS DOCUMENTATION....................................................7-3
8 MATERIALS AND PROCESSES.........................................................8-1
8.1 MATERIALS AND PROCESS CONTROL..........................................8-1
8.2 ORGANIZATION...........................................................8-1
8.3 CRITICAL MATERIALS AND PROCESSES.......................................8-1
8.4 MATERIALS AND PROCESS SELECTION........................................8-1
8.5 MATERIALS AND PROCESS DOCUMENTATION....................................8-1
9 SOFTWARE QUALITY ASSURANCE......................................................9-1
9.1 SOFTWARE QUALITY ASSURANCE PLAN........................................9-1
9.2 SOFTWARE DEVELOPMENT...................................................9-1
9.3 CONFIGURATION CONTROL..................................................9-1
9.4 VERIFICATION AND ACCEPTANCE TESTING....................................9-1
9.5 NON-CONFORMANCE CONTROL................................................9-2
10 CONFIGURATION MANAGEMENT.......................................................10-1
10.1 CONFIGURATION MANAGEMENT..............................................10-1
10.2 CONFIGURATION IDENTIFICATION AND CONTROL..............................10-1
10.3 CHANGE CONTROL........................................................10-2
10.4 CONFIGURATION VERIFICATION............................................10-2
10.5 CONFIGURATION STATUS ACCOUNTING AND
DOCUMENTATION.........................................................10-2
11 SAFETY.........................................................................11-1
11.1 SYSTEM SAFETY.........................................................11-1
11.2 HAZARDOUS CONDITIONS..................................................11-1
11.3 SAFETY AND HAZARD ANALYSES............................................11-1
iii
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 11-1 OF THIS PART]
LORAL ORION NETWORK SYSTEMS INC.
ORION 2
SPACECRAFT ON-GROUND
TEST REQUIREMENTS
PART 3(C)
Dated: 11 May 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
CONTENTS
SECTION PAGE
1 --INTRODUCTION....................................................................................................1-1
2 --GENERAL COMMENTS................................................................................................2-1
2.1 TEST PHILOSOPHY........................................................................................2-1
2.2 DEFINITIONS............................................................................................2-1
2.3 GENERAL TEST REQUIREMENTS..............................................................................2-2
2.3.1 Basic Requirements..........................................................................2-2
2.3.2 Test Equipment and Test Facility Requirements...............................................2-4
2.3.3 Zero-G Testing..............................................................................2-4
2.3.4 Acceptance Tests............................................................................2-4
2.3.5 Protoflight Tests...........................................................................2-5
2.3.6 Qualification Tests.........................................................................2-5
2.4 WITNESSING OF TESTS....................................................................................2-6
2.5 UNIT/SUBSYSTEM/SYSTEM TEST DATA........................................................................2-6
2.6 SUBSYSTEM/SYSTEM TEST REVIEWS..........................................................................2-7
2.7 DOCUMENTATION..........................................................................................2-7
2.8 ORGANIZATION...........................................................................................2-7
3 --UNIT, SUBSYSTEM AND SPACECRAFT TEST PROGRAM.....................................................................3-1
3.1 EQUIPMENT CATEGORIZATION...............................................................................3-1
3.2 TEST PROGRAM OVERVIEW..................................................................................3-2
4 --PROTOFLIGHT TESTS...............................................................................................4-1
4.1 UNIT PROTOFLIGHT TESTS.................................................................................4-1
4.2 SUBSYSTEM PROTOFLIGHT TESTS............................................................................4-7
4.2.1 Repeater Subsystem..........................................................................4-7
4.2.2 Antenna Subsystem...........................................................................4-7
4.2.3 Telemetry, Tracking, and Command (TT&C) Subsystem..........................................4-10
4.2.4 ADCS Subsystem Protoflight Test............................................................4-10
4.2.4.1 ADCS SCE In-the-Loop Test......................................................4-10
4.2.4.2 ADCS Servo Table Test (Already Completed)......................................4-11
4.2.5 Propulsion Subsystem.......................................................................4-11
4.2.6 Power Subsystem............................................................................4-12
4.2.6.1 Solar Array....................................................................4-12
4.2.6.2 Battery Assembly...............................................................4-12
4.2.7 Structure Subsystem Protoflight Test.......................................................4-13
4.2.8 Thermal Subsystem Protoflight Test.........................................................4-13
4.3 SPACECRAFT PROTOFLIGHT TEST...........................................................................4-14
4.3.1 Integration Tests..........................................................................4-14
4.3.2 Initial Reference Performance Test.........................................................4-14
4.3.3 Thermal Balance/Thermal Vacuum Test........................................................4-16
4.3.4 Spacecraft Alignments......................................................................4-20
4.3.5 Sinusoidal Vibration.......................................................................4-20
4.3.6 Acoustic Vibration Test....................................................................4-21
4.3.7 Shock and Deployment Tests.................................................................4-21
4.3.8 Spacecraft Mass Properties Measurements....................................................4-21
4.3.9 Final Performance Testing..................................................................4-22
4.3.10 RF Range Test.............................................................................4-22
4.3.11 Electro Magnetic Compatibility (EMC) Test.................................................4-23
5 --FLIGHT ACCEPTANCE TESTS.........................................................................................5-1
5.1 UNIT ACCEPTANCE TESTS..................................................................................5-1
5.1.1 Power Handling and Passive Intermodulation (PIM)............................................5-2
5.1.2 Traveling Wave Tube Amplifiers Burn-In......................................................5-2
5.2 SUBSYSTEM ACCEPTANCE TESTS............................................................................5-3
5.2.1 Antenna Subsystem...........................................................................5-3
5.2.2 ADCS........................................................................................5-4
5.2.3 Power Subsystem.............................................................................5-4
5.2.4 Structure Subsystem Acceptance Tests........................................................5-4
5.2.5 Thermal Subsystem...........................................................................5-4
5.2.6 Spacecraft Harness.........................................................................5-4
5.3 SPACECRAFT ACCEPTANCE TEST.............................................................................5-4
6 --LIFE TESTS......................................................................................................6-1
7 --DEVELOPMENT AND QUALIFICATION TEST..............................................................................7-1
7.1 COMMUNICATIONS SUBSYSTEM TESTS.........................................................................7-1
7.1.1 Antenna Unit and Subsystem Test.............................................................7-1
7.1.2 Thermal Distortion..........................................................................7-1
7.1.3 Repeater Tests..............................................................................7-2
7.2 STRUCTURE SUBSYSTEM QUALIFICATION TESTS................................................................7-2
7.3 ATTITUDE DETERMINATION AND CONTROL SUBSYSTEM (ADCS) QUALIFICATION TESTS................................7-2
7.4 PROPULSION SUBSYSTEM QUALIFICATION TESTS...............................................................7-2
7.4.1 General.....................................................................................7-2
7.4.2 Thrusters...................................................................................7-3
7.4.3 Main Spacecraft Thruster....................................................................7-3
7.4.4 Propellant Tanks............................................................................7-3
7.5 THERMAL SUBSYSTEM QUALIFICATION TESTING................................................................7-3
7.6 MECHANISMS.............................................................................................7-3
8 --INTERFACE COMPATIBILITY TEST....................................................................................8-1
8.1 GROUND CONTROL SYSTEM COMPATIBILITY....................................................................8-1
8.2 LAUNCH VEHICLE COMPATIBILITY...........................................................................8-1
9 --LAUNCH PREPARATION TEST.........................................................................................9-1
9.1 GENERAL................................................................................................9-1
9.2 LAUNCH BASE SPACECRAFT FUNCTIONAL TESTS (IN PPF).......................................................9-1
9.3 SPACECRAFT-LAUNCH VEHICLE COMBINED OPERATIONS..........................................................9-2
9.4 LAUNCH COMPLEX OPERATIONS..............................................................................9-2
10 -- COMPLIANCE MATRIX............................................................................................10-1
11 --PAYLOAD TEST CONFIGURATION MATRICES REQUIREMENT...............................................................11-1
11.1 INTRODUCTION.........................................................................................11-1
11.2 OVERALL REQUIREMENTS.................................................................................11-1
11.2.1 Payload Panel.............................................................................11-1
11.2.2 Spacecraft Level..........................................................................11-1
11.2.3 RF Link Calibrations......................................................................11-2
11.2.4 Performance Parameters....................................................................11-2
11.3 ANTENNA TEST CONFIGURATIONS..........................................................................11-3
11.3.1 Unit/Subsystem Level......................................................................11-3
11.3.2 Spacecraft Level..........................................................................11-4
ILLUSTRATIONS
FIGURE PAGE
3-1 ORION 2 Protoflight Spacecraft Assembly, Integration and Test Flow....................................3-8
4-1 ORION 2 Antenna Subsystem Test Flow...................................................................4-9
4-2 Temperature Profile during Spacecraft Level Thermal Vacuum Testing...................................4-17
TABLES
TABLE PAGE
3-1 Unit Qualification Matrix.............................................................................3-3
6-1 Unit Life Test/Orbit Life Comparison..................................................................6-2
10-1 Compliance Matrix....................................................................................10-2
10-2 System Test Matrix..................................................................................10-15
10-3 Test Procedure......................................................................................10-20
10-4 Mechanical Test Decriptions........................................................................10-29a
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 11-4 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
IN-ORBIT COMMISSIONING AND
ACCEPTANCE TEST REQUIREMENTS
PART 3(D)
Dated: 11 May 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 --SCOPE.............................................................................................................i
2 --DEFINITIONS.......................................................................................................1
3 --INTRODUCTION......................................................................................................2
4 --COMMISSIONING.....................................................................................................4
4.1 COMMISSIONING ACTIVITIES.................................................................................4
4.2 DOCUMENTATION............................................................................................5
5 --ACCEPTANCE TESTING................................................................................................6
5.1 AGGREGATE PREDICTED TRANSPONDER LIFE.....................................................................6
5.2 TRANSPONDER ACCEPTANCE TESTS.............................................................................7
5.3 DETERMINATION OF OTHER SPACECRAFT PARAMETERS............................................................10
5.3.1 Battery Capacity.............................................................................10
5.3.2 Predicted Propellant Life....................................................................11
5.3.3 Solar Array Power............................................................................11
5.4 DOCUMENTATION...........................................................................................13
5.4.1 In-Orbit Acceptance Test Plan................................................................13
5.4.2 In-Orbit Facility Definition Document........................................................13
5.4.3 In-Orbit Acceptance Test Procedure...........................................................14
5.4.4 In-Orbit Acceptance Test Report..............................................................14
5.4.5 Spacecraft In-Orbit Configuration............................................................15
6 --POST-ACCEPTANCE TRANSPONDER TESTING..............................................................................16
ANNEX A COMMISSIONING ACTIVITIES.................................................................................17
ANNEX B TRANSPONDER PERFORMANCE TESTS...........................................................................22
ILLUSTRATIONS
FIGURE PAGE
5-1 Illustration of the Assessment of the Aggregate Predicted Transponder Life.............................7
5-2 Illustration of the variation in the number of operating Transponders which the available array
power will support.....................................................................................12
TABLES
TABLE PAGE
5-1 Transponder Acceptance Test Program.....................................................................9
6-1 Post Acceptance Transponder Test Program...............................................................16
A-1 Primary Transponder Commissioning Tests................................................................18
A-2 Platform Commissioning Activities......................................................................19
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1
THROUGH 24 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
DYNAMIC SPACECRAFT SIMULATOR SPECIFICATION
PART 3(E)
DATED: 11 MAY 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 --DYNAMIC SPACECRAFT SIMULATOR GENERAL CHARACTERISTICS.....................1-1
2 --REAL-TIME SIMULATION COMPUTER AND PERIPHERALS............................2-1
3 --GROUND STATION INTERFACE.................................................3-1
4 --SIMULATOR MODELING.......................................................4-1
4.1 ADCS PROCESSOR EMULATION........................................4-1
4.2 ATTITUDE DYNAMIC MODELING.......................................4-1
4.3 PROPULSION MODEL................................................4-2
4.4 T&C SUBSYSTEM MODEL.............................................4-2
4.4.1 Caribou Decryptor Modeling...........................4-3
4.5 ORBIT & EPHEMERIS MODEL.........................................4-3
4.6 EMULATION OF THE SECOND SPACECRAFT SCE PROCESSOR................4-4
4.7 DYNAMIC POWER MODEL.............................................4-4
4.8 DYNAMIC THERMAL MODEL...........................................4-4
4.9 COMMUNICATIONS PAYLOAD MODEL....................................4-5
4.10 FAILURE MODELS.................................................4-5
5 --FAST MODE SIMULATION.....................................................5-1
6 --SIMULATOR USER INTERFACE.................................................6-1
7 --POST-PROCESSING PLOTTING.................................................7-1
8 --DESIGN REVIEWS...........................................................8-1
9 --SIMULATOR TEST AND VALIDATION............................................9-1
10 --DOCUMENTATION..........................................................10-1
11 --DELIVERY AND INSTALLATION..............................................11-1
12 --TRAINING...............................................................12-1
13 --WARRANTY & MAINTENANCE.................................................13-1
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 13-1 OF THIS PART]
================================================================================
SPACE SYSTEMS/LORAL DOC CODE SE
3825 Fabian Way Specification No. E191269
Xxxx Xxxx, Xxxxxxxxxx 00000-0000 Revision N/C
CAGE ODJH2
PART 3 (F)
ORION 2 SPACECRAFT SCF AND SOFTWARE
REQUIREMENTS SPECIFICATION
LORAL PROPRIETARY INFORMATION
This data is being furnished pursuant to the provisions of the ORION 2 Purchase
Contract. ORION shall have the right to duplicate, use or disclose the data to
the extent specified in the Purchase Contract.
================================================================================
PROGRAM PRIME CONTRACT NUMBER
ORION 2
--------------------------------------------------------------------------------
TCR SIMULATOR ENGINEER TECHNICAL DIRECTOR
Xxx Xxxx Xxxxx Xxxxxxxxx
--------------------------------------------------------------------------------
GROUND SYSTEM ENGINEER PROGRAM OFFICE
Xxxxxx Xxxxxxxx Xx Xxxxxx
--------------------------------------------------------------------------------
GROUND SYSTEMS HW SUPERVISOR PRODUCT ASSURANCE
Xxx Xxxxxx Xxxx Xxx Do
--------------------------------------------------------------------------------
GROUND SYSTEM ENG. MGR RELEASE
Xxxx Xxxxxxxxxx DATE
Page 1 of 77
================================================================================
1-i
DOCUMENT CHANGE RECORD
================================================================================
CHANGE REASON FOR CHANGE AFFECTED PAGES
NUMBER
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
1-ii
CONTENTS
SECTION PAGE
1 SCOPE..........................................................................................1-1
1.1 STANDARDS.............................................................................1-1
2 APPLICABLE DOCUMENTS...........................................................................2-1
2.1 DATA TRANSMISSION STANDARD............................................................2-1
2.2 SPACE SYSTEMS/LORAL DOCUMENTS.........................................................2-1
2.3 TIME GENERATION AND FREQUENCY REFERENCING STANDARDS...................................2-1
2.4 PROTOCOLS.............................................................................2-1
3 TELEMETRY & COMMAND SIMULATOR..................................................................3-1
3.1 SECTION SCOPE.........................................................................3-1
3.2 REQUIREMENTS..........................................................................3-1
3.2.1 Functional Requirements.....................................................3-1
3.2.1.1 General Telemetry Simulation Functions.........................3-3
3.2.1.2 System Functions...............................................3-5
3.2.2 Interface Requirements......................................................3-5
3.2.2.1 General User Interface Requirements............................3-5
3.2.2.2 Information Organization Requirements..........................3-6
3.2.2.3 General Remote Interface Requirements.........................3-18
3.2.2.4 Local Area Network Interface Requirements.....................3-19
3.2.2.5 Signal Interface Requirements.................................3-19
3.3 CHARACTERISTICS......................................................................3-20
3.3.1 Performance Requirements...................................................3-20
3.3.1.1 IF Command and Ranging Requirements...........................3-20
3.3.1.2 IF Telemetry and Ranging Requirements.........................3-21
3.3.1.3 Baseband Telemetry Requirements...............................3-22
3.3.1.4 Command Decryptor Interface Requirements......................3-22
3.3.1.5 Ethernet Requirements.........................................3-23
3.3.1.6 Power Requirements............................................3-23
3.3.2 Physical Requirements......................................................3-24
3.3.3 Reliability................................................................3-24
3.3.4 Maintainability............................................................3-24
3.3.5 Environmental Characteristics..............................................3-24
3.3.6 Transportability...........................................................3-24
3.4 DESIGN AND CONSTRUCTION..............................................................3-24
3.4.1 Parts, Materials, and Processes............................................3-24
3.4.2 Electrical Design..........................................................3-25
3.4.3 Mechanical Design..........................................................3-25
1-iii
3.4.4 Workmanship................................................................3-25
3.4.5 Safety.....................................................................3-26
3.4.6 Interchangability..........................................................3-26
3.4.7 Human Engineering..........................................................3-26
3.5 DOCUMENTATION........................................................................3-27
3.5.1 Drawings...................................................................3-27
3.5.2 Technical Manuals..........................................................3-27
3.5.3 Firmware Documentation.....................................................3-27
3.5.4 Operational Support Documentation..........................................3-27
4 BASEBAND SUBSYSTEM.............................................................................4-1
4.1 EQUIPMENT OVERVIEW....................................................................4-1
4.2 PERFORMANCE SPECIFICATIONS............................................................4-1
4.2.1 TCRU........................................................................4-1
4.2.1.1 Downlink PM Signal Reception...................................4-2
4.2.1.2 Uplink Signal Generation.......................................4-2
4.2.1.3 Normal Telemetry Processing....................................4-4
4.2.1.4 Dwell Telemetry Stream Processing..............................4-5
4.2.1.5 Satellite Telecommanding.......................................4-5
4.2.1.6 Satellite Ranging..............................................4-7
4.2.1.7 Telemetry Simulation...........................................4-7
4.2.2 Interfaces to the RF/Antenna Subsystem......................................4-9
4.2.3 Interfaces with the SCC.....................................................4-9
4.2.4 TCRU Maintainability........................................................4-9
4.2.5 GPS Receiver and Time Code Generator........................................4-9
4.2.6 Maintainability.............................................................4-9
4.3 ENVIRONMENTAL SPECIFICATIONS..........................................................4-9
4.3.1 Operating Temperature.......................................................4-9
4-4.3.2 Humidity....................................................................4-9
4.4 POWER REQUIREMENTS....................................................................4-9
5 ORION 2 COMMAND AND CONTROL SYSTEM AUGMENTATION (CCSA).........................................4-1
5.1 CCSA OVERVIEW.........................................................................5-1
5.2 TELEMETRY REQUIREMENTS................................................................5-1
5.2.1 Telemetry Overview..........................................................5-1
5.2.2 Telemetry Reception.........................................................5-1
5.2.3 Raw Telemetry Archiving and Retrieval.......................................5-2
5.2.3.1 Rockville......................................................5-2
5.2.3.2 Mt. Xxxxxxx....................................................5-2
5.2.3.3 Xxxxxx.........................................................5-3
5.2.4 Summary Data Archival.......................................................5-3
1-iv
5.2.5 Telemetry Data Conversion...................................................5-3
5.2.6 Pseudo PIDS.................................................................5-4
5.2.7 Data Export.................................................................5-4
5.3 COMMANDING............................................................................5-4
5.3.1 Automated Command Procedures................................................5-4
5.3.2 Command Execution...........................................................5-4
5.4 RANGING...............................................................................5-5
5.5 GROUND MONITOR AND CONTROL (M&C)......................................................5-5
5.6 DYNAMIC SATELLITE SIMULATOR (DSS) INTERFACE...........................................5-6
5.7 CCSA USER INTERFACE PRESENTATION......................................................5-6
5.8 PRESENTATION FUNCTIONS................................................................5-6
5.8.1 Multi-window monitor displays...............................................5-6
5.8.2 Printing Function...........................................................5-7
6 VERIFICATION OF REQUIREMENTS...................................................................6-1
6.1 FACTORY ACCEPTANCE TEST...............................................................6-1
6.2 SS/L ACCEPTANCE TEST..................................................................6-1
7 QUALITY ASSURANCE PROVISIONS...................................................................7-1
7.1 GENERAL...............................................................................7-1
7.2 TEST READINESS REVIEW.................................................................7-1
7.3 TEST NOTIFICATION.....................................................................7-1
7.4 ADJUSTMENT AND/OR REPAIR..............................................................7-1
7.5 CHANGES TO TEST PROCEDURES............................................................7-1
7.5.1 Authority...................................................................7-1
7.6 NON-CONFORMANCE REPORTING.............................................................7-2
7.6.1 Test Failures...............................................................7-2
7.6.2 Test Failure Definition.....................................................7-2
7.6.3 Test Failure Procedures.....................................................7-2
7.7 TEST ACCEPTANCE.......................................................................7-3
7.7.1 Engineering Review..........................................................7-3
7.7.2 Product Assurance Review....................................................7-3
7.8 DISPOSITION OF TEST DATA..............................................................7-3
8 PREPARATION FOR DELIVERY.......................................................................8-1
9 -- ABBREVIATIONS AND ACRONYMS LIST................................................................9-1
1-v
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 9-2 OF THIS PART]
LORAL ORION NETWORK SYSTEMS, INC.
ORION 2
SATELLITE STORAGE PLAN
PART 5
Dated: 11 May 1998
--------------------------------------------------------------------------------
This document contains data and information proprietary to Space Systems/Loral.
This data shall not be disclosed, disseminated, or reproduced, in whole or in
part, without the express prior written consent of Space Systems/Loral.
--------------------------------------------------------------------------------
Use or disclosure of the data contained on this sheet is
subject to the restriction on the title page.
CONTENTS
SECTION PAGE
1 STORAGE AND POST-STORAGE PLAN..........................................................1-1
1.1 GENERAL REQUIREMENTS..........................................................1-1
1.2 ENVIRONMENTAL CONDITIONS......................................................1-1
1.3 ACCESS CONTROL................................................................1-2
1.4 MONITORING....................................................................1-2
1.5 DOCUMENTATION.................................................................1-2
2 FACILITIES AND EQUIPMENT...............................................................2-1
2.1 FACILITIES....................................................................2-1
2.2 STORAGE EQUIPMENT.............................................................2-1
3 STORAGE OPERATIONS.....................................................................3-1
3.1 SATELLITE CONFIGURATION FOR STORAGE...........................................3-1
3.2 SATELLITE PREPARATION FOR SHORT-TERM STORAGE..................................3-2
3.3 SATELLITE PREPARATION FOR LONG-TERM STORAGE...................................3-2
3.3.1 Satellite Preparation...............................................3-2
3.3.2 Storage Container Preparation.......................................3-2
3.3.3 Satellite Installation into Protective Cover........................3-2
3.3.4 Final Storage Preparation...........................................3-2
3.4 SATELLITE MONITORING..........................................................3-3
3.5 FLIGHT BATTERY STORAGE........................................................3-3
3.6 SOLAR ARRAY STORAGE...........................................................3-3
3.7 GROUND SUPPORT EQUIPMENT......................................................3-3
4 POST-STORAGE OPERATIONS................................................................4-1
4.1 CALLUP SCHEDULE...............................................................4-1
4.2 UNIT PREPARATION..............................................................4-1
4.3 SATELLITE PREPARATION.........................................................4-2
4.4 SATELLITE INTEGRATION AND TEST ACTIVITY.......................................4-2
4.4.1 One Month to Six Months Satellite Post Storage Operations...........4-2
4.4.2 Greater Than Six Months Satellite Post Storage Operations...........4-2
TABLES
TABLE PAGE
1 Storage Facilities................................................................1-1
2 Storage Monitoring Matrix.........................................................2-1
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PAGES 1-1
THROUGH 4-2 OF THIS PART]
AMENDMENT NO. 1 TO THE
ORION-Z SPACECRAFT PURCHASE CONTRACT
BETWEEN
LORAL ORION SERVICES, INC. AND
SPACE SYSTEMS/LORAL, INC.
THIS AMENDMENT No. 1 to the ORION-Z Spacecraft Purchase Contract (the
"Amendment") effective this 29th day of December, 1998, by and between Loral
Orion Services, Inc. (formerly known as Loral Orion Network Services, Inc."), a
corporation organized and existing under the laws of Delaware, U.S.A. ("ORION")
and Space Systems/Loral, Inc., a corporation organized and existing under the
laws of Delaware, U.S.A. ("Contractor").
W I T N E S S E T H:
WHEREAS, the Parties entered into the ORION-Z Spacecraft Purchase Contract
dated May 15, 1998 (the "Contract"), for Contractor's in-orbit provision to
ORION of the ORION-Z Spacecraft consisting of thirty-either (38) 00 XXx Xx-xxxx
transponders; and
WHEREAS, ORION and Contractor have agreed to increase the Contract Price as
set forth herein for the scope of work described in the Contract;
NOW, THEREFORE, in consideration of the foregoing, the covenants, and
agreements set forth herein and intending to be legally bound, ORION and
Contractor agree to amend the Agreement as follows:
1. Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings given those terms in the Contract.
2. Paragraph 4.2, Contract Price. The Contract Price for the ORION-Z Spacecraft
delivered in-orbit (including cost of Ariane 44LP Launch Vehicle, any Launch
Services, Data and Documentation, Operations Training, Mission Specific Hardware
and Software, and the Dynamic Software Simulator) shall be increased by
Fifty-Eight Million Seven Hundred Eighty One Thousand Dollars ($58,781,000) (the
"Contract Price Increase") to a total Contract Price of Two Hundred Fourteen
Million Three Hundred Eleven Thousand Dollars ($214,311,000). The Parties agree
to negotiate in good faith a reasonable payment schedule for the Contract Price
Increase, the terms of which will thereafter be incorporated, as appropriate,
into a revised Part 1(B), Payment Schedule and Part 1(C), Termination Liability.
3. ORION and Contractor have participated jointly in the negotiation and
drafting of this Amendment. If an ambiguity or question of intent or
interpretation arises, this Amendment shall be construed as if drafted jointly
by both Parties and no presumption or burden of proof shall arise favoring or
disfavoring either Party because of the authorship
of any of the provisions of this Amendment. Any reference to any law shall be
deemed also to refer to all rules, regulations, orders or decrees promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation. Each representation, warranty and covenant
contained herein shall have independent significance. If either Party breaches
in any respect any representation, warranty, covenant, or other obligation
contained herein or created hereby, the fact that there exists another
representation, warranty, covenant, or obligation relating to the same subject
matter (regardless of the relative levels of specificity) which has not been
breached shall detract from or mitigate the consequences of such breach. The
Parts specified in this Amendment are incorporated herein by reference and made
a part hereof.
4. Except as amended herein, the Contract and any prior amendments thereto,
shall remain in full force and effect in all respects, including but not limited
to price, delivery, schedule, and performance.
IN WITNESS WHEREOF, ORION and Contractor have each duly executed this Amendment
No. 1 to the ORION-Z Spacecraft Purchase Contract as of the day and year first
written above.
LORAL ORION SERIVCE, INC. SPACE SYSTEMS/LORAL, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ R.O. Hel
---------------------------- ----------------------------
Date: 1/27/99 Date: 1/11/99
-------------------------- --------------------------