EXHIBIT 10.19.2
EXECUTION COPY
SECOND
AMENDED AND RESTATED
CONTRACT BETWEEN
PANAMSAT INTERNATIONAL SYSTEMS, INC.
AND
SPACE SYSTEMS/LORAL, INC.
FOR
PANAMSAT PROGRAM
This document contains data and information proprietary to Space Systems/Loral
and PanAmSat. This data shall not be disclosed, disseminated, or reproduced, in
whole or in part, without the express prior written consent of Space
Systems/Loral and PanAmSat except as otherwise provided in accordance with the
Non-Disclosure Agreement attached to this Contract.
TABLE OF CONTENTS
PREAMBLE ..............................................................1
WITNESSETH ..............................................................1
ARTICLE 1 DEFINITIONS; EFFECTIVENESS................................... 2
1.1 Definitions...................................................2
1.2 Effectiveness.................................................8
ARTICLE 2 SCOPE OF WORK.................................................9
2.1 Definition....................................................9
ARTICLE 3 DELIVERY SCHEDULE............................................10
ARTICLE 4 PRICE....................................................... 11
4.1 Delivery Price.............................................. 11
4.2 Tariffs, Duties, and Taxes to be Paid by Contractor......... 12
4.3 Tariffs, Duties, and Taxes to be Paid by Purchaser.......... 12
4.4 Import of Contractor Owned Equipment........................ 12
4.5 Foreign Launches............................................ 12
4.6 Payment of Non-U.S. Tariffs, Duties, and Taxes.............. 13
4.7 Other Tax Responsibilities.................................. 13
4.8 Survival.................................................... 14
ARTICLE 5 PAYMENTS.................................................... 14
5.1 Payment Plan................................................ 14
5.2 Payment Schedule............................................ 14
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5.4 Late Payment................................................ 16
5.5 Invoices.................................................... 16
5.6 Payment Bank................................................ 17
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ARTICLE 6 RESERVED.................................................... 20
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ARTICLE 7 PURCHASER FURNISHED ITEMS................................... 20
7.1 Purchaser Furnished Items................................... 20
7.2 Satellite Quarterly Reports................................. 21
7.3 FCC Authorization........................................... 21
7.4 Radio Frequency Coordination................................ 21
ARTICLE 8 CHANGES..................................................... 22
8.1 Amendment................................................... 22
8.2 Purchaser-Desired Changes................................... 22
8.3 Change Order Process........................................ 22
8.3A Change Order Inquiries.......................................24
8.4 Cost of Changes............................................. 25
8.5 Permissive Changes.......................................... 25
8.6 Corrective Measures in Unlaunched Satellites................ 26
ARTICLE 9 ACCESS TO WORK IN PROGRESS.................................. 27
9.1 Work in Progress at Contractor's Plant...................... 27
9.2 Work in Progress at Subcontractors' Plants.................. 27
9.3 On-Site Facilities for Purchaser's Personnel................ 28
9.4 Competition................................................. 28
9.5 Interference with Operations................................ 28
ARTICLE 10 FINAL INSPECTION AND ACCEPTANCE OF SATELLITES............... 28
10.1 Testing, Certificates....................................... 28
10.2 Time, Place, and Notice of Inspection....................... 29
10.3 Final Inspection............................................ 29
10.4 Pending Waivers............................................. 29
10.5 Purchaser's Inspection Agents............................... 30
10.6 Inspection Results.......................................... 31
10.7 Inspection Equipment and Facilities. ...................... 31
10.8 Repaired or Corrected Items................................. 31
10.9 Post-Shipment Inspection.................................... 31
10.10 Satellite Acceptance Procedure for Delivery to Launch Site.. 32
10.11 Warranty Obligation......................................... 32
ARTICLE 11 RESERVED.................................................... 32
ARTICLE 12 RESERVED.................................................... 32
ARTICLE 13 SHIPMENT, DELIVERY, TITLE, RISK OF LOSS, AND CIP............ 32
13.1 Satellites.................................................. 32
13.2 Deliverable Items Other Than Satellites..................... 33
13.3 Carriage and Insurance Paid................................. 33
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
ARTICLE 14 ORBITAL PERFORMANCE INCENTIVES.............................. 34
14.1 Amount and Calculation of Orbital Performance Incentives.... 34
14.2 Launch Vehicle Failures..................................... 43
14.3 On-Board Redundancy......................................... 44
14.4 Orbital Storage............................................. 44
14.5 Temporary Outages........................................... 44
14.6 Purchaser's Change to Inclined Orbit Operation.............. 45
14.7 Satellite Failure........................................... 45
14.8 Payments.................................................... 46
14.9 Purchaser Operation of the Satellites....................... 46
14.10 Access to In-Orbit Data and Measurements.................... 47
14.11 Insurance................................................... 47
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ARTICLE 15 WARRANTY PAYBACK............................................ 49
ARTICLE 16 WARRANTY.................................................... 49
16.1 Terms and Period of Warranty................................ 49
16.2 Repair or Replacement and Support Obligations............... 51
16.3 Non-Warranty Issues (For other than Satellites)............. 53
ARTICLE 17 FORCE MAJEURE............................................... 54
17.1 Definition.................................................. 54
17.2 Notification................................................ 54
17.3 Remedy Period/Termination................................... 55
ARTICLE 18 PURCHASER DELAY OF WORK..................................... 55
ARTICLE 19 PATENT INDEMNITY............................................ 56
19.1 Indemnification............................................. 56
19.2 Infringing Equipment........................................ 56
19.3 Combinations and Modifications.............................. 57
ARTICLE 20 INDEMNITY - PERSONAL INJURY/PROPERTY DAMAGE................. 58
20.1 Contractor's Indemnification of Purchaser................... 58
20.2 Purchaser's Indemnification of Contractor................... 58
ARTICLE 21 TERMINATION FOR CONVENIENCE................................. 59
21.1 Reimbursement of Contractor................................. 59
21.2 Title Transfer and Disposition of Residual Property......... 60
21.3 Termination Liability....................................... 61
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ARTICLE 22 PENALTIES FOR LATE DELIVERY OF SATELLITES................... 61
22.1 Schedule Penalties for Satellites .......................... 61
22.2 Schedule Penalties for Additional Satellites ............... 62
22.3 Notification of Delays, Consequence ........................ 63
ARTICLE 23 DEFAULT..................................................... 63
23.1 Failure to Perform by Contractor............................ 63
23.2 Termination Liability....................................... 67
23.3 Contractor Termination...................................... 68
ARTICLE 24 RESERVED.................................................... 68
ARTICLE 25 ARBITRATION................................................. 69
ARTICLE 26 RESERVED.................................................... 70
ARTICLE 27 RESERVED.................................................... 70
ARTICLE 28 INTER-PARTY WAIVER OF LIABILITY............................. 70
ARTICLE 29 PAS-6 MASS INCENTIVES....................................... 70
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ARTICLE 30 RESERVED.................................................... 76
ARTICLE 31 RESERVED.....................................................76
ARTICLE 32 RESERVED.................................................... 76
ARTICLE 33 RESERVED.................................................... 76
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ARTICLE 34 GROUND STORAGE OPTION........................................76
34.1 Exercise of Option...........................................76
34.2 Storage Location.............................................77
34.3 Storage Prices...............................................77
34.4 Payments.....................................................78
34.5 Title and Risk of Loss.......................................78
34.6 Notification of Intention to Launch a Previously Stored
Satellite................................................... 79
34.7 Orbital Performance Incentives.............................. 79
34.8 Stored Satellite Refurbishment.............................. 79
34.9 Storage Period.............................................. 80
34.10 Terms and Conditions........................................ 80
ARTICLE 35 RESERVED.................................................... 80
ARTICLE 36 RESERVED.................................................... 81
ARTICLE 37 RESERVED.................................................... 81
ARTICLE 38 RESERVED.................................................... 81
ARTICLE 39 RESERVED.................................................... 81
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ARTICLE 41 ADDITIONAL SATELLITE OPTION................................. 82
41.1 Exercise of Option.......................................... 82
41.2 Delivery Schedule........................................... 82
41.3 Option Price................................................ 83
41.4 Reserved.....................................................83
41.5 Payment Plan.................................................83
41.6 Terms and Conditions.........................................84
ARTICLE 42 DISCLOSURE AND HANDLING OF PROPRIETARY INFORMATION...........84
ARTICLE 43 RIGHTS IN DATA...............................................84
43.1 Deliverable Data.............................................84
43.2 Data Limitation..............................................85
ARTICLE 44 AUTHORITY OF PURCHASER REPRESENTATIVE........................85
ARTICLE 45 PUBLIC RELEASE OF INFORMATION................................86
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ARTICLE 46 NOTICES......................................................86
46.1 Written Notification.........................................86
46.2 Change of Address............................................88
ARTICLE 47 STOP-WORK ORDER..............................................88
47.1 Stop-Work Order..............................................88
47.2 Resumption of Work...........................................88
47.3 Stop Work Order Claims.......................................89
ARTICLE 48 GENERAL......................................................89
48.1 Limitation of Liability......................................89
48.2 Binding Effect; Assignment...................................91
48.3 Severability.................................................92
48.4 Waiver.......................................................92
48.5 Gender; Captions.............................................93
48.6 Relationships of the Parties.................................93
48.7 Entire Agreement.............................................93
48.8 Standard of Conduct..........................................94
48.9 Construction.................................................94
48.10 "Including"..................................................94
48.11 Counterparts.................................................94
48.12 Applicable Law...............................................95
48.13 Survival.....................................................95
ARTICLE 49 ATTACHMENTS..................................................95
ARTICLE 50 ORDER OF PRECEDENCE..........................................96
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
SECOND
AMENDED AND RESTATED
CONTRACT
FOR
PANAMSAT PROGRAM
PREAMBLE
This Contract was originally entered into as of October 12, 1994 (the "Effective
Date of Contract" or "EDC") between PanAmSat International Systems, Inc.,
formerly known as PanAmSat Corporation, a corporation organized and existing
under the laws of the State of Delaware, having an office and place of business
at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as
"Purchaser") and Space Systems/Loral, Inc., a corporation organized and existing
under the laws of the State of Delaware, having an office and place of business
at 0000 Xxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Contractor"), and was amended and restated most recently on or about May 2,
1996.
This Second Amended and Restated Contract is executed on or about April 1, 1998,
supersedes the original contract, as previously amended, and the materials
referenced in the previous amended and restated version.
WITNESSETH
WHEREAS, Purchaser desires to procure three (3) Satellites and certain services,
and to acquire options for up to two (2) Additional Satellites from Contractor
for use on this PanAmSat Program, and
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
WHEREAS, Contractor is willing to furnish such Satellites, and certain services
as stated herein, in consideration of the price and other terms and conditions
of this Contract, and
WHEREAS, Contractor and Purchaser have entered into an Operations Services
Agreement, dated as of August 1, 1995.
WHEREAS, Contractor and Purchaser desire by entry into this Second Amended and
Restated Contract to [*********************************************************
******************************].
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE 1 DEFINITIONS; EFFECTIVENESS
1.1 Definitions
The following terms shall have the meanings assigned to them in this Contract:
"Acceptance" with respect to Satellites shall be as defined in Article 10.10
hereof. "Additional Satellite" means the Satellite(s) defined and that may be
ordered pursuant to Article 41 hereof.
"ARO" means After Receipt of Order.
"BLS" means the U.S. Bureau of Labor Statistics.
"BLS-3721" means the U.S. Bureau of Labor Statistics rate for the average
aircraft hourly earnings, excluding lump sum payments.
"Carrier" shall have the meaning set forth in Article 13.1 hereof.
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confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
2
"Change" shall have the meaning set forth in Article 8 hereof.
"Change Order" shall have the meaning set forth in Article 8 hereof.
"Change Order Request" shall have the meaning set forth in Article 8 hereof.
"Change Order Response" shall have the meaning set forth in Article 8 hereof.
"CIP" shall have the meaning set forth in Article 13.3 hereof.
"Contract" means this executed procurement instrument, its Attachments,
Exhibits, and any amendments thereto, to which the Parties agree in writing.
"Contractor" means Space Systems/Loral, Inc.
"Conventional Delivery" means delivery of a Satellite to a Launch Site for
Launch.
"Deliverable Data" or "Deliverable Documentation" shall have the meaning
set forth in Exhibit A.
"Deliverable Items" means the Satellites, their applicable encryption keys
required to be delivered by Contractor to Purchaser under this Contract and
Deliverable Data.
"Delivery" for Deliverable Data or Deliverable Items other than Satellites shall
occur upon acceptance as confirmed in writing by Purchaser as described in
Article 13.2 hereof, as applicable.
"Delivery" for Satellites shall be as defined in Article 13.1 hereof.
"Effective Date of Contract" or "EDC" means the date as of which this Contract
is entered into by both Purchaser and Contractor as specified in the Preamble to
this Contract.
"FCC" means the Federal Communications Commission or any successor agency or
governmental authority.
"Force Majeure" shall have the meaning set forth in Article 17 hereof.
"Forwarding Agent" shall have the meaning set forth in Article 13.1 hereof.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
3
"Ground Storage" of a Satellite means a condition where a Satellite or its
component parts are secured in a controlled environment for preservation on the
ground.
"In-Orbit Testing" or "IOT" means the testing of a Satellite after Launch as
more fully described in Exhibit D, Program Test Plan.
"Initial Phase of this Contract" means the first nine (9) months following the
Effective Date of Contract (EDC) for PAS-6, until June 1, 1996 for PAS-7, and
until October 1, 1996, PAS-8, and nine months ARO for any Additional Satellite.
"IOT Payment" has the meaning set forth in Article 5.2.2.
"Launch" of a Satellite means the point in time when the launch crew
intentionally ignites the propellant system of the launch vehicle for purposes
of causing its lift-off from the launch pad.
"Launch Agency" means that organization which is responsible for the Launch Site
and conducting the Launch of a Satellite.
"Launch Services" means those services, in support of a Launch provided by a
Launch Agency.
"Launch Services Agreement" means the contract(s) between Purchaser and a Launch
Agency which provides for Launch of the Satellites.
"Launch Site" means the location which will be used by a Launch Agency for
purposes of launching a Satellite.
"Launch Support" or "Launch Support Services" means those Contractor provided
services, pursuant to Exhibit A, Statement of Work hereto, in support of a
Launch by a Purchaser provided Launch Agency.
"Launch Vehicle" means an expendable launch vehicle or such other launch vehicle
used for the Launch of a Satellite.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
4
"Major Participant" shall have the meaning set forth in Article 40 hereof.
"Mission Operations Support Services" means the services, including orbit
raising of a Satellite and In-Orbit Testing (IOT) of a Satellite pursuant to
Exhibit A, Statement of Work hereto, in support of mission operations.
"Non-Disclosure Agreement" means the Non-Disclosure Agreement in the form of
Attachment C hereto.
"Operations Services" means those operations related services provided in
support of a Satellite mission which occurs subsequent to completion of IOT, as
described in that certain Operations Services Agreement, dated as of August 1,
1995.
"Operations Services Agreement" means the agreement, dated as of August 1, 1995,
between Contractor and Purchaser.
"Orbital Performance Incentive Period" means the 5478 consecutive days
commencing on the day following the completion of In-Orbit Testing for each
Satellite, except that if PAS-7 or PAS-8 is launched on an Atlas Launch Vehicle
the orbital performance incentive period is 5113 consecutive days for such
Satellite(s) so launched.
"Orbital Performance Incentives" means monies earnable by Contractor based on
performance of each Satellite in-orbit, as may be adjusted pursuant to Article
14 hereof.
"Orbital Storage" means any period of time of intentional non-use by Purchaser
of a Satellite that has been Launched and is capable of performing in accordance
with Exhibit B or Exhibit B-1, as applicable.
"Party" or "Parties" means Purchaser and/or Contractor who are the principals to
this Contract.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
5
"PAS-6" means the Satellite that was constructed by Contractor for Purchaser
under this Contract and which was intended to conform with Exhibit B,
Performance Specification.
"PAS-7" means the Satellite designated in this Contract as PAS-7 that is now
under construction by Contractor and that is intended to conform with Exhibit
B-1, Performance Specification.
"PAS-8" means the Satellite designated in this Contract as PAS-8 that is now
under construction by Contractor and that is intended to conform with Exhibit
B-1, Performance Specification.
"Payment Plan" means the payment plans attached hereto as Attachment A.
"Performance Specification" means the applicable performance specifications
attached hereto as Exhibit B or Exhibit B-1.
"PMO" means Program Management Office.
"Price" shall have the meaning set forth in Article 4.1 hereof.
"Program Test Plan" means the Satellite Program Test Plan attached hereto as
Exhibit D.
"Purchaser" means PanAmSat International Systems, Inc.
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"Restricted Company" shall have the meaning set forth in Article 40 hereof.
"Restricted Enterprise" shall have the meaning set forth in Article 40 hereof.
"Resurrected Transponder" shall have the meaning set forth in Article 14.1.4
hereof.
"Satellite" means a communications satellite which is manufactured by Contractor
and Delivered to Purchaser pursuant to this Contract.
"Satellite Anomaly" shall have the meaning set forth in Article 7.2 hereof.
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6
"Satellite Operations Training" shall have the meaning set forth in Exhibit A.
"Satellite Failure" means (i) a Satellite that has a Service Life that, at any
point in time, is predicted, pursuant to Article 14.10, to be less than one half
of the Orbital Performance Incentive Period for the applicable Satellite,
including the number of years that have already occurred since the date of
completion of In-Orbit Testing or (ii) a Satellite that, at any point in time,
has fewer than fifty percent (50%) of its Transponders which meet the criteria
of Exhibit B or Exhibit B-1, as applicable, hereof, or (iii) (a) a Satellite
that is predicted, pursuant to Article 14.10, at any time to be capable of
earning less than one-half of the available Orbital Performance Incentive,
measured from the date that In-Orbit Testing is completed had the Satellite
performed in accordance with the Performance Specification for the full Orbital
Performance Incentive Period (but without regard to Article 14.12), and (b) that
is no longer commercially operated by Purchaser.
"Service Life" means the in-orbit useful life of a Satellite.
"Statement of Work" or "SOW" means the statement of work attached hereto as
Exhibit A.
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"Terminated Launch" shall have the meaning set forth in Article 13 hereof.
"Transponder" means a unique transmission path through a Satellite including
receive antenna, filters, receiver/downconverter, input/output multiplexers,
power amplifier, transmit antenna, and other related equipment.
"TT&C" means Telemetry, Tracking and Command.
"TWT" means travelling wave tube.
"Warranty Payback" means the method of repayment by Contractor to Purchaser of
unearned Orbital Performance Incentives pursuant to Article 15 hereof.
1.2 Effectiveness
During the Initial Phase of this Contract, as to each of the applicable
Satellite(s), Contractor shall engage in certain preliminary design activities
and, to the extent that it has not done so already, secure the availability of
certain long-term lead items. Actual construction of the Satellites shall not
commence until requested, in writing, by Purchaser.
If Purchaser delays the start or continuation of construction after this Initial
Phase, the Parties agree to negotiate in good faith the appropriate changes in
accordance with Article 8, hereof.
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8
ARTICLE 2 SCOPE OF WORK
2.1 Definition
Contractor shall provide the necessary personnel, material, services, and
facilities to: manufacture, test, and Deliver to Purchaser three (3) Satellites
meeting the technical specifications set forth in the applicable Exhibits listed
below; to transport the Satellites to their designated Launch Site(s); to
prepare for and provide Launch Support Services, Mission Operations Support
Services including In-Orbit Testing for each Satellite; to provide the
Deliverable Data and applicable encryption keys associated with each Satellite;
to perform Satellite Operations Training; and to perform its other obligations
under this Contract in accordance with and as more particularly described in the
following Exhibits, which are attached hereto and made a part hereof:
2.1.1 Exhibit A, Statement of Work (SOW), dated March 23, 1998, SS/L-E046170-02,
Rev 7.
2.1.2 Exhibit B, (PAS-6) Satellite Performance Specification, dated 29 April,
1997, SS/L-E046170-03, Rev 4.
2.1.3 Exhibit X-0, (XXX-0, XXX-0 ) Satellite Performance Specification, dated
March 11,1998 (B-1), Rev 3, SS/L-E046170-03.
2.1.4 Exhibit C, Product Assurance Program Plan, dated 20 March, 1997,
SS/L-TP94018-04, Rev 1.
2.1.5 Exhibit D, Rev 1, Program Test Plan, dated 25 October 1996,
SS/L-E046170-05, Rev 2.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
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ARTICLE 3 DELIVERY SCHEDULE
Contractor shall Deliver the Satellites to their applicable Launch Site as
follows: (i) no later than November 10, 1996 for PAS-6; (ii) no later than July
27, 1998, for PAS-7, and (iii) no later than August 17, 1998, for PAS-8, in each
case early enough as necessary to support a launch within four weeks after
Delivery for an Arianespace or Atlas launch or forty (40) days after Delivery
for a Proton launch. In each case, the Delivery date may be delayed by Purchaser
to such later date as Purchaser may specify in coordination with the applicable
Launch Agency but in no event may Purchaser specify a Delivery date that is
later than six (6) additional months for any Satellite. Delivery shall be
performed in accordance with Article 13 and Exhibit A. Purchaser shall notify
Contractor of the intended launch sites(s) no later than six (6) months prior to
the scheduled Delivery date of each Satellite ("D-6") as provided above;
provided further that the Launch Agency agrees to proceed in the amount of time
allowed. Any changes of a Launch Site after D-6 for the applicable Satellite
shall be treated as a requested change under Article 8.
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ARTICLE 4 PRICE
4.1 Delivery Price
Subject to Articles 5, 8, 14, and 15, the Price to be paid by Purchaser to
Contractor for the Satellites described in Article 3 hereof, including all
Satellite work described in Article 2 and Exhibits A, B, B-1, C, and D hereof
is [*************************************** **********************************]
for PAS-6; [*******************************************************************
*******************] for PAS-7; and [******************************************
******* **************] for PAS-8, for a total of [****************************
****************************************************************]. The price(s)
for certain additional optional items that Contractor has agreed to make
available to Purchaser are set forth in the Article describing the option.
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4.2 Tariffs, Duties, and Taxes to be Paid by Contractor
Taxes, tariffs, duties, or other charges levied by any U.S. taxing authority on
the goods, equipment, materials or effort covered by this Contract and taxes,
tariffs, duties and [**********************************************************
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paid by Contractor.
4.3 Tariffs, Duties, and Taxes to be Paid by Purchaser
Purchaser shall be responsible for payment of all custom duties, import charges,
sales taxes, excise taxes, property taxes, gross receipt taxes, turnover taxes,
added value taxes, and any other duties, charges or taxes levied by any non-U.S.
taxing authority, where Contractor is required to perform work relative to the
sale, importation, or operation of Deliverable Items including Deliverable Data
[***************************************************************]
4.4 Import of Contractor Owned Equipment
Purchaser shall be responsible for the payment of all taxes, duties, and other
charges referred to in Article 4.3 hereto, relative to the importation to
non-U.S. sites, [***********************************] of Contractor-owned
equipment required to accomplish Contractor's technical services or other effort
performed under this Contract.
4.5 Foreign Launches
Purchaser will make any necessary import arrangements in sufficient time with
the appropriate Launch Agency and other authorities concerned [****************
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[*************************************************************] pay such
charges, tariffs, duties, and taxes directly to the taxing authority, or to
obtain exemptions therefor, so that Contractor's work performance is not
impaired and Purchaser shall provide Contractor with any evidence of payment or
tax exemption that is available.
4.6 Payment of Non-U.S. Tariffs, Duties, and Taxes
In the event that either Party is required to pay or withhold any taxes, duties
or other charges imposed in connection with this Contract, which, under the
terms of this Contract should be paid by the other Party, the other Party shall
upon request of former, within thirty (30) days of invoice and receipt of
appropriate documentation, provide reimbursement for such payments made on its
behalf.
4.7 Other Tax Responsibilities
Each Party shall be responsible for its own income tax and shall use all
reasonable efforts to cooperate with the other, consistent with applicable legal
requirements, to minimize the burdens of tax, duties, and other charges
identified in this Article 4 or as otherwise related to this Contract. In
addition, in the event of a Proton Launch, Purchaser shall first seek payment of
the taxes, duties, and other charges identified in Articles 4.2, 4.3, 4.4, and
4.5 from the Launch Agency; provided that if such payment is not timely made or
received it shall be Contractor's responsibility to provide payment per Article
4.2, 4.5 or 4.6 above, as applicable.
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13
4.8 Survival
The provisions of this Article shall survive the expiration, completion, or
termination of this Contract.
ARTICLE 5 PAYMENTS
5.1 Payment Plan
Payment by Purchaser to Contractor of the Prices set forth in Article 4 hereof
shall be in accordance with the Payment Plans set forth in Attachment A hereto
in United States currency. In the event that Purchaser exercises any of the
options under this Contract, Purchaser shall make payments for such options in
accordance with the applicable Payment Plan(s) which are subsets of Attachment A
hereto.
5.2 Payment Schedule
5.2.1 Time Payments
An initial time payment is due at October 14, 1994, per Payment Plan, Attachment
A, hereto. All subsequent time payments due from Purchaser shall be due in
accordance with the Payment Plans provided in Attachment A, hereto.
5.2.1.1 [**********************]
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5.2.2 Completion of IOT or Satellite Loss or Failure
For each Satellite, payment due Contractor from Purchaser upon completion of
In-Orbit Test or Satellite Failure or other loss of or damage to a Satellite
after Launch (the "IOT Payment") shall be due thirty (30) days after submission
of an invoice by Contractor but no earlier than specified in Attachment A.
5.2.3 Orbital Performance Incentives
For each Satellite, Orbital Performance Incentives earned by Contractor and due
from Purchaser pursuant to Article 14, hereof, shall be due thirty (30) days
after submission of an invoice by Contractor but no earlier than specified in
Article 14.
5.2.4 Non-warranty Payments
Non-warranty payments due Contractor from Purchaser, upon completion of
non-warranty work per Article 16.3, shall be due thirty (30) days after
submission of an invoice by Contractor together with all necessary documentation
evidencing that non-warranty work has been completed.
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5.3 [**************]
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5.4 Late Payment
In the event that any payment is not made within five (5) days of the due date,
the party owing said payment shall be liable to pay the other interest at the
rate of [**********************] per annum on the unpaid balance (from the date
due and without regard to the five (5) day grace period) until such time as
payment is made by the owing party.
5.5 Invoices
Time payments due Contractor, except the initial payment due at EDC, shall be
effected by Contractor's submission of an invoice to Purchaser not less than 30
days in advance of the payment due date. The IOT Payments shall be effected by
Contractor's submission of invoice(s) which, except in the event of a Satellite
Failure or loss prior to IOT completion, include the necessary documentation
evidencing that IOT has been completed. Non-warranty payments due Contractor
shall be effected by Contractor's submission of an invoice by Contractor
together with all necessary documentation
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16
evidencing that non-warranty work has been completed. Invoices (Original plus
one (1) copy) shall be submitted to Purchaser at the following address:
PanAmSat International Systems, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Contract Administrator
or to such other address as Purchaser may specify from time to time in writing
to Contractor.
5.6 Payment Bank
All payments to Contractor from Purchaser shall be in U.S. currency and shall be
made by electronic funds transfer (EFT) to the following account:
SPACE SYSTEMS/LORAL, INC.
ACCOUNT NO. 75-69165
BANK OF AMERICA, NT & SA
CHICAGO, ILLINOIS
ABA #000-000-000
or other such accounts as Contractor may specify from time to time in
writing to Purchaser.
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ARTICLE 6 RESERVED
ARTICLE 7 PURCHASER FURNISHED ITEMS
7.1 IOT Support
Contractor and Purchaser each acknowledges that the in orbit testing ("IOT") for
PAS-6 is complete and neither party owes the other any payment in connection
therewith.[********************************************************************
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7.2 Satellite Quarterly Reports
In the event that Contractor does not provide Operations Services for any
Satellite Delivered to Purchaser, Purchaser shall provide to Contractor, no less
frequently than quarterly during the life of the Satellites, an informal letter
report which shall describe the general health and operating status of the
Satellites and specifically identify any defined Satellite Anomalies. For the
purpose of this Article 7, a Satellite Anomaly means any on-orbit occurrence
that has a material impact on the life, health or performance of a Satellite
that is known by Purchaser and was not anticipated in the Satellite Orbital
Operation Handbook delivered to Purchaser pursuant to Annex 1 of Exhibit A, SOW.
7.3 FCC Authorization
Purchaser shall be responsible, at its cost and expense, for preparing,
coordinating and filing all applications, registrations and reports with the
Federal Communications Commission (FCC) (or successor agency) to obtain the
authority to construct and Launch the Satellite(s); provided, however, that
Contractor shall render technical assistance to Purchaser, as may be reasonably
requested, in connection with such filings.
7.4 Radio Frequency Coordination
Purchaser is responsible for radio frequencies coordination, or the preparation
of filings for International Telecommunication Union Radiocommunication Bureau,
formerly the International Frequency Registration Board (ITU/IFRB) registration
or FCC requirements; provided, however, that Contractor shall render technical
assistance to Purchaser and its designees as may be reasonably requested in
connection with their filings with the FCC or other governmental agencies
including in connection with ITU
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21
filings and in connection with the coordination of the Satellite(s) with other
governmental bodies or non-governmental entities.
ARTICLE 8 CHANGES
8.1 Amendment
Any amendment, modification or change to this Contract, including those that may
arise under Article 8, shall become effective only upon the execution in writing
by the Parties of an amendment to this Contract setting forth such amendment,
modification or change. Changes made in accordance with this Article 8,
(exclusive of Article 8.6) shall be deemed to be incorporated into Exhibit B or
Exhibit B-1, as applicable, to reflect the desired change.
8.2 Purchaser-Desired Changes
Purchaser may request one or more changes in the work to be performed under this
Contract (a "Change") at any time, and from time to time, pursuant to the
"Change Order Process" described below. The Change Order Process shall not apply
to changes made pursuant to Article 8.5 or Article 8.6.
8.3 Change Order Process
Purchaser shall request a Change by submitting a written "Change Order Request"
signed by an authorized representative of Purchaser, pursuant to Article 44
hereof, to Contractor. The Change Order Request shall direct Contractor either
(i) to implement the Change only after Purchaser accepts or conditionally
accepts Contractor's "Change Order Response" (as defined below), or (ii) to
implement the Change immediately, in which event Purchaser must either accept or
conditionally accept Contractor's Change Order Response.
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22
If the Change Order Request will not result in any additional cost or any delay
in Delivery or have any adverse effect on the Satellite(s), Contractor shall
immediately implement the Change Order Request and shall so notify Purchaser.
In all other cases, Contractor shall provide a "Change Order Response" to
Purchaser as soon as practical and in all events within thirty (30) days of
receiving a Change Order Request, or as otherwise agreed to by the Parties. The
Change Order Response shall specify (i) any change in the price for a Satellite,
(ii) any change in the Delivery date for a Satellite or any other milestone,
(iii) any change in the scope of the Operations Services Agreement and (iv) any
other change in this Contract, the Attachments, or the Exhibits necessary to
accommodate the Change Order Request. Changes in the price shall be determined
in accordance with Article 8.4; changes in a Delivery date or any other
milestone shall be limited to those delays reasonably necessary to accommodate
the Change. The Change Order Response shall document any additional costs,
reasons for delay, or other changes contained in the Change Order Response.
Purchaser shall accept, reject, or conditionally accept the Change Order
Response as soon as practical and in all events within thirty (30) days of
receiving the Response or as otherwise agreed to by the Parties. If Purchaser
accepts the Change Order Response, Contractor shall immediately implement the
Change Order Request and this Contract shall be modified to reflect the new
price, Delivery date, other milestones, and other change(s) set forth in the
Change Order Response. If Purchaser rejects the Change Order Response, the
Change Order Request shall be null and void and the Parties shall continue to
perform their obligations as if such Change Order Request had not been made. If
Purchaser conditionally accepts the Change Order Response, Contractor shall
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23
immediately implement the Change Order Request, Purchaser shall modify its
payments in accordance with Article 8.4 to reflect any change in the price set
forth in the Change Order Response, and the Parties shall arbitrate any
dispute(s) regarding the Change Order Response in accordance with Article 25.
Pending resolution, Contractor shall not be subject to default based on its
conformity with any conditionally accepted Change Order Response. At the
conclusion of the arbitration, this Contract shall be modified to reflect the
new price, Delivery date, other milestones, and other change(s) set forth in the
arbitrators' decision and, if the new price is less than the price specified in
the Change Order Response, Contractor shall, within ten (10) business days,
refund to Purchaser the difference between the amount paid by Purchaser pursuant
to the Change Order Response and the amount that would have been paid by
Purchaser pursuant to the arbitrators' award, with interest at the rate of
[**********************] per annum from the date of each overpayment to the date
of refund.
8.3A Change Order Inquiries.
It is understood that Purchaser may also make inquiries of Contractor as to the
feasibility, cost, and timing of changes that are under consideration. In
addition to Purchaser's authorized representatives under the Contract, such
inquiries may be submitted by Purchaser's Chief Scientist, Vice President for
Engineering, or other individuals designated by Purchaser for this purpose.
Contractor shall commence
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24
analysis of such inquiries no later than the next business day following
receipt, shall respond to such inquiries as soon as practical, and in all events
shall make a preliminary written response that addresses the feasibility of
approach, basic engineering solution, estimated cost, and estimated time delay
in construction to implement, if any, within ten (10) days of receiving the
inquiry, and, unless told not to proceed further, Contractor shall make a
"Change Order Response" (subject in all cases to written acceptance by Purchaser
through Purchaser's authorized representatives under the Contract) no later than
thirty (30) days after the initial inquiry unless Purchaser agrees to a later
date.
8.4 Cost of Changes
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8.5 Permissive Changes
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8.6 Corrective Measures in Unlaunched Satellites
To the extent that data, from this or another satellite manufacturer that uses
the same relevant components, is available and known to Contractor and indicates
that the performance of a Satellite is reasonably likely to depart from that
specified in Exhibit B or Exhibit B-1, as applicable, or if Contractor otherwise
identifies any anomalies in the generic design of a Satellite, Contractor shall
promptly notify Purchaser of the deficiency or anomaly and consult with
Purchaser regarding appropriate corrective measures to eliminate such deficiency
or anomaly. At its sole cost, Contractor shall take appropriate corrective
measures in all unlaunched Satellites ordered under this Contract so as to
eliminate such deficiencies or anomalies. Contractor's performance of its
obligations under this Article 8.6 shall in no way relieve it of the obligation
for the Satellites to meet the specifications set forth in Exhibit B or Exhibit
B-1, as applicable.
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ARTICLE 9 ACCESS TO WORK IN PROGRESS
9.1 Work in Progress at Contractor's Plant
For Purchaser's purpose of evaluating the quality and progress of Contractor's
performance of work, a limited number of Purchaser's personnel and consultants
shall be allowed to observe, on a non-interference basis, work being performed
at the system level and above for the Satellite(s) and other Deliverable Items
at Contractor's plant. Such observation shall occur during normal working hours
and during other hours that are reasonable under the circumstances. For purposes
of scheduling meetings and program reviews between Purchaser's and Contractor's
personnel, Purchaser shall coordinate with Contractor reasonably in advance of
such meetings or program reviews.
9.2 Work in Progress at Subcontractors' Plants
To the extent permitted by Contractor's major subcontractors (for the purpose of
this Article 9.2, major subcontractors shall be limited to those supplying
services or goods valued in excess of [********************************] in
connection with any Satellite), Contractor shall allow Purchaser's personnel and
consultants access to work being performed pursuant to this Contract in
subcontractors' plants for the purpose of observing the quality and progress of
a subcontractor's performance of work, subject to the right of Contractor to
accompany Purchaser on any visit to a subcontractor's plant. Contractor will use
its best efforts in subcontracting to obtain permission for such access to
subcontractors' facilities as described in this Article 9.2.
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9.3 On-Site Facilities for Purchaser's Personnel
For the purpose of monitoring the progress of this Contract, Contractor shall
provide office facilities for a limited number of resident Purchaser personnel
(or its duly appointed consultants subject to prior approval of Contractor)
during the period of performance for this Contract including the period covered
by the exercise of any option for an Additional Satellite provided pursuant to
Article 41 hereof. The office facilities to be provided shall include a
reasonable amount of office space, office furniture, regular parking facilities,
local telephone service, and access to copy and facsimile machines.
9.4 Competition
Purchaser's consultants shall not be currently employed by companies or entities
which are in direct competition with Contractor to produce items such as those
being manufactured hereunder. Purchaser shall formally advise Contractor of the
names, title/function, business relationship, and employer of its intended
consultants and arrange for these consultants to execute a confidentiality
agreement directly with Contractor substantially the same as the Non-Disclosure
Agreement attached hereto as Attachment C.
9.5 Interference with Operations
Purchaser shall exercise its rights to observe work in progress under this
Article 9 so that it does not unreasonably interfere with Contractor's normal
business operations or Contractor's performance of its obligations under this
Contract.
ARTICLE 10 FINAL INSPECTION AND ACCEPTANCE OF SATELLITES
10.1 Testing, Certificates
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Contractor shall perform the tests and reviews specified in Exhibits A and D and
give reasonable advance notice to Purchaser to allow Purchaser the opportunity
to observe tests and reviews and receive test results. Prior to final inspection
by Purchaser and requesting Acceptance, Contractor shall certify that the
applicable Satellite meets Exhibit B or Exhibit B-1, as applicable, except as to
any deviations for which a specific waiver has been requested by Contractor as
provided below.
10.2 Time, Place, and Notice of Inspection
With respect to each Satellite, a final inspection shall take place in Palo Alto
at a date and time mutually agreeable to the Parties.
10.3 Final Inspection
Inspection results shall be reviewed in accordance with Exhibit A, Para 2.2.3.
The purpose of this Satellite final inspection is to review the test data, which
resulted during acceptance testing and analyses, to determine whether the
completed Satellite conforms to the standards and requirements of Exhibit B or
Exhibit B-1, as applicable, as amended per Article 10.4.
10.4 Pending Waivers
Waivers for deviations from Exhibit B or Exhibit B-1, as applicable, for
Satellites to be Delivered hereunder shall be submitted to Purchaser promptly as
and when they occur. Any waivers still pending at the time of final inspection
shall be presented to Purchaser at the commencement of the final inspection.
Purchaser shall not be required to approve any waivers, but Purchaser shall not
unreasonably withhold its consent to any waiver request. The Parties shall
negotiate mutually agreeable consideration for those waivers that are approved
by Purchaser. In the event that reasonable consideration for
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29
any waiver(s) is not mutually agreed to by the Parties, Purchaser may grant
waiver(s) (thereby allowing Acceptance of the Satellite(s) to occur), which
waiver shall not constitute a waiver of the dollar value dispute associated with
it, and submit the dispute to be resolved in accordance with Article 25,
provided that Purchaser may not submit any waiver dispute to arbitration for an
amount in which the Parties differ by more than
[*******************************] as to the appropriate reduction, if any, in
the price in consideration of such waiver. Exhibit B or Exhibit B-1, as
applicable, as modified by any waivers approved by Purchaser, shall constitute
the performance baseline of the applicable Satellite for purposes of Acceptance.
10.5 Purchaser's Inspection Agents
Purchaser may, upon giving prior notice to Contractor, cause any agent(s)
designated by Purchaser to conduct such final inspection in whole or in part;
provided, however, that such agent(s) will not be currently employed by
companies or entities which are in direct competition with Contractor to produce
items such as those being manufactured hereunder. Purchaser shall formally
advise Contractor of the names, title/function, business relationship and
employers of its intended agents and arrange for these agents to execute a
confidentiality agreement directly with Contractor substantially the same as the
Non-Disclosure Agreement attached hereto as Attachment C.
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10.6 Inspection Results
Upon completion of final inspection, Purchaser shall promptly notify Contractor
of the results thereof in writing. If the results show that a Satellite conforms
with Exhibit B or Exhibit B-1, as applicable, as modified as provided above,
written notice of Acceptance of a Satellite shall be provided by Purchaser in
accordance with Article 10.10 hereof. In the event Contractor receives a notice
of rejection from Purchaser for a Satellite, Contractor shall, if it is so
directed to do so by Purchaser, correct or repair the Satellite and submit it
for reinspection by Purchaser.
10.7 Inspection Equipment and Facilities.
Contractor shall make available to Purchaser or its agents such equipment and
facilities as Purchaser may reasonably require to conduct any final inspections.
All expenses in connection with such assistance, as well as transportation to
and from the inspection site, any and all losses resulting from any
deterioration, wear and tear, and damage in the process of any final inspection,
and any other expenses and losses incurred due to implementation of such final
inspections shall be borne by Contractor, except for such expenses and losses
that may be incurred due to any willful or negligent act by Purchaser. All
expenses that may be required for Purchaser to dispatch its personnel for final
inspections, including travel and living expenses, shall be borne by Purchaser.
10.8 Repaired or Corrected Items
The provisions of this Article 10 shall apply to a Satellite that is repaired or
corrected hereunder.
10.9 Post-Shipment Inspection
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restriction on the title page of this volume.
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Contractor shall conduct a Satellite post-shipment inspection at the launch site
following Delivery of Satellites in accordance with Exhibit A, Paragraph
2.2.3.2.
10.10 Satellite Acceptance Procedure for Delivery to Launch Site
Each Satellite ordered hereunder will be finally inspected as provided in this
Article 10 and subject to Acceptance by Purchaser at Contractor's Palo Alto
facility prior to Delivery of Satellite. Upon completion of Purchaser's final
inspection of a Satellite following satisfactory completion of acceptance
testing by Contractor, Purchaser shall provide written notice to Contractor of
its Acceptance of the Satellite ("Acceptance").
10.11 Warranty Obligation
In no event shall Contractor be released from any of its warranty obligations as
set forth in Article 16 hereof as a result of any Satellite having successfully
passed the Acceptance inspection set forth in this Article 10.
ARTICLE 11 RESERVED
ARTICLE 12 RESERVED
ARTICLE 13 SHIPMENT, DELIVERY, TITLE, RISK OF LOSS, AND CIP
13.1 Satellites
Risk of loss and title to each Satellite shall pass from Contractor to Purchaser
upon Launch, provided that if the intentional ignition is followed by a shut
down of the engines of the Launch Vehicle so that a subsequent launch may be
attempted (a "Terminated Launch") and at such time that the launch pad is
declared safe by the Launch Agency, the title and risk of loss shall return to
Contractor until another
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Launch; with the understanding by the Parties that the cost of any repairs and
retest efforts that may be necessitated by the Terminated Launch up to the point
that the risk of loss is returned to Contractor shall be borne by Purchaser.
Contractor shall have no financial risk or penalty resulting from loss of or
damage to a Satellite after Launch except as provided in Articles 8.6, 14, 15,
and 48.1. For each Satellite, Delivery shall occur at the time the Satellite
arrives at the Launch Site. (Without limitation of the Parties' other
obligations under this Contract, it is acknowledged and agreed that Delivery
requires that a Satellite be shipped out of California by Contractor's own
facilities or by a "carrier," custom's broker, or "forwarding agent" for
shipment to an out of state point. As used above, the term "carrier" means a
person or firm regularly engaged in the business of transporting for
compensation tangible personal property owned by other persons, and includes
both common and contract carriers; and the term "forwarding agent" means a
person or firm regularly engaged in the business of preparing property for
shipment or arranging for its shipment.) Contractor shall provide a xxxx of sale
in form and substance satisfactory to Purchaser, including a warranty of good
and marketable title to each Satellite, free and clear of any claims, security
interests, liens, and encumbrances.
13.2 Deliverable Items Other Than Satellites
Risk of loss and title to all Deliverable Items (other than Satellites) shall
pass from Contractor to Purchaser upon acceptance by Purchaser. With the
exception of Deliverable Data, acceptance of Deliverable Items shall be
confirmed in writing by Purchaser. Delivery of all Deliverable Items shall occur
upon acceptance and delivery of a xxxx of sale in form and substance acceptable
to Purchaser, including a warranty of good and marketable title to such
Deliverable Items, free and clear of any claims, security interests, liens, and
encumbrances.
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13.3 Carriage and Insurance Paid
The Carriage and Insurance Paid ("CIP") for all deliverable hardware items
specified herein shall be at the location where title passes. All Deliverable
Data and documentation specified in Article 3 hereof and in Annex 1 of Exhibit A
shall be delivered CIP, Purchaser's designated U.S. delivery sites. Reference to
CIP shall not be deemed to override any provision of this Contract in which the
rights and obligations of Contractor and Purchaser are otherwise specified.
ARTICLE 14 ORBITAL PERFORMANCE INCENTIVES
14.1 Amount and Calculation of Orbital Performance Incentives
14.1.1 Generally
Purchaser shall pay Contractor Orbital Performance Incentives of up [**********
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*********************************************************] (all subject to any
increase pursuant to Article 8) which shall be calculated in accordance with
Article 14. Except as provided below, the Orbital Performance Incentives for
each Satellite shall be payable in equal monthly installments over the fifteen
(15) year period (or in the case of PAS-7 or PAS-8, 14 years if an Atlas Launch
is employed) commencing on the day following the completion of In-Orbit Testing
(the "Orbital Performance Incentive Period") for each Satellite. The amount
payable by Purchaser hereunder shall be adjusted downward as
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set forth in Article 14.1.3 in the event that a Satellite or any Transponder
fails to operate in accordance with the specifications set forth in Exhibit B or
Exhibit B-1, as applicable, or is predicted not to perform through the end of
the Orbital Performance Incentive Period. If a Satellite is a Satellite Failure,
no Orbital Performance Incentives shall be due for such Satellite. The first day
of the Orbital Performance Incentive Period for each Satellite shall be deemed
to commence at midnight Greenwich Mean Time on the first day after completion of
IOT and such day shall last for twenty-four (24) hours. Purchaser may, at its
option, prepay any or all of the Orbital Performance Incentives for any
Satellite at any time and from time to time in accordance with Article 14.1.4.
Any prepaid Orbital Performance Incentives shall be subject to repayment under
Article 15.
14.1.2 Payment Over Orbital Performance Incentive Period
If Purchaser elects not to prepay the Orbital Performance Incentives, such
incentives, shall be payable as follows: in equal monthly installments[********
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These amounts include imputed interest at the rate of [*******************] per
annum simple interest. If the Orbital Performance Incentives or related payment
periods are recalculated for any reason (including in the case of Purchaser's
prepayment or a failure of a Transponder to meet the specifications set forth in
Exhibit B or Exhibit B-1, as applicable, or a loss of Satellite life), the
amounts payable by Purchaser shall be recalculated to reflect such imputed
interest element. The amounts
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specified above shall be adjusted upward to reflect any additional Orbital
Performance Incentives payable pursuant to Article 8. Except for an Atlas Launch
of PAS-7 or PAS-8, the amount of the adjustment, based on a fifteen (15) year
Satellite Service Life, shall equal [**************************] for PAS-7 or
PAS-8, where n equals the total amount of additional Orbital Performance
Incentives payable pursuant to Article 8. For an Atlas Launch for either or both
of XXX-0, XXX-0, the amount of the adjustment, based on a fourteen (14) year
Satellite Service Life, shall equal [***************************] where n equals
the total amount of additional Orbital Performance Incentives payable pursuant
to Article 8.
14.1.3 Recalculation in the Event of a Transponder Failure .
The amount due hereunder shall be adjusted downward on a pro rata basis in the
event the number of Transponders performing in accordance with the
specifications set forth in Exhibit B or Exhibit B-1, as applicable, is less or
predicted to be less in the case of a loss of Satellite life than the following:
[********]
[****************] [*************]
[****************] [*********************************]
[***********] [**************************]
[***********] [****************************]
[*************] [***********************]
[********]
[***************] [**********************]
[****************] [*********************************]
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[************] [***********************************]
[**************] [*****************************************]
[*************] [**************************************]
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As used in this Article, Year 1 for each Satellite equals the twelve (12) month
period beginning on the first day of the Orbital Incentives Performance Period
applicable to each Satellite, and each subsequent year equals a subsequent
twelve month period. To the extent that payments are made or adjusted based upon
future predicted performance of the Satellite and actual performance varies,
future Orbital Performance Incentives payments shall be adjusted (up or down)
and, if beyond the amounts of such Incentives still due, refunds will be made to
reflect what should have been paid (based upon then current actual performance),
plus interest (from the party who previously benefited from the miscalculation)
at the rate which is reflected in the Orbital Performance Incentives payment
schedule.
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Nothing herein shall be deemed to require Purchaser to operate the Satellites in
any non-standard fashion that increases risk of loss of operations in any
respect nor shall any calculations made under this Article 14 be based upon such
operations.
14.1.4 Prepayment by Purchaser
Purchaser may prepay any amount due under this Article 14 without penalty. If
Purchaser prepays the Orbital Performance Incentives upon completion of IOT, the
total amount of such prepaid Incentives shall equal [**************************
************************] plus any additional amounts payable pursuant to
Article 8), reduced on a pro rata basis to reflect any Satellite or individual
Transponders that are not performing in accordance with the specifications set
forth in Exhibit B or Exhibit B-1, as applicable or are predicted not to perform
through the end of the Orbital Performance Incentive Period. If Purchaser
prepays the Orbital Performance Incentives (in whole or in part) at any other
time, (i) the amount of such prepayment shall be based upon the number of
Transponders then performing in accordance with the specifications set forth in
Exhibit B or Exhibit B-1, as applicable, and the predicted life of the specific
Satellite, and (ii) the amount of such prepayment and any remaining Orbital
Performance Incentives shall be recalculated to reflect the interest element
that is reflected in the payment plan specified above. Any amounts prepaid by
Purchaser
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42
under this Article 14.1.4 shall be subject to repayment by Contractor pursuant
to Article 15.
In the event that a Transponder is not performing in accordance with the
specifications set forth in Exhibit B or Exhibit B-1, as applicable, on the date
of a prepayment by Purchaser but subsequently begins performing in accordance
with such specifications (a "Resurrected Transponder"), the amounts due
hereunder shall be re-calculated to reflect the remaining life of such
Resurrected Transponder. Any additional payment shall be added to the
then-remaining Orbital Performance Incentives and prepaid or, if such Incentives
are not prepaid in full by Purchaser, shall be payable in equal monthly
installments (with imputed interest at the applicable rate specified above)
during the remaining Orbital Performance Incentive Period for the applicable
Satellite, subject to its continued performance in accordance with Exhibit B or
Exhibit B-1, as applicable.
14.1.5 Failures that Do Not Result in a Material Impact on Purchaser
If a failure to meet specifications does not result in any material impact on
Purchaser, Purchaser agrees to give reasonable consideration to a partial credit
for any loss of Transponders.
14.1.6 Examples
Examples of the application of Orbital Performance Incentives are shown in
Attachment B to this Contract.
14.2 Launch Vehicle Failures
For any Satellite that is rendered inoperative because of a Launch Vehicle
failure or failure of the Launch Vehicle to place the Satellite in its
geostationary transfer orbit
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43
(GTO) location through no fault of Contractor, Contractor shall receive and be
entitled to retain all associated Orbital Incentives otherwise payable under
Article 14.1.
14.3 On-Board Redundancy
The use of any Satellite on-board redundancy to maintain service shall not in
and of itself be deemed to constitute less than satisfactory operation under
this Article 14, and use of such redundancy shall be deemed normal operating
procedure so long as Exhibit B or Exhibit B-1, as applicable, as amended by
Article 10.4, is met by such Satellite.
14.4 Orbital Storage
If Purchaser places a Satellite in Orbital Storage, Contractor shall continue to
earn Orbital Performance Incentives at the same daily rate as Contractor was
earning prior to the Satellite being placed in Orbital Storage for the balance
of the Orbital Performance Incentive Period. If a Satellite is returned to
service following a period of Orbital Storage, the daily Orbital Performance
Incentive amount shall be earned based on the performance of the Satellite
consistent with Article 14.1 hereof.
14.5 Temporary Outages
For purposes of determining whether Contractor has earned an Orbital Performance
Incentive for any Transponder on any day, in the event that a Transponder fails
to perform in accordance with Exhibit B, as amended by Article 10.4, for a
period of time in excess of thirty (30) seconds during in-orbit operation,
Contractor shall forfeit the daily amount of Orbital Performance Incentive for
each Transponder and each day in which such outage occurs. At such time as the
Transponder resumes operation in accordance with Exhibit B Contractor shall
resume earning Orbital Performance Incentives at the appropriate daily rate,
beginning the next day following the day in
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which the outage occurred, for each day in which the Transponder functions in
accordance with Exhibit B with no outages in excess of thirty (30) seconds. The
foregoing notwithstanding, a Transponder shall not be deemed to be performing in
accordance with Exhibit B and shall not earn Orbital Performance Incentives with
respect to its operation if it suffers a continuing, but intermittent failure
that materially reduces its commercial value.
14.6 Purchaser's Change to Inclined Orbit Operation
If, during the Orbital Performance Incentive Period for each Satellite,
Purchaser changes the mode of operation of the Satellite to inclined orbit
operation, Contractor shall be entitled to earn the Orbital Performance
Incentives at the same daily rate as Contractor was earning prior to the date of
such change for the life of the Satellite(s) as it would have existed had the
Satellite(s) not been placed in such an orbit. The change to inclined orbit
operation shall not extend the Orbital Performance Incentive Period.
14.7 Satellite Failure
Upon the occurrence of a Satellite Failure, Contractor shall not be entitled to
earn Orbital Performance Incentives, and shall have no claim against Purchaser
regarding such Orbital Performance Incentives. Any unearned amount of the
Orbital Performance Incentives as of the date of Satellite Failure shall be
returned to Purchaser as a Warranty Payback in accordance with Article 15
hereof.
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14.8 Payments
Any amount payable to Contractor under this Article 14 shall be paid pursuant to
Article 14.1 above and in accordance with Article 5 hereof.
14.9 Purchaser Operation of the Satellites
If, because of an act or omission on the part of Purchaser or Purchaser's
representatives, consultants or subcontractors (which for this Article shall not
be deemed to include Contractor or its representatives, consultants or
subcontractors or any other act or omission taken in accordance with the
Satellite Orbital Operations Handbooks (SOOH) pursuant to Exhibit A, Annex 1, or
other instructions provided by Contractor in the operation of, testing of, or
communication with a Satellite) a Satellite operates in a manner that is not in
accordance with Exhibit B or Exhibit B-1, including any full or partial circuit
failures, loss of power or increased thermal constraints, as applicable,
Contractor shall continue to earn Orbital Performance Incentives at the same
rate as determined prior to the occurrence of the degraded performance caused by
Purchaser, or Purchaser's representatives, consultants or subcontractors for the
remaining period of the Orbital Performance Incentive Period, subject to any
reduction in the Orbital Performance Incentives resulting from subsequent
operation of a Satellite not in accordance with Exhibit B or Exhibit B-1, as
applicable, as amended per Article 10.4, for reasons other than the act or
omission of Purchaser or Purchaser's representatives, consultants or
subcontractors. Further, Contractor shall not have liability under this
Agreement for [*********************] or payments under Article 14.3A for full
or partial circuit failures or other power or thermal problems to the extent
that they are caused by
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such act or omission of Purchaser or its representatives, consultants or
subcontractors, and relevant calculations under these provisions shall be made
accordingly.
14.10 Access to In-Orbit Data and Measurements
Even if Contractor is not providing Operations Services for the life of each
Satellite, Contractor shall have access to each Satellite's data records, as
reasonably requested, necessary to ascertain Satellite performance conditions.
All measurements, computations and analyses performed to determine whether a
reduction in the Orbital Performance Incentive amounts earned by Contractor is
warranted shall be made with good engineering practice applying standards
applicable in the aerospace industry.
14.11 Insurance
Contractor shall not seek to bind insurance in connection with the Launch of a
Satellite.
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ARTICLE 15 WARRANTY PAYBACK
Purchaser may invoice Contractor no more frequently than monthly for Warranty
Paybacks that become payable under Article 14 hereof, which may include all
advance payments for Transponder(s) that do not currently perform in accordance
with Exhibit B or Exhibit B-1, as applicable. Contractor shall pay Purchaser
Warranty Payback payments within thirty (30) days after receipt of Purchaser's
invoice for such Warranty Payback payments. In the event that Contractor does
not make Warranty Payback payments within the thirty (30) day period set forth
in the preceding sentence, Contractor shall pay Purchaser interest at a rate of
[**********************] per annum on the unpaid balance until such time as
payment is made by Contractor.
ARTICLE 16 WARRANTY
16.1 Terms and Period of Warranty
Contractor warrants that any Satellite Delivered by Contractor under this
Contract shall
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be free from any defects in material or workmanship and shall perform in
accordance with Exhibit B or Exhibit B-1, as applicable, in every respect, up to
Launch.
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Contractor warrants that the Deliverable Items other than Satellites (i.e.,
encryption keys) shall perform in accordance with Exhibit B or B-1, as
applicable, and other requirements of this Contract, and will be free from
defects in materials and workmanship for a period of [*************] after the
date of Acceptance. NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING A WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY TO
DELIVERABLE ITEM(S) PROVIDED HEREUNDER.
16.2 Repair or Replacement and Support Obligations
16.2.1 Deliverable Items Other than Satellites
With respect to Deliverable Items other than Satellites (i.e., encryption keys),
during the [*************] warranty period, any defect discovered by Purchaser
shall be remedied by Contractor at Contractor's expense by repair or replacement
of the defective
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component at Contractor's election. Contractor shall determine if repair or
replacement is required to be performed at Contractor's plant. Purchaser shall
ship to Contractor's designated facility any defective encryption key requiring
repair and replacement. Contractor shall be responsible for the cost of shipment
(including any taxes, duties) for defective encryption keys shipped to
Contractor, and the cost of shipment for return of repaired or replacement keys
shipped to Purchaser. Title and risk of loss for defective keys shall transfer
to Contractor upon delivery of such Deliverable Items to the shipping carrier by
Purchaser, and title and risk of loss shall transfer back to Purchaser for
returned repaired or replacement keys upon receipt of such equipment by
Purchaser.
16.2.2 TT&C Support Obligations
Even if the Contractor does not provide Operations Services for a Satellite,
Contractor's obligations over the life of each Satellite shall include, without
charge, the following:
(a) 24-hours/day, 7-days/week, availability of trained technicians to
consult with Purchaser in the event of TT&C equipment failures or performance
anomalies; and,
(b) TT&C software maintenance, updates, and error corrections. All such
support shall be supplied in accordance with reasonable standards of care and
diligence applicable in the aerospace industry.
16.2.3 Launched Satellites
At Purchaser's request, Contractor shall investigate any Satellite Anomaly in a
Launched Satellite and use its best efforts to correct such Satellite Anomaly.
Purchaser shall provide or give access to any data Contractor may reasonably
require for investigation and/or correction of any Satellite Anomaly. Further,
Purchaser shall grant
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52
reasonable access to ground stations and the Satellite as Contractor might
require for investigation and/or correction of any Satellite Anomaly. EXCEPT AS
PROVIDED IN ARTICLE 48.1, CONTRACTOR SHALL HAVE NO LIABILITY TO PURCHASER OR
THIRD PARTIES ARISING FROM ANY ASSISTANCE PROVIDED HEREUNDER FOR LAUNCHED
SATELLITE(S), REGARDLESS OF CAUSE OR LEGAL THEORY INCLUDING NEGLIGENCE.
16.3 Non-Warranty Issues (For other than Satellites)
With respect to Deliverable Items other than Satellites (i.e., encryption keys),
the warranty under this Article 16 shall not apply if adjustment, repair, or
parts replacement is required because of accident, unusual physical or
electrical stress, negligence, misuse, failure of environmental control
prescribed in operations and maintenance manuals, repair or alterations by other
than Contractor, or causes other than ordinary use. Further, the warranty is
contingent upon Contractor being given access, if required, to delivered
equipment at Purchaser's facility in order to effect any repair and/or
replacement. If the defect is not covered by the warranty, Purchaser shall pay
Contractor the cost of repairs or replacement, transportation charges, and
[*********] Such repair costs shall be invoiced to Purchaser pursuant to the
provisions of Article 5 hereof.
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ARTICLE 17 FORCE MAJEURE
17.1 Definition
Except as specified in Article 22 with respect to strikes, lockouts, or other
industrial disputes involving Contractor and/or its affiliates, neither Party
shall be responsible for late Delivery, delay of the final completion date or
nonperformance of its contractual obligations due to Force Majeure. Force
Majeure shall mean (1) acts of god; (2) acts of a public enemy; (3) acts of the
Government in its sovereign capacity; (4) war and warlike events; (5)
catastrophic weather conditions such as hurricanes, tornadoes or typhoons; (6)
fire, earthquakes, floods, epidemics, quarantine restrictions, strikes, lockouts
or other industrial disputes, sabotage, riot, embargoes; and (7) other
unforeseen and extraordinary events, which in every case (causes (1) through
(7)), are beyond the reasonable control and without fault or negligence of
either Party and its suppliers and subcontractors. Upon the occurrence of Force
Majeure, an equitable adjustment shall be negotiated in the schedule and other
affected portions of this Contract.
17.2 Notification
If the performance of this Contract is prevented, restricted or interfered with
by reason of Force Majeure, (i) the Party whose performance is prevented,
restricted or interfered with shall give prompt written notice to the other
Party of the onset, and again at the termination, of a Force Majeure event, and,
to the extent that such enumerated condition was beyond the control of such
Party, such Party shall be excused from performance to the extent delayed or
prevented by Force Majeure; provided, however, that the Party whose performance
is prevented or delayed shall take all reasonable steps to avoid, minimize or
remove such causes of nonperformance, including without limitation taking all
reasonable steps to obtain alternative sources of supplies,
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components and raw materials, and shall continue performance whenever and to the
extent such causes are removed.
17.3 Remedy Period/Termination
If it is determined that Delivery of any Satellite hereunder is extended for
more than [*****************************************************] due to a Force
Majeure event or if the nature of the Force Majeure event makes it clearly
ascertainable that such a delay will occur, either Party shall have the right to
terminate any portion of this Contract covering or affected by the delayed
performance of the other Party, (e.g., if the construction of only one Satellite
has been delayed, only the portion of this Contract pertaining to such Satellite
(including Deliverable Items pertaining to such Satellite) would be terminated)
and upon such termination, the rights, obligations and liabilities of all
Parties with respect to such portion of this contract shall thereupon terminate,
except as specified in Article 48.13. In the event of a termination pursuant to
this Article 17, Contractor shall refund to Purchaser all payments made by
Purchaser to Contractor for the terminated items.
ARTICLE 18 PURCHASER DELAY OF WORK
If the performance of all or any part of the work required by this Contract is
delayed or interrupted (except for Force Majeure) by Purchaser's failure to
perform its contractual obligations within the time specified in this Contract
or within a reasonable time if no time is specified, or an act by Purchaser that
unreasonably interferes with Contractor's performance of its obligations under
this Contract, this Contract shall be equitably
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adjusted in the Contract price, performance requirements, schedule, and/or any
other affected terms of this Contract.
ARTICLE 19 PATENT INDEMNITY
19.1 Indemnification
Subject to the limitations of Article 48.1 hereof, Contractor, at its own
expense, shall defend, indemnify, and hold harmless Purchaser, and its
respective officers and directors, or any of them, from and against any claim or
suit based on an allegation that the manufacture of any Deliverable Item or the
normal intended use, lease or sale of any Deliverable Item infringes letters
patent, copyright, mask work, trademark, service xxxx, trade name or other
intellectual property rights (collectively, "Intellectual Property Claim(s)")
and shall pay any royalties and other losses, damages (increased, actual or
statutory), liabilities, costs (including court costs and reasonable attorneys
fees) related to or resulting from such Intellectual Property Claim; provided
that Purchaser promptly notifies Contractor in writing of any such Intellectual
Property Claim and gives Contractor authority and such assistance and
information requested by Contractor as is available to Purchaser for the defense
of such Intellectual Property Claim. Contractor shall also defend, indemnify,
and hold harmless Purchaser's customers to the same extent as Purchaser as
specified in this Article 19, but only to the extent that the claim or suit
against Purchaser's customer(s) arises from the same underlying Intellectual
Property Claim(s) that is brought or joined against Purchaser, and is brought
before a U.S. court or tribunal.
19.2 Infringing Equipment
If the manufacture of any Deliverable Item or the normal intended use, lease or
sale of any Deliverable Item under this Contract is enjoined as a result of an
Intellectual
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Property Claim or is otherwise prohibited, Contractor shall (i) resolve the
matter so that the injunction or prohibition no longer pertains, (ii) procure
for Purchaser the right to use the infringing item or (iii) modify the
infringing item so that it becomes noninfringing while remaining in compliance
with Exhibit B or Exhibit B-1, as applicable, as amended per Article 10.4, in
all respects. If Contractor is unable to accomplish (i), (ii) or (iii) as stated
above, Purchaser shall have right to terminate this Contract, return to
Contractor the Satellite(s) (in space, with respect to an in-orbit Satellite)
and receive a refund of the price of such Satellite(s) (less a straight line
allowance for depreciation over fifteen (15) years (or fourteen (14) years where
applicable) of anticipated useful life).
19.3 Combinations and Modifications
Contractor shall have no liability under this Article 19 for any Intellectual
Property Claim arising solely from (i) use of Deliverable Items in combination
with other items, unless Contractor sold, made or specifically recommended them
as a combination, or the specific combination would be necessary for use of the
Deliverable Item in the normal course of events in connection with the use of
Deliverable Items or (ii) modifications of Deliverable Items after Delivery,
unless Contractor made or specifically recommended the modification, or the
modification constitutes normal repair, replacement or implementation of
Contractor provided options and enhancements for the Deliverable Items sold
hereunder provided that, Contractor shall inform Purchaser, after reasonable
investigation of any Intellectual Property Claim that would be likely to arise
as a result of any combination or modification contemplated by Purchaser that
would constitute an exception under this Article 19.3.
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ARTICLE 20 INDEMNITY - PERSONAL INJURY/PROPERTY DAMAGE
20.1 Contractor's Indemnification of Purchaser
Subject to Article 48.1 hereof, Contractor shall defend, indemnify, and hold
harmless Purchaser from any loss, damage, claim, liability, cost, and expense
(including court costs and reasonable attorneys' fees) (collectively "Damages")
caused by, relating to or arising from third party claims for personal injury or
third party property damage (including claims arising out of Contractor's
relationships with its employees, suppliers, subcontractors, agents and
consultants) resulting or related to (i) Contractor's material
misrepresentation, breach of warranty or covenant, default, nonfulfillment of
Contractor's obligations under this Contract or (ii) any negligent act or
omission or willful misconduct of Contractor.
20.2 Purchaser's Indemnification of Contractor
Subject to Article 48.1 hereof, Purchaser shall defend, indemnify, and hold
harmless Contractor from any Damages caused by, relating to or arising from
third party claims for personal injury or third party property damage (including
claims arising out of Purchaser's relationships with its employees, suppliers,
subcontractors, agents and consultants) resulting or related to (i) Purchaser's
material misrepresentation, breach of warranty or covenant, default,
nonfulfillment of Purchaser's obligations under this Contract or (ii) any
negligent act or omission or willful misconduct of Purchaser.
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ARTICLE 21 TERMINATION FOR CONVENIENCE
21.1 Reimbursement of Contractor
Purchaser may terminate this Contract prior to Acceptance of any Deliverable
Item without cause, in whole or in part, by giving Contractor written notice. In
the event of such termination, Contractor will cease work as directed in the
termination notice. Contractor shall submit its claim for the work performed in
connection with the terminated portion of this Contract, and for its termination
costs, plus a reasonable profit as provided in items (a) through (e) of this
Article 21.1. Except as otherwise set forth in Article 21.4 hereto, if Purchaser
terminates this Contract, in whole or in part, pursuant to this Article 21.1,
Contractor may provide an invoice to Purchaser, and be paid at the termination
settlement, for:
a. Price for terminated Deliverable Items completed prior to the
termination and accepted by Purchaser before or after termination for which
payment had not been made by Purchaser.
b. Actual out-of-pocket costs incurred by Contractor in performance
of work on terminated Deliverable Items which have not been accepted by
Purchaser.
c. Actual out-of-pocket costs incurred by Contractor in completing
the termination process.
d. Actual out-of-pocket costs incurred by Contractor in settling
claims of subcontractors and other suppliers and vendors in connection with the
termination; provided that Contractor shall use its best efforts to minimize
such costs.
e. Profit in the amount of [******************] for the sum of
items (b), (c), and (d) above.
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f. [************************************************************
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g. Less, any amounts: (i) previously paid for terminated
Deliverable Items, (ii) refunded or offset pursuant to Article 21.3, and (iii)
the costs of Delivery, Launch Support Services, and Mission Operations Support
Services for the terminated Satellite unless and to the extent that such costs
have already been incurred.
In no event shall the amounts received by Contractor under this Article 21.1
exceed the Contract Price for the Deliverable Item(s) terminated, less the
amounts specified in Article 21.1(g) above, nor the amounts specified in
Attachment D (less amounts (i) previously paid and (ii) refunded or offset under
Article 21.3), based on the time of termination.
21.2 Title Transfer and Disposition of Residual Property
In the event of a termination pursuant to this Article 21, a termination
settlement shall be held at a mutually agreeable time and place no later than
sixty (60) days after submission of the claim from Contractor. After completion
of the termination settlement, Contractor may submit an invoice to Purchaser for
payment. Prior to termination settlement, Contractor shall provide Purchaser
with such documentation of costs set forth in Articles 21.1(b), (c), and (d)
hereof as Purchaser may reasonably request. At termination settlement,
Contractor shall transfer good and marketable title at Contractor's or
subcontractor's plant to Purchaser for all Deliverable Items, free and clear of
any claims, security interests, liens, and encumbrances and all other partially
completed or incomplete Deliverable Items for which Contractor is entitled to
payment under this Article 21 at the
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time of the termination settlement. Notwithstanding the above, Purchaser may
direct Contractor to dispose of any Deliverable Item (whether wholly or
partially completed) or any other residual property resulting from termination
under this Article 21 for the purpose of receiving a price refund or an offset
against Contractor's termination claim. Upon receipt of such direction,
Contractor shall, on a best efforts basis, attempt to sell the Deliverable Item
(whether wholly or partially completed) or any other residual property and
provide a refund to Purchaser or an offset against Contractor's termination
claim, less any reasonable selling expenses.
21.3 Termination Liability
Notwithstanding any other provisions of this Article 21, in the event Purchaser
terminates this Contract in full during the three (3) month period after EDC,
Purchaser's liability for termination shall be limited to a forfeiture of the
amounts paid (or already due) to Contractor on the date of termination subject
to the maximum amount specified at the time of termination as specified in
Attachment D. Any and all amounts paid by Purchaser to Contractor that are in
excess of such amount shall be refunded by Contractor to Purchaser within ten
(10) days. After the three (3) month period described in the preceding sentence,
upon Purchaser's request, Contractor shall prepare and promptly deliver to
Purchaser an estimate of the cost of termination of this Contract pursuant to
Article 21.1 hereof, as the case may be.
ARTICLE 22 PENALTIES FOR LATE DELIVERY OF SATELLITES
22.1 Schedule Penalties for Satellites
If any of the three Satellites (PAS-6, PAS-7 or PAS-8) are not delivered
pursuant to the Delivery Schedule (DS) specified in Article 3, unless the
failure to Deliver is due to the
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Satellite being put into Ground Storage at Purchaser's request in accordance
with Article 34, as applicable, and excluding delays due to Force Majeure events
[*************************************************************************] or
a cause or causes attributable to Purchaser, and Contractor consequently cannot
Deliver the Satellite for a scheduled and timely Launch by a ready and available
Launch Agency, then Contractor shall pay Purchaser liquidated damages not to
exceed, [**********************************************************************
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[*********************************]*
[**********************************]
[**********************************]
*For PAS-6, DS shall be deemed to be November 20, 1996 unless a later date has
been designated by Purchaser.
22.2 Schedule Penalties for Additional Satellites
If an Additional Satellite, ordered in accordance with Article 41, as
applicable, is not delivered pursuant to its applicable Delivery Schedule (DS)
specified in Article 31.2 or 41.2, unless the failure to Deliver is due to the
Satellite being put into Ground Storage at Purchaser's request in accordance
with Article 34, as applicable, and excluding delays due to Force Majeure events
[******************************************************************
*****************************] or a cause or causes attributable to Purchaser,
and Contractor
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consequently cannot Deliver the Satellite for a scheduled and timely Launch by a
ready and available Launch Agency, then Contractor shall pay Purchaser
liquidated damages not to exceed [*********************************************
***************************]
[******************************]
[***********************************]
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[*************************************]
22.3 Notification of Delays, Consequence
Contractor shall promptly notify Purchaser in the event that delays in
construction or other events make it clearly ascertainable that a delay in the
Delivery Schedule will occur and of a new predicted Delivery date. If at that
time, based upon the information Purchaser has from the Launch Agency, a timely
Launch would have been available but the Purchaser requests a delay in the
Launch, the schedule penalties as set forth in Articles 21.2 and 22.2 shall
apply.
ARTICLE 23 DEFAULT
23.1 Failure to Perform by Contractor
If Contractor (i) fails to deliver Deliverable Items or perform work under this
Contract within the time frames specified herein (or any extension thereof
approved in writing by Purchaser) or (ii) fails to prosecute work hereunder
thereby endangering performance of this Contract, or (iii) fails to perform any
other material provision of
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this Contract, and in each case does not cure such failure within [***********]
(or such longer period as authorized in writing by Purchaser) after receipt from
Purchaser of written notice of such failure, Purchaser may terminate this
Contract in whole or in part by written notice of default.
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23.2 Termination Liability
In the event of termination pursuant to Article 23.1 hereof, for any Satellite
that has not been Accepted by Purchaser, Purchaser shall be entitled to [*****
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23.1 of this Contract that occurs after Purchaser has Accepted the Satellite in
question, (i) Contractor shall be entitled [***********************************
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performed; and (iii) Contractor shall, immediately upon termination of this
Contract, transfer good and marketable title to the Delivered Satellite(s) and
all other Deliverable Items (including those partially completed as provided
above) associated with such Satellite to Purchaser, free and clear of any
claims, security interests, liens, and encumbrances. If, after termination, it
is finally determined by arbitration pursuant to Article 25 hereof that
Contractor was not in default or that the default was excusable (i.e., due to
Force Majeure, subject to Article 17 regarding termination for Force Majeure
delays, or if Contractor's failure to perform was because of Purchaser Caused
Delay), the rights and obligations of the Parties shall be the same as if
termination had occurred under Article 21.
23.3 Contractor Termination
By giving written notice to Purchaser of its intention to do so, Contractor may
terminate this Contract for Purchaser's failure to comply with any material
provision of this Contract and such notice shall set forth which provision is
being violated and a reasonably detailed explanation of the claimed failure to
comply. Such termination shall become effective should Purchaser fail to correct
such nonperformance within thirty (30) days (or such longer period as agreed to
by Contractor) after receipt of such notice in writing from Contractor. In the
event of termination pursuant to this Article 23.3, Contractor shall be paid as
if the termination were for convenience pursuant to Article 21 hereof. If, after
termination, it is finally determined by arbitration pursuant to Article 25
hereof that Purchaser was not in default, Contractor shall be liable to
Purchaser for damages resulting from Contractor's wrongful termination of this
Contract.
ARTICLE 24 RESERVED
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restriction on the title page of this volume.
68
ARTICLE 25 ARBITRATION
The Parties shall use all reasonable efforts including, when necessary by making
decision-making personnel available for direct discussion, to resolve any
disputes that may arise under the Contract expeditiously by mutual agreement.
Any disputes that may arise between the Parties with respect to performance of
obligations or interpretation of this Contract, which cannot be settled by
negotiation between the Parties themselves within a period of ninety (90) days,
shall be submitted for settlement by arbitration to the American Arbitration
Association ("AAA") in New York, New York, in accordance with the rules of
conciliation and arbitration of the AAA. The arbitration shall be performed
using three arbitrators, one of whom shall be selected by Contractor, one of
whom shall be selected by Purchaser, and one of whom shall be selected by mutual
agreement of the two arbitrators selected by the Parties or, if the two
arbitrators cannot mutually agree on a third arbitrator, by the AAA. The
arbitrators' decision shall be final and binding on the Parties. The Parties
shall request and use all reasonable efforts to assist the arbitrators to reach
a decision as soon as possible and in all events within ninety (90) days of the
date that the matter is submitted to arbitration. In resolving any dispute, the
arbitrators shall apply the laws of the State of California, excluding its
conflict of laws rules, with respect to all matters, including the
interpretation of the terms and conditions of this Contract. Each Party shall
bear its own costs and expenses (including the costs and expenses of the
arbitrator selected by it) and one-half (1/2) of the cost and expenses of the
third arbitrator and any other costs and expenses of the arbitration. Each Party
shall be permitted to obtain judicial enforcement of the arbitration decision,
which may include an order directing specific performance. In addition, nothing
in this Contract shall prevent either Party from seeking immediate equitable
relief (without going to arbitration) in circumstances in which the other
Party's failure to perform threatens a Party with irreparable harm or other
injury for which the Contract offers no adequate remedy.
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69
ARTICLE 26 RESERVED
ARTICLE 27 RESERVED
ARTICLE 28 INTER-PARTY WAIVER OF LIABILITY
Contractor agrees to accept the inter-party waiver and related indemnity
provisions required by Purchaser's applicable Launch Services Agreement for a
Launch. Copies of these provisions shall be furnished to Contractor for review
and acceptance prior to and upon execution of the Launch Services Agreement.
ARTICLE 29 MASS INCENTIVES
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[*************] [***********************]
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ARTICLE 30 RESERVED
ARTICLE 31 RESERVED
ARTICLE 32 RESERVED
ARTICLE 33 RESERVED
ARTICLE 34 GROUND STORAGE OPTION
34.1 Exercise of Option
For the avoidance of doubt, nothing in this Article 34 shall limit Purchaser's
right,[************************************************************************
*************************] Contract or otherwise specified in this Contract.
Prior to shipment of a Satellite to the Launch Site, Purchaser, at its option to
be exercised in writing no later than three (3) months prior to the scheduled
Delivery date of a Satellite, may direct Contractor to store a Satellite for a
period of up to eighteen (18) months after Acceptance of the Satellite. Refer to
Article 34.9 for storage beyond 18 months.
34.1.1. Purchaser, at its option to be exercised in writing subsequent to three
(3) months prior to the scheduled Delivery date of a Satellite up to the date
the Satellite is Launched, may elect storage of a Satellite. Contractor shall be
entitled (in addition to the usual charges specified in this Article 34) to be
reimbursed for any additional costs
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which Contractor would not have incurred if Purchaser had given three (3) months
notice, plus a [**************************]
34.2 Storage Location
Ground Storage shall be performed at a Contractor controlled facility and shall
be conducted in accordance with the Satellite Storage Plan delivered to
Purchaser pursuant to Exhibit A, Statement of Work.
34.3 Storage Prices
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34.4 Payments
If this option is exercised, the payment schedule shall be as follows: the first
monthly payment for the storage of PAS-6, shall be due thirty (30) days after
the Satellite is stored and will continue monthly while the Satellite is stored.
The final payment for reverification testing [*********************************
****************************************] after Purchaser's receipt of
Contractor's invoice for such testing via wire transfer as set forth in Article
5, PAYMENTS. In addition, within [**************] of a Satellites scheduled
Delivery date in effect at time of option exercise for storage, Purchaser shall
pay Contractor the applicable IOT Payment for such Satellite(s).
34.5 Title and Risk of Loss
Title and risk of loss to a Satellite delivered for Ground Storage shall remain
with Contractor at the storage site and notwithstanding the provisions of
Article 16 hereof, Contractor shall assume full responsibility for any loss or
damage to a Satellite during Ground Storage.
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34.6 Notification of Intention to Launch a Previously Stored Satellite
Purchaser shall notify Contractor in writing that a Satellite in Ground Storage
should be removed from Ground Storage and delivered to the Launch Site subject
to the availability of a Launch Vehicle. Contractor shall ready the Satellite
for Launch as soon as possible after such notice to coordinate with the
availability of the Launch Vehicle.
34.7 Orbital Performance Incentives
In the event that Purchaser elects to exercise the Ground Storage option(s)
provided for in this Article 34, after direction from Purchaser to place a
Satellite in Ground Storage, Purchaser shall pay interest to Contractor at a
rate of [****************************] per annum on the amount of Orbital
Performance Incentives specified in Article 14.1.1 hereof from ninety (90) days
after the Delivery date otherwise specified by Purchaser for the applicable
Satellite through the period of Ground Storage. Following the completion of IOT
of a previously stored Satellite, the provisions of Article 14 hereof shall
apply to Contractor's right to be paid and earn Orbital Performance Incentives.
34.8 Stored Satellite Refurbishment
If Purchaser desires a Satellite to be stored for more than eighteen (18)
months, Purchaser may notify Contractor of its desire to have such Satellite
refurbished or to continue ground storage for up to [******************] Within
sixty (60) days after receipt of Purchaser's notice electing refurbishment or
continued ground storage, Contractor shall provide Purchaser with (i) a plan for
refurbishment and a retest plan to recertify the Satellite as launch worthy or
(ii) a plan for continued ground
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storage, in either case together with proposed adjustments to the applicable
provisions of this Contract, all to be governed under Article 8 of this
Contract, except that costs shall be subject to a [*******************] markup
whether or not they are in excess of [****************].
34.9 Storage Period
Upon the conclusion of storage to be provided under this Contract for a
particular Satellite and if there is no immediately available Launch, Contractor
shall have no further responsibility for that Satellite and Purchaser shall
provide Contractor with directions for delivery and disposition of the
Satellite. Purchaser shall pay Contractor the full amount of Orbital Performance
Incentives specified in Article 14 hereof, less the cost of Launch Support
Services and Mission Operations Support Services for the particular Satellite
unless and to the extent that such costs have already been incurred. Contractor
shall transfer to Purchaser good and marketable title to the applicable
Satellite, free and clear of any claims, security interests, liens and
encumbrances.
34.10 Terms and Conditions
In the event that the options provided for under this Article 34 are exercised
by Purchaser, the terms and conditions of this Contract shall be applicable to
the services purchased pursuant to the options.
ARTICLE 35 RESERVED
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ARTICLE 36 RESERVED
ARTICLE 37 RESERVED
ARTICLE 38 RESERVED
ARTICLE 39 RESERVED
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ARTICLE 41 ADDITIONAL SATELLITE OPTION
41.1 Exercise of Option
Purchaser may, at its option which may be exercised at different times with all
exercises to be made by August 1, 2000 may order Contractor to provide for up to
two (2) Additional Satellites which shall conform to Exhibit B and/or Exhibit
B-1, as applicable, except that changes may be made in orbital location, antenna
coverage, frequencies (in the same band(s)) and associated technical parameters
at the time of option exercise. Any other changes will be accomplished in
accordance with Article 8.
41.2 Delivery Schedule
Delivery for services and/or equipment to be furnished under this option shall
be twenty-one (21) months ARO per Satellite. Purchaser may specify a later
Delivery date, but in no event may Purchaser specify a Delivery date that is
later than six (6) additional months. Furthermore, in no event shall an
Additional Satellite be Delivered earlier than three (3) months after the
scheduled Delivery of any other Satellite ordered hereunder.
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41.3 Option Price
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41.4 Reserved
41.5 Payment Plan
The Payment Plan for options provided in this Article 41 are provided in
Attachment A.
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41.6 Terms and Conditions
Terms and conditions of this Contract shall remain the same, except as specified
in this Article 41, including available options which may be exercised
differently.
ARTICLE 42 DISCLOSURE AND HANDLING OF PROPRIETARY
INFORMATION
The Parties recognize that in the performance of obligations under this
Contract, it may be necessary to exchange selected company proprietary,
competition sensitive or trade secret information (hereinafter referred to as
"Proprietary Information"). For this purpose, the Parties have executed a
Non-Disclosure Agreement which is identified as, and attached to this Contract,
as Attachment C. The confidentiality obligations imposed on the Parties with
regard to data provided under this Contract shall survive the termination, for
whatever reason, of this Contract in accordance with the requirements of
Attachment C.
ARTICLE 43 RIGHTS IN DATA
43.1 Deliverable Data
Contractor and Purchaser shall each retain all rights, title and interest in any
data of such Party utilized or developed by such Party during performance of
this Contract, it being understood that a Party's use of the other Party's data
shall not give the former Party any right, title, or interest in such data and
that Purchaser shall have all right, title, and interest to the Deliverable Data
under this Contract, subject to the Contractor's unlimited rights in such
Deliverable Data to the extent that such Data is generic to Contractor.
Purchaser agrees to treat the Deliverable Data, and both Parties agree to treat
all data of the other Party marked confidential or proprietary, as "Proprietary
Information" under Article 42.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
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43.2 Data Limitation
Nothing contained in this Article 43 shall require Contractor to provide any
data beyond that set forth in Exhibit A.
ARTICLE 44 AUTHORITY OF PURCHASER REPRESENTATIVE
No request, notice, authorization, direction or order received by Contractor and
issued either pursuant to an article of this Contract, to a provision of any
document incorporated in this Contract by reference, or otherwise, shall be
binding upon either Contractor or Purchaser, unless issued or confirmed in
writing by Purchaser's authorized representative. Designations of authorized
representatives (i) shall be in writing, signed by Purchaser's CEO, President,
Executive Vice President, or Chief Technology Officer and (ii) shall define the
scope and limitations of the authorized representatives' authorities. A copy of
each such designation and of each modification or cancellation thereof, shall be
furnished to Contractor. Contractor shall immediately notify, in writing,
Purchaser or its authorized representative whenever a request, notice,
authorization, direction or order has been received from a representative of
Purchaser other than Purchaser's authorized representative, which, by the lack
of authorization on the part of the issuing Purchaser's representative, would
require an amendment to this Contract within the meaning of this Article 44, or
an increase in the contract amount or amount allotted to this Contract, or
which, but for such lack of authorization, would otherwise be the basis for a
modification of the Statement of Work, delivery or performance schedule, price
or any other terms and conditions of this Contract.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
85
ARTICLE 45 PUBLIC RELEASE OF INFORMATION
Within a reasonable time prior to the issuance of news releases, articles,
brochures, advertisements, prepared speeches and other information releases
concerning the work performed hereunder by Contractor, a subcontractor or any
employee or a consultant of either, Contractor shall obtain the written approval
of Purchaser concerning the content and timing of such releases. Purchaser's
approval will not be unreasonably delayed or denied.
ARTICLE 46 NOTICES
46.1 Written Notification
Any notice(s) or correspondence required or permitted to be given or made
hereunder shall be in writing (except where oral notice is specifically
authorized). Wherever one Party is required or permitted to give written notice
to the other pursuant to this Contract, such notice(s) shall be deemed to be
duly given on of actual receipt, irrespective of whether sent by post, cable,
facsimile transmission (followed by mailing of a hard copy), overnight courier
or other method and addressed as follows:
In the case of Purchaser:
PanAmSat International Systems, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, President and CEO
TELE No: (000) 000-0000
FAX No: (000) 000-0000
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restriction on the title page of this volume.
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Copy: Chief Technical Officer
TELE No.: (000) 000-0000
FAX No: (000) 000-0000
and to
General Counsel
TELE No.: (000) 000-0000
FAX No: (000) 000-0000
and to:
Xxxxxxxx X. Xxxxxx, Esq.
Goldberg, Godles, Wiener & Xxxxxx
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
TELE No: (000) 000-0000
FAX No: (000) 000-0000
In the case of Contractor:
Space Systems/Loral, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxx, Manager, Commercial Contracts
TELE No: (000) 000-0000
FAX No: (000) 000-0000
Copy: Xxxxx Xxxxx
Executive Director, PanAmSat Program
TELE No.: (000) 000-0000
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
87
46.2 Change of Address
Either Party from time to time may change its notice address and/or the Parties
to be notified by giving the other Party written notice (as provided above) of
the new address and/or Parties and the date upon which the change shall become
effective.
ARTICLE 47 STOP-WORK ORDER
47.1 Stop-Work Order
Purchaser may, at any time, by written order to Contractor, require Contractor
to stop all, or any part, of the work called by this Contract for a period of
ninety (90) days after the order is delivered to Contractor, and for any further
period to which the Parties may agree. The order shall be specifically
identified as a stop-work order issued under this Article 47 and the work to be
stopped will also be identified. Upon receipt of the stop-work order, Contractor
shall immediately comply with its terms and take all reasonable steps to
minimize the incurrence of costs allocable to the work covered by the order
during the period of stop-work order. If Purchaser anticipates the issuance of a
stop-work order, Purchaser may so notify Contractor and, after receiving the
requisite information concerning the anticipated length of delay and the work to
be delayed, Contractor shall provide an estimate of the claim that would be
asserted pursuant to Article 47.3 hereof.
47.2 Resumption of Work
If Purchaser cancels the stop-work order within a period of ninety (90) days
after a stop-work order is delivered to Contractor, or within any extension of
that period to which the Parties shall have agreed, Contractor shall resume
work. In the event a stop-work order is issued under this Article 47 and the
period of the order or any extension thereof expires, then Contractor shall
resume work.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
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47.3 Stop Work Order Claims
Purchaser shall make an equitable adjustment in the delivery schedule or
contract price, or both and this Contract shall be modified, in writing, if the
stop-work order results in an impact to the delivery schedule, or in
Contractor's cost. Such adjustment shall include a [********] on such costs.
Contractor shall assert its rights to an adjustment within sixty (60) days, or
any extension to which the Parties have agreed, after the end of the period of
work stoppage.
ARTICLE 48 GENERAL
48.1 Limitation of Liability
a. NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER OR
ANY ENTITIES CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL OF A PARTY, AND
ITS RESPECTIVE OFFICERS AND DIRECTORS FOR ANY AMOUNTS REPRESENTING LOSS OF
PROFITS, LOSS OF BUSINESS, OR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR
PUNITIVE DAMAGES, (EXCLUDING ANY DAMAGES FOR WHICH CONTRACTOR BECOMES OBLIGATED
TO INDEMNIFY PURCHASER PURSUANT TO ARTICLE 19 WHICH DAMAGES ARE FOR INTELLECTUAL
PROPERTY CLAIMS TO COMPENSATE CLAIMANT FOR THE VALUE OF THE USE OF INTELLECTUAL
PROPERTY AT ISSUE, INCLUDING LOST ROYALTIES OR LICENSE FEES), ARISING FROM THE
PERFORMANCE OR NONPERFORMANCE OF THIS CONTRACT OR ANY ACTS OR OMISSIONS
ASSOCIATED THEREWITH OR RELATED TO THE USE
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89
OF ANY DELIVERABLE 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, UNLESS SUCH ACT OR OMISSION
ARISES FROM THE NON-CLAIMING PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
PURCHASER AGREES THAT ITS SOLE REMEDIES AGAINST CONTRACTOR ARISING UNDER OR
RELATED TO THIS CONTRACT AND BASED ON A SATELLITE FAILURE OR OTHER LOSS OF OR
DAMAGE TO A SATELLITE AFTER THE SATELLITE IS LAUNCHED ARE SET FORTH IN ARTICLES
8.6, 14 AND 15 PROVIDED, HOWEVER, IF A SATELLITE FAILURE OR OTHER LOSS OF OR
DAMAGE TO THE SATELLITE AFTER LAUNCH IS CAUSED SOLELY OR SUBSTANTIALLY BY
CONTRACTOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING LAUNCH SUPPORT
SERVICES OR MISSION OPERATIONS SUPPORT SERVICES, OR IOT, OR POST IOT OPERATIONS
SERVICES PROVIDED PURSUANT TO THE OPERATIONS SERVICES AGREEMENT, THE PURCHASER
SHALL BE ENTITLED TO DAMAGES UP TO A CEILING OF
[********************************] PER SATELLITE, EXCEPT THAT SUCH CEILING SHALL
NOT APPLY IF CONTRACTOR IS IN VIOLATION OF ARTICLE 40 (THIS CAP DOES NOT APPLY
TO THE LOSS OF ANY IN-ORBIT INCENTIVES PURSUANT TO ARTICLE 14 OR REDUCTIONS IN
PRICE UNDER ARTICLE 29). PURCHASER FURTHER AGREES TO OBTAIN FROM ITS SATELLITE
LAUNCH AND LIFE INSURERS A WAIVER OF SUBROGATION AGAINST CONTRACTOR AND ITS
SUBCONTRACTORS AND SUPPLIERS OF ANY TIER WITH RESPECT TO
[***] Filed separately with the Commission pursuant to a request for
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restriction on the title page of this volume.
90
CONTRACTOR'S OBLIGATIONS UNDER THIS CONTRACT. FOR THE AVOIDANCE OF DOUBT,
NOTHING IN THIS ARTICLE 48.1 SHALL OPERATE TO LIMIT EITHER PARTY'S RIGHTS OR
OBLIGATIONS UNDER ARTICLES 19 AND 28 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN.
48.2 Binding Effect; Assignment
This Contract shall be binding on and inure to the benefit of the Parties and
their respective successors and assigns. Except as otherwise provided in this
Contract, this Contract may not be assigned, either in whole or in part, by
either Party without the express written approval of the other Party; provided
that such approval shall not be unreasonably withheld, conditioned or delayed
and provided further that this Article 48.2 does not restrict Contractor from
utilizing subsidiaries, its other divisions or stockholder companies to
manufacture subsystems or components of the Satellites or other Deliverable
Items, nor does it restrict Purchaser from assigning this Contract to an entity
that, directly or indirectly, controls, is controlled by or is under common
control with Purchaser. Either Party may assign in their respective rights
hereunder to lenders that provide financing for the performance by such Party
under this Contract. In the event either Party is sold to or merged into another
company, its responsibilities under this Contract shall not be altered and the
successor shall become liable for performance of this Contract. Purchaser may
transfer and/or direct Contractor to transfer title to any Deliverable Item to a
third party designee; provided that Purchaser shall arrange with the third party
designee to execute a Non-Disclosure Agreement directly with Contractor that is
substantially the same as the Non-Disclosure Agreement attached to this Contract
as Attachment C and provided further that in no event shall such a designation
release Purchaser from its obligations hereunder (unless otherwise
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
91
provided in this Article 48.2). Purchaser may assign any obligation of Purchaser
relating to the operation of a Satellite after Delivery, provided that, in order
for Purchaser to be released from ultimate responsibility for the performance of
such obligation, the Contractor must approve the assignment, not to be
unreasonably withheld, conditioned, or delayed, or the recipient of the
assignment must, itself or through a common controlled entity, be the holder of
the FCC authorization to operate such Satellite. In the event of any assignment
by Purchaser which is permitted by the terms of this Article 48.2, (i) each and
every reference to "Purchaser" hereunder with respect to such assigned rights
and obligations shall be deemed a reference to such permitted assignee and (ii)
PanAmSat International Systems, Inc., as Purchaser hereunder, shall be released
from all liabilities and obligations under this Contract.
48.3 Severability
If any provision of this Contract is declared or found to be illegal,
unenforceable or void, the Parties shall negotiate in good faith to agree upon a
substitute provision that is legal and enforceable and is as nearly as possible
consistent with the intentions underlying the original provision. If the
remainder of this Contract is not materially affected by such declaration or
finding and is capable of substantial performance, then the remainder shall be
enforced to the extent permitted by law.
48.4 Waiver
No delay or omission by either Party to exercise any right or power shall impair
any such right or power or be construed to be a waiver thereof. No payment of
money by any person or entity shall be construed as a waiver of any right or
power under this Contract. A waiver by any Party of any of the covenants,
conditions or contracts to be performed by the other or any breach thereof shall
not be construed to be a waiver of
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restriction on the title page of this volume.
92
any succeeding breach thereof or of any other covenant, condition or contract
herein contained. No change, waiver or discharge hereof shall be valid unless in
writing and signed by an authorized representative of the Party against which
such change, waiver or discharge is sought to be enforced.
48.5 Gender; Captions
As used herein, the singular shall include the plural and the plural may refer
to only the singular. The use of any gender shall be applicable to all genders.
The captions contained herein are for purposes of convenience only and are not a
part of this Contract.
48.6 Relationships of the Parties
It is expressly understood that Contractor, on the one hand, and Purchaser, on
the other hand, intend by this Contract to establish the relationship of
independent contractors, and do not intend to undertake the relationship of
principal and agent or to create a joint venture or partnership between them or
their respective successors in interests. Neither Contractor, on the one hand,
nor Purchaser, on the other hand, shall have any authority to create or assume,
in the name or on behalf of the other Party, any obligation, expressed or
implied, nor to act or purport to act as the agent or the legally empowered
representative of the other Party hereto for any purpose whatsoever.
48.7 Entire Agreement
This Contract, including all Exhibits and Attachments hereto, and the Operations
Services Agreement represent the entire understanding and agreement between the
Parties hereto with respect to the subject matter hereof, supersedes all prior
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
93
negotiations and agreements with respect to the subject matter hereof, and can
be modified, amended, supplemented or changed only by an agreement in writing
which makes specific reference to this Contract and which is signed by both
Contractor and Purchaser.
48.8 Standard of Conduct
Both Parties agree that all their actions in carrying out the provisions of this
Contract shall be in compliance with applicable laws and regulations and neither
Party will pay or accept bribes, kickbacks or other illegal payments, or engage
in unlawful conduct.
48.9 Construction
This Contract, the Attachments and Exhibits hereto have been drafted jointly by
the Parties and in the event of any ambiguities in the language hereof, there
shall be no inference drawn in favor or against either Party.
48.10 "Including"
Whenever the terms "including" or "include" are used in this Contract in
connection with a list of items within a particular classification (whether or
not the term is followed by the phrase "but not limited to" or words of similar
effect), that list shall be interpreted to be illustrative only, and shall not
be interpreted as a limitation on, or an exclusive list of, the items within
that classification.
48.11 Counterparts
This Contract may be signed in any number of counterparts with the same effect
as if the signature(s) on each counterpart were upon the same instrument.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
94
48.12 Applicable Law
This Contract shall be interpreted, construed, and governed, and the rights of
the Parties shall be determined, in all respects, according to the laws of the
State of California without reference to its conflict of laws rules.
48.13 Survival
Termination or expiration of this Contract for any reason shall not release
either Party from any liabilities or obligations set forth in this Contract
which (i) the Parties have expressly agreed shall survive any such termination
or expiration, including the obligations in Articles 4, 15, 16, 19, 20, 28, and
43 or (ii) remain to be performed or by their nature would be intended to be
applicable following any such termination or expiration.
ARTICLE 49 ATTACHMENTS
The following Attachments are incorporated in this Contract:
Attachment A Payment Plans
B Orbital Performance Incentive Calculations
C Non-Disclosure Agreement
D Termination Liability Schedule
[****************************************]
[****************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
95
ARTICLE 50 ORDER OF PRECEDENCE
In the event of conflict between the Contract and the Exhibits thereto, the
following order of decreasing precedence shall follow:
o Contract, excluding Exhibits
o EXHIBIT A
o EXHIBIT B and EXHIBIT B-1
o EXHIBIT C
o EXHIBIT D
IN WITNESS THEREOF, the Parties have executed this Contract as of the date
specified in the PREAMBLE to this Contract.
PANAMSAT INTERNATIONAL SYSTEMS, INC.
By:
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
SPACE SYSTEMS/LORAL, INC.
By:
----------------------------------
Name: C. Xxxxxxx XxXxxx
Title: Executive Vice President, Business
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
96
ATTACHMENT A
Payment Plan for PAS-6
Date Amount
---- ------
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[**********************] [***************]
[*************************************] [***************]
[********************************]
[***********************************]
[********************************] [***************]
[***********************************]
[***************************] [************] [*****************]
[*****************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
PAYMENT PLAN FOR PAS-7
Payment Date Amount
------- ---- ------
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[*****] [***************]
[***************] [***************]
-----------------
[***************] [***************]
[******************************************************]
[*************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
PAYMENT PLAN FOR PAS-8
Payment Date Amount
------- ---- ------
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [***************] [***************]
[***************] [*****] [***************]
[*****] [***************]
[***************] [***************]
-----------------
[***************] [***************]
[************************************************************]
[**********************************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
Payment Plan for Price
Article 41
Additional Satellites
All Ku-band Hybrid
21-Month Del. 21-Month Del.
Time Payments Price* Price*
------------- ---------------------------------
[******] [************] [*************]
[******] [************] [*************]
[******] [************] [*************]
[******] [************] [*************]
[******] [************] [*************]
[******] [************] [*************]
[******] [************] [*************]
[******] [************] [*************]
[*********************************] [************] [*************]
[**************************]
[****************************]
[**********************************] [************] [*************]
----------------------------------
[*******************************]
[***************************] [************] [*************]
[******************************************************************************
*************************************]
[**********************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
ATTACHMENT B
ORBITAL PERFORMANCE INCENTIVE CALCULATIONS
[***...Twelve (12) pages of text have been redacted and are being filed
separately with the Commission pursuant to a request for confidential
treatment...***]
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
ATTACHMENT C
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of October, 1994, by
and between PanAmSat Corporation("PanAmSat") and Space Systems/Loral, Inc.
("SS/L") in connection with that certain Contract for PanAmSat Program (the
"Satellite Agreement") by and between the parties and dated the same date as
this Agreement.
WITNESSETH:
1. Acknowledgment of CONFIDENTIAL INFORMATION. PanAmSat and SS/L (the "Parties")
acknowledge and agree that a Party's CONFIDENTIAL INFORMATION is claimed to be
proprietary to and a valuable trade secret of that Party and that any
unauthorized use thereof may cause irreparable harm, and loss to such Party.
"CONFIDENTIAL INFORMATION" means all information, documentation, terms,
conditions, and compensation arrangements disclosed in writing, or made
available by one party to the other, which is clearly marked as being
confidential or proprietary, including, but not limited to, proposal data,
business, present, and future plans, present and future products, and policies
of each Party.
"CONFIDENTIAL INFORMATION" does not include information or documentation which
(1) was acquired by a Party before the contemplated discussions and when such
Party was under no obligation to keep such information confidential; (2) is or
becomes publicly known through no wrongful act of a Party hereto; (3) is
received from a third person or entity who is legally entitled to possession of
such information; or (4) was given orally, unless it is so designated at the
time of disclosure and is summarized and identified as such in writing within
thirty (30) days after disclosure.
2. Obligations of Nondisclosure. In consideration of the disclosure to each
other of CONFIDENTIAL INFORMATION, the Parties agree to treat such CONFIDENTIAL
INFORMATION in the same manner and degree of care as it would its own
CONFIDENTIAL INFORMATION of like importance, and to undertake the following
additional obligations with respect thereto:
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
- 2 -
(a) to use CONFIDENTIAL INFORMATION only for the purposes of negotiation,
performance and enforcement of either Party's contractual obligations;
consulting with actual or potential partners, investors, or customers; legal
compliance and obtaining necessary approvals from governmental agencies or
organizations; establishing, operating, or maintaining any "Satellite" (as
defined in the Satellite Agreement); or by PanAmSat to complete the construction
of any partially built item that PanAmSat may secure upon termination of the
Satellite Agreement ("Completion Contractors");
(b) not to copy, in whole or in part, CONFIDENTIAL INFORMATION except as
required to review such information or to achieve the purposes described in
paragraph (a);
(c) to limit dissemination of CONFIDENTIAL INFORMATION to:
(i) on a confidential basis, to those of each Party's employees, officers, and
directors, and each Party's legal consultants who have a need to know to perform
the limited tasks set forth in item (a) above; and
(ii) a Party's engineering consultants, affiliates, accountants, and actual or
prospective partners, launch companies, TT&C providers, Completion
Contractor(s), insurance agents and insurers, investors, and customers as the
case may be provided that, in such cases referred to in this Article 2(c)(ii), a
Party shall obtain written agreement to the terms hereof or comparable terms of
non-disclosure prior to any disclosure; and
(iii) governmental entities, including without limitation, the SEC and the FCC,
and other entities who require information for frequency coordination and
related activities provided that, in such cases, a Party shall take all
reasonable steps to seek confidential treatment for such portion of the
CONFIDENTIAL INFORMATION as may be exempt from public disclosure under the rules
of such entity.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
- 3 -
(e) upon the end of life of the last Satellite to be constructed under the
Satellite Agreement (including by a "Completion Contractor"), to return or
destroy any written CONFIDENTIAL INFORMATION (excluding contract material,
Deliverable Data or other information reasonably required to be held for record
purposes) in such Party's possession, including all copies and records thereof,
to the disclosing party upon request.
3. Survival. The restrictions and obligations of Paragraph 2 of this Agreement
shall survive any expiration, termination or cancellation of this Agreement or
of any other agreement between the Parties, and shall continue to bind the
parties, their successors, heirs and assigns, for a period of ten (10) years
from the date hereof.
4. Legally Required Disclosure. If a Party or any of its representatives becomes
legally compelled to disclose any of the CONFIDENTIAL INFORMATION, such Party
agrees to provide the Party which provided the CONFIDENTIAL INFORMATION with
prompt notice of such requirement and to cooperate with the Party which provided
the CONFIDENTIAL INFORMATION in seeking to obtain a protective order or other
arrangement pursuant to which the confidentiality of the portion of the
CONFIDENTIAL INFORMATION as may be exempt from public disclosure under the
applicable rules governing such disclosure is preserved. If such an order or
arrangement is not obtained, the Party to which the CONFIDENTIAL INFORMATION is
provided agrees that it and its representatives will disclose only that portion
of the CONFIDENTIAL INFORMATION as is legally required.
5. Application of Satellite Agreement; Prior Agreement Superseded. The
provisions of Article 48 of the Satellite Agreement (whether or not terminated
prior to the expiration of this Agreement) shall apply, in context, to this
Agreement. This Agreement supersedes the "Non-Disclosure Agreement" entered by
and between the parties, dated September 13, 1994.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
- 4 -
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first written.
PanAmSat CORPORATION
By:
----------------------------------
Name: Xxxx Xxxxxxx
Title: President and CEO
SPACE SYSTEMS/LORAL, INC.
By:
----------------------------------
Name: C. Xxxxxxx XxXxxx
Title: Vice President, Finance and Administration
Dist: SS/L Legal Office
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
ATTACHMENT D
Maximum Termination Liability Schedule For PAS-6
[******************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
Maximum Termination Liability Schedule for PAS-7 (Hybrid)
(Attachment D)
Date Amount*
---- -------
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[**************************************************************************
********************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
Maximum Termination Liability Schedule for PAS-8 (Hybrid)
Date Amount*
---- -------
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[*******************] [************]
[**************************************************************************
********************************]
[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
ATTACHMENT E
[***...Twenty-one (21) pages of text have been redacted and are being filed
separately with the Commission pursuant to a request for confidential
treatment...***]
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
ATTACHMENT F
[**************************************]
[******************************************************************************
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[***] Filed separately with the Commission pursuant to a request for
confidential treatment.
Use or disclosure of the data contained on this page is subject to the
restriction on the title page of this volume.
